¶1I dissent.
¶2The majority opinion in this case shows a record replete with error. One instruction is held to be “manifestly erro*244neons” in each of the three sentences of which it is composed, and irrelevant to any issue in the case. Another instruction is held to incorrectly state the law as clarified in People v. Valentine, 28 Cal.2d 121, 137-144 [169 P.2d 1]. With respect to other instructions (and their number is not stated), bearing on the issue of justifiable homicide, it is said that " although they [the instructions] contain no actual misstatement of law, [they] are not clear cut, impartial statements of law but are phrased from the point of view of the prosecution. They include the instructions quoted and criticized for this reason in People v. Hatchett (1944), 63 Cal.App.2d 144, 157-159, 162, 165 [146 P.2d 469], Certain of these instructions were similarly criticized in People v. Estrada (1923), 60 Cal.App. 477, 483 [213 P. 67], . . . Instead of reiterating principles slanted from the prosecution point of view, the trial court should have instructed the jury as to the principle of apparent necessity from the point of view of a reasonable person in the position of defendant as shown by any tenable view of the evidence, and this despite the fact that defendant’s proposed instructions on the subject were in part so confusingly worded as to be properly refused.”
¶3Testimony of a conversation between a police officer and defendant is held to have been improperly admitted, and in connection with it an instruction on the subject of accusatory statements is held to have been erroneously given. Further errors are held to have been committed by the trial court’s rulings excluding evidence which defendant contends would have tended to show that the proximate cause of the victim’s death was not the bullet wound but the negligent manner in which the wound was treated. The majority opinion states: ‘‘The objections and the rulings thereon disclose that the court and the' deputy district attorney labored under the misconceptions that the question of what constitutes proper, improper, and grossly improper surgical procedure in a given situation is not a subject for expert testimony, and that the hypothetical questions were insufficient (even though they set forth an assumed state of facts supported by evidence applicable to Rypdahl [the victim]) because no ‘foundation’ was laid with respect to Rypdahl [the victim].”
¶4In the face of this plethora of error, the majority opinion concludes that no prejudice was suffered by defendant and that no reversible error was committed. This conclusion is *245reached by the method of discussing separately with respect to each error the matter of prejudice resulting from it. The question whether the accumulation of error is so heavy as to itself constitute possible prejudice is not mentioned. The subject of the cumulative effect of numerous errors, each of which separately committed might not show prejudice, should be considered. Where mistakes on the part of the trial court abound and touch not only the charge to the jury but also rulings on evidence, it cannot be assumed that defendant has had a fair trial and that no miscarriage of justice has resulted. (See People v. Mahoney, 201 Cal. 618, 627 [258 P. 607]; Hirshfeld v. Dana, 193 Cal. 142, 150 [223 P. 451]; Adkins v. Brett, 184 Cal. 252, 261 [193 P. 251]; People v. Newcomer, 118 Cal. 263, 267 [50 P. 405]; People v. Hatchett, 63 Cal.App.2d 144, 152 [146 P.2d 469]; People v. Flores, 15 Cal.App.2d 385, 406 [59 P.2d 517]; Valentine v. Provident Mut. L. Ins. Co., 12 Cal.App.2d 616, 621 [55 P.2d 1243].)
¶5As said in People v. Mahoney, supra,at page 627; “The fact that a record shows a defendant to be guilty of a crime does not necessarily determine that there has been no miscarriage of justice. In this ease the defendant did not have the fair trial guaranteed to him by the law and the constitution. ’ ’ Again, as declared in People v. Flores, supra,at page 406: “Prejudice is a matter of degree. An incident in the light of one record might not necessarily be prejudicial and reversible error, but a similar incident in the light of another record might be highly prejudicial. The record presented herein is such character that relatively slight error could have easily resulted in a miscarriage of justice. ...” Lastly, are the pertinent remarks from People v. Hatchett, supra,at page 152: “We have found it necessary to discuss a good many of the instructions given and some of those refused, and our conclusion is that the errors were such as to require a reversal. It is the cumulative effect of numerous errors which forces this conclusion, and we reiterate that we are considering the probable effect of such errors upon the jury’s determination of guilt in a ease where guilt was not firmly established. We consider it not improbable that a conviction would not have occurred but for the errors. ... We find appropriate to our discussion the statement of the Supreme Court in People v. Newcomer (1897), 118 Cal. 263, at 267 [50 P. 405]: ‘Under these circumstances, if the appellant was justified in killing the deceased, as he might have been, he was *246in the embarrassing position of one who justly kills another when there is no other witness to the homicide, when he has to admit the homicide and depend greatly upon his own testimony to justify it. In such a case it is evident that a jury will have difficulty in determining the real facts; and in such a case it is apparent that the instructions of the court are very important—particularly when, as in the case at bar, the court instructs at great length. Under such circumstances, any instruction tending to lead the jury from the real issues in question is material, and if erroneous is reversible error.” [Emphasis added.]
¶6Added to the confusing situation already outlined is the fact disclosed by the majority opinion that in the charge to the jury great prominence (although perhaps, as held, not “undue” prominence) was given to the crime of murder. In view of all these circumstances, I cannot see how a reviewing court can be justified in concluding that the jury may not have been misled or that defendant did not suffer prejudice from the weight of the cumulative errors which were committed by the trial court. In my opinion, a reversal of the judgment is required.
¶7Appellant’s petition for a rehearing was denied January 15, 1948. Carter, J., voted for a rehearing.