dissenting:
The issue posed in this appeal is the power of the trial judge to grant a litigant in a two-party, civil case more than three peremptory challenges. As the majority recognizes, this case does not involve an appeal from defense counsel’s manner of using peremptory challenges on the basis of race. The use of peremptory challenges is unre-viewable. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Sorenson v. Raymond, 532 F.2d 496, 500 (5th Cir. 1976).
The majority’s interpretation of the governing statute, 28 U.S.C. § 1870, binds the trial judge by allowing only three strikes in all two-party, civil cases. Since I believe that the trial judge is not forbidden by statute from exercising his discretion to grant litigants additional challenges, I respectfully dissent.1
Until 1948 the number of peremptory challenges in both civil and criminal cases was set forth in the same statute. R.S. § 819; March 3, 1911, Ch. 231, § 287, 36 Stat. 1166. That statute used the same language which now appears in section 1870:
in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges.
Multiple defendants or plaintiffs were to be treated as a single party for purposes of the statute.
*587With the revision of the Judicial Code in 1948, the provisions applicable to criminal trials were consigned solely to the Rules of Criminal Procedure. See F.R.Crim.P. 24(b); Revisor’s Note, 28 U.S.C. § 1870. Still, both the criminal rules and section 1870 contain the same terminology of entitlement. By this and subsequent amendments of the statute and criminal rules, multiple parties can, in the discretion of the trial judge, be treated as a single party or could be allowed “additional peremptory challenges.” 18 U.S.C. § 1870; F.R.Crim.P. 24(b). As a matter of legislative interpretation, therefore, the reasoning to be applied to strikes in civil cases should apply to criminal cases as well.
The terminology of section 1870 is that a litigant is “entitled” to three strikes. The words “entitled to three peremptory challenges” need not be read as meaning entitled to only three. Indeed, a common reading of these words is that the party has a right to at least three. No words in the statute explicitly limit the court’s discretion to give additional challenges.
The statutory right to peremptory challenges has become an important right of litigants in criminal and civil trials. The use of strikes is intimately bound with the constitutional right to a fair and impartial jury. The peremptory challenge can eliminate a juror when the litigant suspects a bias which cannot be exposed sufficiently to merit a challenge for cause. The strike can be used to minimize the hostility of jurors which might be created by the argument over a challenge for cause. Further, the courts have an interest not only in the jury’s impartiality but also in the litigants’ perception of impartiality. The peremptory strike preserves both justice and the appearance of justice by allowing the litigant to feel that he is arguing before a fair jury. Swain v. Alabama, 380 U.S. 202, 218-20, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Photostat Corp. v. Ball, 338 F.2d 783, 786 (10th Cir. 1964); 9 Wright & Miller, Federal Practice and Procedure § 2483, at 473 (1971); Note, Voir Dire: Establishing Minimum Standards to Facilitate the Exercise of Peremptory Challenges, 27 Stan.L.Rev. 1465, 1502 (1975).
I do not believe that these interests are adequately served by an interpretation of section 1870 which limits the number of peremptory challenges to three in all two-party cases. Trials can engender a high degree of emotional response from the community. A murder trial may evoke widespread sensationalism; a civil or criminal trial may become the focus of racial, ethnic, or religious tensions. A trial judge has the primary responsibility even in these tumultuous situations to preserve both the actual impartiality of his tribunal and its appearance of fairness. The peremptory challenge is an important tool for these ends. I cannot agree with an interpretation of the statute which deprives a judge of that tool. The complete responsibility for the conduct of a trial rests on the trial judge, and he should not be constricted unless he exceeds the bounds of his discretion.
The majority points to the only decision discovered interpreting the word “entitled” as used in the statute. Detroit M. & T.S.L. Railway v. Kimball, 211 F. 633 (6th Cir. 1914). That case held that a party was entitled to only three peremptory challenges.
On the other hand, at least one court, not limiting itself to multi-defendant cases, has stated the general proposition that the trial judge has discretion to grant additional peremptory challenges. United States v. Caldwell, 178 U.S.App.D.C. 20, 34 n. 57, 543 F.2d 1333, 1347 n. 57 (1974). Other courts have reviewed the failure to grant an additional peremptory challenge in a single defendant criminal case under an abuse of discretion standard. E. g., United States v. Bentley, 503 F.2d 957 (5th Cir. 1974); United States v. LePera, 443 F.2d 810, 812 (9th Cir.), cert, denied, 404 U.S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275 (1971). These cases were decided under the language of Criminal Rule 24(b), which is identical to section 1870 with respect to the power to grant additional strikes.
Further support for the interpretation of section 1870 which I would follow is found in cases involving several parties. The stat*588ute states that several defendants or plaintiffs can be treated either as one party or given additional challenges in the trial judge’s discretion. If the language of the statute was meant to limit the number of challenges in a two-party case to three for each side, it should follow that the number in multi-party cases be limited to at most three per party. Case law, however, has not created such a limit. For example, in a case involving one plaintiff and two defendants, one court allowed each side to take ten peremptory challenges. Carey v. Lykes Brothers Steamship Co., 455 F.2d 1192 (5th Cir. 1972). This holding can be compatible only with the view that the judge has discretion to grant more than the minimum of three peremptory challenges allotted to each party.
To conclude that the judge has discretion to allow additional peremptory challenges in a two-party, civil case is not to say that a party may be granted an unlimited number of strikes. The decision of the trial judge is subject to review under the standard of abuse of discretion. See, e. g., Globe Indemnity Co. v. Stringer, 190 F.2d 1017 (5th Cir. 1951).
Since this case will be remanded on the issue of the selection of the jury, the majority does not reach the other grounds raised on appeal relating to the jury charge. Under these circumstances, it is inappropriate for me to speak to these other aspects of this appeal. I cannot join, however, in the limitation on the power of a trial judge to permit peremptory challenges in addition to the statutory minimum of three.
. I also disagree with the majority’s decision to reach the issue of the number of allocable peremptory challenges. Since plaintiff has shown no prejudice impairing his right to a fair trial, I do not believe that the judge's error, if any, constituted plain or fundamental error. See United States v. Bamberger, 456 F.2d 1119, 1131 (3d Cir. 1972), cert, denied, 413 U.S. 919, 93 S.Ct. 3067, 37 L.Ed.2d 1046 (1973); United States v. Montijo, 424 F.2d 207, 208 n.3 (1st Cir.), cert, denied, 400 U.S. 836, 91 S.Ct. 74, 27 L.Ed.2d 69 (1970). The only comments relating to this issue made at trial were that the plaintiff did not want any additional strikes and that defendant had improperly used his challenges. Neither remark was an objection to the power of the judge to grant an additional challenge. Since this argument, now raised on appeal, was never directed to the trial judge’s attention, he was not afforded an opportunity to correct any possible error before the trial proceeded. See Faudree v. Iron City Sand & Gravel Co., 315 F.2d 647, 651-52 (3d Cir. 1963). Therefore, we should not consider the argument for the first time on appeal. See United States v. Partee, 546 F.2d 1322 (8th Cir. 1976); Andrews v. Olin Mathieson Chem. Corp., 334 F.2d 422, 429 (8th Cir. 1964).