(dissenting).
I agree that the judge committed error in sending a communication to the jury while it was deliberating in response to a question of the. jury submitted to the court by the foreman in chambers. At first blush I was inclined to agree with my associates that this error justified a reversal, but an examination of the authorities cited in the majority opinion, and others bearing upon the question, has convinced me that under the circumstances the error was not prejudicial.
There is no assignment of error bearing upon the fact that the court informally instructed the jury through a communication made by him to the foreman. There is no specification of error upon that point. In my opinion the defendant’s counsel did not except to the manner in which the court conveyed the instruction to the jury in response to the request of the foreman, but only excepted to the substance of the instruction and to the denial of his request that the court instruct the jury through the foreman that the confession could not be used as evidence against the codefendant. It will be noted that far from objecting to the method of instruction the attorney for the defendants expressly requested that an instruction should b.e given in this manner. If there was error in communicating with the jury in the manner indicated, it was invited by the defendants who requested that an instruction to the opposite effect be thus communicated to the jury.
It is true that in a criminal case an unassigned error may be considered, but there were no circumstances here which justified such consideration. The court merely told the foreman to tell the jury what he had already told them during the course of the trial, namely, that a confession of one defendant in the presence of *811the other could be considered in determining the guilt of the other defendant. If the foreman correctly conveyed the information to the balance of the jury, he merely reminded them of what the court had already told them. If he was sent by the jury to find out from the court whether or not a confession could be so used, there are only two possible answers, “Yes” or “No.” The answer given by the court was the one unfavorable to the defendants. There is no reason to suspect that the jury were told by the foreman that the evidence could not be used. Their verdict, promptly rendered, indicates that they were told that such evidence could be used. The method of conveying the court’s instruction to the jury was erroneous, but being merely a repetition of the instruction already given the error was quite harmless. In this connection, it should be noticed that counsel were present in chambers and that the defendants were out on bail and therefore may have been voluntarily absent from the courtroom.
With reference to the harmlessness of the error, I merely call attention to a number of decisions dealing with that problem which tend to sustain the view 1 have expressed : Peppers v. United States, 37 F.(2d) 346 (C.C.A.6); Dodge v. United States (C.C.A.) 258 F. 300; Hagen v. United States (C.C.A.9) 268 F. 344.
For the foregoing reasons, I dissent from a reversal. I do so, however, with some reluctance because it is not at all clear what effect the jury gave to the fact that the confession of the son was made in the presence of the mother as bearing upon her guilt. So far as the son is concerned, he confirmed the mother’s confession and thus adopted it as' his own, but the mother, so far as the record shows, merely remained silent at the time her son confessed. This at most would amount to an admission or confession on her part and would have little, if any, weight as it merely would amount to a second confession and would not be a corroboration of the first confession within the meaning of the rule requiring a confession to be corroborated. The question of a lack of corroboration is not raised by the appellant. The jury were not instructed on the subject and no instruction was asked with relation thereto. See as to corroboration, Pearlman v. United States, 10 F.(2d) 460 (C.C.A.9), citing, Mangum v. U. S. (C.C. A.) 289 F. 213. The corroboration of the confession of the son (Robert Chang) is complete. It is not so with reference to the mother.