(dissenting).
I think the judgment of conviction should be affirmed. At the outset, I emphatically disagree that, as the majority states, appellant was convicted even in part on “hearsay evidence.” In any event, the so-called hearsay evidence was never admitted against appellant.
Kramer and one Dewdney were jointly indicted, tried and convicted of the crime of housebreaking. The testimony indi*118cated that Dewdney actually broke and entered the dwelling of one Watson, and that Kramer was the “lookout.” Kramer’s car was used by them to get to the Watson house and was parked a short distance from the front of the dwelling. The testimony also indicated that Kramer was in the alley at the rear, watching the house. Dewdney attempted to pry open the front door of the house without success. He then went to the rear (where Kramer was walking up and down), broke a glass in the rear door, and entered. He fled when he discovered there was an armed person in the house waiting for him, but was later apprehended. Kramer was seen shortly after Dewdney had fled, and was captured some distance away. He had made no attempt to enter his car; in fact, he was walking away from it.
The appeal relates essentially to statements made by Dewdney out of the presence of Kramer. Chambers (the police officer who had made the arrest) testified at the trial that, as he was waiting to testify before the grand jury, he was approached and spoken to by Dewdney. At this time, counsel for Dewdney objected. The court excused the jury, and the following occurred:
“[Government’s attorney]: Tell us what happened.
“[Chambers]: I asked [Dewdney], what do you want to see me about, and he said, about Nips, and he was worried.
“[Government’s attorney]: Who is Nips?
“[Chambers]: Mr. Watson, I am sorry. I said, what happened, and I said, Did you do this, did you go in his home that night? And he said yes. I said: Was Kramer with you? He said, Yes. I said, Why? He said, They heard that there was $3500 or $3800 in that house, that Mr. Watson had supposedly won on a number, and he said he was sorry for going in there, and that was his reason for seeing me, because I was going to the Grand Jury, and I related this to the Grand Jury.”
At the conclusion of the hearing out of the presence of the jury, the following: occurred:
“[Defendant’s counsel] : If he is going to testify, I don’t think it is-admissible against Kramer, that, whole matter of the alleged crime.
“The Court: Well, anything that, the defendant said, if the defendant, made the statement which the officer claims he made, and I am talking about the defendant Dewdney,. and this was made, I take it, out of the presence of Kramer?
“[Chambers]: That is correct, Your Honor.
“The Court: That statement would only be admissible against Dewdney and not against the defendant Kramer, unless it were-made under circumstances that Kramer ratified the statement, if it was made in his presence and he made no denial, we will say.”
When the testimony of Chambers was renewed before the jury, the court advised the jury as follows:
“Anything that was said by the defendant about the defendant Kramer, outside the presence of Kramer, is not admissible as evidence against Kramer, because he was not in a position to either deny the statement which allegedly was made against him, or affirm it, so-you will have to disregard anything that was said by the defendant regarding Kramer as against the defendant Kramer.” [Emphasis supplied.]
No objection was made to this statement, and I do not see how any objection would, have been proper.
At the close of Chambers’s testimony, the court called attention to the fact that Dewdney had made certain statements to the effect that he had heard that Watson had a large sum of money in his possession, and that two other people-in the car (who were not on trial) prob*119ably would have been willing to share in the robbery. Nothing was said at this time about Kramer; nevertheless the court made the following statement:
“I will tell the jury again and caution the jury that you cannot receive this evidence as any evidence against Kramer, because Kramer was not present on this occasion. You may ■only consider it, if you wish to consider it, and it is up to you to determine whether or not you believe the officer’s testimony and give his testimony such weight as you think it is entitled to, but it is not admissible against Kramer and it can only be considered as to the defendant Dewdney, and it is up to you whether or not you believe that statement or not." [Emphasis supplied.]
No objection was voiced to this.
After the court denied a motion for judgment of acquittal Kramer’s counsel rested his case without calling any witnesses, as did Dewdney’s counsel.
Appellant complains that the court, in its charge, did not instruct the jury that the above statements were not allowed to be used against appellant. However, the court had, on two separate occasions, done this. On being asked by the court, after its charge, if he had any objections to the charge, counsel for Kramer answered that he had none; and, in response to the court’s query as to whether or not he wished to request any further instructions, he answered that he did not. As a matter of fact, apparently satisfied that the jury had been properly instructed not to use the statements against Kramer, Kramer’s counsel made the following argument, among others, to the jury:
“Now, when Mr. Chambers testified, he said he had a conversation with Mr. Dewdney, and that Mr. Dewdney said, Yeah, Kramer was in on it with me. Now, His Honor has instructed you that you are not to give any weight whatsoever to that testimony as far as Mr. Kramer is concerned. You owe that to Mr. Kramer, that that is not admissible against him, and that is the only testimony that the Government produced that Mr. Kramer may have made an agreement with Mr. Dewdney. I caution you again about Mr. Dewdney, that what Mr. Dewdney said that Mr. Kramer had done is not admissible against him. You have to banish that from your mind, and once you have banished that, what do you have?” 1
At no time did Kramer’s counsel ask for a severance nor for a mistrial; his requested instructions had been given; and he was content to go to the jury on that state of the case. Having done so, it is too late for appellant to argue that the case should be reversed on this ground. Appellant could not take his chance of an acquittal and, having been disappointed in the result of the trial, seek a reversal on the admission of the statement which had been accompanied by proper safeguards from the court. At any rate, I feel sure that, in making the argument he now makes, appellant underestimates the intelligence and sensitivity of the jury and fails to realize *120that there can be no presumption that the jury ignored the court’s instructions. Further, I do not know what more the judge could have done than he did.
I might add that it is not unusual, where parties are jointly indicted, for the Government to introduce evidence against one co-defendant even if another co-defendant may be implicated, provided the jury is clearly instructed that the evidence can be used only against the party against whom it is directed. In Lucas v. United States, 70 App.D.C. 92, 104 F.2d 225 (1939),2 the court stated what I have always understood to be the rule in the District of Columbia and elsewhere. There the court said:
“ ‘The general rule is that persons jointly indicted should be tried together. Granting separate trials is a matter of discretion. The mere fact that admissions have been made by one which are not evidence as against the other is not a conclusive ground for ordering the parties to be tried separately.’ Commonwealth v. Bingham, 158 Mass. 169, 33 N.E. 341, 342. In examining the evidence certified, we find nothing which shows that either accused sustained any prejudice by the course adopted.” 70 App.D.C. at 93, 104 F. 2d at 226.
Here also- there is nothing to show prejudice, as the court plainly and to the satisfaction of counsel — for no objection to the action of the court was taken— instructed the jury that the statement was not to be used against Kramer; and, as stated, his counsel reemphasized the point in an apparent effort to show weakness in the case against Kramer, a strategy that failed. Unless we are to assume that the jurors disobeyed the court’s instructions and disregarded their oaths as jurors, we must assume that they followed the court’s instructions.
There having been no objections made to the court’s admonition to the jury, the only ground for reversing the case is the plain error rule. Of this rule the Eighth Circuit, as late as October 30, 1962, said [Black v. United States, 8 Cir., 309 F.2d 331, 342]:
“This Court has ‘repeatedly held that the plain error rule should be applied with caution and should be invoked only to avoid a miscarriage of justice.’ Johnson v. United States, 8 Cir., 291 F.2d 150, 156. Similar pronouncements of this Court as to the noticing of plain error may be found in: Page v. United States, 8 Cir., 282 F.2d 807, 810; Bell v. United States, 8 Cir., 251 F.2d 490, 494; Kreinbring v. United States, 8 Cir., 216 F.2d 671, 674; Mitchell v. United States, 8 Cir., 208 F.2d 854, 858. We are convinced from the record that this case presents no occasion to invoke this rule.” [Emphasis supplied.]
In this case, I am, as was the court in Black, “convinced from the record that this case presents no occasion to invoke this rule,” and I have, I think, demonstrated this.
. The Government, in its brief, cogently summarizes the answer to the question “what do you have?” as follows:
“The evidence established that appellant:
“1. Knew the victim, the co-defendant, and the persons in the car.
“2. Was with co-defendant for a number of hours on the night in question and also in the car with Stant who knew enough about the robbery plans to tip off the victim.
“3. Was in bis car with co-defendant wben he tried the door the first time.
“4. Walked down the alley with Dewdney from the parked car then paced back and forth in the alley looking at the house while co-defendant sought to pry open the front door.
“5. Moved down the alley when Dewdney came to the back door and broke in.
“6. Went in the opposite direction of his parked automobile after the shooting. * * * ”
. And see Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed. 2d 278 (1957); Robinson v. United States, 93 U.S.App.D.C. 347, 210 F.2d 29 (1954); Hall v. United States, 83 U.S. App.D.C. 166, 168 F.2d 161, 4 L.Ed.2d 1193, cert. denied, 334 U.S. 853, 68 S.Ct. 1509, 92 L.Ed. 1775 (1948), a first degree murder case, where the court said:
“Hall and Gray assert that their motions for severance were improperly denied. It is the general rule that persons jointly indicted should be tried together, and granting separate trials is a matter of discretion. The mere fact that admissions have been made by one which are not evidence as against the others is not a conclusive ground for ordering the parties to be tried separately. Lucas v. United States, 70 App.D.C. 92, 104 F.2d 225. Nothing in the present record indicates an abuse of discretion in ordering the appellants to be tried together. The court duly limited the effect of evidence introduced which was competent against one defendant and incompetent as to the others.” 83 U.S.App. D.C. at 168, 168 F.2d at 163.