I concur in the result. I cannot, however, agree with the majority that the following instruction to the jury was not erroneous: “ even if they [the witnesses] were to be determined accomplices, there is sufficient corroboration in the testimony of the defendant to sustain any such finding.” Unquestionably it was for the jury, who were the sole judges, to say whether the evidence relied upon to corroborate the accomplices was sufficient (People v. Mayhew, 150 N. Y. 346). They were not so instructed. I agree that this did not amount to reversible error in view of the fact that the court would have been warranted in holding that these witnesses were not accomplices as a matter of law.
Chief Judge Desmond and Judges Dye, Burke and Foster concur with Judge Fuld; Judge Froessel concurs in a memorandum in which Judge Van Voorhis concurs.
Upon reargument: Order reversed and case remitted to the Appellate Division to pass upon questions of fact (Code Grim. Pro., § 543-b).