I dissent.
Facts: Defendant and two codefendants, Stoner and Williamson, were jointly charged and tried for burglary. The jury *811found defendant and Stoner guilty of second degree burglary, but acquitted Williamson.
At 3:30 a.m. on April 26, 1961, police officers investigating a ringing burglar alarm saw two men run from a store to a ear. The officers gave chase and stopped the car, but as they approached it on foot, the driver ignored the warnings and drove off. The only one of the three occupants of the car whom the officers could identify was Williamson.
The chase proceeded, and defendant was stopped by officers while he was walking in the vicinity where they last observed the car. At this time he was carrying one of the stolen radios, which he claimed to have found.
The getaway car was in a lot across the street from where defendant was arrested. Stoner was found lying on the ground near it. Williamson’s name was on a borrowing agreement for the car, and he was arrested two days later.
Both defendant and Stoner offered alibis, and Williamson’s testimony was the only direct evidence which placed them at the scene of the crime.
Williamson claimed that he drove defendant and Stoner to a hotel near the scene of the burglary, ostensibly to collect a debt. After letting them out of the car, he drove around. When he returned, he saw them on the other side of the street and heard a burglar alarm. They ran to the car and stated that they had stolen some radios.
Williamson claimed he wanted to tell the police that he was not involved, but the others told him that the police would not believe him and that if he was caught with someone having a prison record, it would be a probation violation. When he saw the officers’ guns, he decided to drive away.
Questions: First. Did the trial court commit prejudicial error in repeatedly admitting into evidence certain admissions of Williamson and in allowing a police officer who had at first testified for the prosecution to he recalled as a defense witness in Williamson’s behalf!
No. Sergeant Larson, of the Los Angeles Police Department, was originally called as a witness for the People. He testified that in a conversation with him after Williamson’s arrest, Williamson stated that he was the driver of the Nash automobile, that defendant and Stoner broke into the store, that he had no idea what they were planning to do, and that, he ran from the police because he was afraid. The jury was properly instructed that these extrajudicial statements were admitted only as to Williamson.
*812On cross-examination, counsel for Williamson asked to be allowed to read to the jury Sergeant Larson’s narration of his conversation with Williamson, as given at the preliminary hearing. He asserted that a recital of this statement would tend to impeach Larson’s testimony at the trial. An objection by the district attorney on the ground there was no inconsistency was overruled.
Defendant contends that, in this instance, the district attorney was correct in making the objection, because the testimony was, in fact, almost identical.
Defendant argues the objective of counsel for Williamson was not to impeach the officer but to impress upon the jury that his client denied responsibility for' the crime and identified his codefendants as the guilty parties.
Williamson thereafter took the stand himself and again incriminated defendant while denying his own complicity in the crime.
Sergeant Larson was later called to testify again, but, this time as a' defense witness for Williamson. He corrected in certain particulars the testimony he had given earlier in the trial. He had testified, concerning events leading up to the burglary, that Williamson told him he and defendant were out drinking on the night the crime was committed: He corrected this testimony by stating that after he had listened to a tape recording of his conversation with Williamson, he found he had made a mistake, that Williamson had said he and Stoner had made the rounds of the bars and later went to defendant’s apartment, and not that he and defendant had been out drinking together.
This testimony was admitted in evidence under the “refreshed memory” rule. As corrected, the officer’s testimony conformed with the order of events as recounted by Williamson in his testimony.
It is not permissible to get before the jury damaging and prejudicial, but inadmissible, evidence against a codefendant, under the guise of introducing an admission or confession by someone else who has made a statement.
The parts of such declarations containing accusatory and inadmissible statements against codefendants should be excluded, and only those parts which contain admissions against interest or confessions by a declarant, or which are properly admissible for purposes of impeachment, should be admitted. (People v. Foote, 48 Cal.2d 20, 23 [3] [306 P.2d 803]; People v. Zammora, 66 Cal.App.2d 166, 212 [11] [152 P.2d 180].)
*813In the present case, however, defendant waived any objection to the testimony which was improperly admitted in evidence, since from the record it appears that he objected to the introduction of the testimony on only one occasion and then withdrew the objection. The rule is settled that any claim of error is waived by failure to make a timely objection at the trial. (People v. Marsh, 58 Cal.2d 732, 747 [16] [26 Cal.Rptr. 300, 376 P.2d 300].)
Likewise, there is no merit in defendant’s contention that it was error to allow the police officer to be recalled to testify as a defense witness for Williamson.
The prosecution cannot exercise control over whom a defendant may choose to call. If a defendant feels he can be benefited by calling one of the People’s witnesses as his own witness, he has a right to do so, and the officer has the duty to testify.
Second. Was it prejudicial error for the district attorney in his closing argument to recommend that the jury acquit Williamson 1
No. Since Williamson’s testimony was the only direct evidence which placed the other defendants at the scene of the crime, the jury’s verdict was dependent in large part on the credibility which the jurors placed on that testimony.
The deputy district attorney in his closing argument made the following comment: “Now, ladies and gentlemen, it’s a very interesting situation sometimes that the District Attorney finds himself in, and it’s infrequent enough that it’s a delightful experience when it happens. ... I think Mr. Williamson is telling you the truth, and quite frankly I do not think he is guilty of this charge. ... Williamson, has taken the stand. He has told what I consider is a plausible, honest, forthright story. ’ ’
The deputy then summarized the testimony and said: “I am beginning to sound like a defense counsel, but this is the duty of a District Attorney ... not to convict innocent people, it’s to convict the guilty....”
A judicious use of recommendations of acquittal should be promoted and not discouraged. The instant case well illustrates this rule.
Confronted with a mass of evidence that could easily have sustained a conviction against Williamson, the deputy argued that he was innocent. Had the recommendation not been forthcoming, it is quite possible that Williamson’s conviction *814would have resulted, and it is likewise possible that that conviction would have withstood further review.
It is, of course, possible that Williamson was actually guilty. However, our legal system is constructed on the premise that it is better to free the guilty than to convict the innocent. Therefore, it is preferable to encourage the use of recommendations of acquittal rather than discourage them. Any other rule would discourage a prosecutor from making recommendations of acquittal where he believed a defendant to be innocent.
It is contended that the deputy district attorney’s recommendation circumvented section 1099 of the Penal Code.* This contention is devoid of merit. It is clear from his statements that he did not formulate his opinion until after he heard Williamson’s testimony from the stand, at a time when recourse to section 1099 would not have been possible. But there was no occasion to either circumvent or rely on the procedure contemplated by section 1099. The obvious procedure was the motion to dismiss in the interests of justice as procedurally recognized by Penal Code section 1385.
Nor is there anything to indicate that the deputy’s investigation was inadequate or that he should have been able to make his decision earlier. Investigation in terms of questioning a defendant during the trial stages is not normally open to the district attorney.
It is also claimed that Williamson’s statements were made incontestable when the deputy told the jury he believed his story, and that the accomplice instructions were rendered ineffective.
It would appear that these conclusions rest on an exaggerated view of the impact of the deputy's recommendation insofar as it bears on defendant.
A prosecutor is regarded as an advocate. His concessions are given more weight than what he urges to further his contention that a defendant is guilty.
The deputy’s recommendation as to Williamson, because it was to acquit, would therefore normally carry more weight with a jury than the recommendation as to defendant’s guilt, because it was to convict.
*815There was nothing incontestable in what the deputy recommended. The jury could still have convicted all three or acquitted all three. It could even have convicted Williamson and acquitted defendant.
What the deputy said affected no instructions. The jury remained as capable of applying accomplice instructions, or considering evidence for a limited purpose, as it was before his statements.
Juries frequently disregard recommendations by prosecutors and certainly must be deemed to scrutinize them with care and independent judgment.
The most that can be said of the deputy’s action is that it gave him a chance to appear in a better light before the jury; but, in spite of what he said, the jury still retained its critical faculties. It is not beyond the bounds of possibility that the jury could have misconstrued his statements and acquitted all three defendants.
Third. Was it error for the district attorney to argue that defendant’s reason for lying to the police was the alleged fact that he had Benzedrine in his room ?
No. Defendant on cross-examination admitted to five prior felony convictions. Defamation by mentioning Benzedrine would have been, and was, superfluous. In any event, it could not have had any appreciable effect on the verdict. Therefore, under article VI, section 4%, of the Constitution, any alleged error on this ground must be disregarded by this court.
I would affirm the judgment.
Schauer, J., concurred.
Section 1099 of the Penal Code reads: ‘ When two or more defendants are included in the same accusatory pleading, the court may, at any time before the defendants have gone into their defense, on the application of the prosecuting attorney, direct any defendant to be discharged, that he may be a witness for the people. ’ ’