(dissenting).
Ordinarily, there is no occasion for a dissenter to analyze an answer to a petition for rehearing. In the instant case, however, the government, has so completely demonstrated the fallacy of its position that some further comment seems to be in order. The government asserts that the writer of the dissenting opinion has misconceived the situation. The writer admits that such a characterization of him is often in order. In the instant case, however,' I think it can be demonstrated by their own words that it is the learned counsel for the government who have not only misconceived the situation but have exposed their failure to grasp the fundamental issues of the case. As a famous American was prone to say, “Let’s look at the record.”
I only desire to examine the government’s present position as stated in its answer to the petition for rehearing concerning that which I have heretofore labeled as the two theories, inconsistent in their nature, upon which the judgment is to be affirmed. All through the government’s most recent exposition runs the basic fallacy epitomized in the last paragraph of its answer. “Instructions No. 50 and No. 51 have a most solid basis in the law, the Constitution itself, which states, ‘There shall be no conviction of treason unless on the testimony of two witnesses to the same overt act.1 It will be noted that the word used is ‘act’ and not ‘acts.’ There is no authority whatsoever for the contention that more than one overt act must be proven to convict of the crime of treason.”
Of course, as an abstract proposition that is the law, with which I doubt any member of the Bench or Bar would take issue. The fact is, however, that it is entirely beside the point and wholly irrelevant to any issue in this case. This abstract proposition would be pertinent in a case where only one overt act was submitted to the jury. Here, however, twelve of such acts were submitted and the question is whether under such circumstances proper proof of one act is sufficient to authorize a conviction or whether all of the submitted acts must be properly proven.
The answer states: “It is apparently his belief (Judge Major’s) that the Government tried its case in the lower court upon the theory that there was no necessity for having all of the submitted overt acts * * * proven by two witnesses, as long as there was one adequately proven treasonable act.” The answer then asserts: “That this belief never existed in the mind of Government counsel * * How this disclaimer can be advanced, in view of the fact that the jury was authorized by the court’s instructions to convict if one act had been sufficiently proven, is beyond my comprehension. Not only did I think that the government tried its case on the theory stated, but the majority must also have thought so. The opinion aptly states: “In essence, these instructions told the jury that they were to find the defendant guilty if they found he performed any one of the treasonable overt acts submitted, to which acts two witnesses had testified.”
In the interim between the trial of the case and its presentation to this court, the *807Cramer decision was rendered by the Supreme Court. Cramer v. United States, 325 U.S. 1, 65 S.Ct. 918. By that decision a serious question was raised as to the validity of the theory embodied in the court’s instructions. Government’s counsel, after mature deliberation, in a supplemental brief stated its position as follows: “It would seem from a review of the authorities, including Cramer v. United States (also citing other cases), that the failure to prove * * * any of the submitted overt acts would require a reversal of the conviction.” In other words, it was the government’s position that proof of all the overt acts was required and that the failure to prove any of such acts would (not might, as asserted in the answer) require a reversal.
So, surely there can be no doubt but that the case was tried and submitted to the jury on the theory that sufficient proof as to one of the submitted overt acts would sustain a judgment of conviction and that it was presented to this court on the theory that proof of all the submitted overt acts was required.
Notwithstanding that these two diametrically opposed and inconsistent theories have been advanced by the government, one in the trial court and the other in this court, the government in its answer boldly asserts: “At no time has the Government adopted two theories of this case. At all times it has consistently advanced but one theory. This theory was advanced to the trial of this case and adhered to throughout all proceedings of this cause on appeal.” 1
The following paragraph in the answer demonstrates not only the confusion attending the labor of government’s counsel but it reaches heights of inconsistency rarely found in a legal document: “We also affirm the correctness of Instructions 50 and 51 which as Judge Evans states told the jury that they were to find the defendant guilty if they found he performed any one of the treasonable overt acts submitted to which two witnesses had testified. As long as each of the submitted acts were attested to by two witnesses and were sufficient as acts of treason the instruction is perfectly correct. That was our belief in the trial court and that is our belief now.” Assuming that the word “attested” in the second sentence of this paragraph means proven, then the paragraph as a whole carries the inescapable and absurd meaning that the jury could convict upon proper proof of one act, providing it was also determined, in some unknown manner and by some undisclosed authority, that the other eleven acts were also proven in the manner required by the Constitution.
The answer also states: “So that there be no misunderstanding we emphatically state that we believe it to be a correct principle of law that proof of one or more overt acts by the direct testimony of two witnesses is sufficient to authorize a conviction for treason.” The answer then proceeds to contradict this statement. Referring to the concession made in the government’s supplemental brief, the answer states: “We stated, in substance, only that there must be direct proof by two witnesses to each treasonable overt act submitted to the jury * * *. It was our belief that in the light of those instructions * * * and in the light of the general verdict the submission of a * * * unproven act might (in the brief it was the word “would” and not “might”) require a reversal by the court.” I admit my inability to follow a contention so patently preposterous. By these two statements we are told that it is the government’s position that proof of one of the submitted overt acts by the direct testimony of two witnesses is sufficient, but that unless all of the submitted overt acts are proven by the direct testimony of two witnesses a reversal is required.
I do not withdraw from the view that the government tried the case on one theory and presented it to this court on another. The record ánd the answer filed to the petition for rehearing make that conclusion inescapable. The law on this feature of the case either is that proper proof of one act is sufficient or that proper proof must be made as to all of the submitted acts. There can be no middle ground.
If the law requires proper proof as to all the submitted overt acts, as I think it does and as the government conceded in *808this court, a reversal is required even though all of such submitted overt acts have been properly proven. (As originally shown, I disagree with the conclusion of the majority that all of the submitted overt acts were properly proven.) This is so for the reason that the case was tried and submitted to the jury on the theory that proper proof of one act was sufficient to authorize a conviction. If proper proof of all the acts is required, then the theory on which the case was submitted to the jury is erroneous, and prejudicially so.
I would allow the petition for rehearing and reverse the judgment.
If this assertion be correct, it is per-tintent to observe, even though of minor importance, that it stamps government’s counsel as men of tremendous prophetic vision. They must have anticipated the holding of the Supreme Court in the Cra-mer case; otherwise, that decision alone would have necessitated a shifting of position. As already pointed out, government’s counsel so recognized in its supplemental brief filed in this court.