(dissenting).
, T .dissent from the majority holding that denial of the subpoenas was an abuse of discretion .which substantially prejudiced appellant’s defense. In my opinion, a new trial is not warranted.
'Subpoenas for five witnesses were requested by court appointed counsel for appellant ■ approximately three weeks before trial. The irregular piecemeal justification for tlieir production was not completed until approximately one week before trial. The witnesses resided at or near the com-mumty of Sand Point, which is located on the Alaska Peninsula approximately 500 air miles from the place of trial in Anchorage. The estimated total cost to the state of producing each witness appears from the record to have been in the neighborhood of $400.00. After the somewhat confused showing of justification for the subpoenas described in the majority opinion had ' been completed, the court granted the request as to one of the witnesses and denied it as to four.
Counsel’ obviously had not had the opportunity to’ interview any of the requested witnesses, all of whom resided in an area remote to the place of trial and appellant’s place of detention prior to trial. What we learn in hindsight from our experience in' this case is that in similar circumstances it would be advisable for the court to.,suggest that counsel request funds for the purpose of visiting the community where the crime is alleged to have occurred to interview potential witnesses for the defense. The testimony that each witness would give could then be definitely determined. The affidavit of justification as to each requested witness would be affirmative and accurate. This would permit the court to intelligently weigh the justification against the requirements of Criminal Rule 17(b) and act with assur-anee. It was twice suggested by. the dis-' trict attorney during one of the hearings that counsel for appellant go to Sand Point for the above purpose, but the suggestions appear not to have been given serious consideration by the court or defense counsel.
The majority opinion holds that the trial judge abused his discretion in refusing to issue subpoenas for the witnesses George Osterback, Agnes Mobeck and Johnny Peterson. The opinion states in part:
Nowhere did the trial judge articulate precisely what criterion had been employed in deciding whether or not to allow the subpoenas.
and then, in a footnote, proceeds to quote the judge where he inquires of counsel whether a person financially able would spend $2000 of his own money to bring in witnesses about whose testimony he knew so little.
The fact is that the trial judge was applying the criterion established by the Supreme Court of the United States in Griffin v. People of State of Illinois1 where it was held that destitute defendants must be afforded as adequate appellate review as defendants with money to pay for such services. In order to equate appellant’s right to subpoena the witnesses at state expense, according to the established standard, the judge was properly attempting to determine, with the assistance of counsel, whether a person with personal funds would be willing to spend them to bring witnesses such a distance at unusual expense, who could offer only the testimony represented in the justification.
In view of this, it is not consistent for the majority to state that this inquiry “indicates that the trial judge applied too rigid a standard in administering Criminal Rule 17(b)”. The trial judge made other inquiries and observations which plainly indicates that he was attempting to *779apply the standard of Criminal Rule 17(b) which requires that the evidence the witness is expected to give be material to the defense. The expense involved in producing a witness is one factor to be considered by the trial judge. The high cost of producing requested witnesses, when considered in relation to the materiality of the testimony expected to be given, can force the conclusion that an attempt is being made to abuse the right.2 The footnote citation seems to be an example of an obvious attempt to abuse this right. In between the obvious attempt to abuse the right and the meritorious request is the request based upon the sincere but imaginative justification of a hopeful defendant. In weighing the latter type request against the requirements of Criminal Rule 17(b) the trial judge is required to exercise a sound discretion in determining whether “the evidence of the witness is material to the defense” and whether “the defendant cannot safely go to trial without the witness”. The rule does not give the defendant the right to subpoena witnesses at state expense in the mere hope that, when produced, they will be found to be able to supply evidence favorable to the defense.3
In Reistroffer v. United States 4 the defendant requested permission to subpoena at government expense a handwriting expert, stating that he fully expected the expert to testify that in his expert opinion the handwriting contained on the purchase orders introduced into evidence was not the handwriting of the defendant. The appellate court stated:
It appeared to the trial court that since Norris chose not to take the witness stand and produce samples of his handwriting and in the court’s long experience, experts on handwriting could not be expected to give an opinion without laboratory tests and sure bases for comparisons, there was too much uncertainty to justify the expense of bringing the expert witness from St. Louis, zvhere he lived, to the place of trial at Waterloo. It is also pointed out for the government that proof that the particular signatures referred to were not in the handwriting of Norris even if established would not have constituted a complete defense to the charges and the evidence against Norris, (emphasis supplied)
It is well settled that Rule 17(b), Federal Rules of Criminal Procedure, * ⅜ under which the motion for subpoena was made, does not accord the indigent defendant an absolute right to subpoena witnesses at government expense. There is and must be wide discretion invested in the District Court to prevent the abuses often attempted by defendants. This Court will not disturb the exercise of the discretion unless exceptional circumstances compel it. Gibson v. United States, United States, 8 Cir., 53 F.2d 721, 722. *
The question to be decided with respect to the denial of each subpoena is whether the trial judge abused the discretion placed in him by Criminal Rule 17(b) which provides that the subpoena may be issued after a showing by affidavit of the testimony the witness is expected to give, coupled with a showing that the evidence is material to the defense and that the defendant cannot safely go to trial without the witness. This discretion was described by Mr. Justice Reed in Greenwell v. United States 5 as follows:
This discretion, of course, is not absolute in the sense of “no review under any circumstances,” but does leave a large degree of freedom of decision to the trial judge to determine the materiality of the evidence which the defend*780ant seeks and the likelihood that such evidence will be forthcoming. Neither Rule 15 nor Rule 17 authorizes a general inquiry at Government expense into the circumstances of the crime with which the defendant is charged upon mere hope that favorable evidence will be unearthed; they provide for financial aid only when the defendant asserts reasonable grounds to believe that a witness has pertinent testimony to offer or that other helpful evidence is obtainable.
Abuse of discretion has been defined as arbitrary action as contrasted with the exercise of conscientious judgment;6 and as, “when the action of the trial judge is clearly contrary to reason and not justified by the evidence.” 7
■ With respect to the request that a subpoena issue for the production of George Osterback, appellant’s memorandum stated:
1. George Osterback, Sand Point, Alaska, will testify he was with the defendant at the bar in Sand Point from early evening till just before the alleged crime occurred. Further he is expected to testify that he purchased a drink for Mrs. Kalmakoff, the alleged victim and should support that defendant had no contact with Mrs. Kalmakoff in the bar that evening prior to the alleged crime.
Even if it is assumed that Osterback would testify in all respects as indicated, it is apparent that the testimony would not be “material to the defense”. The fact that Osterback may have been with the defendant at the bar prior to the time the alleged crime was committed and purchased a drink for the complainant, with nothing more to show how it would assist the defense, does not make a satisfactory showing of materiality.
The memorandum in support of the request for a subpoena for George Osterback, in a second paragraph, stated:
The defendant has reason to believe that Mr. Osterback may have further testimony extremely relevant to the case. Defendant believes that the State has a witness, one Thomas Joseph Yates, who will testify he saw Mrs. Kalmakoff lying on the ground with two men, one of which ran whom he cannot identify and the second of which was the Defendant. It is probable that Mr. Oster-back is this mysterious person who ran. Further, Mr. Osterback was carrying a hunting knife in his belt on the night of the alleged crime.
The trial judge denied the sufficiency of the above allegations as support for the issuance of a subpoena at state expense, stating that if the defendant intended to prove that Osterback committed the crime, then the court would be obligated to warn him of his right not to incriminate himself under the 5th amendment and that it would be unlikely that he would testify. The allegation that the defendant “has reason to believe” that Osterback might have “further testimony extremely relevant to the case” does not in any manner comply with Criminal Rule 17(b) which requires that the defendant shall state the testimony which the witness is expected to give and should then show that the evidence is material to the defense and that the defense cannot safely go to trial without it. No attempt was made to outline the “further testimony”. Instead, the defendant speculated on what the state witness might testify to and then inferred that Osterback might be the mysterious person who fled the scene of the alleged crime. Defendant indicated that he would prove that Oster-back committed the crime instead of the defendant by questioning Osterback as a witness. If there were facts which were expected to be brought out by Osterback’s testimony that would prove that he committed the crime, the court should have been so advised. If there were facts which would point to Osterback as the “mysterious person who ran” from the scene of the al-*781Icgcd crime, where appellant was also placed by Yates’ testimony, then appellant should have so advised his counsel who could have so advised the court Appellant did not use the witness Ralph Bjornstad who was subpoenaed at state expense. Appellant did not take the stand in his own defense. Yet this court has found that reversible error was committed in not producing Osterback on the vague and improbable representation that he might be questioned into admitting that he committed the crime instead of appellant.
Appellant’s memorandum justified the request that Agnes Mobeck be subpoenaed by stating:
3. Agnes Mobeck, Sand Point, will testify that she came into the bar earlier that evening with Mrs. Kalmakoff and that they were both later joined by Mr. Kalmakoff. She should also be able to testify as to what was said between Mr. Osterback and Mrs. Kalmakoff. Mrs. Kalmakoff testified at the preliminary hearing that she was not in the company of any other person in the bar other than her husband and Mr. Oster-back.
The court denied this request on the ground that it could not see that it made any difference to appellant’s defense whether Mrs. Kalmakoff was in the bar earlier that evening with Agnes Mobeck or whether she was not. Appellant’s memorandum in support of the request failed to point out to the court wherein the testimony of Agnes Mobeck would be material to the defense and why appellant could not safely go to trial without such testimony. The most that can be said for the expected testimony is that it might contradict complainant on an unimportant aspect of her testimony before the grand jury.
Appellant requested that Johnny Peterson be subpoenaed so that he could testify that an earlier rape, alleged to have been mentioned by the complainant to the grand jury, was not a rape, but a consensual act The court denied the request and entered an order directing the district attorney to advise the complainant that no testimony would be admitted concerning any previous act of alleged rape since it was not an issue in the case.
The majority opinion holds that evidence of a prior act of consensual intercourse was relevant and material to the issue of appellant’s intent and to the issue of prosecutrix’s consent. Wigmore is cited as authority for this holding.8 Wigmore personally believes, as does the majority of this court, that evidence of particular acts of a woman’s unchastity should be admitted to show the likelihood of consent, but is careful to point out that no question of evidence has been more controverted and that such evidence is excluded in the greater number of jurisdictions.9
In my opinion, we should not proceed to commit this court on a question of law which has not been briefed as an issue, but that we should first determine whether the trial judge’s denial of the subpoena was clearly contrary to reason, i. e. an abuse of discretion.
I think that it was not an abuse of discretion. The admissibility of such evidence had not been passed upon by this court. Most jurisdictions exclude it. Where such evidence is admissible it is' generally on the ground that it is relevant to the question of consent. Appellant did not take the stand and made no attempt to state or establish the defense of consent. In view of this, appellant could not have been prejudiced by not having the benefit *782of the testimony that it was thought Peterson would give. I do not believe that this court is justified, under the uncontradicted testimony, some of which is related in a following paragraph, in presuming that if the court had subpoenaed Peterson that appellant would then have taken the stand on a defense of consent and utilized Peterson’s testimony to support his defense. When the trial judge entered an order that the matter of an alleged prior rape would not be testified to, the possibility that the trial of the main issue would be confused and clouded was eliminated, fully as much to the benefit of the appellant as to the state.
In my opinion the trial court did not abuse its discretion in denying the subpoenas for Osterback, Mobeck and Peterson.
We now know from the uncontradicted testimony of the complainant and the witnesses Lena Choquette and Thomas Yates that the complaining witness and her husband were physically assaulted and knocked to the ground by appellant as they walked home from the bar. While her husband sought assistance, the complainant resisted appellant who was struggling to remove her clothes. As the complainant’s brother-in-law, Tom Yates, approached the scene in response to her husband’s request for assistance, he heard complainant shouting for help. Upon his arrival at the scene he found complainant on the ground with a part of her clothing removed. Appellant was arising from the ground and zippering up his trousers. Complainant’s testimony was that she had not been raped, but that appellant was attempting to do so. The witness Yates testified that on the Monday following the Saturday on which the rape was attempted he was berating appellant for his act when appellant admitted that “I might have done the other, but I did not cut her”.
By the time the case was submitted to the jury two of tire three indictment counts against appellant had been dismissed. Only the count charging assault with intent to commit rape remained.
On the uncontradicted testimony recited above the jury found appellant guilty. At the sentencing the district attorney advised the court that he had received more than one telephone call from Sand Point describing appellant as “the terror from Sand Point”. The judge reviewed appellant’s record of criminal violence dating back to 1948 and sentenced him to serve fifteen years in prison.
The majority believe that appellant was deprived of the opportunity to adequately defend against charges of serious crimes and should be given a new trial. At a retrial the only charge which appellant will be required to face will be the one remaining count of the indictment on which he has already been convicted, that of assault with intent to commit rape. The new trial has been granted on the theory that appellant would be enabled to place before the jury the testimony of the three witnesses for whom subpoenas were denied. The granting of a new trial for any other reason would not be justified. For example, it would not be proper to grant a new trial on the possibility that the requested witnesses would give testimony favorable to appellant in addition to that set out in the justification, or on the possibility that appellant might in the interim locate other witnesses favorable to his defense. Yet, if all three of the witnesses were produced and testified fully as represented, none of the testimony upon which appellant was convicted would be contradicted. The evidence of appellant’s guilt of assault with intent to commit rape was overwhelming and uncontradicted — in fact, admitted by appellant in his conversation with the witness Tom Yates.
Under the circumstances no interest of justice will be furthered by ordering a new trial. The concept of equal and im*783partial justice will not be enhanced under the facts of this case by officially pretending that an innocent indigent defendant may have been convicted because of the failure of the State to provide necessary witnesses for his defense. Furthermore, if it is believed that Osterback is also guilty of some crime, the logical thing to do is to investigate further, but not to use his suspicion as a ground for ordering appellant’s retrial.10
On the other hand, there is the distinct possibility that before the case can be retried, evidence essential to the state’s case will be lost.
The majority emphasizes the fact that appellant was tried a long distance from his home and that his defense may have suffered because of cultural and linguistic barriers between he and his counsel. In my opinion these supposed disadvantages are more imaginary than real. Many experienced Alaska defense counsel will verify that it is quite as likely that appellant gained an advantage in having his actions judged by an Anchorage jury, as compared with a jury drawn from the area of his residence, because of the frequent tendency of a predominantly white-man’s jury to be more sympathetic and lenient of actions committed in a frontier or primitive habitat by persons of a supposedly more primitive culture. Linguistic and cultural barriers between appellant and his counsel will not be eliminated or improved by another trial.
One effect of the granting of a new trial might very well be to shock the concept of justice of those of appellant’s culture who are familiar enough with the evidence upon which appellant was convicted, who would be unable to understand or rationalize and would have little patience with what appears to be a rigid observance of form over substance.
I would affirm the judgment.
. 351 U.S. 12, 19, 76 S.Ct. 585, 100 L.Ed. 891, 899 (1956).
. See United States v. Zuideveld, 316 F.2d 873, 880-881 (7th Cir. 1963), where subpoenas for 420 witnesses, all members of the Adonis Veil Club, residing in most of the states and many foreign countries, were requested.
. See Note 5 infra.
. 258 F.2d 379, 396 (8th Cir. 1958) (emphasis supplied).
. 115 U.S.App.D.C. 44, 317 F.2d 108, 113 (1963) (dissenting opinion).
. Burns v. United States, 287 U.S. 216, 223, 53 S.Ct. 154, 77 L.Ed. 266, 270 (1032).
. Springfield Crusher, Inc. v. Transcontinental Ins. Co., 372 F.2d 125, 126 (3rd Cir. 1967).
. 1 J. Wigmore, Evidence, § 200 (3rd ed. 1940).
. See for example, State v. Severns, 13 Wash.2d 542, 125 P.2d 659, 664 (1942), where the court said:
Whatever the rule in this state may formerly have been in regard to the right of a defendant in forcible rape eases to show specific acts of misconduct on the part of the complaining witness, it is now firmly established that such acts are not admissible.
Contra, People v. Walker, 150 Cal.App.2d 594, 310 P.2d 110, 114 (1957); State v. Wood, 59 Ark. 48, 122 P.2d 416, 418, 140 A.L.R. 361 (1942).
. The jury was aware from the testimony of Tom Yates that a person believed to be Osterback was seen in the area at the time the assault was committed. The jury obviously attached no controlling significance to this possibility. , ,