McDermott

The defendant and appellant was convicted upon an information filed by the district attorney of Los Angeles County, charging him with having wilfully, unlawfully, and feloniously, by means of force and fear, robbed, stolen, taken, and carried away from the person, possession, and immediate presence of Edward A. French and Charles Kellogg the sum of three thousand four hundred dollars. He appeals from the judgment, and from an order denying his motion for new trial, upon two grounds: (1) That the evidence was insufficient to support the verdict and judgment, and (2) that the trial court erred in instructing the jury that it lay within their province ■to determine whether or not the principal witness for the People was an accomplice.

The following instruction, the giving of which is assigned as error, will first be considered:

We think it clear that upon the facts here presented this instruction should not have been given. The uneontradicted evidence shows that the People’s witness, Sova, was the principal actor in the robbery of French and Kellogg, and that if the accused participated in it as testified by Sova, the latter was an accomplice in the crime. In fact, it was admitted…