Odom

This ease is before us for the second time by reason of the decision of the United States Supreme Court in Griffin v. California, 380 U.S. 609 [ 85 S.Ct. 1229 , 14 L.Ed.2d 106 ], holding invalid, under the Fifth and Fourteenth Amendments to the United States Constitution, article I, section 13, of the state Constitution, which permitted comment on an accused’s failure to testify on his own behalf.

The principal issues are whether defendants were entitled to separate counsel at their trial and whether comment by the prosecution on Odom’s failure to testify was sufficiently prejudicial to require that we reverse his judgment of conviction.

Defendants Odom and Lindsey were charged with robbery of a Los Angeles gas station on May 12, 1963. Each was identified by a witness as a participant, and both were arrested on May 14 in what had been reported as the getaway car.

On May 16 the public defender was appointed to represent both defendants. On May 20 at the preliminary hearing defendants were held to answer the charges against them. Both continued to be represented by the public defender up to the date of trial. On July 12, one week before trial, Lindsey petitioned the trial court…