(dissenting) :
Admitting the acts charged against, him, the defendant nevertheless moved, unsuccessfully, to withdraw his plea of guilty1 and go to trial. On allocution, he stated that he stole because he was poor, in order to provide necessary medical care for his pregnant wife.2 The defendant is not articulate, but his claim seems to make him out as a modern Jean Val-jean, who was convicted of burglary for' stealing bread for his starving children.
At the time of his motion to withdraw his guilty plea, the defendant here had' not been sentenced.3 And it appears *985"that, had the motion been granted, the Government would have suffered no prejudice. Thus I would have thought that, under the circumstances, the defendant should have been allowed to withdraw his guilty plea as a matter of course.4
But Judge Burger’s scholarly opinion has demonstrated that the cases have established a different standard. And the Supreme Court has recently spoken in .a case where, as here, the defendant admitted the acts charged;5 it applied the rule that while he may properly withdraw a guilty plea prior to sentencing, there must be some good^reason for allowing him to do so.6 ^Ehus the issue framed for us is whether sufficient reason exists to withdraw the plea when the defendant claims mitigating circumstances and apparently seeks to have the .jury pass, not on the issue of the historical facts charged, but on the issue of Culpability.
Our jun^ prdperly pass on the culpability of the accused. An element of the crime charged is mens rea, and if “the jury cannot find that that state of mind existed in the accused, it must acquit. Thus, in the extreme instance, a verdict of not guilty by reason of insanity is tantamount to a finding of “proved” on the Government’s charge concerning certain events, but a finding of “not culpable” on the defendant’s claim concerning his state of mind. A verdict of “not guilty” may have a similar meaning; when the defenses of self-defense, privilege or excuse are raised, for example, a jury may find that the deed was done, but that the man is no criminal. Indeed, it has been recognized as an “elementary principle of justice” that “when a man’s life or liberty is at stake he should be adjudged according to his personal culpability as well as by the objective seriousness of the crime.” Fisher v. United States, 328 U.S. 463, 492, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946) (dissenting opinion of Mr. Justice Murphy).
This power of the jury to pass upon culpability is reflected in the institution of the general verdict. Juries decide “guilty” or “not guilty,” criminal or not criminal, rather than bring in a special verdict as to commission of the act charged to the accused. Reflected in the jury’s decision is a judgment of whether, under all the circumstances of the event *986and in the light of all known about the defendant, the prohibited act, if committed, deserves condemnation by the law.7
In one period in England, the Star Chamber punished juries who acquitted men who had obviously done the acts charged.8 But, with the development of the common law, attaints, fines and imprisonments of juries were abolished, leaving juries free to find as the evidence and their oaths led them.9 The Colonial case wherein John Peter Zenger10 was prosecuted for seditious libel stands as a landmark instance where the defendant went to the jury on his admission of the facts charged and his claim, nevertheless, of no culpability. By acquitting Zenger, the jury fulfilled its role as protector against unjust laws or their unfair application. In the century following the Zenger case, it was generally recognized in American jurisprudence that the jury, agent of the sovereign people, had a right to acquit those whom it felt it unjust to" call criminal.11 In a leading case12 at the end of the nineteenth century, the Supreme Court affirmed that the jury had this power, while a strong opinion for the minority13 went further and reaffirmed the American common law tradition that this was no mere power of the jury, but their proper right.14 Modern discussions in both criminal and civil law have re-emphasized this “dispensing-function” of the jury.15
*987The mitigating circumstances the defendant here claims may not be enough ~to convince the jury that his crime is ■excusable, but to my mind his desire to raise the issue of culpability for jury decision may be sufficient cause to allow him to withdraw his plea of guilty and go to trial.
The recent ruling16 of the Supreme Court, handed down subsequent to the decision of the District Court here, indicates that the withdrawal of the guilfy plea before sentence by one who admits his guilt may be proper. The case before us is a stronger one than the case before the Supreme Court, for here the defendant wishes to raise an issue as to his culpability. Perhaps the district judge here, like the district judge in that ease, was unaware that under the law a defendant may change his plea before sentencing, even where he does not challenge the commission of the act charged against him. I would therefore vacate the decision below and remand for consideration in the light of the recent Supreme Court opinion.17
. Rule 32(d), F.R.Cr.P., provides:
“A motion to withdraw a plea of' guilty * * * may be made only before sentence is imposed * * *; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.”
. The Defendant: “Well, the only reason why I did this crime, Tour Honor, was because of my pregnant wife and' unborn child. And she needed medical care, and I just didn’t have any means to-try to get her in the hospital.”
. See Rule 32(d), set out in Note 1, supra.. It is worthy of note that only the right to move to withdraw a plea of guilty pri- or to sentence and the right to appeal are-specifically protected by the Act of Congress, 18 U.S.C. §§ 3771-3772, authoriz*985ing rules of criminal procedure. The obvious purpose of Congress in protecting the right to withdraw the plea of guilty is to protect the right to trial by jury.
. In Poole v. United States, 102 U.S.App.D.C. 71, 75, 250 F.2d 396, 400 (1957), we said:
“The trial court erred when it denied .appellant’s request to withdraw his plea ■of guilty. Leave to withdraw a guilty plea prior to sentencing should be freely allowed. As we said in McJordan v. Huff, 1943, 77 U.S.App.D.C. 171, 172, 133 F.2d 408, 409: ‘* * * it goes without saying that a plea of guilty at that time [arraignment] can be and often is changed, on proper motion, as a matter of course.’ ” (Emphasis added by Poole court.)
. Nagelberg v. United States, 377 U.S. 266, 84 S.Ct. 1252, 12 L.Ed.2d 290 (1964). Nagelberg’s request to withdraw his guilty plea was with Government acquiescence; he had cooperated with the prosecutor who “ ‘planned to dismiss the pending in\dietment against petitioner and substitute lesser charges.’ ” 377 U.S. at 266, 84 S.Ct. at 1253. Eor Ms failure to aver innocence, see the opinion below, 2 Cir., 323 F.2d 936 (1963).
The trial judge, the Hon. Thomas F. Murphy, bad had long experience as a prosecutor of national reputation; Ms refusal to grant the motion, therefore, cannot be ascribed to failure to understand the importance of defendant’s cooperation with the prosecution, which was the basis of the Government’s acquiescence in the motion. It is clear that the trial court, as well as the Court of peals, was applying to the motion to” change the plea a more stringent test than the Supreme Court thought proper.
. Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927) : “The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just.” In Gearhart v. United States, 106 U.S.App.D.C. 270, 273, 272 F.2d 499, 502 (1959), in quoting this language, this court emphasized the words “any reason” and “fair and just.”
. See Frank, Law and the Modern Mind 170-185, 304r-305 (1930); Curtis, Trial Judge and Jury, 5 Vand.L.Rev. 150 (1952).
. Juries were punished as late as the mid-seventeenth century for acquitting against the law and contrary to the evidence, and it was chiefly the court of Star Chamber that exercised this power. See 1 Holds-worth, History or English Law 164-165 (1903). In addition, the common law writ of attaint was available, according to some authorities, to punish a jury which “wrongly” decided a criminal ease against the King. See 2 Hale, Pleas or the Crown *310.
. In 1670, Chief Justice Vaughan held that the juror’s verdict was a judicial act not punishable except by attaint, Bushell’s Case, Vaughan 135 (C.P.Book 2), 6 Howell, State Trials 999, 124 Eng. Rep. 1006, which was by then obsolete, see 3 Blackstone, Commentaries *404, though not being formally abolished by statute until 1825, 6 George IV c. 50, § 60.
. The Trial of John Peter Zenger, N. T. Province, 1735, 17 Howell, State Trials 675 (1813).
. See cases collected in Howe, Juries as Judges of Criminal Law, 52 Harv.L. Rev. 582 (1939), cases collected in Mr. Justice Gray’s dissenting opinion in Sparf and Hansen v. United States, 156 U.S. 51, 110-183, 15 S.Ct. 273, 39 L.Ed. 343 (1895), and cases collected and authorities cited in Farley, Instructions to Juries — Their Role in the Judicial Process, 42 Yale L.J. 194, 202-203 (1932). In some jurisdictions, constitutional provisions guaranteed tbat “in the trial of aE criminal cases the jury sbaE be the judge® of the law as weE as fact.” Art. 10, § 5,. Maryland Constitution of 1851.
. Sparf and Hansen v. United States, supra Note 11.
. Mr. Justice Gray, dissenting, 156 U.S. at 110-183, 15 S.Ct. 273.
. In Horning v. District of Columbia, 254 U.S. 135, 41 S.Ct. 53, 65 L.Ed. 185 (1920), where, on the undisputed facts, the trial judge told the jury that the defendant had to be found guilty, Mr. Justice Holmes noted for the Court that “the jury has the power to bring in a verdict in the teeth of both law and facts,”' 254 U.S. at 138, 41 S.Ct. at 54, and Mr. Justice Brandéis’ minority opinion also noted that “it is stiE the rule of the federal courts that the jury in criminal eases-renders a general verdict on the law and', the facts; and that the judge is without' power to direct a verdict of guilty although no fact is in dispute.” 254 U.S. at 139, 41 S.Ct. at 54.
. In this regard, Professor James has collected a number of leading authorities in his article on tort law and the judicial process:
“Throughout the history of the jury system it has been recognized that the jury does not always stick to its theoretical function and apply the law in the-judge’s charge to the facts as they find' them. Juries sometimes take the law into their own hands and decide a case-according to popular prejudice which often embodies popular notions of what the law ought to be. It has also been recognized that this fact is not always *987a weakness but sometimes a great strength of the jury system. Lord Coke is reported to have said ‘the jurors are Chancellors.’ [Quoted from Pound, An Introduction to the Philosophy op Law 133 (1922).] Holmes said ‘one reason why I believe in our practice of leaving questions of negligence to them is precisely one of their gravest defects from the point of view of their theoretical function: that they will introduce into their verdict a certain amount — a very large amount, so far as I have observed — of popular prejudice, and thus keep the administration of the law in accord with the wishes and feelings of the community.’ [Holmes, Collected Legal Papers 237-238 (1921).] Pound concluded that ‘Jury lawlessness is the great corrective of law in its actual administration.’ [Pound, Lato in Books and Law in Action, 44 Am.L.Rev." 12, 18 (1910).] One of our ablest trial judges ■of today has noted that ‘traditionally juries are the device by which the rigor of the law is modified pending the enactment of new statutes.’ [Wyzanski, A Trial Judge’s Freedom, and Responsibility, 65 Harv.L.Rev. 1281, 1286 (1952).] Justice Traynor of the California Supreme Court believes that ‘we would lose more than we would gain by a reform of fact-finding that would ■only compel righteous adherence [by juries] to wrong rules. * * * ’ Until the rules themselves are changed we are better off ‘with that quiet distortion that presently adapts them to the needs of rough justice.’ [Traynor, Faet ¡Skepticism and the Judicial Process, 106 U.Pa.L.Rev. 635, 639, 640 (1958).]
“It is not, I submit, an improper abdication of responsibility to the jury to call on its dispensing power — its equitable function — when the occasion is appropriate. * * * ”
James, Tort Law in Midstream: Its Challenge to the Judicial Process, 8 Buffalo L.Rev. 315, 342-343 (1959).
And Professors Paulsen and Kadish have noted: “It has often been suggested that juries are agencies of mitigation in that they may serve to bring the law up to date by applying it in a way consistent with present-day community values.” Paulsen & Kadish, Criminal Law and Its Processes 1107 (1962).
It has also been said that:
“ * * * Many an acquittal, many a judgment for the defendant, is * * * an admonition to go and sin no more. Just as the good physician treats the patient as well as the disease, so too the jury sits in judgment on the offender as well as on the offense.
*******
“ * * * Practically, and ignoring pretensions to logic, there are exceptions, and the law looks to the jury to make them, because it does not feel able to make intelligible rules to coyer them ; nor does it want to admit that the law is less than a complete system.”
Curtis, op.cit.snpra Note 7, 155-156, 157. See also Frank, op.cit.supra Note 7.
. See Note 5, supra.
. Ibid.