(dissenting):
The primary, perhaps the sole basis for the court’s decision is the use by the prosecuting attorney of the final sentence in his closing argument as follows: “If you find him not guilty, he walks out of this courtroom a free man, and I know, ladies and gentlemen, that you are not going to turn this man loose again on society.” In the first place I cannot agree that such a statement contained in Government counsel’s argument is beyond the limits of permissible advocacy. In large measure the statement is rather meaningless because the jury, if they have any sense whatever, ought to know the different consequences of the two possible verdicts. They know perfectly well that a verdict of not guilty permits the defendant to go at large.
My limited experience makes me believe that almost any prosecutor says to the jury, expressly or impliedly, “Do not turn this guilty man loose upon society.” After all while the prosecutor should be scrupulously fair in presentation of his case, he is nevertheless required to be an advocate; and it is my opinion that an argument of this kind is not beyond the proper scope of advocacy, even in a ease involving defense of insanity.1 Appropriately cited here is what we said in Bush v. United States, 9 Cir., 267 F.2d 483, 488: “Merely because a statement is made or question asked by court or counsel in the heat of a spirited trial which subsequently in the cool ivory tower of appellate court chambers seems inappropriate, does not make the stating nor the asking prejudicial error.”2
The opinion does not question but that in an ordinary case there would be no er*549ror in the language used by counsel in addressing the jury. It is said that the argument was unfair and erroneous in this particular case because the defense was insanity and the jury verdict might well be affected by its notions as to whether a not guilty verdict would merely put the defendant at large and in a position to commit further crime.
I need not reach the question as to whether the insanity defense makes this a special case. Assuming that the language used in argument here was prejudicial, yet I am satisfied appellant cannot make such a contention on this appeal.
It is elementary that in the trial of criminal cases, as well as in civil cases, a party must make known to the court “his objection to the action of the court and his grounds therefor.”3 Such is the requirement with respect to a claim of misconduct of counsel. Devine v. United States, 9 Cir., 278 F.2d 552, 556; Orebo v. United States, 9 Cir., 293 F.2d 747, 749; Pacman v. United States, 9 Cir., 144 F.2d 562.
It is easy enough for us, sitting where we do, to evolve an esoteric theory that a defense of insanity makes impermissible what would ordinarily be acceptable and expected. But cases have to be tried by district judges, whose rulings generally must come on the spur of the moment, and on the spot. The question as to whether the suggested distinction (in a case when insanity is the defense) is a valid one seems to me to be a very close one. After all, the jury by itself would know that “not guilty” would mean defendant’s release, And what the prosecutor said was no more than that. If the situation presents special factors it is the duty of counsel not only to object, but, as stated in Rule 46, to state the “grounds therefor.”
There were two occasions here when counsel was confronted with this duty. The first was when the court said to the prosecutor: “Oh yes, I will permit you to do that.” The second was when the argument was made. At neither time did counsel object. As Judge Clark noted in Reck v. Pacific-Atlantic S.S. Co., 2 Cir., 180 F.2d 866, 870, there is reason for such a timely objection “[Sjince it could and undoubtedly would have led to an immediate correction of whatever error of form may have been disclosed.”
Had the defense made an objection on the first occasion mentioned above, it would not have been necessary to repeat it. See People v. Terry, 57 Cal.2d 538, 21 Cal.Rptr. 185, 370 P.2d 985, 1003. But no objection was ever made, no grounds as to the impropriety of this argument was ever suggested. Under these circumstances the defendant waived the objection now sought to be urged.
The majority opinion, after alluding to the point here made, attempts to justify its conclusion by applying Rule 52 (b), the “plain error” rule. That is a rule properly resorted to, in the words of Judge Sanborn, when there have been “plain and vital errors.” (Page v. United States, 8 Cir., 282 F.2d 807, 810.) The standard, sound rule, for the application of the plain error rule was also stated by Judge Lindley for the court in United States v. Vasen, 7 Cir., 222 F.2d 3, 4-5, as follows: “We must not lightly invoke Rule 52(b) * * * only seriously prejudicial error will be noticed, in the absence of objection.” The error here, if any, was neither plain nor vital. If anything is clear, it is that neither the *550judge nor either of the parties considered the argument erroneous or prejudicial at the time.
On the whole, and on balance, fairness to all parties, Government and defendant alike, is guaranteed by an adherence to standard rules of procedure. Surely it is the duty of this court to respect the needs of an effective judicial system. Any chance ruling which reaches a disorderly result, one which is reached in disregard of all standards of proper procedure, is a disservice to our system, and to all litigants.
If the plain error rule is to be resorted to in such non-vital eases as this, all rules requiring objections may as well be thrown away. Just because the appellate court observes something in the trial to which, in its opinion, objection could have been made, no reason is furnished for applying a rule of “plain error.”
The wording of the majority opinion leaves me in some doubt as to whether the result reached is based in any degree on the admission of the testimony of the newspaper reporters. At one place the opinion states with respect to the interview with the newspaper reporters: “Did the interview violate Evalt’s constitutional right? We have reluctantly concluded that it did not.” The opinion then notes that Evalt willingly talked to reporters and that he was told that he did not have to talk to them. At another place in the opinion it is stated: “We hold that the testimony of the reporters should not have been received. * * * Our holding is that the government may not use evidence obtained in the way that this evidence was obtained. It is urged that, if inadmissible, the testimony was harmless, in view of the other testimony in the record, and particularly of the fact that Evalt admitted what he did and based his whole defense upon insanity. We do not pass upon this question, because the judgment must be reversed for other reasons, as is shown hereafter.”
In view of the fact that the appellant with apparent eagerness undertook to make confessions of the events to every one in sight who would listen and in view
of the nature of the defense interposed at the trial, I cannot believe that the receipt of the newspaper men’s testimony was so prejudicial as to require reversal here.
. Not only jurors, but judges as well, may be concerned about what is to happen to a defendant acquitted in a federal court, by reason of insanity. In this connection reference has been made to a “regrettable void’ in the law. See Sauer v. United States, 9 Cir., 241 F.2d 640, 651, and footnote 32, and Buatte v. United States, 9 Cir., 330 F.2d 342, 347, footnote 3. Had this defendant here made a record, and taken proper exceptions on his request to prove the availability of mental treatment by the Navy, he might have a persuasive point.
. Counsel can hardly expect a hard-driven trial judge to deal with the fine question here raised in the absence of a clearly stated objection. Absent such an objection, there is a waiver. This thought was well stated by the inimitable Judge Lamm in Bragg v. Metropolitan Street R. Co., 192 Mo. 331, 91 S.W. 527, as follows: “It has not hitherto been allowed *549to a ‘nisi prius’ judge — a ‘puisne’ judge —to have been so successful in
‘Mastering the lawless science of our law,
That eodeless myriad of precedent,
That wilderness of single instances,’
—that he has the whole body of the law at his fingers’ ends, so to speak, for instantaneous and automatic application, ex mero motu, without having his attention directed by counsel to some specific legal principle or some specific fact controlled by such principle. Only appellate courts, it is modestly believed, are so endowed, and even this has been a subject of sharp discussion and possible doubt, and, peradventure, should be stated cautiously and taken ‘cum grano salís.’ ”
. The quoted language is from F.R.Civ.P. Rule 46.