(dissenting).
I agree with my brethren upon the factual premises upon which the majority decision rests, but not with the conclusions. The most damaging error upon which the reversal is predicated is that relating to the breadth of cross-examination to which the Government attorney was permitted to go in exploring appellant’s knowledge of deposits in the joint bank account he had with his brother. I think the unexplained receipt of large sums of money, under the facts of this ease, was probably a proper matter for cross-examination if held within reasonable bounds. Doubtless the judge below would have narrowed the scope of this examination if he had been given a chance. But the only objection made during the extended cross-examination is that set forth in Footnote 2 supra. That objection was addressed solely to the contention that it was immaterial whether or not the $40,000.00 deposit was made in cash. The argument of the Government’s attorney set forth in Footnote 3 was not objected to at all, and the instruction copied in Footnote 4, even if it was calculated to benefit appellant in the manner claimed was not covered by a *957sufficient objection under Rule 301 of the Rules of Criminal Procedure.
The very reprehensible argument made by the attorney for the Government concerning his ability to produce fifty character witnesses was not objected to at all.
The matter of discovery of bill's of particulars and the like must be left to the discretion of the trial court. United States v. Socony Vacuum Oil Co., 1940, 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129; Goldman v. United States, 1942, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322; In-diviglio v. United States, 5 Cir., 1957, 249 F.2d 549, 554 et seq. Aside from this, the stenographic report of the pretrial conferences shows that the parties discussed the Evans books, which constituted the largest proportion of the items relied upon by the Government.
In my opinion, by far the most serious deviation from accepted procedure, committed by the Government in the trial of the case, had to do with the use made of the dozen or more charts introduced in connection with the testimony of the revenue agents. The “take-offs” made by these agents from the books of the nine concerns which had purchased cars from appellant constituted the only actual evidence of these transactions placed before the jury, although the books of four of the nine were offered in evidence en masse. Agent Weir, who had done the greater part of the work on the Evans books, died before the trial, and his work sheets and the summaries made therefrom were received in evidence as if the dead man had been there to prove their correctness.
More important the agents were permitted to use these take-off sheets and the work papers of the agents — secondary evidence at best — to construct charts made up of a composite of these work sheets covering the various purchases and contrasted with figures taken by the agents from the books of appellant, his partnership and the corporation of which he was an officer.
One or more agents, authors of the foregoing charts, were permitted to remain in the courtroom and, listening to the testimony of witnesses, to place upon those charts their concepts of what the witnesses had testified, and to add to the whole assembly their own opinions as to what conclusions ought to be reached from the various processes of comparison, addition, subtraction, and deduction.2
“This is during the taxable year * * during which there was in existence the partnership and the corporation, and that is why we have throe separate net worths. [As if net worth had any place in a prosecution based upon specific omissions.] You will see that there are two corporation figures which will be united into one, later. However, the total is all we are concerned with now. During the period * * * R. S. Evans, by the testimony, in the Nash records it shows that they sold Evans $64,765; that was testified to in Exhibit 43. The Evans records show that they paid $115,-310.50, and the mathematical difference between the two is $40,545.50 in tins particular instance, as testified to in Exhibit 8, by Mr. Zuckerman. Julius Stern, ten cars, for $4,800, was testified to in Exhibit 43 by Mr. Zuckerman, and the cost by Mr. Stern, as testified to in Exhibit 19 that he paid, is $7,465. He also testified that he paid in cash $2,575. Gem Motors, fourteen cars for $5,765, as testified to by Mr. Zuckerman in Exhibit No. 43, as appears in the testimony in Exhibit 21, Gem Motors paid $11,196 for these cars. And also in Exhibit 21 they paid in cash $5,431. There again, is a mathematical diiference between the two (indicating). Regil Motors, the Nash records show, by the testimony of Mr. Zuckerman in Exhibit 43, as per the Nash records as testified to by Mr. Zuck-erman on Exhibit 43, shows $875, and as per the Regil Motors records on Exhibit 15, it shows $1,475. And in the category, ‘others,’ according to the Nash records, *958Nash received $6,097.62, and there is no testimony on that, and inasmuch as there is no difference there, there is no result in the difference here. There is a total of $82,392.62, as the total of the five above, indicating sales by Nash during this period. A total of $141,544.12 representing the total paid for these cars, as testified in four instances, and there is no change relating to the ‘others.’ That is during the time of the partnership. It was incorporated on February 1947, .and so during that time the testimony is that Nash sold to R. S. Evans 120 cars, as testified to by Mr. Zuckerman in Exhibit No. 42, for $66,030. And the testimony in Exhibit 9, of the Evans records, shows that Evans paid $95,525 for these ■cars, against the testimony in Exhibit ■9. And it also shows that $29,495 was paid in cash. However, that again also is a mathematical difference. Regil Motors, the Nash records testified to by Mr. 'Zuckerman, Exhibit No. 42, 27 cars for $10,272. Exhibit No. 15 shows that they paid $17,870 for these cars, and there is a $7,145 mathematical difference. The A. A. Auto Sales for the same period, according to the Nash records, as testified to by Mr. Zuckerman in Exhibit No. 42, was for 20 cars at $16,900; and as testified to in Exhibit 29, the cost to A. A. Motor Sales, according to Muir’s testimony, was $22,275, and also as testified, $5,375 in cash. This again is the mathematical difference (indicating).”
In my opinion, this damaging discussion, based essentially upon analysis and opinion, was not testimony at all, but summation, argument, pure and simple. It is doubtful if the agents testified to any fact which could be called testimony —if so, it was an infinitesimal part of the whole. If the Government is to be permitted to resort to such methods in developing its cases, the court should, in my opinion, tell the jury that the witness is not essaying to give any facts, testimony in its only true sense, but is summing up the case, is making an argument as essentially partisan as the closing argument of the United States attorney —with a corresponding reduction in the latter’s time for argument.
The point is that the appellant did not object to this method of proof. Various ■objections were interposed as to the minutiae of the statements the agents were making, but appellant did not ask the court to take any action which would protect him from such prejudicial methods,3 and no error is argued based upon them.
Every trial lawyer is faced, at every ■stage of a case, with the problem whether he should risk the ill will of the jurors by interposing frequent objections, or should cultivate their good will by seeming to cooperate in the fullest development of the truth. But this is an election which must be made. Appellant was represented by eminent and astute counsel and throughout the trial he elected to withhold the making of objections and take his chances with the jury. Concerning a situation resembling this one, we said recently, in De Fonce Construction Co., Inc., v. City of Miami, 5 Cir., 256 F.2d 425, 428:
“All that the record shows is that both parties, exercising a self-imposed restraint as remarkable as it is unusual in making objections and exceptions, each no doubt speculating on a jury verdict, have committed the trial of the case to the district judge without substantial objection or other form of interposition. Having thus chosen their course, it is too late for the losing parties, after the speculation has turned out badly for them, to depart from it by seeking *959for the first time here to put the court in error and invalidate the results of this long trial by making large and unsupported claims of injury sustained by them, claims which were not made and preserved below.”
In my opinion, “Sitting as we do as an appellate court, we are justified in finding error in the actions of the trial court only with respect to matters presented to that court, and limited to the contentions made to it as the basis for the requested action.” 4
Where, as here,' — and it must be recalled that appellant does not contend that the evidence was insufficient to convict him — the “record fairly shrieks the guilt of the” appellant, Lutwak v. United States, 344 U.S. 604, 619-620, 73 S.Ct. 481, 490, 97 L.Ed. 593, I do not think we should apply Rule 52(b) and notice the errors mentioned.5 Therefore, I respectfully dissent.
. “No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” [Emphasis added.]
. Some of the answers of the agents would run into several pages. The following excerpt from one of them will show the method of proof resorted to by the Government:
. The court finally intervened with this statement relating to one small segment of the case: “I do not think that there ought to be any charts exhibited to the jury, in view of the feeling that I have about the case, which purports to split fifty-fifty the diverted income. You can argue it to the jury, but they have got to make a finding on that themselves. They have got to infer that from the evidence of the case, and I do not think any expert can infer it for them.” This, in my opinion, was a correct and clear statement of the law, but it came after many charts had been presented before the jury in bold letters and after the damage to the appellant had been done. Doubtless the court would have ruled earlier on the questioa if it had been called upon to do so.
. Indiviglio v. United States, supra, 249 F.2d at page 553. In that case, we discussed the whole question fully and cited and considered the authorities at pages 560-563.
. Cf. the cases listed in Footnote 2 of De Fonce v. Miami, supra.