¶1dissenting.
¶2The failure to give the statutory instruction is reversible error unless we can say that the essence of the instruction was covered by the corroboration instruction that was given. Denton v. Davis et al., 191 Or 646, 233 P2d 213 (1951). The corroboration instruction told the jury only that the testimony of an accomplice, regardless of its believability, standing alone, cannot convict. The statutory instruction, on the other hand, would have told the jury, with specific reference to believability, how it should view the testimony of the accomplice. Since the jury in the case at bar was never told by the judge that an accomplice is not a trustworthy witness, the point to be covered by the instruction was never made.
¶3While in this particular case the jury may not have been misled by the failure of the court to instruct them properly, we are confronted with a clear instance of error. The question thus comes down to one of balancing the harmless-error doctrine against the danger of the erosion of the rights of defendants to have their timely requests for statutory instructions honored.
¶4*62Under all the circumstances of this case, I believe that the long-range administration of justice would be better served by putting the county to the expense of a new trial than by invoking the doctrine of harmless error. I am not certain that we can characterize the error as harmless.
¶5I dissent.