concurrence">ELLETT, Justice

(concurring in the result) :

I concur in the result, but desire to elaborate thereon:

The defendant — hereafter referred to as Jordan — and several other dope-using hippies lived in an apartment and augmented their relief checks by stealing and burglarizing. They planned to rob an elderly merchant out in a residential area, and in the course of the robbery the merchant was shot and killed. The principal question involved seems to be “who pulled the trigger?”

Jordan contends that it was Johnny Knight who did it and claims that he himself was not in on the crime at. all. His contention is bolstered by the contents of two letters written by Knight to some girl friends who were not writing to him while he was in jail charged with grand larceny. Knight was never charged with this murder, but since he stayed at the “pad” with the others and was one of them, he wrote the following:

About Weasmann’s [the victim], we did it, I really don’t know why! I’m sorry he got killed but-he tried to grab the gun!

In another letter he wrote:

In fact I really thought at the time I was out that we were good friends but I guess since I turned murderer you changed your association huh?

Knight was called as a witness by the appellant and denied any participation in the robbery. He explained the language contained in the letters as being an attempt to impress his girl friends. He further testified that he had been out thieving the night before and got to bed early the morning of the robbery and slept until Jordan and his two companions returned to the apartment. On cross-examination he testified as follows:

Well, he [Jordan] said that he gave the guy a dollar and the guy turned around to give him some cigarettes and when he turned back around he had the gun on him and the guy came around the counter and grabbed and he shot and the guy jerked and, “I shot a couple more times and ran.”

Knight was not an accomplice. Either it was he who killed the merchant or it was Jordan. There is no ■ vidence that either one aided the other. The jury believed it was Jordan.

The evidence against Jordan seems overwhelming, and the jury could hardly have failed to believe the following: Jordan, Murphy, and a 17-year-old boy named Wilde planned the robbery. Wilde owned a *243green Rambler car and was told by Jordan to follow Murphy and Jordan, who rode in a car which Jordan had stolen the night before. Wilde was told where to park his car. Jordan and Murphy drove nearer to the store. Murphy waited in the car while Jordan went in to commit the robbery. When Jordan came out, he and Murphy drove away in the stolen car and stopped it about one half block from the green Rambler in which Wilde was waiting. Jordan and Murphy ran from the stolen car to the Rambler, and all three sped away.

Two 16-year-old boys on the sidewalk between the Rambler and the stolen car witnessed the sudden stopping of the stolen car, the foot race of the two men as they ran within a few feet of the boys, the hurried entrance into the green Rambler, and the speedy departure. These boys paid particular attention to the running men and gave such a description of the men and the car that all three men were arrested and charged with murder.

One of the boys saw Jordan on television a few days after the crime and instantly recognized him as one of the two men who had run past him. He also saw Jordan at a preliminary hearing; and although a number of people were dressed as was Jordan, he nevertheless was able to identify Jordan as one of the running men.

The other lad did not observe Jordan in the courtroom at the preliminary hearing, but afterwards he was in the hall when Jordan and Murphy were led away and recognized them as being the ones he saw running to the green Rambler. There was no staging of a setup to influence the witness. He merely saw the men and recognized them.

Now, a man with long hair can readily change his appearance by changing his hair style, shaving, etc. Some pictures were shown the witness at trial, and he instantly identified those of Jordan and Murphy as being the men who ran by him to the green Rambler. He testified that there was no doubt in his mind about it.

I fail to see anything amiss in the identification made by these two witnesses. There was never any improper attempt to have these boys identify anybody. In fact, Jordan was never placed in a line-up for the witnesses to see.

The trial judge is the one who should determine whether testimony is competent, and the jury — not some Supreme Court — is the body which weighs the testimony and determines what the facts are. For us to interfere with this prerogative of the jury is to overturn the law as it has existed for five hundred years.

The dissenting opinion cites and relies on some federal cases which seem to overturn the established law as it relates to the functions of the jury, but already those courts are showing signs of repentance, and if state courts refuse to add their approval to the erroneous holdings, it may *244be that the federal courts will rule so that a lawyer can find the law by consulting a law book instead of suddenly finding out what it is by reading a newspaper.

In addition to what has been said above, there was other evidence which justified the jury in finding Jordan guilty. He had a girl friend, aged IS, whom he told a few hours after the crime that he had just killed a man, and the next day he told her the details of how it came about. She testified as follows:

Q Just tell us what he told you.

A He said, “I went in the store to buy a pie and went up to the counter and gave the guy the money and told him to give me the rest of the money,” and he gave him the change and the guy wouldn’t do it and he started coming around the counter and Willie [Jordan] shot him and he kept coming after him and he shot him again and ran.

Jordan’s attorney tried to counteract this positive testimony by leading the witness on cross-examination and elicited testimony as follows:

Q Now, I have talked to you a number of times over the past few months haven’t I?

A Yes.

Q Did you tell me about this?

A No, I didn’t.

Q Now, you were in the car the night of December Sth or morning of December 6th when Willie was arrested weren’t you?

A Yes.

Q That was a frightening experience, wasn’t it?

A Yes.

Q And the police took you aside after that and talked to you then didn’t they ?

A Yes.

Q You don’t remember what you told them do you?

A No.

Q Now, since then the police have talked to you a number of times, haven’t they?

A Yes.

Q And they have told you that that night after Willie was arrested that you had said that Willie done it or Willie had told you? Is my question clear?

A No.

Q Let me try it again. When the police had been talking to you over the past several months they have told you that you had told them that Willie said he had done it?

A I don’t remember.

Q Well, didn’t they tell you that?

A Yes.

The police officer denied having any such conversation with the girl, and the jury *245-was entitled to determine what the facts -were. Even if what Jordan’s lawyer was trying to get the girl to say were the truth, it is of no consequence since she never did change her testimony about what Jordan had actually told her. In fact, on further examination she testified:

Q What did you say when Willie said he had shot a man?

A I didn’t believe him at first until he went into detail and told me what happened.

The girl testified that she had told two ■of her friends what Jordan had said, and then the prosecuting attorney elicited the following additional testimony from her:

Q And you have never told me this, have you?

A No.

Q Now, can you tell us why you didn’t tell anybody before this?

A I was scared and I was trying to protect Willie.

The State gave further proof of Jordan’s guilt by calling Wilde, the 17-year-old boy who owned the green Rambler. Wilde testified that he was told by Jordan where to park, that Jordan and Murphy rode in the stolen car and later ran from it to his car; that he was told by Jordan to drive back to the apartment; and that Jordan had a small pistol while in the car. He further testified that when they got to the apartment, Jordan said he was going to get some cigarettes, and when Wesemann (the victim) was to give him the cigarettes, he pulled a gun and told Wesemann it was a stickup; that Wesemann would not give the money and was reaching for him; and that he shot Wesemann twice and then ran to Murphy’s car and drove to the Rambler. This witness was given immunity so that he could testify against Murphy and Jordan. He was an accomplice, but his testimony was amply corroborated by other competent evidence as outlined above.

Jordan makes no complaint about any of the instructions given by the court, and they seem to cover the question of corroboration properly.

Jordan makes one further claim of error. Murphy had previously been tried, convicted, and sentenced for the crime for which Jordan was on trial. The prosecuting attorney called Murphy as a witness, but Murphy refused to be sworn.1 Jordan claims that Murphy’s attorney told the prosecuting attorney that Murphy would not testify, and he claims that it was prejudicial error to call the witness.

There is nothing to this contention. Murphy had already been tried and had testified in his own behalf. Even if he had a privilege he did not claim it, he simply refused to be sworn. He and Jordan were *246buddies, and he undoubtedly did not want to tell the truth. Neither did he want to have another felony conviction, to wit, for perjury, and so he refused to be sworn, knowing that a jail sentence was all he could get for contempt of court; and 30 days in jail might be preferable to his stay in the state prison.

I do not think there was any prejudicial error committed by the court during the trial of this case. The question of guilt or innocence was for the jury, and it seems to me that the verdict rendered was amply supported by the evidence. I would, therefore, affirm the judgment.

. Until a witness is sworn he is not permitted to testify.

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How this case has been treated — in progress