We affirmed appellant’s conviction of murder in the first degree. 83 U.S.App.D.C. 20, 164 F.2d 903. The Supreme Court denied certiorari. 333 U.S. 857, 68 S.Ct. 727, 92 L.Ed. 1137. The District Court afterward declined to grant a new trial on the ground of newly discovered evidence and we affirmed without opinion.1 The .Supreme Court granted certiorari and remanded the case to us “with instructions to decide, in the first instance, what rule should prevail in the District of Columbia” with respect to the admissibility of “uncommunicated threats” of the deceased against the accused. Griffin v. United States, 336 U.S. 704, 709-711, 715, 718, 69 S.Ct. 814, 93 L.Ed. 993. The ultimate question is whether the District Court erred in refusing to grant a new trial when it appeared that after the homicide an open penknife was found in the same trousers pocket' of the deceased in which his hand *992was, and that the prosecution knew at the time of the trial that such testimony was available but neither produced it in court nor disclosed it to the defense.
The appellant shot and killed one Hunter as the outcome of a quarrel. Whether the shooting immediately followed the quarrel was in dispute. The accused claimed self-defense. He said Hunter “jumped up and started around the table, with his hand in his pocket, and told me he would kick my teeth out of my head.” 336 U.S. at page 706, 69 S.Ct. at page 814. But the accused was the only witness who testified to any aggressive word or act of Hunter at the time of the shooting. Several eye-witnesses testified that the accused was the aggressor and Hunter made no move. The prosecution knew, but the defense did not, that a morgue attendant had said he found an open penknife in Hunter’s pocket although playing cards were in his hand. The facts are more fully stated in the opinions of the Supreme Court and of this court.
The majority of the Supreme Court expressed no “preference among the competing rules about the admissibility of uncommunicated threats” and left us free to adopt any rule on this subject. 336 U.S. at page 715, 69 S.Ct. at page 819. By directing us to adopt and apply some rule on this subject the Court determined only that the subject is before us; in other words, that the evidence to be ruled upon is evidence of an uncommunicated threat. Because the Court determined this latter question we do not discuss it.2
The view that evidence of uncommunicated threats, including the evidence of Hunter’s opened knife, should be admitted seems to us logical and humane. It is within the principle of admitting any type of evidence that may fairly be thought to have substantial probative value and is neither excluded by a settled rule nor particularly likely to be false, misleading, or unduly prejudicial. It is of course true that the apparent conduct of the deceased at the time of the homicide, rather than any concealed plan he may have had, bears directly on the question whether the accused acted in self-defense, but evidence that the deceased had a concealed plan of attack bears on the question what his apparent conduct was. We therefore adopt the following rule as the one we think should prevail in the District of Columbia. When a defendant claims self-defense and there is substantial evidence, though it be only his own testimony, that the deceased attacked him, evidence of uncommunicated threats of the deceased against the defendant is admissible. We agree with cases in which uncommunicated threats have been admitted although there were eye-witnesses.3
The question remains whether a new trial should be granted. In remanding the case the Supreme Court said: “Were the Court of Appeals to declare that the controverted evidence was admissible according to the law prevailing in the District, it would have to consider further whether it would not be too dogmatic, on the basis of mere speculation, for any court to conclude that the jury would not have attached significance to the evidence favorable to the defendant had the evidence been before it.” 336 U.S. at pages 708-709, 69 S.Ct. at page 816. We think it would be too dogmatic.4 The appellant is therefore entitled to a new trial.
It would be unfair not to add that we have confidence in the good faith of the prosecution. Its opinion that evi*993dence of the concealed knife was inadmissible was a reasonable opinion, which the District Court sustained and no court has overruled until today. However, the case emphasizes the necessity of disclosure by the prosecution of evidence that may reasonably be considered admissible and useful to the defense. When there is substantial room for doubt, the prosecution is not to decide for the court what is admissible or for the defense what is useful. “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314.
The order of the District Court is reversed and the case remanded with instructions to grant a new trial.
Reversed and remanded.
. No. 9882, Griffin v. United States. We also dismissed, with an opinion which the Supreme Court noted, 336 U.S. at page 708, 69 S.Ct. at page 815, in deciding the present case, an appeal from the denial of a petition for a writ of habeas corpus. Griffin v. Clemmer, 83 U.S.App.D.C. 351, 169 F.2d 961.
. We do not attempt to reconcile our present opinion with our opinion in Griffin v. Clemmer, supra note 1. The Supreme Court’s opinion has intervened.
. E. g., Trapp v. Territory of New Mexico, 8 Cir., 225 F. 968; McGuff v. State, 248 Ala. 259, 27 So.2d 241; State v. Wooten, 136 La. 560, 67 So. 366; State v. Minton, 228 N.C. 15, 44 S.E.2d 346.
. Though the evidence regarding the playing cards in Hunter’s hand would, if believed, diminish the significance of the evidence regarding the knife in his pocket, it would not necessarily destroy that significance. Moreover a jury might believe the knife evidence but not the playing-card evidence.