(dissenting).
This case presents the familiar1 story of an appellant whose ignorance, indigence and incarceration foreclosed appellate review of his conviction.2 The story here is particularly poignant since, as I shall show, appellant’s conviction in March 1953 — more than ten years ago— for second-degree murder was clearly erroneous.
His retained trial counsel filed a timely notice of appeal and the District Court granted leave to appeal in forma pauperis and ordered a transcript of the proceedings at Government expense. Counsel filed the record on appeal and submitted a brief on June 3, 1953. The Government moved to strike the brief and dismiss the appeal because the brief did not contain a statement of the case or an appendix as required by the rules of this court. Before the court acted on the motion, counsel, on August 22, 1953, moved to dismiss the appeal without advanee notice to appellant.3 He stated to this court his “opinion that no substantial question of law is presented by this appeal,” although a post-conviction motion for a new trial, the statement of points on appeal and the defective brief, all prepared by the same counsel, clearly reveal serious error. On September 25, 1953, the court (1) denied the Government’s motion to dismiss the appeal; (2) granted counsel’s motion to withdraw; and (3) allowed appellant time for preparing and filing his own brief.4 After appellant made two abortive efforts to file a pro se brief in conformity with the rules of the court,5 the court, sua sponte, ordered the appellant to show cause why this appeal should not be dismissed. He failed to respond, and the appeal was dismissed on May 11, 1954.
The present motion to vacate sentence, 28 U.S.C. § 2255, filed by appellant, pro se, on January 10, 1963,6 alleges that *979the indictment was defective, that certain statements were illegally obtained and that his counsel was ineffective.7 Without appointing counsel and without a hearing the District Court denied relief. It also denied leave to appeal without prepayment of costs. We granted such leave over Government opposition and appointed counsel.8 Counsel now urges that we reinstate the direct appeal in order to consider the error at trial. Considering the serious nature of that error and the unfortunate circumstances which culminated in the dismissal of the direct appeal, I would grant counsel’s request.
The trial error appears from the following: Appellant and his cousin were looking for an “after hours” liquor outlet when they met one Hodge and a companion, Houston, who took them to decedent’s house to buy bootleg liquor. With Hodge, defendant, decedent and decedent’s wife in the room, a knife fight ensued. The Government sought to prove that appellant had been “messing” with a small lamp, and that when the decedent asked him to stop, appellant provoked the fight which resulted in decedent’s death. The appellant presented a self-defense version of the facts, claiming that, although he was merely straightening the globe on the table lamp, the decedent ordered him to “quit messing with the lamp” and then with no further provocation attacked appellant with a kitchen knife. Thus, of crucial importance was whether or not appellant was “messing with the lamp” and, of course, who was the attacker.
Hodge, one of the Government’s eyewitnesses, testified to appellant's presence at the scene, the fighting, and to the absence of any knives as far as he could see. On cross examination, to the surprise of both sides, he stated that he had not seen decedent’s wife in the room. On redirect, the prosecutor claimed surprise, made Hodge a hostile witness and produced a prior inconsistent statement Hodge had made to the police. The court admitted certain parts of the prior statement solely to impeach the testimony as to the absence of the wife.9
After appellant had testified in his own behalf, and the defense had closed, the Government recalled Hodge in rebuttal. He was asked, as defendant had been asked on cross, whether defendant had been “messing with decedent’s lamp” before the fight. Hodge denied seeing that. Then the prosecutor asked whether Hodge had told the police that appellant was messing with the lamp. Hodge denied saying so. Defense counsel then objected that the Government was asking questions of its own witness, whom it had already impeached, only to impeach him again. The objection was overruled. Then the following occurred:
“Q And isn’t it a fact that when you were there it was the defendant Robinson that knocked the globe off?
“A As I said before, I didn’t see that.
“Q And didn’t you state to the police, and I quote, ‘knocked the globe off’? And isn’t it a fact the defendant Robinson said, T don’t give a goddam about you or your lamp’ ?
“A If he did say it I didn’t hear it.
*980***•*•*•*
“Q Isn’t it a fact that directly after that Connell Robinson started cutting Happy?
“A I don’t know, sir.
* * * * * *
“Q And isn’t it a fact that you said this to the police, ‘After the boy said this he started cutting Happy’ ?
“A No, sir.”
This part of Hodge’s statement was, of course, not admitted on direct examination, since it did not relate to the presence of decedent’s wife. It was not offered or received in evidence on rebuttal; nor could it have been received as Hodge had already precluded a claim of “surprise” by his earlier recantation.10
This error was seriously compounded in the prosecutor’s closing argument when he twice read to the jury the “lamp” and “cutting” statements. He described these matters as “that which is in evidence” and “that is as much as I introduced in evidence.” And the context in which he used them made it appear that they had testimonial value. Their use in argument for even impeachment purposes would have been improper.
The content of the “lamp” and “cutting” statements was neither cumulative nor collateral, but went directly to appellant’s guilt. No other witness testified coherently concerning the events leading up to the fatal altercation. The only other eyewitness who testified 11 was the decedent’s wife whose testimony, if not biased, was at best unclear, probably because of her inability to hear the questions asked.
In Belton v. United States, 104 U.S. App.D.C. 81, 259 F.2d 811 (1958), we considered a strikingly similar error so prejudicial as to require reversal even though more than ten years had passed since the commission of the crime charged. The description of the error in Belton fits this case precisely:
“None of these references to a prior statement which was not in evidence — none of these prejudicial implications of the prosecutor himself — was permissible. * * * In
view of the evidence which was properly before the jury it is impossible to avoid the conclusion that the conduct of the prosecution might have affected the verdict of the jury, on the issue of self-defense or the degree of homicide, by leading them to believe that evidence against appellant of a damaging character existed which the court would not permit the jury to hear. This grew out of tactics which violated the rulings of the court and appellant’s right to a trial on the evidence given under oath from the witness stand rather than given in effect by the prosecutor from counsel table.” 12
*981Of Belton’s failure to file a record on appeal, we held that Rule 39(a) 13 gives us
“ * * * the power to consider an appeal on a record filed out of time, once we have obtained jurisdiction by the fling of a notice of appeal within time, as was here done. The late Chief Judge Stephens stated the applicable principles in a case where the court rejected the claim that the delay was due to excusable neglect within the meaning of Rule 45(b) (2): ** * * The Supreme Court has * * * vested the United States Court of Appeals with discretion to consider and determine questions on appeal notwith.standing failure of counsel to make .due compliance with the usual procedural requirements. This discretion may be exercised either on application of a party or by the court sua sponte.’ Christoffel v. United States, 88 U.S.App.D.C. 1, 6, 190 F.2d 585, 590.” 14
Here, as in Belton, a notice of appeal was filed. We excused Belton’s failure to file a record on appeal because he was indigent and without counsel. Here, the record on appeal was filed and appellant sought diligently to pursue the appeal but was thwarted by his counsel’s assertion to this court that the record presented no substantial question. If we had examined the record, we would have determined that the appeal was meritorious and should not be dismissed. Clearly, then, our dismissal of the appeal for procedural reasons was improvident. Moreover, the circumstances in which this appeal was dismissed provide abundant grounds for holding now that appellant’s failure to file a brief was due to “excusable neglect” within the scope of Rule 45(b) (2).15 We should therefore vacate our order and allow this direct appeal.16
The court today says that the relief requested here may be granted only to “prevent manifest injustice.” No authority is cited for this standard nor is it defined. We have held this relief required by the existence of “a substantial question” 17 or a “serious error”;18 and in Christoffel v. United States,19 we said:
“ * * * in a criminal case in which a sentence of imprisonment is involved, there is a public interest against denial of consideration on appeal of substantial questions as to the lawfulness of the conviction. For if the conviction is erroneous it *982is abhorrent to justice that a defendant shall nevertheless suffer such a penalty for the crime charged.” 20
When an impecunious appellant has been. frustrated in his attempts to present “substantial questions” concerning the lawfulness of his conviction, we have liberally construed papers submitted in order to confer jurisdiction on the court;21 and we have allowed appeals to proceed notwithstanding lateness in filing briefs or perfecting records.22 A fortiori, here, where a timely and proper notice of appeal was filed, and appellant diligently tried to perfect his appeal, we should not now refuse appellate review.23 I am mindful that the conviction I would reverse took place eleven years ago and that a new trial would present great difficulties for the Government. But I am also mindful that the conviction was tainted with serious error perpetrated by the Government, not the appellant; and that appellant was unable to protect against his trial counsel’s unwillingness to seek rectification of that error. The Rules allow rectification now “And of course the fact that appellant has long been in confinement cannot be ground for denying relief * * *. On the contrary * * * it is never too late to rectify serious error.” 24
I would vacate the order dismissing this appeal and reverse for a new trial.
. See, e. g., Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865 (1941); Belton v. United States, 104 U.S.App.D.C. 81, 259 F.2d 811 (1958).
. See also Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424 (1964) (Concurring opinion of Mr. Justice Goldberg).
. Appellant opposed the motion on the ground “that counsel for appellant has filed said motion to dismiss appeal because appellant is without funds * * Appellant’s affidavit stated that counsel, on July 10, 1953, demanded payment of “at least $100” for the preparation of the defective brief.
. We did not appoint counsel to represent Robinson although he was incarcerated and the District Court had allowed him to appeal in forma pauperis. No action was necessary on the Government’s motion to strike the brief as it was withdrawn when counsel left the case.
. The frustrations encountered by this indigent appellant appear from a letter sent by the clerk of the court on April 21, 1954, rejecting his second effort to submit a brief:
“The above-entitled case will be dismissed unless you file an answer to the order to show cause. The time within which this may be done has been extended to May 1,1954.
“You may also file an original and three copies of a motion for leave to file brief and appendix, time having expired, showing therein excusable neglect as provided in Rule 32(b) (2) of the General Rules of this Court, and leave to file your brief must be granted by the Court, before same may be filed. An original and six legible typewritten copies of your brief and appendix must be submitted in accordance with Rule 18(g) and proof of service in compliance with Rule 31(h) (3) of said rules must be submitted with your brief.
“I am returning herewith your brief and appendix as they may not be filed except on leave of Court and on motion as described above.”
. An earlier § 2255 motion was filed in 1956 and new counsel was appointed by the District Court. The motion was withdrawn in 1957 because counsel informed the court that Robinson wished to be considered for parole. He was paroled in May 1959, and remained on probation until parole was revoked in 1961. Since then he has contested the revocation, as yet unsuccessfully. There is *979nothing in the record to indicate that counsel ever studied the case on its merits.
. Since appellant did not present to the court below the facts surrounding the dismissal of his appeal, we need not, in this proceeding, consider whether counsel’s conduct amounts to “ineffective assistance.” Plummer v. United States, 104 U.S.App.D.C. 211, 260 F.2d 729 (1958); Lampe v. United States, 110 U.S.App.D.C. 69, 288 F.2d 881 (1961). And see Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).
. Misc. No. 2136, order of June 3, 1963.
. Although defense counsel was willing to stipulate to the presence of the wife, the prosecutor insisted on reading the statement.
. D.C.Code § 14-104; see Belton v. United States, supra, 104 U.S.App.D.C. at 82, 259 F.2d at 813.
. One eyewitness, Houston, was not called by either side. At trial the defense requested an instruction that .the jury may infer that Ms testimony would have been inimical to the Government’s case. The judge charged instead that an inference could be drawn from the absence of a witness peculiarly available to one side or the other that the testimony of such witness would have been unfavorable to tlie party who failed to call him. Counsel urges that this was reversible error. Because the record is unclear concermng the availability of this witness on the day of the trial, I do not consider this contention.
. Id. 104 U.S.App.D.C. at 84, 259 F.2d at 814.
The prosecutor must confine his argument to matters which are in evidence: “[Slummation should not be used to put before the jury facts not actually presented in evidence.” United States v. Spangelet, 258 F.2d 338, 342 (2d Cir. 1958); and see Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); Brennan v. United States, 240 F.2d 253, 263 (8th Cir. 1957).
. Rule 39(a), Fed.R.Crim.P. reads as follows: “The supervision, and control of the proceedings on appeal shall be in the appellate court from the time the notice of appeal is filed with its clerk, except as otherwise provided in these rules.”
. Belton v. United States, 104 U.S.App. D.C. 81, 86, 259 F.2d 811, 815-816 (1958), emphasis supplied. See also Forte v. United States, 302 U.S. 220, 223-224, 58 S.Ct. 180, 82 L.Ed. 209 (1937).
. Rule 45(b) (2), Fed.R.Crim.P. provides : “When an act is required * * * to be done * * * within a specified time, the court for cause shown may at any time in its discretion * * * upon motion permit the act to be done after the expiration of the specified period if the failure to act was the result of excusable neglect * * (Emphasis supplied.)
Although no formal motion was filed under Rule 45(b) (2), appellant in brief requested that we consider the appeal on the merits notwithstanding lateness under the Rule in filing his brief. This is sufficient. See Jordan v. United States District Court, 98 U.S.App.D.C. 160, 163 n. 3, 233 F.2d 362, 365 n. 3, rev’d on other grounds, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114 (1956).
. See, e. g., Lebkicker v. United States, No. 13932, order of March 23, 1958; Walsh v. Goldberg, No. 17506, order of August 1, 1963.
. Blunt v. United States, 100 U.S.App. D.C. 266, 244 F.2d 355 (1957).
. Belton v. United States, supra, 104 U.S.App.D.C. at 86, 259 F.2d at 816.
. 88 U.S.App.D.C. 1, 190 F.2d 585 (1951).
. Id., 88 U.S.App.D.C. at 6, 190 F.2d at 590, emphasis supplied. See also Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 704-705, 67 S.Ct. 954, 91 L.Ed. 1184 (1947); Blunt v. United States, 100 U.S.App.D.C. 266, 244 F.2d 355 (1957).
. Belton v. United States, supra; Boykin v. Huff, 73 App.D.C. 378,121 F.2d 865 (1941); Williams v. United States, 88 U.S.App.D.C. 212, 188 F.2d 41 (1951); and see Coppedge v. United States, 369 U.S. 438, 442-443, 82 S.Ct. 917, 8 L.Ed.2d 21, n. 5 (1962).
. Belton v. United States, supra; Chris-toffel v. United States, 88 U.S.App.D.C. 1, 190 F.2d 585 (1951); and see Forte v. United States, 302 U.S. 220, 223-224, 58 S.Ct. 180, 82 L.Ed. 209 (1937).
. “While remembering that the administration of criminal justice by appellate as well as other courts must be within the law which includes those rules of procedure that are binding, we must also not forget that, subject to these limitations, it is never too late to rectify serious error.” Belton v. United States, supra, 104 U.S.App.D.O. at 86, 259 F.2d at 816.
. Belton v. United States, supra, 104 U.S.App.D.O. at 86, 259 F.2d at 816. See also Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957). There, nineteen years had passed between the trial court’s accepting a plea of guilty, and the decision of the Supreme Court reversing the denial of a motion for a new trial.