(dissenting).
Though I cannot concur in the judgment or in the court’s opinion, I agree with much that is said, including the court’s commendation of counsel whom we appointed to represent the petitioner. I find it hard to reconcile that commendation with the court’s ruling. In my opinion the carefully documented contention which has been presented, after mature reflection, by competent counsel who has nothing to gain except a sense of duty well done, is not frivolous.
In discussing the “good faith” requirement of what is now 28 U.S.C. § 1915(a) Senator Bacon, a member of the Judiciary Committee, said: “When a judge has heard a case and it is about to be carried to an appellate court, he * * * is in a position to judge whether it is a case proceeding captiously, or viciously, or with prejudice, or from any other improper motive, or whether the litigant is proceeding in good faith.” 45 Cong. Rec. 1533. No one suggests that petitioner or his counsel is proceeding captiously, or viciously, or with prejudice, or from any improper motive.
In another case the Solicitor General advised the Supreme Court: “We agree with petitioner that, as Mr. Justice Frankfurter pointed out on the application for bail in Ward v. United States, 76 S.Ct. 1063 [1 L.Ed.2d 25] (decided August 8, 1956), there is a qualitative distinction between ‘frivolous’ and ‘lack of a substantial question’. We further agree that this Court has indicated in Johnson v. United States, 352 U.S. 565 [77 S.Ct. 550, 1 L.Ed.2d 593] and Farley v. United States, 354 U.S. 521 [77 S.Ct. 1371, 1 L.Ed.2d 1529] that ‘frivolity’ is the proper standard to be applied in determining lack of good faith under the in forma pauperis statute. * * * Neither case equated ‘lack of a substantial question’ with ‘frivolous.’ ”1 In still another case, in which this court had applied the “substantial question” test, the Solicitor General advised the Supreme Court: “[W]e agree that the proper test to be applied in determining whether a defendant should be allowed to appeal in forma pauperis is whether the appeal is frivolous, not whether the question is substantial. We believe that there is a difference of substance, not merely of terminology, in these two standards, and that this Court has determined that the proper standard to be applied is that of lack of frivolity. * * * [W]e do not believe that here the question raised, that of probable cause for the arrest, can necessarily be *741characterized as frivolous, even though ultimately the appeal may prove unsucsessful. We therefore suggest that it would be appropriate to remand the cause for reconsideration by the Court of Appeals as to whether the appeal is frivolous.”2
An appeal may raise a substantial question and yet be unlikely to succeed. Obviously one that falls short of raising a substantial question is very unlikely to succeed. It does not follow that it is frivolous. Even when the costs of a criminal appeal are prepaid, if the appeal is obviously groundless it may be dismissed under Rule 39(a), F.R.Crim.P. 18 U.S.C. I think it clear that if the costs of the appeal now proposed were prepaid, this court would not dismiss the appeal but would permit it to be briefed and argued in the usual way. If that be true, this court’s action prevents the petitioner because he is poor from proceeding with an appeal he could proceed with if he were rich. Though full briefing and oral argument would probably not result in reversing petitioner’s conviction, counsel’s memorandum convinces me that there would be a possibility of reversal.3 I think it follows that we should allow an appeal in forma pauperis.
Some have urged that courts, government counsel, and counsel for poor defendants should not be burdened with appeals that are unlikely to succeed. To this there are several answers. The United States can afford to let poor defendants take criminal appeals that the rich could take. It cannot afford to do otherwise. And the burden of prosecuting, defending, and deciding appeals, though it is greater, is not inordinately greater than the burden of prosecuting and deciding disputes, such as this one, over the question whether an appeal should be made possible.
. Brief p. 7, in opposition to the petition for a writ of certiorari in Hill v. United States, 357 U.S. 911, 78 S.Ct. 1157.
. “Brief in opposition” pp. 3, 4, in Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974.
. See Mr. Justice Douglas in Herzog v. United States, 1955, 75 S.Ct. 349, 351, 99 L.Ed. 1299.