(concurring).
My only question concerning the majority opinion has to do with the husband-wife privilege question.
Two of the ten specific items of property allegedly concealed were a note of the Exeter Hotel in the sum of $2,000 dated December 20,1955, payable to Sally Bisno, and a cashier’s check in the sum of $2,500, dated December 29, 1955, drawn on the Bank of America, Beverly Drive and Wilshire Branch, payable to “A1 Bis-no or Sally Bisno.” Referring to these items in his rebuttal argument to the jury, counsel for the Government said:
“The $2,500.00 cashier’s check and the money that went into the Exeter Hotel, Mr. Strong [counsel for appellant] states that this is all Sally’s [appellant’s wife]. What did Sally say? Sally didn’t say anything. She sat in court and did not testify.”
In an effort to offset this remark, counsel for appellant then proposed the following jury instruction:
“You are to draw no adverse inferences from the fact that defendant’s wife did not testify at this trial. * * *”
The trial court refused to give this instruction and appellant argues that this was error. The majority opinion expresses the view that the court did not err in this regard.
I respectfully disagree. Appellant’s privilege not to permit his wife to be called against him as a witness, and possibly his privilege against her disclosure of husband-wife communications were involved here despite the fact that the prosecution did not seek to'call her as a witness. This is true for the reason that appellant could not call her as a witness in his own behalf without waiving these privileges as to her cross-examination. VII Wigmore on Evidence, McNaughton Revision, 1961 § 2242(3), page 258. Thus appellant’s failure to call his wife as a witness represents an exercise of these privileges.
Where such privilege has been exercised, the established principle which permits an inference that the excluded testimony would be unfavorable to the party who suppressed it ought to yield, as being inconsistent with the full exercise of the privilege. See Wigmore, supra, § 2243, page 259. In my view, therefore, the trial court should have given the requested instruction.
I express no view as to whether the privilege which enables either spouse to exclude anti-marital fact testimony by the other should be retained, since in Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125, the Supreme Court has ruled in its favor. As long as the privilege is recognized it ought not to be substantially undermined by permitting, in connection with its exercise, the usual inference with respect to the failure to produce available evidence. I agree with the majority that the privilege of the non-party spouse to refuse to testify (see Mills v. United States, 4 Cir., 281 F.2d 736), presents no problem for the reason that in so far as the record reveals, appellant made no attempt to call her.
Notwithstanding the view expressed above that the requested instruction should have been given, I would affirm. The wife’s testimony would have been relevant only as to two of the ten items on which the single-count indictment was based. The evidence so overwhelmingly supports the Government’s case as to the eight other items that it can be safely concluded that the jury would have reached the same verdict on the count in general, whether or not the requested instruction had been given. Failure to give the requested instruction was therefore, in my opinion, harmless error. See Rule 52(a) Federal Rules of Criminal Procedure, 18 U.S.C.A.