(concurring) .
Although I concur in affirmance, I agree with Judge Kiley that a factual issue, critical under the Illinois law of felony murder was withdrawn from the jury, and, in effect, decided by the Supreme Court of Illinois, namely the question whether the petitioners contemplated that violence might be necessary to enable them to carry out the mail theft.
The issue here is whether the petitioners were thus denied a federal right to trial by jury. Recently the Supreme Court of the United States has ruled *12that the Fourteenth Amendment “guarantees a right of jury trial in all criminal cases which — were they to be tried in a federal court — would come within the Sixth Amendment’s guarantee.”1 However, this holding has been held to apply only prospectively. The Supreme Court has said “we will not reverse state convictions for failure to grant jury trials begun prior to May 20, 1968.”— the date of the Duncan and Bloom decisions.2 In a companion case, also dismissed, Carcerano v. Gladden, 392 U.S. 631, 88 S.Ct. 2093, the question was whether the federal unanimous verdict rule should be applied to state criminal trials because of the rule of Duncan. I think De Stefano precludes us from deciding whether the rule of Bollenbach v. United States 3 applies to state criminal trials begun prior to May 20,1968.
. Duncan v. State of Louisiana (May 20, 1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. And, see Bloom v. State of Illinois (May 20, 1968), 391 U.S. 194 88 S.Ct. 1477. 20 L.Ed.2d 522.
. De Stefano v. Woods (June 17, 1968), 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308.
. (1946), 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350.