(dissenting).
Without reaching the constitutional question I would reverse and remand for *502a new trial. I would do so on the ground that the trial court erroneously and prej-udicially decided a question of fact which should have been left to the jury, namely, whether the executive board of Local 10, I.L.W.U. is an “executive board” of a labor organization within the meaning of section 504 of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 536, 29 U.S.C. § 504. This question of fact was decided by the court adversely to appellant when the court instructed the jury:
“I instruct you that as a matter of law, the Executive Board of Local 10, ILWU, is an executive board of a labor organization within the purview of the statute.”
The trial court should have instructed the jury as to the meaning of the term “executive board,” as used in section 504, leaving it to the jury to determine whether the executive board of Local 10 is an executive board in this statutory sense.
In my view, a union executive board within the meaning of section 504 is any internal body of a union which, under the constitution and by-laws of the union as understood and given effect by the members, has the power substantially to influence or affect action by the union threatening an interruption of commerce. Such a definition gives recognition to the underlying purpose of the legislation which, as pointed out by the majority, is “effectively to prevent the interruption of a free flow of commerce by political strikes.”
As I read the evidence and consider the reasonable inferences therefrom, I believe it cannot be said that the evidence shows beyond dispute that the executive board of Local 10 had such power. But even if I am mistaken as to this, it is at the very least clear that appellant did not admit that the executive board of Local 10 had this power. This being true, it was improper for the trial court to decide the question as one of law.
Stating my view in the form of a general proposition, it is this: A trial court may not take from the jury in a criminal! case and decide adversely to the defendant, an essential question of fact put in issue by a plea of not guilty and not. thereafter admitted, even where the prosecution’s view of the fact is supported' by overwhelming and undisputed evidence.
There is one decision by this court which may be thought to state a view-contrary to that expressed above. This is Nordgren v. United States, 9 Cir., 181 F.2d 718, 12 Alaska 671, involving a prosecution for offering and giving a bribe to a person acting for and on behalf of' the United States in an official capacity - It was essential to conviction in that case-that the person to whom the bribe was offered and given be a person acting for and on behalf of the United States in an. official capacity. There was no dispute: in the evidence as to this though the-defendant did not concede the fact. The-trial court instructed that the person, was acting in an official capacity. Affirming, this court said (page 721 of 181 F.2d):
“We think the charge was not ex*-ror. There was, as already indicated, no controversy as to the facts, pertaining to the functions Mackenzie was performing, and the-charge did not misdescribe his duties. Moreover appellant did not ask. for an instruction submitting to the jury the question whether Mackenzie was performing an official function. The court in the course of its charge repeatedly informed the jury that it was their sole province to determine the facts.”
The statement in this quotation that, appellant failed to ask for an instruction, submitting the question to the jury, suggests that if such an instruction had been-, requested it would have been held to be-error for the court to take the question from the jury. In the case now before us appellant not only took appropriate-exception to the instruction given, but. specifically requested that the jury be; told that this was a question of fact.
*503The statement in the quotation from Nordgren to the effect that the court repeatedly informed the jury that it was their sole province to determine the facts, suggests that this court may have regarded the questioned instruction as in the nature of a permissible comment on the evidence rather than as a binding determination of fact. If so, Nordgren cannot be regarded as authority for the proposition that a trial judge may take questions of fact from a jury in a criminal case where the evidence is undisputed.
Nevertheless, Nordgren has been construed by some courts as stating such a proposition. See United States v. Lovely, 4 Cir., 319 F.2d 673, 682, note 11; Schwachter v. United States, 6 Cir., 237 F.2d 640, 644.
Among the other circuits, only the Second appears to sanction the determination of questions of fact by the trial court in a criminal case, where the evidence is undisputed. Such a determination was given approval in United States v. Mura, 2 Cir., 191 F.2d 886. This was a prosecution for transporting stolen cars in interstate commerce. The trial court instructed the jury: “The automobiles that the Government believes have been identified all crossed the border between New York and New Jersey * * In sustaining this instruction the court stated that the evidence was conclusive, that the jury was not instructed that defendant transported the cars, and that the question of the defendant’s guilt was left to the jury “under a perfectly impartial charge.”1
In the Third, Fifth, Sixth, Seventh and District of Columbia Circuits, involving all of the more recent decisions on the question, such an instruction has been held to constitute reversible error. See United States v. McKenzie, 6 Cir., 301 F.2d 880; 2 Roe v. United States, 5 Cir., 287 F.2d 435; Brooks v. United States, 5 Cir., 240 F.2d 905; United States v. Manuszak, 3 Cir., 234 F.2d 421; Sullivan v. United States, 85 U.S.App.D.C. 409, 178 F.2d 723; United States v. Raub, 7 Cir., 177 F.2d 312; and Carothers v. United States, 5 Cir., 161 F.2d 718.3
Some discussion of a few of these cases will reveal the reasoning which has led a majority of the federal appellate courts to disapprove instructions deciding fac*504tual questions as if they were questions of law.
In United. States v. McKenzie, the defendant was prosecuted for possessing distilled spirits, the immediate container thereof not having affixed thereto the required internal revenue stamps. The trial court, in effect, instructed the jury that the identification of appellant was the only issue left in the case. Reversing, the Sixth Circuit said (page 882 of 301 F.2d):
“No matter how conclusive the evidence may be in a criminal case on a controverted material fact, the trial judge cannot make the finding or withdraw the issue from the jury.”
In Roe v. United States, the defendant was prosecuted for the sale and delivery of securities through the use of the mails without prior registration. The trial court instructed the jury, on undisputed evidence that the documents which the defendant was charged with selling and delivering were investment contracts. Reversing, the Fifth Circuit said (page 440 of 287 F.2d) :
« * * * no fact, not even an undisputed fact, may be determined by the Judge. The plea of not guilty puts all in issue, even the most patent truths. In our federal system, the Trial Court may never instruct a verdict either in whole or in part.”
In Brooks v. United States, the defendant was prosecuted for perjury. The trial court instructed the jury that a named special agent of the Internal Revenue Service was, at the time he was alleged to have administered an oath to defendant, authorized to administer oaths. Reversing, the Fifth Circuit said (page 906 of 240 F.2d) :
“ -x- -x- instruction] deprived the jury of its function of determining whether or not, under the evidence and as exclusive judges of the facts and of the credibility of the witness, they believed beyond a reasonable doubt that Perry was-an officer authorized to administer oaths in 1955 and this violated appellants’ constitutional right to a trial by jury as guaranteed by the Sixth Amendment.”
In United States v. Manuszak, the defendant was prosecuted for theft of" goods from an interstate shipment. One of the facts essential to conviction was-that a theft of goods had occurred. The evidence was undisputed that there had' been such a theft and the trial court so-instructed the jury. Reversing, the-Third Circuit said (page 424 of 234 F.2d):
“The presumption of innocence to which appellant was entitled demanded that all factual elements of the government’s case be submitted to the jury. It is immaterial that the government’s evidence as to the actual theft was uncontradicted. The acceptance of such evidence and the credibility of witnesses is for the jury, even though to the court the only possible reasonable result is the acceptance and belief of the-government’s evidence. A partial direction of the verdict occurs when the court determines an essential fact, and this denies the appellant trial by jury.”
While the Supreme Court appears not: to have dealt with the precise question,, it has held that “ * * * a judge may not direct a verdict of guilty no matter how conclusive the evidence.” United Brotherhood of Carpenters & Joiners v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 782, 91 L.Ed. 973. I agree with the-Fifth Circuit’s holding in Roe v. United States, and the Third Circuit’s holding in. United States v. Manuszak, that when a trial court, in a criminal case, decides a factual issue as a matter of law, it is-, giving a partial direction of the verdict, and that this is forbidden under the rule prohibiting directed verdicts in-criminal eases. If a verdict may not be directed on all issues, it may not be-directed on any issue, for the issue upon *505“which direction is given may be, to the jury, the dispositive issue in the case.
If Nordgren v. United States, 9 Cir., 181 F.2d 718, 12 Alaska 671, is deemed to announce a contrary rule, I believe it should be overruled.
. There is another Second Circuit case, United States v. Rainone, 2 Cir., 192 F.2d 860, which might appear to represent a similar holding. There was, however, no formal instruction, but only a remark by the trial judge to the effect that “there was not any question as to whether the automobile was taken from Brooklyn to Stamford.” The court of appeals seems to have regarded this as permissible comment, stating that the record revealed nothing indicating that the defendant was adversely affected by the remark.
As pointed out above, our decision in Nordgren v. United States, may also fall in this category. Dusky v. United States, 8 Cir., 271 F.2d 385, rev’d on other grounds, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824, also appears to involve comment on the evidence rather than a categorical instruction resolving an issue of fact.
A contention that a court instruction took a question of fact from the jury will not be entertained in a collateral proceeding under 28 U.S.C. § 2255, at least where the evidence indisputably supports the instruction. See United States v. Lovely, 4 Cir., 319 F.2d 673; United States v. Jonikas, 7 Cir., 197 F.2d 675. And of course the trial court may instruct that a particular fact is undisputed if it was a fact admitted by the defendant during the trial. Horning v. District of Columbia, 254 U.S. 135, 41 S.Ct. 53, 65 L.Ed. 185; Young v. United States, 9 Cir., 286 F.2d 13; Peterson v. United States, 9 Cir., 4 F.2d 702.
. This decision is to be compared with two earlier Sixth Circuit decisions in one of which (Schwachter v. United States, 6 Cir., 237 F.2d 640), such an instruction was also disapproved, and in the second of which (Malone v. United States, 6 Cir., 238 F.2d 851), such an instruction was upheld.
. I do not include in this list cases such as Dixon v. United States, 8 Cir., 295 F.2d 396, where the evidence was in dispute. All courts appear to recognize that factual questions in a criminal prosecution cannot be decided by the trial court where the evidence is in conflict.