(dissenting):
I agree that the narrow question presented is the extent to which the ruling in Smith v. Smith, 5 Cir. 1971, 454 F.2d 572, will be given retroactive application. The Chief Judge of this Circuit has recently referred to the “retroactive theory” as “another enigma wrapped in a mystery,” and has reviewed most of the pertinent cases to sustain his conclusion that, “Perhaps no other area of constitutional law is more enshrined in puzzlement and apparent logical inconsistencies.” Vaccaro v. United States, 5 Cir. 1972, 461 F.2d 626. However, at least two principles stand out in bold relief as uniformly approved. The first is that retroactivity is the general rule and prospectivity is not even “arguably the proper course” except in “new” constitutional interpretations that change the law. See Williams v. United States, 1971, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388.1 The second is that “ * * * any procedure which seriously threatens to convict a substantial number of innocent persons must be abandoned and retroactively uprooted.” Vaccaro, supra, 461 F.2d at p. 632. It seems clear to me that those two principles require complete retroactive application of the ruling in Smith v. Smith, supra.
In the concluding paragraph of its opinion, the majority summarizes its “balancing” test as “ * * * the remote possibility that the Georgia alibi charge may have affected the integrity of the fact-finding process in the trials in which it was given is outweighed by considerations of reliance upon prior law and of the potential impact upon the administration of justice in the State of Georgia.” With deference, I disagree with weight accorded to both sides of the scales.
To recognize only a “remote possibility” that the Georgia alibi charge may have affected the integrity of the fact-finding process is, I submit, to ignore the basic rationale of the Smith decision which uses such expressions as
“ * * * caused confusion in the instant case and created a substantial likelihood of the jury’s incorrectly placing the burden of proof on the petitioner much to his prejudice. * * * * Accordingly, we must presume that prejudice resulted.
“* * * * [TJhere is yet no doubt that a shift in the burden of proof of an essential element of the crime does rise to constitutional proportions and renders the trial fundamentally unfair. The presumption of innocence and the harsh burden of proof placed on the State in criminal prosecutions are two of the oldest and most fundamental rights protected by our Constitution. * * * * They purport to protect all citizens from the threat of punishment by mistake. They are therefore far too important and fundamental to be classified as less than constitutionally protected.”
While, concededly, the majority does not so intend, the clear import of its opinion is, I submit, to cast serious doubt upon the reasoning and soundness of the Smith opinion. Under our system, it takes an en banc court to over*354rule Smith. I would adhere wholeheartedly to both the decision and the opinion in Smith.
Let us go now to the weight accorded the other side of the scales — “considerations of reliance upon prior law and of the potential impact upon the administration of justice in the State of Georgia.” That Georgia's reliance upon prior law was always shrouded in serious constitutional doubt can be demonstrated by comparing footnote 2 of the majority opinion with footnote 3 of the Smith opinion:
“2. The Georgia alibi doctrine was first enunciated in Harrison v. State, 83 Ga. 129, 9 S.E. 542 (1889).”
“3. In Harrison v. State, 83 Ga. 129, 9 S.E. 542 (1889), the Chief Judge of the Georgia Supreme Court recognized this problem.
It seems to us that, in the metaphysics of trial, there is great difficulty in distinguishing between reasonable doubt on the specific defense of alibi and reasonable doubt of guilt upon the whole case taken together. Where presence is necessary to constitute guilt, it seems that a reasonable doubt of presence would, by unresistible logic, involve reasonable doubt of guilt.
9 S.E. at 544.”
The Georgia alibi charge has been criticized by various judges throughout its existence. See Smith v. Smith, supra, 454 F.2d at 575-577.
The Iowa alibi instruction has a similar history. In Johnson v. Bennett, 8 Cir. 1969, 414 F.2d 50, 53-55, then Circuit Judge Blackmun reviewed the Iowa decisions and concluded:
“It is thus apparent that the Iowa court has continuously struggled with the alibi instruction so frequently employed by the trial courts of the state. The division among the members of the Supreme Court was clear and bitter in the earlier cases of 80 years ago. The division has been clear and bitter in the cases decided during the last 6 years.”
Thus, neither Iowa nor Georgia was justified in relying upon the decisions of its own state courts. There is, of course, on this matter of the interpretation and application of the United States Constitution a complete absence of authority from the federal courts, other than Johnson v. Bennett, 8 Cir. 1967, 386 F.2d 677, to sustain the alibi instruction of either of the two states. This state of the law leads to the application of the general rule of retroactivity and to a recognition that prospectivity is not even “arguably the proper course” because there has been no “new” constitutional interpretation that changes the law. That was the position taken by the Eighth Circuit sitting en banc in Stump v. Bennett, 1968, 398 F. 2d 111, 122, 123:
“That an oppressive shifting of the burden of proof to a criminal defendant violates due process is not a new doctrine within constitutional law. Under these circumstances we are not directly faced with issues of retroactivity. We recognize that a panel of this court, in Johnson v. Bennett, 386 F.2d 677, 682-683 (8 Cir. 1967), cert. granted 390 U.S. 1002, 88 S.Ct. 1247, 20 L.Ed.2d 102 (1968), also a habeas corpus proceeding by an Iowa state prisoner, refused relief as to a number of matters, including the alibi instruction. The Johnson case eoncededly has some factual distinctions from the present one. Also significant is the fact that in the Stump ease, unlike Johnson, counsel has carefully preserved by objections throughout the trial and appellate procedures his argument as to the unconstitutionality of the instruction.”
In Johnson v. Bennett, 1968, 393 U.S. 253, 255, n. 5, 89 S.Ct. 436, 437, 21 L.Ed.2d 415, the Supreme Court quoted extensively from this holding of the Eighth Circuit, concluding with a re*355mand for a definite ruling on the issue as follows:
“We express no opinion as to the validity of the distinctions suggested by the Court of Appeals. Instead, we deem it appropriate to remand to that court for a definite ruling on the issue.”
Then Circuit Judge Blackmun responded for the majority of an Eighth Circuit en banc court, as follows:
“4. As pointed out in Stump, 398 F.2d at 122, our holding there that an oppressive shifting of the burden of proof to the defendant violates due process is not a new constitutional doctrine. Thus we were not ‘directly faced with issues of retroactivity.’ The dissent in Stump seems to suggest that the question of retroactivity is in the case. 398 F.2d at 126. This was definitely so stated in the panel’s decision in Johnson’s case. 386 F.2d at 682-683. We adhere, however, to the majority view in Stump that we are not faced in Johnson’s case with an issue of retroactivity. Even if we were, it would perhaps suffice only to note that Johnson’s case, with its alibi instruction issue, reached us before Stump’s.”2
Johnson v. Bennett, supra, 414 F.2d at 57; compare State v. Wisniewski, Iowa 1969, 171 N.W.2d 882, 887.
It seems to me that, unless we desire to create a conflict between the circuits, we should follow the holding of the Eighth Circuit in Stump, 398 F.2d at 122, repeated and adhered to in Johnson, 414 F.2d at 57.
In my view the majority opinion conflicts both with the holdings of the Eighth Circuit and with the rationale and reasoning of our own Fifth Circuit in Smith v. Smith, supra.
Finally as to the potential impact upon the administration of justice in the State of Georgia, the majority views with apprehension the large number of convictions that would be affected. I think that the majority overestimates the potential number of such cases, this being the only one thus far since the decision in Smith v. Smith, supra. Conceding arguendo, however, the correctness of the majority’s estimate, there should be no shrinking from such a burden when it is considered that the Georgia alibi instruction is infected with a clear danger of convicting the innocent. See Tehan v. United States ex rel. Shott, 1966, 382 U.S. 406, 416, 86 S.Ct. 459, 15 L.Ed.2d 453. I therefore respectfully dissent.
. That principle is implicitly recognized throughout the majority opinion.
. The Eighth Circuit invalidated the Iowa alibi instruction as applied to the 1934 state trial of Johnson. Bassett’s state trial presently under consideration took place 23 years later, in 1957.