Gullick

— Defendants Theodore Gullick and James Robert Crumbey appeal from judgments of conviction entered on a jury verdict finding them guilty of burglary and assault with a deadly weapon and from orders denying their motions for new trial.

Boy’s Market in Los Angeles was burglarized and James W. Robinson, a porter in the market, was assaulted on the evening of February 15, 1959. There were two principal witnesses for the prosecution, Robinson, the porter, and William Grant, Jr., a confessed conspirator, who implicated defendants after a promise of immunity from the district attorney. Defendants contend that they had no connection with the crimes.

Robinson testified that he was alone in the market cleaning up after closing hours when he was surprised by two men who stabbed and beat him and then tied him up. He managed to shuffle into the elevator, where he was found three hours later by police officers and the vice-president of the market. An officer testified that Robinson described his assailants as “Two male Negroes, one five foot six and one five foot seven, one weighed 150 and the other 152; they both had black hair; eyes, color unknown: One wearing brown coat and the other dark…

Dissenting. — In reversing the judgments of conviction entered on the jury’s verdicts of guilty, the majority hold that the evidence would support a finding that William Grant was an accomplice of defendants, and hence that the trial court erred in refusing to instruct on the law of accomplices and on the necessity that accomplice testimony be viewed with distrust and be corroborated. The majority refer only to portions of the evidence ; 1 but, according to their opinion, “From a review of the entire record,” they determine “that it is reasonably probable that the jury concluded that [James W. Robinson, the principal prosecution witness, eyewitness and victim of the assault] had no independent recollection of the identity of his assailants and identified defendants at the trial solely because the officers had told him that they had the men who committed the crime and then presented defendants to him. If so, Grant’s testimony was crucial, and instructions on accomplice testimony essential.”

I agree that the failure to give the subject instructions was error; I cannot agree, however, that there is any substantial basis for concluding that such error was prejudicial. The majority…