(concurring).
I concur in the opinion which Judge PARKINSON prepared after this Court again considered the issues in this case by holding a rehearing en banc. I am pleased that what we said in our former opinion with reference to “Handbook for Jurors” is no longer a part of the opinion of this Court, first, because I am strongly of the view that an erroneous conclusion was reached, and secondly, our previous opinion stated, in effect, that the discussion as to the handbook was dicta. In that opinion before discussing the Jurors’ Handbook, we said: “In view of what we have held, there appears no necessity for considering other errors relied upon by defendants.”
I was not a member of the division or panel which originally heard this case. Nevertheless, I would be entirely willing to forego an expression of my views on the Jurors’ Handbook were it not for an opinion filed herein by Judge Finnegan. I ignore the charge that the majority of the Court relies upon a “flimsy archaic technicality” as being incorrect and as adding no light on any issues under discussion.
Judge Finnegan has quoted in extenso from our former opinion which has now been superseded and withdrawn. It is anomalous to be arguing about an opinion which is no longer the opinion of the Court. Nevertheless, it seems important to indicate that some of the members of this Court are not in agreement with the portions of the former opinion which Judge Finnegan has set forth in his sep*186arate opinion which he labels “dissenting in part.”
In our previous opinion we stated: “While, as noted, we think the distribution of the handbook was prejudicial to defendant, a more important objection is that its use constituted an impingement upon the jury system, as well as an invasion of the prerogatives of the legislative branch of the government charged with the responsibility of providing qualifications for jurors.” I have read and reread the pamphlet, and I can find no reasonable basis for saying the use of the booklet was an impingement upon the jury system or an invasion of the prerogatives of the legislative branch of the government. Such a statement should not go unchallenged.
In our previous opinion we also stated : “So, in the instant situation the distribution of the handbook was a departure from the statutory scheme, and the question for consideration is its effect on the jury system rather than a showing of prejudice in an individual case.” I can see nothing about the distribution of the handbook which is a departure from the statutory scheme. Furthermore, I do not agree that the question for consideration is the effect on the jury system rather than a showing of prejudice to the defendant in the case at bar.
We also stated in our previous opinion: “In our view, the most serious criticism of the pamphlet as a means of conveying information is that which is omitted rather than that which is stated.” I take it the Committee of Judges which prepared the pamphlet and the Judicial Conference of the United States which gave its approval never intended the booklet to be a complete exposition of rules that might apply to a civil or to a criminal ease. The booklet was not intended to be an all-inclusive treatise upon the criminal and civil law.
Prior to 1941, many learned and experienced trial judges realized that the proper administration of the law in federal courts would be aided if jurors had some general information as to the role they were supposed to play in the dispensing of justice in those courts. It was undoubtedly the belief of many judges that an informed juror who understood something of the proper functions of a juror could do a better and more intelligent job than one who went into the jury box with a blank mind and with none but the vaguest ideas of where a juror fitted into the federal judicial picture.
In 1941, the Judicial Conference of the United States, then known as the Judicial Conference of Senior Circuit Judges, authorized Chief Justice Harlan Stone to appoint a committee of five district judges to make a study, with recommendations, of the manner of selecting jurors in federal courts. One of the members selected was our late colleague, Honorable Walter C. Lindley, whom the writer of this opinion regards as having been one of the ablest and most experienced trial judges in the country. The other four judges selected were also of wide trial experience. They were Judge John C. Knox of the Southern District of New York; Judge James M. Proctor of the District of Columbia; Judge Colin Neblet of the District of New Mexico; and Judge Harry E. Watkins of the Northern and Southern Districts of West Virginia. It will be noted that this committee represented a splendid cross section of all federal trial judges, for they had wide experience in trying jury cases in both urban and rural areas. It was this committee which drafted the handbook for jurors and before submitting same to the Judicial Conference, caused it to be circulated among all federal judges in the country inviting suggestions and criticisms. After further consideration, the committee made its report and submitted the handbook to the Judicial Conference which approved the handbook and authorized its distribution. From time to time certain modifications and improvements were suggested, and in 1953 the committee recommended certain amendments. In 1954 a letter was sent to all federal judges enclosing the proposed revision and asking for further comments. The handbook *187was then submitted to the Judicial Conference which approved same and authorized the Administrative Office to have it printed and distributed. The revised version was shorter and more attractively printed than the original draft.
The handbook for jurors has been widely used in federal trial courts throughout the country. Many states thereafter adopted handbooks for jurors to be used in the courts of such states. The American Bar Association through its section of Judicial Administration, is now working on a handbook for grand jurors. It was apparent that the purpose of the handbook was not to be an exposition or treatise of the principles of civil and criminal law, but rather, in the language of Judge Ruby M. Hulen, in an article in the American Bar Journal of October, 1952, page 815: “ * * * to tell jurors something about their work, its importance, how it should be approached and performed, along with the fundamentals of Court terms and procedure.”
The proper functioning of the jury system in our courts is of tremendous importance. Many times a citizen is called for jury service who has had no previous jury experience. All too often he is resentful because he thinks he is faced with an unpleasant chore at relatively small pay which will interfere with other duties and activities. His mental attitude towards his jury service is not good. However, a reading of the handbook here in question would show how a jury can be the guardian of the rights of a free people; it emphasizes the idea that a juror occupies a position of great dignity and importance. The juror is told, in effect, that he is an officer of the court, and that it is the juror’s function to find the facts just as it is the judge’s function to determine the applicable law.
A reading of the handbook clearly discloses it is a broad orientation of jurors without reference to any specific lawsuit. It contains fundamental information concerning the operation of the federal jury system.
The following excerpts from the handbook are illustrative as to the purpose of the pamphlet:
(a) “The judge determines the law to be applied in the case while the jury decides the facts.”
(b) “The law is what the judge declares the law to be.”
(c) “The verdict is reached without regard to what may be the opinion of the judge as to the facts, though as to the law his charge controls.”
(d) “The jury in a criminal case must determine what are the true facts and the judge tells the jury what is the law.”
(e) “In both civil and criminal cases, it is the jury’s duty to decide the facts in accordance with the principles of law laid down by the judge in his charge to the jury.”
(f) “Each juror should give close attention to the testimony. He is sworn to discard his prejudices and follow the court’s instructions.”
(g) “They violate their oath if they render their decision on the basis of the effect their verdict may have on other situations.”
The previous opinion of this Court treats the handbook as though it were an instruction to the jury in the case at bar. However, the court below instructed as follows: “You are now further instructed that you shall decide this case only upon the evidence received here in open Court, under the instructions of the Court which are now being given you.” Also, “If you have heard or read or observed anything concerning this case otherwise than here in open Court, you are instructed wholly to disregard what you have so heard, read or seen, and to decide this case solely upon the evidence produced here in open Court under the instructions now being given to you.”
But, conceding arguendo, that in some manner the handbook could be considered as instructions in the instant case, there is no justification for taking words *188or sentences out of context. The excised sentences or words must be read as part of the entire charge. United States v. De Marie, 7 Cir., 226 F.2d 783, 787; United States v. Phillips, 7 Cir., 217 F.2d 435, 443; United States v. Wi-coff, 7 Cir., 187 F.2d 886, 890.
Considering the handbook as a whole, there is no basis for claiming that it contained prejudicial error in the case at bar. Instead, the impression upon a prospective juror’s mind is likely to be that described by Chief Justice Harlan F. Stone when, under date of September 1, 1943, he wrote a “Foreword” in the handbook as follows: “This handbook describes in language readily understood the functions of the juryman in the Federal courts. Every prospective juror should read and reflect upon its advice and resolve by following it, to make his own contribution to the better administration of justice. Many will, I believe, be surprised and gratified to learn that that contribution can be far greater than they had supposed.”
Judge Finnegan has added something new. He discovered the Judicial Conference of the United States was acting beyond its authority in authorizing the publication and distribution of the Handbook for Jurors. It is difficult to believe this contention is seriously made. Yet, as I understand his opinion, he has concluded that an Act of Congress was necessary to authorize the publication and distribution of the handbook.
During the period when the handbook was published and distributed, the Chief Justice of the United States had been directed by Congress to summon to an annual meeting the Chief Judge of each Judicial Circuit in the country. The Chief Justice was directed to preside at the meeting of the group which was designated as the Judicial Conference of the United States. Title 28 U.S.C.A. § 331. The Conference was specifically directed to make a comprehensive survey of the business of the courts of the United States, and to submit suggestions to the various courts in the interest of uniformity and expedition of business. The Chief Judge of each Circuit was directed to report to the Conference as to the needs of his Circuit and as to any matters in respect of which the administration of justice in the courts of the United States could be improved. It is thus apparent that Congress expected the Judicial Conference to consider proposals which might improve the administration of justice in the federal courts.
When Congress provided for a Director of the Administrative Office of the United States Courts, it outlined many of his duties. Title 28 U.S.C.A. § 604 provided: “The Director shall be the administrative officer of the courts, and under the supervision and direction of the Judicial Conference of the United States shall * * Paragraph 12 of the directions provided that the Director shall “perform such other duties as may be assigned to him by the Supreme Court or the Judicial Conference of the United States.” Hence, it appears without doubt that the Judicial Conference acted within its powers in approving the report of one of its committees, which had been appointed by the Chief Justice, and in authorizing the Administrative Office to publish and distribute the booklet “Handbook for Jurors.” Each district judge who received the booklet was advised and understood that it was optional with him whether the booklet was to be used in his court.