(dissenting).
I dissent, believing that the Diggs-Caminetti rule should not apply to those cases where as here the taking of the stand by the defendant was upon an issue unrelated to the issue of guilt. Grantello v. United States, 8 Cir., 1924, 3 F.2d 117, 121.
The question of the voluntariness of a confession involves constitutional guaranties and, it would seem to me, should be recognized to be an issue wholly independent of the issue of guilt — one upon which the defendant should be free to testify, subjecting himself to cross-examination upon that issue and as to credibility but without subjecting himself to cross-examination or incriminating inferences upon the issue of guilt. The choice of federal law that factual issues upon the question of voluntariness be resolved by the trial jury rather than by some independent trier of fact (cf. Enoch v. Commonwealth, 1925, 141 Va. 411, 126 S.E. 222; 3 Wigmore, Evidence (3d Ed., 1940) §§ 86CM361) should not be permitted to result in prejudicing the defendant in his right to testify freely upon this matter.
I cannot agree with the majority that the quoted testimony of the defendant amounts to a present assertion of innocence. If the whole story of an involuntary confession is to be told, it would normally include three parts: the assertion of innocence to the interrogating officer, the application of duress and the resulting confession. Such was the story told by this appellant. The quoted testimony, to me, was no more than his statement of part number one.
The fact that he was not asserting his innocence under oath would seem to have been made clear to the jury. Counsel opened his direct examination of appellant in the following manner:
“Q. Now, Mr. Dyson, I am going to ask you questions which relate solely to the circumstances under which you made certain confessions to Sergeant Rafferty of the Los Angeles Police Department and to Mr. Crowe.
“I am not going to ask any other questions relating to your actions, relating to a haircut or whether or not you committed the crime in question.
*641“The purpose of this questioning is solely to permit the jury to ascertain whether your confession to Mr. Crowe on Wednesday, after you had been brought before the Commissioner, was in fact free and voluntary.”
Upon cross-examination and again on re-cross, counsel for the United States inquired of the defendant whether he was in fact innocent of the crime. Upon objections by defendant’s counsel, these efforts to enlarge the scope of the defendant’s testimony failed.
Accordingly, in my view, the giving of the instruction in question was error such as to require reversal and a remand for new trial.