Argued May 11, 1959.
Decided July 9, 1959.
Mr. Daniel M. Singer, Washington, D.C. (appointed by this court), for appellant.
Mr. Jack Marshall Stark, Asst. U.S. Atty., with whom Messrs. Oliver Gasch, U.S. Atty., and Carl W. Belcher, Asst. U.S. Atty., were on the brief, for appellee.
Before EDGERTON, WILBUR K. MILLER and FAHY, Circuit Judges.
Appellant and his co-defendant Brown were convicted of housebreaking and larceny. Massey, a confessed accomplice in the crime, testified that appellant participated, and a policeman testified to similar statements by Brown. Appellant made no confession or admission. He testified in his own behalf and tried to establish an alibi.
But the court mistakenly instructed the jury that "There is evidence in this case that certain admissions or confessions were made by the defendants." (sic) The court continued: "Preliminary to going into the matter of admissions and confessions, the Court will repeat to you: That the admission or confession of one is chargeable to that one only, and not to another. To repeat, if `A' makes an admission or a confession, that offense is chargeable to `A' and not `B'. If `B' makes an admission or confession, that is chargeable to `B' and not to `A'. In other words, that person admitting or confessing speaks for himself and he cannot incriminate another." This gave increased emphasis and importance to the mistaken statement that there was evidence of admissions or confessions by the "defendants".
The only testimony which was admissible against the appellant was that of the confessed accomplice Massey. Accomplice testimony is regarded with suspicion. As the court instructed the jury, "it should be received with caution and scrutinized with care." In our opinion the court's mistake in telling the jury, in effect, that this weak testimony was supported by evidence that appellant had made admissions or confessions, affected his substantial rights so seriously that although counsel did not bring it to the court's attention we should reverse the conviction under the plain error rule, F.R.Crim.P. 52(b), 18 U.S.C.A.
WILBUR K. MILLER, Circuit Judge, dissents.