(concurring in Nos. 19347 and 19348 with a separate opinion in No. 19340).
I concur in Judge Edgerton’s opinion affirming the convictions of appellants Taylor and Childs in Nos. 19347 and 19348 respectively. While the evidence against appellant Cooper in No. 19340 is indeed weak, I think it sufficient “by a hair’s breadth” to avoid the verdict of acquittal which Judge Edgerton would direct.1 But “the closeness of the issue * * * imposed an obligation on the trial judge to instruct the jury with extreme precision, as he realized, and on us to review the charge with what, in a less doubtful case, would be undue meticulousness.” 2 Upon such scrutiny of the instructions, I find plain error requiring reversal for a new trial under Rule 52(b), Ped.R.Crim.P.3
Two questions were presented for the jury by this case: first, was appellant Cooper the third man the victim, Hill, saw just before the attack; and second, if Cooper was present, did he participate in the crime. On the issue of presence, Cooper's evidence tended to show that he was not at the scene of the crime; but Hill testified that, just after he emerged from the liquor store and was stopped by appellant Taylor’s begging, Cooper approached Taylor and gave Taylor two cents. Hill’s identification of Cooper was based on a hurried glance, but was unequivocal.
Even if Cooper was present, there was no direct evidence that he participated in the crime. Hill was unable to identify the man or men who assaulted him and no eyewitnesses testified. He observed “quite a few” people walking up and down the main street in front of the liquor store when the assault occurred. Appellant Taylor testified that “there was [sic] a whole lot of fellows on the street at that time that hung around the store.” There was no contradictory evidence. Therefore, since the assault took place on the edge of the apron in front of the store and since Hill was struck from behind and did not see his assailants, we may not exclude the possibility that someone other than one of the three appellants assaulted him. The possibility that Cooper was a bystander and not a participant is heightened by the fact that Taylor and Childs were found with stolen property on their persons while none was found on appellant Cooper.
On the other hand, there was evidence from which to infer that Cooper *277was an active participant or at least an aider and abetter of the crime. Cooper’s payment of two cents to his friend Taylor could be viewed as a signal which in some way “triggered” the robbery, since immediately after the payment Taylor informed Hill that he could go and, after taking six steps, Hill was struck from behind. Also, Cooper was seen in the company of Taylor and Childs approximately fifteen minutes later and, after reaching Taylor’s sister’s home, urged Taylor to hurry because “they had to go.”4
In the general introductory instructions, the trial court correctly discussed the elements of robbery, and aiding and abetting although the discussion was rather abstract. Later, when the trial judge chose to comment on the evidence relating to appellant Cooper, he said only:
While Hill identified Cooper as one of the three persons who attacked and robbed him, there was no corroborating evidence offered as to Cooper.
Now, as I said before, as a matter of law corroboration is not required. If you are convinced by Hill’s identification, you have a right to find Cooper guilty. 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 be justified in having a reasonable doubt as to Cooper and finding him not guilty.
The instructions ended almost immediately thereafter.
A trial judge must exercise great care when he summarizes specific evidence in the case for the jury, and even greater care is required if he chooses to go further and instruct the jury on the legal consequences of specific evidence. Since Hill testified that he had been unable to see who actually attacked and robbed him, the first sentence of the above quoted instruction seriously misstated the evidence against appellant Cooper, and by itself might be sufficiently prejudicial to call for a new trial.5 Even more serious, however, is the fact that, when the trial judge focused attention on the evidence in the case relevant to appellant Cooper, the judge charged that Cooper’s guilt depended solely upon Hill’s identification, notwithstanding the fact that the identification, if believed, only served to place Cooper at the scene of the crime.
Because Cooper defended primarily on the ground that he was not present,6 it is perhaps understandable why the trial judge failed to instruct the jury specifically with respect to Cooper that participation was needed as well as presence. But Cooper’s participation in the crime, far from being admitted, was in some doubt under the evidence. Thus, when the trial judge told the jury that they could convict Cooper on Hill’s identification, clarity and fairness to appellant required the judge to point out that identification would establish Cooper’s presence only, and that conviction would also require a belief that he joined in the robbery or aided in its commission.
No objection was made to the instruction at trial.7 Similar instructions were *278held plain error in United States v. Garguilo, 310 F.2d 249 (2d Cir. 1962)“, where Macchia, a co-defendant, was convicted on strong evidence that he had been present at the scene of the counterfeiting and knew what was going on, although the evidence of participation was weak. The trial judge there initially gave an instruction on aiding and abetting.8 Immediately thereafter, he told the jury that, assuming Macchia was present at the site of the counterfeiting, the question was whether he knew what was going on. But this time he did not mention that participation was essential for guilt.9
Judge Friendly, writing for the Court of Appeals in Garguilo,10 found that the trial judge’s initial instruction on aiding and abetting was stated “with entire correctness” and “would have been adequate, indeed excellent, in the usual trial.”11 But the trial judge’s subsequent instruction was held to be defective because it “related solely to the issue of ‘conscious, intelligent awareness of what was going on,’ ” without linking this to the essential element of participation. The initial instructions “with respect to purposive participation, although correct, were rather abstract.” Once the trial judge undertook to relate the specific facts of *279the case to the law, with hypothetical illustrations, the jurors were never
told in plain words that mere presence and guilty knowledge on the part of Macchia would not suffice unless they were also convinced beyond a reasonable doubt that Macchia was doing something to forward the crime — that he was a participant rather than merely a knowing spectator.12
Accordingly, the court held that:
Reading the entire charge, we cannot overcome a fear that the judge, quite unwittingly and simply by emphasis, may have led the jury to believe that a finding of presence and knowledge on the part of Macchia was enough for conviction. * * * In the usual case we should not think of finding reversible error in such a charge when there was no objection, or perhaps even if there had been. However, in the exceptional circumstances here presented, and in the light of our powers under 28 U.S.C. § 2106 and F.R.Crim.Proc. 52(b), we believe that the interests of justice as between the Government and Macchia will be best served by reversal and remand for a new trial.13
The instructions in the present case are even more vulnerable. Here, as in Garguilo, the evidence of participation is quite weak. There, the jury was not specifically told that knowledge was sufficient for guilt. On the contrary, the trial judge admonished the jury:
You have got to establish that [intelligent awareness] first and, once you established that, then determine the extent to which he aided, abetted or encouraged.
Here, on the other hand, the trial judge not only misstated the evidence by saying “Hill identified Cooper as one of the three persons who attacked and robbed him,” but he also instructed the jury that “if you are convinced by Hill’s identification, you have a right to find Cooper guilty.”
Judge Edgerton authorizes me to say that he concurs in my view of the instructions, and for the purposes of decision, joins in ordering a new trial.
No. 19340 is reversed and remanded for a new trial.
. United States v. Garguilo, 310 F.2d 249, 254 (2d Cir. 1962); see also Gurley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947).
. United States v. Garguilo, supra note 1, at 254, of 310 F.2d, citing Glasser v. United States, 315 U.S. 60, 67, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
. See Barry v. United States, 109 U.S. App.D.C. 301, 287 F.2d 340 (1961); Mullen v. United States, 105 U.S.App.D.C. 25, 263 F.2d 275 (1958); Tatum v. United States, 88 U.S.App.D.C. 386, 190 F.2d 612 (1951).
. Cooper was arrested along with Taylor and Childs. The arresting officer testified that Hill’s description of the suspects was only “a Negro male, light skinned, wearing a long black coat, with black pants, and round face, * * * along with two other males with short jackets.”
. See Blunt v. United States, 100 App.D.C. 266, 276, 244 F.2d 355, 365 (1957); cf. Jones v. United States, 119 U.S.App.D.C. 213, 338 F.2d 553 (1964).
. Cooper in no way conceded that, if he was present, his participation in the crime was established. Byrd v. United States, 119 U.S.App.D.C. 360, 342 F.2d 939 (1965).
. The point was called to our attention by appellant’s brief which stated:
“He [the trial judge] told the jury, in the clearest English, that the only thing they need find was that Hill’s identification of Cooper was correct. *278and that, without finding else, they could find Cooper guilty, which they did. He did not tell the jury that, in addition to finding Hill’s identification of Cooper, as a man he saw, to be correct beyond a reasonable doubt, they must also find, in addition, beyond a reasonable doubt, that Cooper was one of the actual attackers of Hill and one of the robbers.”
. The charge stated:
“[A]ny person who voluntarily takes an active part in promoting of [sic] facilitating the commission of a crime, with knowledge of the unlawful objective, bears the same responsibility under the law as one who directly commits the offense * * *. [T] he law makes equally responsible any person who consciously associated himself with the criminal venture with the intent that his conduct aids its success. Now, such person as Mecchia [sic] need not have participated in all the transactions which were involved in the commission of the crime. He is equally liable if you find that he commanded, requested, encouraged, provoked or aided another, in this case Garguilo, in planning or committing the crime. However, it is essential that he knew of the criminal purpose and intended his participation to aid in its accomplishment.”
. The charge continued:
“Let me try to give that a little bit more point in light of the facts of this case. There is testimony to the effect that Mecchia was in the company of Garguilo at the printing plant of Villari and at the photo studio of Dellamonjco. I am assuming now that you believe that testimony * * *.
“Now let us take it from there, making those basic assumptions, Was Mec-chía close enough to the transactions, to the conversations, to the general atmosphere of the transactions to know what was going on? Did he have an intelligent, conscious awareness of what was going on? And if he did have that conscious, intelligent awareness of what was going on, was it sufficient to constitute an aiding or abetting within the terms of the definition I gave you?
“For instance, let me give you a ridiculous example, not because it happened in this case but because I think it will help you to understand what the definition is about and why this is so important. Suppose Garguilo took Villari outside to his car, and suppose there was a man in the back seat who was fast asleep and all rolled up in a rug or with his overcoat over his head, and there is a prone body there, and he says, ‘There is my pal, my partner, and my co-conspirator.’ Let’s say he used all those words and then he walked away with Villari, Obviously, if this man is fast asleep and he is wrapped up in a coat or a rug, he can’t possibly have any sense of awareness and he can’t be participating in the other man’s transaction or statements.”
Upon request, the trial judge in Garguilo later repeated his general instruction on aiding and abetting, see note 8, supra, and then gave specific, contrasting hypothetical cases turning on knowledge.
. Chief Judge Lumbard dissented to that part of the majority opinion that “implies that there was not enough evidence from which the jury could conclude that Macchia was guilty as an aider and abettor.”
. All quotations in the text are found in United States v. Garguilo, 310 F.2d 249, 254 (2d Cir. 1962).
. Ibid.
. Id., at 254-255.