(dissenting).
I dissent from the majority’s holding that Detective Sergeant Cosman’s testimony concerning the telephone conversations was properly received in evidence. If that testimony was inadmissible the Government does not contend that it was not prejudicial. The testimony recounted two telephone conversations between appellant and one Matthews, the paramour of the deceased woman upon whom the abortion was allegedly committed, to which police listened on an extension telephone. The calls were made by Matthews from the office of the Homicide Squad where he was being questioned. He knew — but appellant did not know — that the police were listening to the conversations. Upon defense counsel’s objection to Sergeant Gosman’s testimony as “wire tap evidence” the trial judge ruled the testimony admissible because “one of the parties acquiesced in the conversation being intercepted.” He said it did “not make any difference” to his finding of acquiescence that this party was in the custody and control of the police.
Section 605 of the Federal Communications Act, 48 Stat. 1103, 47 U.S.C.A. § 605, commands that “ * * * no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person * * * ".
The question is whether Sergeant Gosman “intercepted” the communications between Matthews and the appellant. The majority treats the Supreme Court’s recent decision in Rathbun v. United States, 1957, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134, as dispositive of this issue. I disagree. In Rathbun, one Sparks, a telephone subscriber, expected a long distance call threatening his life. He “requested” the police to overhear the conversation on his telephone extension, and they complied with his request. 355 U.S. at page 108, 78 S.Ct. at page 162. The request was voluntary in every sense. The Supreme Court held that compliance with the request was not an “interception.” The present case is quite different. There is nothing to suggest that Matthews, who telephoned to the present appellant, invited or requested the police to listen to the conversations. On the contrary, it is quite as likely that the plan to have the police listen and even the plan to have Matthews telephone to the appellant, originated with the police. It is not even clear that Matthews freely consented, though he did at least submit. *74He was not using his telephone but a police telephone. There is nothing to suggest that he could have prevented them from using their own telephone in their own way. In other words, there is no evidence that'he could have made the calls without their listening to it. It does not even appear that they consulted him instead of merely telling him they were going to listen. In my opinion the Rathbun rule, that there is no interception of a telephone conversation when one party to it invites a third person to listen, has no application to these facts.
Since the record does not show whether or not there was interception, I would vacate the judgment and remand the case to the District Court for reconsideration upon a supplemented record.
In that disposition of the case it is not necessary to reach the constitutional question of the validity of the license revocation statute. But, since I read the majority as deciding that question, it is permissible to record my dissent from its conclusion.
The statute, D.C.Code § 2-123, authorizes the District Court to revoke a doctor’s license “upon evidence showing to the satisfaction of the court that [he] has been guilty of misconduct * Emphasis supplied. No one, I suppose, would suggest that Congress may validly authorize the District Court to convict an individual of a crime and sentence him to fine or imprisonment for being guilty of “misconduct.” Such a stand-ardless criminal statute would obviously be void for vagueness. And, as this court has said, “the principles that apply in the protection of” a doctor’s right to practice his profession “are of the same general nature, though not in all particulars, as those which safeguard him when prosecuted for the commission of a minor offense.” Czarra v. Board of Medical Supervisors, 1905, 25 App.D.C. 443, 454.
In Czarra, we held invalid the predecessor statute of D.C.Code § 2-123 which authorized license revocation on a finding of “unprofessional or dishonorable conduct.”
We said:
“Doubtless all intelligent and fair-minded persons would agree in the opinion of the board of medical supervisors that the act charged against the appellant in the case at bar amounted to conduct both unprofessional and dishonorable. But this is not the test of the validity of the particular clause of the statute. The underlying question involved in all cases that may arise is whether the courts can uphold and enforce a statute whose broad and indefinite language may apply not only to a particular act about which there would be little or no difference of opinion, but equally to others about which there might be radical differences, thereby devolving upon the tribunals charged with the enforcement of the law the exercise of an arbitrary power of discriminating between the several classes of acts.” 25 App.D.C. at page 453.
We concluded that the standard provided —“unprofessional or dishonorable conduct” — was essentially no standard at all. Yet that standard, in a statute dealing with the medical profession, is probably clearer and more definitive than the “misconduct” standard provided by the instant statute. The earlier statute would at least exclude as a ground of revocation such misconduct as does not reflect on professional standing or personal hon- or. Under the present statute any misconduct — even traffic offenses — could, in the uncontrolled discretion of the District Court, serve as a basis for revoking a license.