(dissenting).
I find myself in complete disagreement with the conclusion of the majority that the judgment of conviction should be reversed and particularly with the ground on which the reversal is rested.
Except that the conspiracy was to prey on Negro addicts in Fort Worth, the case below was just an ordinary conspiracy for dealing in heroin on a large scale. The conspiracy and appellant’s guilt are established by overwhelming and convincing evidence, and no reversible error attending the trial was claimed below.
I, therefore, most vigorously dissent from the action of the court in voiding the trial, conviction and judgment, and sending the case back for another trial on a theory of reversible error, not claimed below but put forward for the first time by the majority, with which I flatly disagree, a theory not supported by statute, rule or authoritative court decision, and never until now advanced by this court or any member of it. This theory, as the majority states it, is that, though no objection was made to its offer in evidence on the ground of its involuntariness, or indeed on any named ground, the trial judge erred in “not excluding the testimony of a special government investigator relating to alleged admissions of the defendant during an ex parte police interrogation”. The majority then went on to say:
“For purposes of this opinion, the salient facts are few and undisputed. Two special Government agents secretly interrogated Lee in his prison cell. They appeared at the cell door without prior notice. Lee had previously been indicted. He had no counsel before or during the questioning. The agents did not Lee’s statement or reduce them to writing. At the trial, over the objection of the defendant’s counsel, one of the agents testified in narrative form to Lee’s oral ‘admissions’.
* * * -x- -x- -X-
“The basic difficulty this case presents arises from the conflict between society’s interest in police interrogation of suspected criminals and the protection of an individual’s constitutional rights during such an interrogation. There is general agreement among criminologists that interrogation of criminal offenders is a necessary ingredient of police activities.”
With deference, while this view no doubt represents the personal views of the majority judges and of certain non-neutral 1 theorists who in the field of criminal law are endeavoring to remove its ancient landmarks and to change the settled principles governing trial and error in a criminal ease by introducing in their stead new and strange doctrines under which a convicted defendant is regarded as a personal ward of the appellate courts and instead of being compelled, as statute and rules provide, to show for reversal that his trial toas attended with prejudicial error, he is required only to invoke and enlist in his behalf the supposed supervisory powers and personal interest of the Court of Appeals, or enough of its judges to carry the day for him. In short, criminal justice is to be no longer a two-way street where a defendant, on appeal from a conviction, is not presumed to be innocent and entitled to a reversal, and decisions on appeal must go for the government or for appellants, not on feelings of the judges, but according to established legal principles. Among such principles, it has always been the law that to support a reversal for prejudicial error on the part of the trial judge, such error must be shown, and where the question is whether a statement, confession, or admission *780of a defendant is receivable into evidence depends, and depends alone, wpon whether it was or was not a voluntary one unthin the meaning of the settled law2 Here the defendant, represented by counsel of his own choosing, did not object to the statements as involuntary or coerced, and no request for instructions to the jury was made on this point. Indeed, the defendant did not object to its admission on this ground, but the district judge fully, properly and carefully charged the jury on the question of involuntariness.
The record clearly shows this, and the majority does not put its decision on involuntariness. Instead it puts forward a new theory without foundation in Federal decision. Indeed, as the majority opinion shows, the Eighth Circuit, in Fequer v. United States, 320 F.2d 214 and the Second Circuit, in United States v. Massiah, 307 F.2d 62, have refused to so hold. Compare this court’s opinion in Dailey v. United States, note 2, supra. The Spano case, cited by the majority, does not so hold. That case, as it is reported, consists merely of several separate opinions presenting differing personal views of individual judges, some saying this and some saying that, while the court as a whole flatly declined to so hold, as is claimed by the majority here. Indeed, it was expressly declared in the only opinion the court rendered in the Spano case that the separate opinions dealt only with the particular facts in that case and that there was no attempt to lay down the general rule for which the majority here plugs. This court has never, until now and here, in any considered opinion so gone off after this or other such false gods or otherwise bowed the knee to Baal, and I do not believe that as a court it ever will. At any rate, I emphatically condemn and reject the majority’s view as simply personal decreeing and, as such, alien to this circuit and to the law generally and as completely unauthorized.
Declining, therefore, to follow where they like sheep, have gone astray, I respectfully condemn and reject the views of the majority as mere personal decreeing, and, as vigorously as I can, I dissent therefrom.
. Cf. “The Supreme Court Cannot Be Neutral”. Benj. F. Wright, Tex.Law Review, Vol. 40 No. 5.
. Dailey v. United States, 261 F.2d 870 at 872 and cases cited.