LILLIE, J.
Defendants were charged by information with a violation of section 211 of the Penal Code and convicted by a jury of first degree robbery. Their motions for new trial were denied and both were sentenced to the state prison. From the judgment of conviction and order denying motion for new trial both defendants appeal.
The defendants offered no evidence at the trial. The following facts are taken from the People’s case. On October 8, 1957, at approximately 2 a.m. Robert W. McKenzie, while walking alone on the beach, was accosted and robbed by two men. Neither spoke to him. Although he saw no weapon on either man as he fell in the sand he was struck repeatedly about the head with a heavy object. He was rendered unconscious. When he came to he discovered 80 cents in change, his keys and his wallet containing a campfire permit, badge, identification card, credit cards, insurance card and driver’s license were missing. He called police who searched the area and found nothing. McKenzie suffered two lacerations on the side of the head, multiple bruises and abrasions on the face, a cut lip, two broken teeth and a fractured rib.
On the same morning, one and one-half hours later, police stopped a slow-moving car owned by defendant Triandofilos in which he was riding and which defendant Carr was driving. The rear license plate was partially obscured by mud and dirt. Upon being asked to produce his driver’s license Carr walked back to the trunk compartment, opened it with a key, and searched in a small bag wherein officers later found McKenzie’s campfire permit (Exhibit 2) and his keys (Exhibit 3). Both defendants were arrested and when the ear was searched police found two loaded guns, a p.38 and a .45 automatic pistol, only one of which was offered into evidence. Defendants claimed they had been burglary victims and that for their protection Triandofilos had purchased the guns in another state.
A week later in the Culver City police station McKenzie identified Carr from a 15-prisoner lineup as one of his assailants. He could not identify the second man and at no time has claimed defendant Triandofilos was the other involved.
Both defendants told police they had left New York together several weeks before and had been together since. Carr [571]*571explained they had been driving around waiting for morning so they could see a man about getting work. He claimed he had found McKenzie’s campfire permit and keys in a service station restroom shortly before his arrest, had tossed them into his bag in the trunk of the car and told Triandofilos, who had been asleep in the car, nothing about them. Triandofilos, who told police he had never been in trouble before, denied knowing anything about the two items. Both defendants denied to the police they had robbed and beaten McKenzie.
At the trial McKenzie identified Carr as one of the men whom he “believed” had attacked him and upon further query by the prosecuting attorney as to whether it was his best recollection that defendant Carr was one of the two McKenzie responded, “Yes, it is.” Asked on cross-examination what led him to believe Carr was the man he answered, “I saw him with the light behind him and he was silhouetted against the light. He was a man of stocky build and at the time he had light blond or light brown hair. ...” McKenzie admitted he was unable to see their features and could give no further description of either man. Dr. Rayóla who examined the victim’s wounds testified that they were caused by an instrument similar to the .45 automatic pistol. Martin Klein, forensic chemist, examined the .45 automatic and found traces of blood on the rear portion of the “sleeve” of the weapon but because the quantity was so small could not determine its age or even whether it was human blood. No traces of hair were found on the weapon.
Defendants did not testify at the trial and no evidence was offered on their behalf.
Appellants contend first that the evidence was insufficient to sustain the conviction and, second, that the deputy district attorney was guilty of prejudicial misconduct.
The rule relating to an appeal court’s review of the evidence is well stated in the case of People v. Osslo, 50 Cal.2d 75 [323 P.2d 397], and People v. Daugherty, 40 Cal.2d 876 [256 P.2d 911]. Unquestionably the evidence against defendants is largely circumstantial but it is with this principle of appellate review in mind that we examine the main circumstances relied upon by the prosecution to connect defendants with the perpetration of the robbery.
When arrested Carr had in his possession two items belonging to McKenzie, a campfire permit and some keys. This fact, appellants claim, without other suspicious or incriminatory circumstances is insufficient to sustain the con[572]*572viction. Such evidence of course is admissible, tending to show the identity of the perpetrator of an offense, but mere possession of stolen property alone is not sufficient to sustain a conviction. It is only a circumstance tending to prove guilt. However we find in this record the ‘ ‘ slight corroborative evidence of other inculpatory circumstances” necessary to sustain the conviction. (People v. Wissenfeld, 36 Cal.2d 758, 763 [227 P.2d 833]; People v. Holland, 82 Cal.App.2d 310, 312 [186 P.2d 58]; People v. Leary, 28 Cal.2d 727, 735 [172 P.2d 34].) We refer to the identification of Carr as one of the assailants and defendants’ possession of the .45 automatic. The jury was not bound to, and did not, accept Carr’s explanation about finding the stolen items even though it could have reasonably inferred that had he robbed McKenzie he probably would have kept the more valuable part of the loot— the driver’s license and identification cards.
As to the identity of those who beat and robbed him McKenzie’s description was vague. He described only one, as of stocky build with light hair. However a week later in a police lineup he identified Carr and again at the trial pointed to him as one who “I believe attacked me.” On further examination he affirmed that to his best recollection Carr was one of the men.
It is true that McKenzie’s opportunity to observe the two men was not only limited but under most difficult conditions and that other evidence in the record might well have convinced the jury that McKenzie’s identification of Carr, under the circumstances, was not worthy of belief. However we might feel about the wealmess of Carr’s identification, the jury in evaluating and weighing the evidence had a right to, and did, accept McKenzie’s testimony. The evidence that it was dark at the time of the robbery; that the victim had been drinking, was nearsighted and wore glasses which had been knocked off his face; that when he fell to the ground he put his hands over his head and at no time saw the features of the two men or heard their voices; and that McKenzie was under great fear and stress and received head blows severe enough to render him unconscious, only served to create a question of fact for the jury. The resolution of the conflicting evidence is for the trier of fact. (People v. Huizenga, 34 Cal.2d 669 [213 P.2d 710]; People v. Ross,
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LILLIE, J.
Defendants were charged by information with a violation of section 211 of the Penal Code and convicted by a jury of first degree robbery. Their motions for new trial were denied and both were sentenced to the state prison. From the judgment of conviction and order denying motion for new trial both defendants appeal.
The defendants offered no evidence at the trial. The following facts are taken from the People’s case. On October 8, 1957, at approximately 2 a.m. Robert W. McKenzie, while walking alone on the beach, was accosted and robbed by two men. Neither spoke to him. Although he saw no weapon on either man as he fell in the sand he was struck repeatedly about the head with a heavy object. He was rendered unconscious. When he came to he discovered 80 cents in change, his keys and his wallet containing a campfire permit, badge, identification card, credit cards, insurance card and driver’s license were missing. He called police who searched the area and found nothing. McKenzie suffered two lacerations on the side of the head, multiple bruises and abrasions on the face, a cut lip, two broken teeth and a fractured rib.
On the same morning, one and one-half hours later, police stopped a slow-moving car owned by defendant Triandofilos in which he was riding and which defendant Carr was driving. The rear license plate was partially obscured by mud and dirt. Upon being asked to produce his driver’s license Carr walked back to the trunk compartment, opened it with a key, and searched in a small bag wherein officers later found McKenzie’s campfire permit (Exhibit 2) and his keys (Exhibit 3). Both defendants were arrested and when the ear was searched police found two loaded guns, a p.38 and a .45 automatic pistol, only one of which was offered into evidence. Defendants claimed they had been burglary victims and that for their protection Triandofilos had purchased the guns in another state.
A week later in the Culver City police station McKenzie identified Carr from a 15-prisoner lineup as one of his assailants. He could not identify the second man and at no time has claimed defendant Triandofilos was the other involved.
Both defendants told police they had left New York together several weeks before and had been together since. Carr [571]*571explained they had been driving around waiting for morning so they could see a man about getting work. He claimed he had found McKenzie’s campfire permit and keys in a service station restroom shortly before his arrest, had tossed them into his bag in the trunk of the car and told Triandofilos, who had been asleep in the car, nothing about them. Triandofilos, who told police he had never been in trouble before, denied knowing anything about the two items. Both defendants denied to the police they had robbed and beaten McKenzie.
At the trial McKenzie identified Carr as one of the men whom he “believed” had attacked him and upon further query by the prosecuting attorney as to whether it was his best recollection that defendant Carr was one of the two McKenzie responded, “Yes, it is.” Asked on cross-examination what led him to believe Carr was the man he answered, “I saw him with the light behind him and he was silhouetted against the light. He was a man of stocky build and at the time he had light blond or light brown hair. ...” McKenzie admitted he was unable to see their features and could give no further description of either man. Dr. Rayóla who examined the victim’s wounds testified that they were caused by an instrument similar to the .45 automatic pistol. Martin Klein, forensic chemist, examined the .45 automatic and found traces of blood on the rear portion of the “sleeve” of the weapon but because the quantity was so small could not determine its age or even whether it was human blood. No traces of hair were found on the weapon.
Defendants did not testify at the trial and no evidence was offered on their behalf.
Appellants contend first that the evidence was insufficient to sustain the conviction and, second, that the deputy district attorney was guilty of prejudicial misconduct.
The rule relating to an appeal court’s review of the evidence is well stated in the case of People v. Osslo, 50 Cal.2d 75 [323 P.2d 397], and People v. Daugherty, 40 Cal.2d 876 [256 P.2d 911]. Unquestionably the evidence against defendants is largely circumstantial but it is with this principle of appellate review in mind that we examine the main circumstances relied upon by the prosecution to connect defendants with the perpetration of the robbery.
When arrested Carr had in his possession two items belonging to McKenzie, a campfire permit and some keys. This fact, appellants claim, without other suspicious or incriminatory circumstances is insufficient to sustain the con[572]*572viction. Such evidence of course is admissible, tending to show the identity of the perpetrator of an offense, but mere possession of stolen property alone is not sufficient to sustain a conviction. It is only a circumstance tending to prove guilt. However we find in this record the ‘ ‘ slight corroborative evidence of other inculpatory circumstances” necessary to sustain the conviction. (People v. Wissenfeld, 36 Cal.2d 758, 763 [227 P.2d 833]; People v. Holland, 82 Cal.App.2d 310, 312 [186 P.2d 58]; People v. Leary, 28 Cal.2d 727, 735 [172 P.2d 34].) We refer to the identification of Carr as one of the assailants and defendants’ possession of the .45 automatic. The jury was not bound to, and did not, accept Carr’s explanation about finding the stolen items even though it could have reasonably inferred that had he robbed McKenzie he probably would have kept the more valuable part of the loot— the driver’s license and identification cards.
As to the identity of those who beat and robbed him McKenzie’s description was vague. He described only one, as of stocky build with light hair. However a week later in a police lineup he identified Carr and again at the trial pointed to him as one who “I believe attacked me.” On further examination he affirmed that to his best recollection Carr was one of the men.
It is true that McKenzie’s opportunity to observe the two men was not only limited but under most difficult conditions and that other evidence in the record might well have convinced the jury that McKenzie’s identification of Carr, under the circumstances, was not worthy of belief. However we might feel about the wealmess of Carr’s identification, the jury in evaluating and weighing the evidence had a right to, and did, accept McKenzie’s testimony. The evidence that it was dark at the time of the robbery; that the victim had been drinking, was nearsighted and wore glasses which had been knocked off his face; that when he fell to the ground he put his hands over his head and at no time saw the features of the two men or heard their voices; and that McKenzie was under great fear and stress and received head blows severe enough to render him unconscious, only served to create a question of fact for the jury. The resolution of the conflicting evidence is for the trier of fact. (People v. Huizenga, 34 Cal.2d 669 [213 P.2d 710]; People v. Ross, 120 Cal.App.2d 882 [262 P.2d 343]; People v. Osslo, 50 Cal.2d 75 [323 P.2d 397]; People v. Daugherty, 40 Cal.2d 876 [256 P.2d 911].)
Much the same may be said concerning the inference that [573]*573the .45 automatic could have been the assault weapon., Appellants contend such an inference was unreasonable.
Possession of the gun by defendants, one of whom was identified by the victim and who had in his possession some of the victim’s property, reasonably supports the inference that it was utilized in causing the injuries described by the victim as having been inflicted “with some heavy object,” and by Dr. Rayóla as possibly having been caused “by a very hardy instrument” and “by such kind of instrument.” (.45 automatic.)
As for defendant Triandofilos no one identified him or described him as being involved in the robbery. Although two items of stolen property were found in his automobile they were in the immediate possession of Carr who claimed he found them. Triandofilos not only denied any knowledge of the stolen items but denied to police any participation in the crime. Any inference that Triandofilos participated in the robbery must rest on the presence of some of the stolen property in his automobile, his purchase and possession of the .45 automatic and upon his close association with Carr who was identified as one of the assailants. Of some importance in considering the sufficiency of the evidence is the failure of both defendants to testify at the trial, which the jury could consider with the other evidence. (People v. Ashley, 42 Cal.2d 246 [267 P.2d 271]; People v. Adamson, 27 Cal.2d 478 [165 P.2d 3]; People v. Chapman, 156 Cal.App.2d 151 [319 P.2d 8].)
Circumstantial as the People’s case may be, in assuming the existence of every fact which the jury could have reasonably deduced from the evidence we conclude that it was legally sufficient to support the verdict against both defendants and appellate interference with the determination of the jury is not justified.
Of greater significance however is appellants’ claim that the misconduct of the deputy district attorney was so prejudicial as to have precluded them from having a fair trial. It is because of this contention we have set out in detail the close questions of fact presented to the jury relating particularly to the identity of Carr and the participation of Triandofilos who was convicted mainly “by association.” The following specifications of misconduct of the prosecuting attorney present a substantial basis for attacking the verdict.
In his opening statement the deputy district attorney, referring to the arrest of defendants, told the jury “Upon [574]*574further search of the car, the officers found Mr. McKenzie’s personal effects that had been in his wallet, photograph identification, a camp fire permit issued to him; all of his identification as to where he worked, and all that had been in his wallet were in the trunk of the ear; his keys ...” (Emphasis added.) The record discloses that out of the change, keys, wallet, campfire permit, badge, employment identification card, credit cards, insurance card and driver’s license taken from the victim, only the keys and the campfire permit were found in defendants’ car. Although apparently most of the victim’s property was recovered, the record is silent as to when, where and by whom. That such overstatement of what the evidence would show was prejudicial to defendants is clear from the reasonable inferences the jury might well have taken from it. Considering the state of the evidence and particularly the fact that although two loaded guns were found in defendants’ car only one was produced and offered in evidence by the prosecuting attorney, the jury could have fairly concluded that all of the victim’s property was found in the car; but only two items were produced and placed in evidence. Those not offered in evidence, the credit cards, identification cards, badge and driver’s license are all items of particular value to one bent on larceny. It was an entirely reasonable inference that defendants actually had these items and intended to use them in what the deputy district attorney later told the jury they were doing that night—“working at their trade and looking for somebody to rob.” Taking into consideration defendants’ outright denials to police that they were in any way involved in the robbery, Carr’s not unreasonable explanation as to how he came by the two stolen items, the circumstances surrounding the identification of Carr, and that the campfire permit and keys were the only part of the stolen items found in the car, the jury otherwise could well have believed that the defendants did not rob McKenzie because had they done so they most likely would have kept the most valuable portion of the loot which could no more incriminate them than the permit bearing the victim’s name and would have better served for false identification.
It is well settled that the opening statement of the deputy district attorney will furnish ground for an assignment of prejudicial misconduct only in exceptional cases— some involve lack of good faith or a deliberate attempt to misstate the evidence (People v. Lucas, 160 Cal.App.2d 305 [324 P.2d 933]; People v. Alexander, 41 Cal.App.2d 275 [575]*575[106 P.2d 450, 916]; People v. Berryman, 6 Cal.2d 331 [57 P.2d 136]; People v. Emme, 120 Cal.App. 9 [7 P.2d 183]), and some disclose such flagrantly improper conduct as to work a legal prejudice to the defendant. (People v. Arnold, 199 Cal. 471 [250 P. 168].) The purpose of the opening statement of the prosecuting attorney is to outline the state’s evidence against the one accused of crime and to inform the jury what the People intend to prove. Generally the failure to make such proof during the trial does not indicate prejudice, particularly in the absence of showing of bad faith. However it is the substance and implication of a statement or the effect of an act which really define what the law recognizes as prejudicial misconduct. (People v. Planagan, 65 Cal.App.2d 371 [150 P.2d 927].) Whereas in the ease at bar the unwarranted statement might not alone have prejudiced the defendants, the cumulative effect on the jury of this and other unjustified comments of the deputy district attorney justifies a contrary conclusion particularly in view of the state of the evidence.
As to the prosecuting attorney’s good faith in including all of the stolen property, in view of the importance of the circumstance of possession of some of it, and that without it he in all probability could not have made a ease against defendants, the deputy district attorney must have known in advance that his witnesses, Officers Bennett, Good and Perkins, would testify that only the two items were found in defendants’ car. Of interest in this connection is the case of People v. Bentley, 131 Cal.App.2d 687, in which the court stated at page 690 [281 P.2d 1] : “The district attorney knew, or should have known, the testimony the officer was going to give . . . Every prosecutor who offers a witness to testify to conversations with an accused should know what the witness will relate if given a free hand.” Although appellant does not contend that the deputy district attorney was guilty of a deliberate misrepresentation of the evidence it is obvious in view of the weaknesses of the People’s case that the prosecutor was willing to, and did, take advantage of every opportunity to influence the jury against defendants whether it was created by carelessness or deliberation on his part. To say that the deputy district attorney’s comment to the jury at the outset of his opening statement that what he was about to tell them was not evidence but only what he intended to prove; and the court’s instruction to the jury that any statement of counsel concerning the facts must not be regarded as [576]*576evidence, cured the effect of overstatements and misstatements of the evidence by the prosecuting attorney, is to completely ignore their practical and lasting effect on a jury, and the inability of laymen to completely reject and erase from their minds damaging statements they have heard.
This is not the only comment made by the deputy district attorney in his opening statement and later unsupported by the evidence. He continued, “In the course of this conversation, Mr. Triandofilos asked the police officers in Long Beach if there was any chance to reduce this charge and permit them to plead to something less than robbery upon which they were booked.” Defendants’ motions for mistrial were denied. At the close of the People’s case the prosecuting attorney, out of the hearing of the jury, offered to prove that11 The two defendants were together at the jail elevator. Mr. Triandofilos said to Mr. Lambert and Mr. Ragsdale, ‘If we plead guilty can we get any lesser sentence? ’ ” The trial court’s ruling is not clear, but it did not permit the statement to be received in evidence.
It is true that an offer on the part of a defendant to plead guilty to the offense charged, or to a lesser offense, is admissible against him as constituting an implied admission of guilt. However there is here only the query, “If we plead guilty can we get any lesser sentence?” We fail to see wherein there is an offer to plead. It is at most an inquiry about what defendants could expect if they decided to enter a plea. The prosecuting attorney’s offer of proof fails to come up to the “offer to plead” admissible against a defendant and the trial court’s refusal to permit the evidence to go before the jury was undoubtedly proper. The deputy district attorney exceeded permissible bounds in informing the jury that Mr. Triandofilos had asked police officers if they would permit them to plead guilty to a lesser offense. His assertion to the jury finds no support either in the evidence or his offer of proof.
During his closing argument the deputy district attorney told the jury “. . . these men were driving very slowly down Washington Boulevard in a westerly direction with a gun on the floor under each one of them, and I say they were out working at their trade and looking for somebody to rob,” to which objection was made and overruled.
The prosecuting attorney may place any fair interpretation upon the facts and may make any reasonable inference fairly drawn from the evidence. (People v. Eggers, 30 Cal.2d 676 [577]*577[185 P.2d 1].) However, in view of the lack of any evidence to support prior arrests, suspected participation in other robberies or any kind of trouble with the law and their denials to police that they were in any way involved in the McKenzie robbery, the deputy district attorney’s use of the phrase “working at their trade” was entirely unwarranted. The word “trade” connotes an occupation or regular means of livelihood and is defined in Webster’s New International Dictionary, second edition (unabridged) at page 2683: ‘ ‘ The business one practices or the work in which one engages regularly ; one’s calling; occupation; gainful employment; means of livelihood.” Likewise the prosecuting attorney’s use of the phrase, “I say” might well have led the jury to conclude he personally had information that defendants had previously engaged in robbery, made their living robbing people and were professionals. It is almost too well settled for citation of authority that “statements of facts not in evidence by the prosecuting attorney in his argument to the jury constitute misconduct.” (People v. Kirkes, 39 Cal.2d 719, 724 [249 P.2d 1].) Several cases of interest here are People v. Shaffer, 150 Cal.App.2d 287 [309 P.2d 475], in which the court held the deputy district attorney’s implication that defendant was in the business of selling narcotics was prejudicial misconduct because there was no evidence to justify it; and People v. Vienne, 142 Cal.App.2d 172 [297 P.2d 1027], in which the prosecuting attorney told the jury, “Now if you want to put these professional gunmen away, you and other juries like you are going to have to do it.” Said the court at page 174: “There was no evidence which would indicate that the defendant in this case was a professional gunman, and the remark of the deputy was unwarranted.”
While it is easy to understand counsel becoming excited in the course of the trial and while it is natural and necessary that counsel for the People as well as counsel for the defendant shall have the mind of an advocate, still the district attorney as a representative of the People is bound to refrain from making inflammatory statements and is bound by a somewhat higher duty of fairness than is the ordinary practitioner in a court of law. (People v. Wilkes, 44 Cal.2d 679 [284 P.2d 481].)
The determination of whether misconduct of the prosecuting attorney has prejudiced substantial rights of a defendant rests largely upon the circumstances of each case and [578]*578an appellate court may, and indeed it is its duty, to reverse a conviction when it is apparent from all the facts that there has been a miscarriage of justice. (People v. Kirkes, 39 Cal.2d 719 [249 P.2d 1].) Strength of the proof of guilt is an important factor to consider in determining whether misconduct has prejudiced a defendant (People v. Byrnes, 84 Cal.App.2d 64 [190 P.2d 286]; People v. Lucas, 160 Cal.App.2d 305 [324 P.2d 933]), and where the ease is so closely balanced and guilt has not been so strongly established as to render it improbable that the harmful effect of the misconduct may have turned the scales against the accused, such misconduct has consistently been deemed ground for reversal. (People v. Shaffer, 150 Cal.App.2d 287, at page 296 [309 P.2d 475]; People v. Ford, 89 Cal.App.2d 467 [200 P.2d 867]; People v. Beal, 116 Cal.App.2d 475 [254 P.2d 100].) A prosecutor is limited to fair comment in his argument to a jury and when such limitation is exceeded in a close ease, the comments may be prejudicial. (People v. Johnson, 153 Cal.App.2d 564 [314 P.2d 751].) The evidence at bar is not so strong in its support of the verdict that it does not appear reasonable to believe that the misconduct of the deputy district attorney contributed materially to the jury’s determination of guilt. This was a close ease on facts. The remarks of the prosecuting attorney in his opening statement, coupled with his comment on the evidence in his closing argument, viewed in their entirety and cumulative effect in relation to the state of the evidence, convince us that the misconduct of the deputy district attorney was so prejudicial as to result in depriving defendants of a fair trial.
Judgment and order denying motion for a new trial are and each is reversed as to each defendant and the cause remanded for a new trial.
White, P. J., concurred.