(dissenting) :
Believing the guilty plea of the appellant’s codefendant was improperly before the jury and constituted prejudicial error, I dissent.
Scott’s prior guilty plea was irrelevant to any of the issues presented at trial. The majority finds the plea admissible as a refutation of the appellant’s testimony that Scott had not expressed to him any intent to commit a crime. However, Scott’s plea only indicated that he had pled' guilty and nothing more. The appellant did not contend that Scott was not guilty or that Scott did not, in fact, intend to commit a crime, but only that Scott had not communicated his intentions to him, whatever those intentions may have been. Only Scott and the appellant knew what conversations transpired between them. The appellant testified that Scott said nothing *646about committing a crime. Only Scott could have testified to refute this assertion. However, he did not and, in lieu of such testimony, his guilty plea cannot be interpreted as evidence that he told the appellant he intended to commit a crime.
In addition to being irrelevant, Scott’s plea, by being placed before the jury, denied the appellant his constitutional right to confront and cross-examine the witnesses against him. A reading of Bruton v. U. S., 391 U. S. 123, 88 S. Ct. 1620, 20 L. Ed. (2d) 476 (1968), which is cited by the majority, will, in my judgment, permit no other conclusion.
The appellant’s conviction cannot be sustained even under the case Bruton overruled (Delli Paoli v. U. S., 352 U. S. 232, 77 S. Ct. 294, 1 L. Ed. (2d) 278 (1957)) for there was no instruction that Scott’s plea had to be disregarded in determining the appellant’s guilt. Indeed, the jury was expressly informed that it might consider Scott’s plea in its deliberations on the issue of intent.
It is true that Bruton does not require reversal simply because the jury becomes aware of a codefendant’s guilty plea. Smith v. U. S., 431 F. (2d) 1 (8th Cir. 1970). However, this does not warrant the conclusion that a codefend-ant’s guilty plea can be used as evidence against his co-defendant, as it was in the present case.
The case cited by the majority to justify the admission of Scott’s plea as evidence against the appellant are inapposite. Wood v. U. S. 279 F. (2d) 359 (8th Cir. 1960), and U. S. v. Aronson, 319 F. (2d) 48 (2d Cir. 1963) not only predated Bruton but both involved situations where the trial judge expressly instructed the jury that a codefendant’s guilty plea had nothing to do with and was not evidence of the guilt or innocence of the person on trial. In Smith v. U. S., supra, the trial judge, likewise, instructed the jury that a codefendant’s guilty plea had no bearing on the guilt or innocence of the person standing trial. The issue in that *647case was whether there was a substantial risk that the jury could not follow this protective instruction.
From the above, I feel it was error for the jury to be apprised of the guilty plea of Scott without an invalidating instruction from the trial judge.
The error could have been nonprejudicial only if the jury had disregarded the reference to Scott’s guilty plea. See Bruton, 391 U. S. at 126, 88 S. Ct. at 1622. It would be illogical to conclude that the jury did so for it was expressly instructed that it could consider the plea in its deliberations on the issue of intent. The State conceded before the lower court that had Scott’s plea not been allowed into evidence, there would have been “a substantial detrimental effect on the State’s case.”
The appellant should be granted a new trial. I would reverse.