(dissenting).
As appears from the history of appellant’s efforts to obtain review of his convictions, set forth in the court’s opinion, the merits are now reviewed for the first time. Accordingly, the time which has elapsed without such review, which defendant has continuously sought, cannot fairly be attributed to him. He promptly sought relief after his convictions and has persisted ever since in the effort. On the present remand to us by the Supreme Court I am of the view that we have jurisdiction to consider the judg*707ments of conviction as on direct appeal, and agree with the court that we should examine the merits.
The evidence of guilt in some respects was so strong that it is with some reluctance that I dissent from the affirmance of the convictions. Nevertheless, the defendant has consistently maintained his innocence and it is possible that he was not the guilty party in some of the numerous instances of housebreaking and larceny charged to him. Be that as it may, the trial was of a character which I am unable to approve as a basis for the convictions. I do not suggest that the accused should be acquitted or the charges against him dismissed. I think, rather, that he is entitled to a new trial for the reasons now to be stated.
(1) The two indictments, each containing several counts charging separate housebreakings and larcenies at widely separated dates, were consolidated for trial. The trial judge asked the defendant’s appointed counsel if he had any objection to consolidation. He answered, “I can see no good that can be served for lack of consolidation, because there is a general denial of guilt as to all counts. It would seem to me in the interest of time that the cases might be consolidated.” The “reasons” for not objecting to consolidation were thus made clear. We are not left to speculate that some trial tactic, deemed helpful to the accused, was a reason. The reasons are stated and are two: First, “there is a general denial of guilt as to all counts.” This is no reason whatever for consolidation, for there would be no trial at all of any count of which guilt was not denied. Second, consolidation would be “in the interest of time.” The question for defense counsel was not the “interest of time” but the interest of the defendant.
(2) Defendant was taken into custody at 8 a. m. on December 17,1955. He was not given a preliminary hearing until forty-eight hours later, the morning of Monday, December 19. During the intervening period he made several incriminating statements to the investigating officers. These statements were admitted in evidence without objection. They appear to have been clearly inadmissible under the McNabb-Upshaw-Mallory exclusionary rule of evidence. No conceivable reason is advanced why objection was not lodged by counsel to this highly prejudicial evidence so that at least its admissibility could be determined. Indeed, when the statements were first introduced at the trial defendant himself asked to address the court. He protested to the judge, having been given the right to do so out of the presence of the jury, that he “wanted someone here to protect my rights for me. I don’t have it.” This appeal for help was answered by reassurances of the court. A reading of the transcript of the trial convinces me these reassurances were not realized.
(3) The court on its own motion gave the jury what is known as the “missing witness” instruction. Defendant had testified in his own defense. He said he had obtained some items found in his possession from a man named Chester Helm in a dice game. There was some evidence Helm was a relative and could be found at defendant’s address. The defense had issued a subpoena for Helm, which the Marshal had returned with the notation he was unable to locate Helm. The Marshal noted on the subpoena that the people at the given address had been evicted some time before and their whereabouts were unknown. In this situation the court instructed the jury as follows:
“The defendant also says that the property that was found on his person he bought from someone whose name is Chester Helm. However, Chester Helm is not produced and the defendant gives no explanation as to why he didn’t call Chester Helm as a witness, if Chester Helm exists. You have a right to infer and the law permits you to do so, if you choose to do it, that if Chester Helm exists and he would be called as a witness, his testimony would have been ad*708verse to the defendant, on the theory that if he exists and would testify favorably, he would have been called by the defendant, unless some valid explanation for failure to do so would have been adduced.”
Aside from the fact of the issuance of a subpoena for Helm, which was called to the court’s attention when the instruction had been given, and the fact that there was no showing Helm was more available to defendant than to the government, the instruction had no proper place in the case, and was prejudicial to defendant. This “missing witness” instruction was given on the basis of defendant’s testimony about Helm; that is, Helm’s possible presence as a witness came into the case solely on the basis of defendant’s testimony implicating Helm in a serious criminal matter. In such a situation the “missing witness” instruction is not in order. As Wigmore states: “[T]he inference [that the testimony would be unfavorable] is clearly not a proper one where the person in question is one who by his position would likely be so prejudiced against the party that the latter could not expect to obtain from him the unbiassed truth.” II Wigmore, Evidence § 287 (3d ed. 1940.) It may well be that had Helm been called as a witness he would have testified unfavorably to defendant, but in the circumstances of this case an inference that he would do so does not arise from the defendant’s failure to call him, as the court instructed the jury, but from the fact that he would be implicating himself if he testified favorably to defendant.
The absence of objections in the context of this trial serves to emphasize rather than to alleviate the failure of the trial to meet the requisite standard of fairness. Moreover, Fed.R.Crim.P. 52 (b), which has the force of law and has often been applied by this and other federal courts, provides:
“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”