The opinion
SCHNACKENBERG, Circuit Judge
(dissenting).
The record shows that the credibility of Ted Haney, a government witness, was vulnerable to attack on the grounds (1) that he had been convicted of murder and (2) that he was an informer who, in return for immunity from prosecution, provided evidence against defendant. Recognizing both of these grounds, defense counsel tendered to the court the following instruction, which was rejected:
“You are instructed that Ted Haney is an informer for the Bureau of Narcotics. The testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer’s testimony has been affected by his interest or his prejudice against the defendant.
“You a/re further instructed that the evidence shows that the informer, Ted Haney, has been convicted of a felony. The testimony of a witness may be discredited or impeached by showing that he has been convicted of a felony. As such, his testimony must be carefully examined and weighed with great care.” (Italics supplied here for emphasis.)
The court then instructed the jury aa follows:
“If you find from the evidence that Ted Haney is an informant of the Federal Bureau of Narcotics, you may consider the principles that the testimony of an informer who provides evidence against the defendant or for immunity from punishment or personal advantage or vindication must be examined and weighed by you with greater care than the testimony of an ordinary witness. As such his testimony must be carefully examined and weighed with great care.”
The court then proceeded with a number of instructions on other aspects and thereafter instructed the jury as follows:
“Evidence of a defendant’s previous conviction of a felony is to be considered by you only insofar as it may affect the credibility of the defendant as a witness and must never be considered by you as evidence of guilt of any of the offenses for which he is standing trial.”
(Emphasis added.)
This instruction does not refer to the witness Haney, because he was not “standing trial”. It is obvious that the court erred in rejecting the tendered impeachment instruction which applied a well-established test to the value of the testimony of Haney. 1
In so instructing the jury after rejecting the instruction tendered by defense *209 counsel, the court abused its discretion. In addition it must have confused the jury. 2 I would reverse and remand for a new trial.
. The Committee on Jury Instructions, of which Judge Walter J. LaBuy was chairman, in a Manual on Jury Instructions (1963), said at page 46:
6.06-2 Conviction of a Felony
The testimony of a witness may be discredited or impeached by showing that he had been convicted of a felony. Prior conviction does not render a witness incompetent to testify, it merely reflects on his credibility. It is the province of the jury to determine what weight, if any, should be given to such prior conviction as impeachment.
. The able district judge seemed to sense this, saying:
“ * * * I apologize for letting this out but you might have sensed that I was perturbed about this matter of instructing. Very well, gentlemen. Good luck to both sides. I have no interest in the matter whatsoever. Let the chips fall where they may.”