(concurring in reversal). For the second time this Court reviews the 1960 conviction of a confessed killer. To quote then dissenting Judge T. G. Kavanagh, formerly of the Court of Appeals and now a distinguished member of this Court (People v. Shirk [1968], 10 Mich App 121, 127):
“Richard Shirk and Gerald MacKay killed Carlo Vitale. Gerald MacKay confessed the murder to the police investigating it. Richard Shirk, in an unusual effort to obtain a new trial after he had been convicted and sentenced to life in prison, admitted it in a letter to the trial judge.
“While his admission was in direct contradiction to his sworn testimony at trial, a fact which the trial judge used as the basis for denying the request, a reading of the testimony of the witnesses touching upon the interstate flight of the defendants and the deceased, leads to the inescapable conclusion that at long last, Richard Shirk told the truth when he admitted the murder.”
Upon review of the decision just cited, Bruton and Roberts having just come to release,* we ordered July 24, 1968 (381 Mich 764, 765) that the defendant’s said conviction receive further consid*198eration in the light of that pair of supreme judicial determinations. The Court of Appeals proceeded accordingly. By majority vote of the assigned panel of that Court, Shirk’s previously affirmed conviction was reaffirmed (People v. Shirk [1968], 14 Mich App 623). Leave to review was granted February 20, 1969 (381 Mich 804).
The facts and history of the charge lodged against Shirk appear fully in the two cited opinions of Division 2 and require no rehash now. The real question is whether the formerly applicable rule of evidence, standing as that rule indubitably did — by the eminence of Paoli — when Shirk was tried and convicted back in 1960, must be disregarded nunc pro tunc in favor of the 360-degree circumgyration ordered eight years later by Bruton and Roberts, so as to require that Shirk have a new trial or, if that has become impossible, that the circuit court must by recording a nolle prosequi acquit him of this callously calculated assassination.
Not by the desirable and supposedly sensible judgment of this Court, but solely on account of the oath-bound duty of judges of the Courts of the States to apply the 1968 rule of Bruton and Roberts, retroactively as if there was never a lawful rule of Paoli, our lay-unbelievable answer must be “Yes.”
The Supreme Court of the United States in 1968 informed us that its Paoli rule, faithfully applied as that rule was to this 1960 trial for murder, not only was wrong but was so wrong as to require the wholly retroactive overrulement thereof. This means that an assiduously careful prosecutor, a correspondingly careful and vigorous defense counsel, and an altogether able and since-deceased judge presiding over this 1960 trial, somehow should have foreseen that the post-Paoli departure from the United States Supreme Court of several justices *199and the confirmation of their successors, occurring over the intervening years, would mean not only the overrulement of Paoli hut the ordained retro-activity of such overrulement.
Yes, the prosecutor, the defense counsel and the circuit judge are all guilty of second-guessed reversible error. They erred in taking the United States Supreme Court’s solemn Paoli word. No one of them thought up, or foresaw, or saved for review, any idea that all confessional admissions of co-defendant MacKay, even though rightfully admissible at the time under Paoli, would be held inadmissible eight years later with counter-calendared effect.
The reason for reversal here is that their error was of such magnitude as to require no raising and saving of its point for review. To be sure, it was a “constitutional error.” Did not the United States Supreme Court conclude the penultimate paragraph of its opinion of Roberts this way (p 295):
“And even if the impact of retroactivity may be significant, the constitutional error presents a serious risk that the issue of guilt or innocence may not have been reliably determined”?
Convinced that the Supreme Court’s temporary and ever-changing majority was so patently wrong both in Bruton and Roberts, I am led to wonder in print why more of us, no matter the exalted plane of our position in the judicial process, do not on occasion walk alone into some quiet field or forest, there to gaze aloft at that mentally visible eagle of death or disability that is poised over every mortal man, just to meditate the fact that judicial tenure is fleeting, and then to realize that divisively contradictory opinions of courts of final resort (like Bruton and Roberts and indeed too many of ours) are becoming more and more like that “restricted *200railroad ticket, good for this day and train only,” of which Mr. Justice Roberts wrote so forcefully when he opposed overrulement of then similarly recent Grovey v. Townsend (1935), 295 US 45 (55 S Ct 622, 79 L Ed 1292, 97 ALR 680). The Justice wrote such opposition for Smith v. Alwright (1944), 321 US 649, 669, 670 (64 S Ct 757, 88 L Ed 987). The final paragraph of his dissent is just as levelheaded today as when written (p 670):
“It is regrettable that in an era marked by doubt and confusion, an era whose greatest need is steadfastness of thought and purpose, this court, which has been looked to as exhibiting consistency in adjudication, and a steadiness which would hold the balance even in the face of temporary ebbs and flows of opinion, should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of our institutions.”
With more than demurring reluctance, and only on account of sworn obligation so to do, I concur in reversal for new trial or, failing that, for judicial acquittal of a confessed murderer.
Dethmers and Kelly, JJ., concurred with Black, J. T. G. Kavanagh, J., did not sit in this case.Bruton v. United States, May 20, 1968, 391 US 123 (88 S Ct 1620, 20 L Ed 2d 476); Roberts v. Russell, June 10, 1968, 392 US 293 (88 S Ct 1921, 20 L Ed 2d 1100). The first overruled Paoli v. United States (1957), 352 US 232 (77 S Ct 294, 1 L Ed 2d 278). The second, 21 days later, rendered such overrulement wholly retroactive.