(dissenting).
1. In order to explain my dissent, it is first- necessary to point to some facts not mentioned in the majority opinion. Those facts will, I think (dissipate what seems to me to be the incorrect impression created by that opinion that almost certainly appellant was guilty, as charged, of stealing the coupons and giving them to the co-defendant Bennett (who, having expressly admitted that he had illegal possession of them, was found guilty and sentenced, and who does not appeal). For the transcript of the evidence at the trial, by reference made a part of the record in this court, shows the following:
(a) The co-defendant, Bennett, did not testify; but statements made by him out of court were offered in evidence. The trial judge explicitly ruled (and correctly) that these statements were admissible as against Bennett, but must not be considered by the jufy with reference to appellant, Bihn. It was, however, solely from those statements thus made by Bennett that there derives the following portion of the stipulation:
“During the period when Bennett was living in the Bihn household, Mrs. Bihn on many occasions would bring home gasoline ration coupons. When Mrs. Bihn’s husband was not present, Mrs. Bihn would give these coupons to Bennett. Bennett would take these coupons, sell them, return home and divide the money received from the sale of these coupons with Mrs. Bihn. Sometimes Mrs. Bihn would bring home loose gasoline ration stamps and sometimes she would bring home gasoline ration stamps already affixed to gummed O. P. A. forms called O.P.A. Forms R 120 (known *347in the gasoline trade as ‘bingo’ sheets). Mrs. Bihn brought these stamps home to Bennett on approximately ten occasions. The average amount of coupons which she brought home was between 300 and 500 gallons each time. The largest amount of coupons that Mrs. Bihn ever brought to Bennett was between 560 and 600 gallons. When these coupons were affixed to ‘bingo’ sheets, Mrs. Bihn would soak these coupons in water and give then to Bennett to sell after they had been removed from the gummed ‘bingo’ sheets on which they had been affixed * * * Bennett stated to several of the Government witnesses that all the coupons he received he got from Mrs. Bihn.”
As Bennett’s statements were not in evidence as to appellant, these portions of the stipulation should, I think, be wholly disregarded.
(b) The transcript of the evidence shows that Bennett’s wife, mother-in-law and sister-in-law were jealous of appellant be-> cause of her relations with Bennett before his marriage. Yet it was solely from their testimony that the following portion of the stipulation derives:
“Mrs. Howe told Mrs. Bihn that ‘if she didn’t leave us alone, I would be forced to notify the F.B.I., that I thought they would be very interested in the gasoline coupons and others she was stealing from the bank.’ Mrs. Bihn replied: ‘Go ahead. Your son-in-law is in it just as deep as I am and if I go to prison he will go too.’ ”
The transcript shows that appellant, who took the witness-stand and denied that she had stolen any coupons, gave a different version of these remarks: She testified that, on that occasion, Bennett’s sister-in-law and mother-in-law had accused her of having written certain letters to Bennett; that she had then denied having done so; and that the mother-in-law had then said to her “I think the F.B.I. will be interested to know about you,” but made no mention of gasoline coupons. Appellant admitted that later she wrote a letter to Bennett saying, “I didn’t miss that crack about the F.B.T. * * * It looks to me you are trying to break into prison with your bare hands * * * It will hurt you more than me.” She testified concerning this letter as follows:
“Q. What did you mean by, ‘It looks to me you are trying to break into prison with your bare hands’ ? A. Because he showed me a postcard his wife received and asked me if I wrole it, and I asked him if he wrote it. He told me once about having written a postal-card to another girl to get rid of her, and it looked like the same method to me.
“Q. What did you mean by saying, ‘It will hurt you more than me’ ? A. Because they talked, the sister-in-law and the mother-in-law, about the letters that they were going to the F.B.I. with.”
(c) The transcript also shows the following: As, from time to time, the coupons were deposited in the box, appellant made entries of the deposits. Subsequently, without again examining the contents of the box, appellant, from her previous entries, compiled the written statement which, it turned out, gravely overstated the amount of gasoline represented by the coupons in the box. But, in the interval between the time when she made her first entries and the time when she prepared the inaccurate statement, not less than four persons other than appellant had had access to the box; among them was a Miss Shannon with whom (so appellant testified) Bennett had a far more than casual acquaintance.
2. Thus, disregarding (as we should) that part of the stipulation based upon Bennett’s statements, there is no direct evidence of theft by appellant except the testimony of Bennett’s wife, mother-in-law and sister-in-law, which might easily have been biased. The only other evidence of her guilt consists of an inference which could reasonably — but need not — be drawn from the gross inaccuracy of the written statement made by appellant of the contents of the box. Accordingly the verdict may well have turned on whether such an inference was made by the jury.
In these circumstances — and remembering that the indictment charged, as an essential part of the conspiracy, that appellant had stolen the coupons — it was of course entirely legitimate lor appellant to argue thus to the jury: Since any one of four other persons might have stolen the coupons, there could easily be a reasonable doubt as to appellant’s guilt. That issue was obviously crucial.
It was in this context that the judge, in the middle of his instructions, told the jury: “Who would have a motive to steal them? Did she take these stamps? You have a right to consider that. She is not charged *348with, stealing, but with conspiracy to do all these things, and you have a right to consider whether she did steal, them, on the question of intent. Did she steal them? Who did if she didn’t? You are to decide that.”
Considering what I have called the “crucial issue,” it is highly likely that the jurors did not take this remark lightly. They had before them uncontradicted evidence by which, as they knew, appellant was trying to persuade them that, since the coupons might have come into Bennett’s possession via any one of four other persons, there was a reasonable doubt as to appellant’s guilt. Literally interpreted, the judge’s charge told them that this was not sufficient to justify acquittal, for it was their “duty” (a) to decide that appellant committed the theft unless (b) they decided that some other specific person did. So interpreted; this charge erred by putting on appellant the burden of proving her innocence by proving the identity of some other person as the thief. See, e.g., Boatright v. United States, 8 Cir., 105 F.2d 737, 740; Ward v. United States, 5 Cir., 96 F.2d 189, 192 cf. United States v. Wishnatzki, 2 Cir., 77 F.2d 357, 360. The charge would perhaps not have been so interpreted by one with a well trained legal mind;- but the Supreme Court has admonished us that the minds of jurors, not being so trained, are usually incapable of making subtle discriminations. Shepard v. United States, 290 U. S. 96, 104, 54 S.Ct. 22, 78 L.Ed. 196. As we have no basis for assuming that the jurors did not accept this charge at its face value, I think we should conclude that it was prejudically erroneous.
True, the judge also gave the usual general instructions about the burden of proof and presumption of innocence. But, in the face of this specific instruction, the best that can be said is that the jurors may easily have been confused. It has often been held that a verdict should be reversed where, when general instructions are inconsistent with a specific instruction, the jury may have been confused. See, e.g., Dros-sos v. United States, 8 Cir., 2 F.2d 538, 539; Cummings v. Pennsylvania R. Co., 2 Cir., 45 F.2d 152; Schroble v. Lehigh Valley R. Co., 2 Cir., 62 F.2d 993, 996; cf. Shepard v. United States, supra.
When the judge had concluded his instructions, appellant’s lawyer excepted as follows: “I take exception to your Honor’s charge to the jury that it is the jury’s duty .to find out who did steal the stamps. ‘Did she? Who did if she did not? You are to decide that.’ I except to that because it is not part of the jury’s duty.”
That was a clear enough statement of the nature of the judge’s error; surely clear enough for one whom my colleagues characterize as an “experienced trial judge.” It advised him that it was erroneous to tell the jury that, as part of its duty, in order to acquit, it must decide what person stole the coupons if appellant did not. The judge, thus warned, did nothing to correct the error, saying merely, “Yes, I say that was not the crime, but the question is whether these defendants entered into a conspiracy to steal, possess, and transfer these stamps.” If that meant anything it meant that appellant was not charged with the substantive crime of theft but with theft as part of a conspiracy, a question not raised by the exception. This comment did not correct the erroneous instruction that unless, from the evidence, the jury found that some other identified person stole the coupons, it must conclude that appellant did.
After the trial judge thus commented, appellant’s lawyer said, “That is not the point of my exception.” My colleagues suggest that that rejoinder was insúfficient, that the lawyer should have made his exception more explicit. I do not agree because, as stated above, I think that the reasons originally given for the exception were adequately clear.
3. It is obvious, from my colleagues’ discussion of the evidence, that they believe appellant was guilty. Accordingly, this seems to be another instance in which they are tacitly applying their unique interpretation of the “harmless error” doctrine. Their position, as explicitly stated in United States v. Liss, 2 Cir., 137 F.2d 995, 999, is that there is a "modern disposition to assume that an error has been harmless * * 1 As I have several times heretofore noted in detail, I think that a mistaken assumption.2
In McCandless v. United States, 298 U.S. 342, 347, 56 S.Ct. 764, 766, 80 L.Ed. 1205, *349the Court said that the “harmless error” statute (28 U.S.C.A. § 391) “does not change the well settled rule that an erroneous ruling which relates to the substantial rights of a party is a ground for reversal unless it affirmatively3 appears from the whole record that it was not prejudicial.” In Bruno v. United States, 308 U.S. 287, 293-294, 60 S.Ct. 198, 200, 84 L.Ed. 257, the Supreme Court (reversing this court) said that this statute was intended “to prevent matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure from touching the merits of a verdict.” In Weiler v. United States, 323 U.S. 606, 611, 65 S.Ct. 548, 551, 156 A.L.R. 496, the Court, citing the Bruno case, said: “We are not authorized to look at the printed record, resolve conflicting evidence, and reach the conclusion that the error was harmless because we think the defendant was guilty. That would be to substitute our judgment for that of the jury and, under our system of justice, juries alone have been entrusted with that responsibility.”4 All Circuits other than ours in which the question has been considered have acted in accordance with these Supreme Court rulings.5
Although usually I concur in the established precedents of this court even when I think them erroneous, I deem it not improper to continue to dissent in cases of this kind until the Supreme Court tells me that I am wrong.
Emphasis added.
See, e.g., United States v. Rubenstein, 2 Cir., 151 F.2d 174; United States v. Liss, 2 Cir., 137 F.2d 995, 1001, 1005; Keller v. Brooklyn Bus Corp., 2 Cir., 128 F.2d 510, 513, 514-515.
Emphasis as in the original.
It is suggested that in Palmer v. Hoffman, 318 U.S. 109, 110, 63 S.Ct. 477, 482, 87 E.Ed. 645, 144 A.D.R. 719, the Court rejected the ruling in Bruno v. United States, supra. But in Palmer v. Hoffman the Court merely held that appellant could not complain on appeal of an error in refusing to allow him to inspect a document in the possession of his adversary when, because appellant had not identified and incorporated the document in the record, the upper court could not possibly ascertain whether its contents were material and therefore could not determine whether the error was harmful; in that limited context tlie Court said that a party seeking reversal for error has “tile burden of showing that prejudice resulted.” That, in that limited ruling, the Supreme Court did not intend to repudiate its ruling in Bruno v. United States is made clear, I think, by the fact that subsequently, in Weiler v. United States, 323 U.S. 606, 611, 65 S. Ct. 548, 551, 89 L.E’d. —, the Court cited the Bruno case with approval.
I think Palmer v. Hoffman merely followed the usual rule that an appellate court cannot ordinarily consider matters not in the record before it. See, e. g., Henneford v. Northern Pacific Railway Co., 303 U.S. 17, 19, 58 S.Ct. 415, 82 L.Ed. 619; Drake v. General Finance Corporation, 5 Cir., 119 F.2d 588, 589 ; 4 C.J. S., Appeal and Error, § 1206.
Lynch v. Oregon Lumber Co., 9 Cir., 108 F.2d 283, 285-286; Farris v. Interstate Circuit, 5 Cir., 116 F.2d 409, 412; Fort Dodge Hotel Co. v. Bartelt, 8 Cir., 119 F.2d 253, 259 ; Worcester v. Pure Torpedo Co., 7 Cir., 127 F.2d 945, 947; Evansville Container Corp. v. McDonald, 6 Cir., 132 F.2d 80, 85; cf. Little v. United States, 10 Cir., 73 F.2d 861, 866; Ah Fook Chang v. United States, 9 Cir., 91 F.2d 805, 810; cf. Coulston v. United States, 10 Cir., 51 F.2d 178, 182, 183.