William Belvin, James E. Clanton, Clifton Hawkins and Wallace Hawkins v. United States

JONES, Circuit Judge

(dissenting).

The majority holds, or so it seems to me, that because the court erroneously declined to permit the Government to introduce evidence of other similar criminal acts of the defendants, such evidence could not be properly elicited by cross-examination of the defendants who thereafter took the stand as witnesses in their own behalf. The result of this doctrine, as I see it, is to give a person accused of a crime a vested right in the perpetuation of error. Persons who are accused of criminal violations of the law are given many safeguards. This decision seems needlessly to add another, and one which restricts the discretionary power of the court to admit later in the trial evidence erroneously excluded. I do not see how, even if the majority’s view be correct, it can apply to the defendants who voluntarily took the stand after the court had changed its earlier ruling. The situation of the other defendants was then no different than it would have been if the court had made a correct ruling and had admitted evidence of the other accidents when it was first offered.

The holding that the admission of the confession, though accompanied by an admonitory charge, is reversible error, seems to me to be contrary to the controlling precedent of Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101.

I agree with the majority that the reference to the Clanton confession in the instruction regarding Hawkins was improper. I also agree that the portion of the instruction saying that “in every case where you find a verdict of guilty against anybody, you have to. find a ver-diet of guilty also against Wallace Hawkins,” should have excluded Clanton, who had confessed, from the “anybody” group. It might have been an encroachment upon the province of the jury to have given this instruction whether or not Clanton was excepted. However, reading the instructions in their entirety, I conclude that the jury was not misled. I fail to see any prejudicial error.

I would affirm the judgment and sentence of the district court.