The three appellants were tried together and convicted of robbery. There was ample evidence that about 8 o’clock in the evening of November 10, 1964, someone violently knocked down one Hill and robbed him while he was unconscious. Hill “couldn’t say definitely” whether he was attacked by one, two, or three people, but thought he was attacked by “approximately three people that were together, seemingly.” No eyewitness testified.
There was circumstantial evidence, including possession of what seemed to be fruits of the crime, against appellants Childs and Taylor. There was evidence that they were present when the crime was committed and had “accosted” Hill just before it was committed. The evidence was sufficient to sustain their convictions. Although the court’s use of the word “accost” may have been somewhat misleading and the charge to the jury contained statements about the evidence which were not strictly accurate, we think it fairly clear that these matters did not affect the substantial rights of Childs or Taylor. We therefore affirm their convictions. Rule 52 (a), F.R.Crim.P.
The court charged the jury that “While Hill identified Cooper as one of the three persons who attacked and robbed him, there was no corroborating evidence offered as to Cooper.” Hill did identify Cooper as one of three persons who were present when he was attacked and robbed. But as I understand the record, Hill did not and could not identify Cooper as one of the persons who attacked and robbed him. Because Hill was “hit from behind” he did not see who attacked him, and because he was unconscious when he was robbed he did not see who robbed him.
By way of identifying Cooper as one of the persons present when he was attacked, Hill testified only that he “caught a good glimpse” of Cooper, “just a fleeting second, that’s all”, or “fleeting seconds”, when Cooper “came up” or “came by” and handed two pennies to Taylor, who had been begging Hill for money and was “waiving his hands”, “making all kinds of gestures”, and blocking Hill’s path to his car.
The court’s statement that “there was no corroborating evidence offered as to Cooper” was not strictly accurate. Though no one but Hill testified that Cooper was at the scene of the crime, and no fruits of the crime were found on Cooper, there was testimony that he knew Childs and Taylor, was with them soon after the crime, and was arrested at 8:30, although Cooper and two girls testified he was with them until two minutes of 9:00.
The court charged the jury, too broadly as Judge Bazelon points out, that *‘[i]f you are convinced by Hill’s identification, you have a right to find Cooper guilty.” The court continued, “On the other hand, you may ask yourself whether the identification is sufficiently convincing in view of the fact that Hill had seen Cooper but for a fleeting moment that evening and that there may be a possibility of error in the identification. If you feel that way you would *276be justified in having a reasonable doubt as to Cooper and finding him not guilty.” I think this understates the matter. It appears to me, though not to my colleagues, that a reasonable juror could hardly avoid a reasonable doubt that Cooper was present at the time of the crime, and could not avoid a reasonable doubt that he took part in the crime. Even regardless of the detailed and consistent alibi testimony of Cooper and two girls, I think the Government’s evidence was only sufficient to create a reasonable suspicion, or at most a likelihood, that Cooper was guilty. Perhaps the jury could reasonably think he was probably guilty, but this is not enough to support a criminal conviction. I would set aside Cooper’s conviction and direct the District Court to enter the judgment of acquittal which I think should have been entered at the trial. 28 U.S.C. § 2106. But as I am alone in this view, for the purposes of decision I join Judge Bazelon in ordering a new trial.
Nos. 19347 and 19348 affirmed.