(concurring):
I concur not only with the result reached but also with the fundamental reasons (with the exceptions herein set forth) so ably expressed by my Brother Medina. Although the proof is convincing that Shuck was not a participant in the financial gyrations which Kelly, Hagen and Van Allen indulged in whereby the stock was made available for their fraudulent purposes, it is the law, as I understand it, that it is not necessary that every defendant-conspirator be in the conspiracy or know of and be working towards the fulfillment of its purposes during the total period of its existence. Nor is it possible that proof be offered simultaneously against every defendant in long multi-defendant cases. There are bound to be defendants against whom proof of participation is not adduced until the latter days of the trial. A trial judge until the end of the trial has no way of knowing the nature and extent of the proof which may be offered to tie one or more defendants into the conspiracy and upon which proof the jury may have to decide the character of the conspiracy. Therefore, with the conclu*781sion that during the trial “It was an abuse of judicial discretion to deny the motion for a severance, at that time [when the administrative agency testimony of Kelly and Hagen and the Kelly letter were received],” I must differ strongly. It may well be, as says my Brother, that “it is clear to us that the motion then made by counsel for Shuck for a severance should have been granted” but what is “clear to us” from our vantage point of contemplative review of the entire record could not possibly have been clear to the trial judge who at the time when the ruling was required could not have known what the record would be. To me, the admission of the Kelly-Hagen SEC testimony was error and sufficient for reversal. I would not attribute error to the denial of the motion for a severance.
Nor would I characterize as a mistake the reading of the long indictment. Probably the jury benefited little from its reading but I would hold this procedure to be within the discretion of the trial judge.
As to the acceptance of pleas of guilty from defendants during the trial, the manner of handling the plea and the method of informing the jury thereof will depend upon many circumstances which can best be appraised by the trial judge. I, therefore, disagree with the comments in the opinion on this subject.
The trial court refrained from summarizing the evidence in his charge. Counsel for the respective parties requested that the court so refrain. Their judgment as to the benefits to be gained thereby for their clients must be presumed to have been wisely and properly exercised. In a trial of such length, it would have been utterly impossible for a judge to have summarized all the evidence to the satisfaction of all. Counsel undoubtedly felt that, rather than have the judge’s views of the facts, they preferred the jury’s recollection. I, therefore, cannot subscribe to the statement that “The trial judge should not have agreed to the request by counsel that this marshalling of the evidence be omitted.”
Lastly, I hesitate even impliedly to endorse a proposition that it is the function of an appellate court to review the record to ascertain in retrospect what objections this court, if acting as trial counsel, might have made. Counsel were in a position to make such objections to the charge as might have been in the in7 terest of the defendants. They did not do so. The trial judge should have been given the benefit of their objections because a change might well have been made in the charge to meet the objections. The “plain error” doctrine may serve a useful function where the error would be highly prejudicial to a defendant but should be resorted to with caution. In my opinion, such an occasion is not presented here.