Davis

—Defendant James Davis appeals from a judgment convicting him of first degree robbery and assault with intent to commit murder. Defendant raises but one argument on appeal: that the trial court, while instructing the jury, made a comment of the character which was held erroneous and prejudicial in People v. Brock (1967) 66 Cal.2d 645 [ 58 Cal.Rptr. 321 , 426 P.2d 889 ], Since the trial court’s comment was almost identical to that disapproved in Brock , the sole question before this • court is whether such error was prejudicial or harmless in the light of the record as a whole. (People v. Thompson (1967) 252 Cal.App.2d 76, 91-92, 93 [ 60 Cal.Rptr. 203 ]; People v. George, 259 Cal.App. 2d 424 [ 66 Cal.Rptr. 442 ] 1 Crim. 5380 decided February 26,1968.

The facts are without dispute. Anne Enz testified that at approximately 1:30 or 2 p.m. on the afternoon of August 12, 1966, she was in the restaurant which was owned by herself and her husband, located on Larkin Street in San Francisco ; that she was alone in the restaurant when she glanced through the window and saw the defendant walk past the window, walking all over the sidewalk, like he was drunk. She thought of locking the door…