(concurring in part and dissenting in part).
The most important part of this case has to do with the challenge of defendant to the use of the so-called handbook for jurors. The importance of the question in regard thereto, which was properly raised, argued and decided by the panel which heard this appeal originally, makes the matter of interest to all courts in the United States, including the federal district courts.
The unanimous opinion of the panel was written by retired Circuit Judge Major, a former chief judge of this court, with a background of distinguished service as a practicing lawyer, prosecuting attorney and United States district judge.
Responding to a direct attack upon the use of the juror’s handbook and a defense of its use offered by the government attorney, Judge Major (who unfortunately cannot sit upon this court as a member of an en banc hearing, be*192cause he is now retired),1 wrote an excellent opinion in which he reviewed the pertinent decisions and concluded that the use of the handbook “impinges upon the right of a defendant to a fair and impartial trial as guaranteed by the Constitution and the law,” and “it cannot be judicially sanctioned because of the noble purpose of its sponsors.” He pointed out that the government had in no way questioned the propriety of the challenge-to-the-array made by defendant at the trial in the district court, and which, as Judge Major said, was “admittedly sufficient to preserve the question for review”.
Speaking of the contents of the handbook, Judge Major said, in part,
“ * * * 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. The pamphlet purports to inform the juror as to the procedure and rights of the parties in a civil case and, distinct therefrom, the procedure and rights of the parties in a criminal ease. Referring to a civil case, a juror is informed that- ‘Defendant calls witnesses and produces evidence, to disprove the plaintiff’s case and to prove the defendant’s claims.’ That is an inaccurate statement as applied to a civil case where a defendant is accorded the privilege but not required to produce evidence. The damaging effect which this misinformation is likely to produce is amplified by the statement, “The procedure in a criminal case in a United States District Court is very similar in many respects to that in a civil case except that the United States government always begins the case.’ And again, ‘What has been said in this handbook about the procedure in civil cases applies in a general way to criminal trials.’ We think this anemic distinction between a criminal and a civil case was likely to implant in the mind of a juror an erroneous impression, particularly so when the pamphlet makes no reference to the numerous safeguards provided by the Constitution and otherwise for the protection of a defendant in a criminal case. In no manner was a juror informed that a defendant charged with crime is entitled to the presumption of innocence and that the burden of proving his guilt beyond a reasonable doubt is upon the government. The pamphlet states, ‘The defendant has a right to present his evidence at the trial in open court before the judge and the petit jury.’ The juror was not informed that a defendant is not required to present any evidence, or that a defendant may, at his option, become a witness and that no inference is to be indulged against him for his failure so to do.
“The pamphlet states, ‘What sentence may be given the defendant must be of no concern to the jury. Sentencing is the function of the judge alone.’ We assume that is substantially a correct statement of law; in fact, the court in the instant case instructed the jury to that effect. However, following the last quotation the pamphlet proceeds : ‘A verdict of guilty does not necessarily mean that the defendant will receive a long sentence or that he will be required to serve any sentence at all. The judge may impose such sentence as appears to him to be just with the limits fixed by law or in a proper case he may suspend sentence and place the defendant on probation.’
“We think an instruction in the language of this last quotation would have constituted reversible error. It amounts to a plain invitation to the jury to return a verdict of guilty and leave the consequences to the court. The information thus possessed by a juror could form the *193basis for a potent argument to win over a doubtful or wavering juror.
It could prejudice the right of a defendant to a fair trial on the issue of his guilt or innocence.
“While there are other matters contained in the handbook which are of doubtful propriety, we think what we have shown is sufficient for our present purpose.”
Judge Major relied upon the persuasive opinion in People v. Schoos, 399 Ill. 527, 78 N.E.2d 245, 2 A.L.R.2d 1096, where the use of a similar publication, known as a “Jury Primer”, was held cause for reversal of a criminal conviction. He cited United States ex rel. Toth v. Quarles, 350 U.S. 11, 23, 76 S.Ct. 1, 8, 100 L.Ed. 8 where the court quoted with approval from Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 79 L.Ed. 603, as follows:
“Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.”
It is significant that Judge PARKINSON offers no disagreement with Judge Major’s criticism of the handbook, recognizing that this court “gave minute and careful consideration to the contents of the handbook and held that it was prejudicial.” Instead Judge PARKINSON refrains from considering the handbook issue, which the panel did decide. He is confronted with a situation where, neither in the district court nor in its briefs in this court, has the government contended that a challenge to the array is not the proper mode of attacking the use of the handbook. Actually the first time this point has been made by the government is in its petition for a rehearing in this court. The rule is well-settled that that is too late. Mitchell v. Greenough, 9 Cir., 100 F.2d 1006; Marion Steam Shovel Co. v. Bertino, 8 Cir., 82 F.2d 945, 948; Merriman v. Chicago & E. I. R. Co., 7 Cir., 66 F. 663; Otoe County Nat. Bank v. Delany, 8 Cir., 88 F.2d 238, 250; A. F. Withrow Lumber Co. v. Glasgow Inv. Co., 4 Cir., 106 F. 363; Reece Folding Mach. Co. v. Fenwick, 1 Cir., 140 F. 287, 292. Recognizing that on this record we are not permitted to consider a point not seasonably raised, and are therefore required to ignore it, Judge PARKINSON says “This we must do.” What there is about this ease to justify this ipse dixit, he does not explain. He cites no authorities to sustain him.
The proceedings in this case particularly call for an application of the aforesaid rule. During the argument before the court en banc on petition for rehearing, Miss Lavin of counsel for appellant, in pointing out the disadvantage to which appellant’s counsel had been put by the government’s failure, in its main brief herein, to attack the challenge-to-the-array method of raising the question as to the handbook, intimated that as a matter of fact the point was also brought to the district court’s attention in another way, which she felt she could not relate upon the argument on rehearing, inasmuch as that would require her to go outside the record. She stated that, in any event, she did not agree that the point had not been raised in the district court otherwise than by a ehallenge-to-the-array. Whereupon Chief Judge DUFFY asked her whether, as a matter of fact, defendant in the district court had otherwise raised the point. Miss Lavin responded that Mr. Callaghan, who was at the trial, had informed her that several of the jurors had been asked upon their voir dire whether they had read the handbook and they said that they had. Neither Mr. Callaghan nor assistant district attorney Lulinski, who were both present when Miss Lavin made this response, disagreed with her statement. Actually, Mr. Callaghan nodded in the affirmative.
If an attack had been seasonably made by the government on the efficacy of the challenge-to-the-array, appellant’s counsel could have produced in this court the whole record pertaining to the attack upon the handbook in the district court.
*194In view of the situation thus presented to us, it is unfortunate that Judge Major’s opinion on the handbook issue is discarded and that the courts of the country will have to wait until the point is again raised in some future criminal trial which results in a conviction and an appeal. I feel that the net result is that the wholesome effect of an opinion is dissipated and the administration of justice is left suspended on the handbook issue until it comes before a court of review at another time. Thus time and expense are unnecessarily wasted.
I would adhere to our first opinion herein.
. 28 U.S.C.A. § 46(c).