(dissenting) :
The pertinent requirements of the Jencks Act, 18 U.S.C. § 3500 (1958), are as follows:
“(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. * * *
“(c) If the United States claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the United States to deliver such statement for the inspection of the court in camera. * * *
“(d) If the United States elects not to comply with an order of the court under paragraph (b) or (c) hereof to deliver to the defendant any such statement * * * the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.
“(e) The term ‘statement’, as used in subsections (b),' (c), and (d) of this section * * * means—
“(1) A written statement made by said witness and signed or otherwise adopted or approved by him •Jfr * * ”
Appellants were found guilty of assault with intent to rob. Officer Brown testi- ■ fied that he observed the complaining witness, Mitchell, walking along the street. The appellants left a restaurant, and began pursuing Mitchell, walking at a fast rate. As they came close to him they began walking in the shadow of trees and ducking in and out between parked cars. Appellant Watkins testified that they had given Mitchell a dollar to ■purchase a bottle of whiskey, and ran after him to recover that money. There was contradictory testimony with regard to what transpired when appellants caught up with Mitchell.
The manner in which appellants approached Mitchell was a significant element in an evaluation of appellants’ intent. Officer Brown’s testimony suggested a stealthy approach. A written police report, which contained his signature, however, made no mention of hiding be*913hind cars, trees, and so forth. He explained away another inconsistency between his testimony and the report by stating that this report was merely a digest of a handwritten statement he had submitted to the clerk at the police precinct ; that statement was “full length”; it “had more.” When asked whether he had the handwritten statement with him, he replied: “No. It was given — it went in the trash after it was [Q. Where?] A. It probably went in the trash after the clerk typed it. They just digest on this form.” Counsel for appellant Watkins made a demand for the handwritten statement and argued that the destruction of the statement was' cause for striking the officer’s testimony. The court rejected these motions but failed to order a hearing to determine whether the statement had in fact been destroyed and the circumstances of its destruction. This, I think, was error.
The handwritten statement, if it were in existence, clearly related to the subject matter of the witness’ testimony. That statement may well have vitiated the officer’s attempt to explain away the inconsistency between his testimony and the police report. “An appellate court should not confidently guess what defendant’s attorney might have found useful for impeachment purposes in withheld documents to which the defense is entitled.” 1
Having been made aware of the existence of a “Jencks” statement the trial judge had an obligation to determine whether that statement had been destroyed and whether such destruction was in. good faith and in accord with normal practice. Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961). He should have either summoned on his own motion the clerk who prepared the “digest” or required the Government to produce him. Campbell v. United States, 365 U.S. 85, 94, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961). The statute-“implies the duty in the trial judge-affirmatively to administer the statute in such way as can best secure relevant and available evidence necessary to decide between the directly opposed interests. * x * » 365 U.S. at 95, 81 S.Ct. at 427.
It is true that defense counsel appears-to have “assumed” that the handwritten notes had been destroyed. But I do not think this relieved the District Judge and the Government of the responsibilities-imposed on them by the Act and by the Killian and Campbell eases to determine-(1) whether the notes were in fact destroyed; (2) whether, if they were, this-was in the proper and normal course of business or otherwise in good faith; and. (3) whether, if they were not destroyed, they should have been produced, and if the failure to produce them was prejudicial to appellants’ defense at trial.
I think the record should be remanded to the District Court to conduct such a. *914hearing. Cf. Moore v. United States, 117 U.S.App.D.C. 254, 328 F.2d 555 (1964); Williams v. United States, 117 U.S.App.D.C. 206, 328 F.2d 178 (1963), and cases cited.
. Rosenberg v. United States, 360 U.S. 367, 371, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959). In that ease tbe witness bad written a letter to tbe Assistant United States Attorney, in anticipation of trial, indicating that ber memory bad dimmed, and that to refresh her memory she would have to reread the statement she made to the FBI. However, at the trial, the witness’ testimony informed the defense counsel, and the jury, that her memory was quite poor. In a five to four opinion, the Court held that “Since the same information that would have been afforded had the document been given to defendant was already in the possession of the defense by way of the witness’ admissions while testifying, it would deny reason to entertain tbe belief that defendant could have been prejudiced by not' having had opportunity to inspect the letter.” Ibid. In tbe instant case the officer made no-self-impeaching admission. On the contrary, he attempted to bolster his testimony with an explanation.
Tbe Court, in Rosenberg, also held that. “No relevant purpose could have been served by giving petitioner’s counsel a typewritten copy” of a statement made by another witness since tbe defendant had boon given the original handwritten statement. 360 U.S. at 370, 79 S.Ct. at 1233. In the instant case tbe original handwritten statement, which was not produced, may have proved highly relevant as a tool for impeaching the police officer.