(dissenting).
The appellant was not warned by the Internal Revenue Agent Grossnickle as to *703his rights, and objection was made to the introduction in evidence of any statement made or record supplied by appellant to Grossnickle. Not only were the appellant’s responses to Grossnickle received in evidence against him, but even his failure to volunteer information was considered as a circumstance of his guilt as is evident from the following expressions in the fourth paragraph of our original opinion: “When the investigation began no information was given by the defendant touching his pineapple business. Moreover, the tax investigators were not informed of the different banks in which the defendant did business and kept accounts. It became necessary for the investigators for the Government to search out and ascertain the true facts touching nearly every phase of the defendant’s business.” [191 F.2d 286, 288.]
Under the Fifth Amendment it is not permissible to compel any person in any criminal case to be a witness against himself. Yet the law requires every taxpayer to make and file income tax returns and to permit his records of income to be examined by government agents, and such required evidence is admissible against the taxpayer in a criminal case. The ground upon which that result is justified is that by failing to claim his constitutional privilege when the information is required of him, the defendant has waived that privilege.1 In this case the evidence does not show that any such waiver of the defendant’s constitutional privilege was intentionally made, nor that either the express admissions to Grossnickle or those arising from the defendant’s silence were in fact voluntary.2
Further consideration has convinced me also that the refusal to admit in evidence for the jury’s consideration the letter copied in the opinion that accompanied the check to the Government in the sum of $260,106.-15 was not merely error but was highly prejudicial. Our holding that the letter was not admissible in evidence as a part of the res gestae of the remittance was based upon a false premise that the remittance went only to prove that the defendant owed at least that amount in unpaid income taxes. In the trial, that fact, never was actually in dispute. The defense urged was good faith, that the defendant’s conduct was not a wilful attempt to defeat and evade income taxes. The unexplained remittance made only eleven days after the return of the indictment carried with it the strong inference that the defendant knew that he owed the income taxes but did not see fit to-make the payment until the indictment was returned. The letter undertook to explain why the remittance was made at that time and was relevant to be considered upon the question of the defendant’s good faith in not having made the payment earlier. The importance of the letter as evidence related not to the uncontested issue of indebtedness, but rather to the vital issue oí good faith. Upon that issue, the remittance having been proved, I think that the letter-accompanying the check was admissible either as a part of the res gestae of the remittance, or more properly by reason of that broad rule of fair play that when a part of a conversation, document or transaction has been introduced in evidence by one party, the opposing party has a right to-introduce the remainder, so that the jury may consider the entire conversation, document or transaction. Under that rule, the-fact that the letter was self-serving did not render it inadmissible.3
The government considered the defendant’s remittance of over a quarter of a million dollars delinquent income taxes made just after the return of the indictment as a. *704virtual admission of guilt and at the very outset of the trial proved that remittance by the first witness, thus striking a well nigh fatal first blow against the defendant. It was not until the seventh day of the trial that the court permitted the defendant to testify that the indictment was the first notice he had of the amount of taxes owed, and that he would have paid such taxes before had the government notified him of the amount. He never was permitted to testify that he wrote and mailed the explanatory letter along with the remittance. When considered by the jury in the light of the defendant’s interest in the verdict, his testimony may have been disbelieved, while the jury may have given weight to the statement accompanying the remittance. Considering the letter and the remittance together as parts of one entire transaction the jury may well have rejected any inference of the defendant’s bad faith in not having paid the taxes earlier. Failure to reject that inference originally may not have been cured by testimony of the defendant in rebuttal of the inference. It would be just as logical it seems to me to argue that error in admitting an illegal confession was rendered harmless by permitting the defendant to testify in denial of the statements contained in the confession.
Every claim that an error was harmless must be decided according to the circumstances of the particular case, and precedents are rarely if ever controlling. However, the situation considered in Crawford v. United States, 212 U.S. 183, 201, 29 S.Ct. 260, 267, 53 L.Ed. 465, is remarkably similar to this case: “ * * * The defendant did on the trial testify to the same explanation as contained in the letter of his counsel, i. e., that Aspinwall in substance consented to the taking of the letters, but it is doubtful if such evidence cured the error of excluding the letter, written at once after the accusation was made and long before the trial, in which letter he admitted and explained the taking, showing it was from no desire to suppress evidence, but, on the contrary, to preserve it.”
In holding an error harmless, the Court should be careful not to substitute its judgment for that of a jury, and thus in effect to deny the defendant’s right to trial by jury. I cannot with fair assurance say that if the jury had been allowed to consider the letter it might not have reached a different verdict.4
The holding in this case is important also because of its probable effect upon the collection of revenue by the government. Taxpayers may be slow to remit delinquent taxes when the fact of such remittance may be used in evidence against them, while their explanation of the delinquency made at the time of remittance is excluded from evidence.
I think that the case should be reversed and remanded for another trial, and therefore respectfully dissent.
. Shushan v. United States, 5 Cir., 117 F.2d 110, 117, 133 A.L.R. 1040; Nicola v. United States, 3 Cir., 72 F.2d 780, 784;. Stillman v. United States, 9 Cir., 177 F.2d 607, 617. See Shapiro v. United States, 335 U.S. 1, 32 et seq., 68 S.Ct. 1375, 92 L.Ed. 1787.
. See United States v. Heitner, 2 Cir., 149 F.2d 105, 107.
. Perrin v. United States, 9 Cir., 169 F. 17, 24, 26; York v. United States, 9 Cir., 241 F. 656; 22 C.J.S., Criminal Law, § 660, page 1043 ; 20 Am.Jur., Evidence, Sec. 551, p. 464; see also note following Commonwealth of Massachusetts v. Britland, 300 Mass. 492, 15 N.E.2d 657, 118 A.L.R. 132, 138.
. Kotteakos v. United States, 328 U.S. 750, 763, 66 S.Ct. 1239, 90 L.Ed. 1557; Fiswick v. United States, 329 U.S. 211, 218, 67 S.Ct. 224, 91 L.Ed. 196; Krule-witch v. United States, 336 U.S. 440, 444, 69 S.Ct. 716, 93 L.Ed. 790; see Federal Rules of Criminal Procedure, Rule 52(a), 18 U.S.C.A.