¶1concurring.—I concur in the judgment, on the ground of error in the two instructions last men*46tioned in the foregoing opinion. By those instructions the court invaded the province of the,jUry as to the weight and effect of evidence.
¶2I perceive no error in the first instruction. -As I understand the instruction, which must :be taken as an entirety, and its several clauses harmonized, as-can be done without straining the meaning of the words used, it is a direction to the jury that they cannot convict either defendant unless Henry Coffey -had been killed under such circumstances that his killing would have been murder; but if there was no intent when the" assault was made to-commit ■ "murder, then the defendant'could ' only have been convicted of a simple assault, or in other words, if the assault had been made -without intent to commit murder, that even -though a killing had resulted, the defendant'could only have been convicted of simple -assault.
¶3The reasoning of the foregoing opinion is in accordance with these propositions. The case cited in the -foregoing opinion from Louisiana should not, I think, meet the approbation of this court as long as the ■ rule laid down in People v. Doyell, 48 Cal. 85, and the cases which follow it, regarding the construction of directions, remain as the-rule of this forum.