The opinion
EVANS, Circuit Judge
(dissenting).
Defendant bases his request for a new trial on the argument that incompetent evidence affected the jury’s recommendation of the death penalty. Disposition of his plea turns upon the correct answer to two questions: Did such evidence reach the jury? Was it prejudicial?
In considering the first question it is significant (a) that no adverse or erroneous ruling of the court admitted this evidence, and (b) satisfactory proof that it reached the jury or affected its deliberations is lacking.
What was the objectionable evidence? How (assuming it reached the jury) did such evidence reach them?
Fingerprints on the Hamilton car were photographed; likewise, defendant’s fingerprints. Both were received in evidence, — properly, although over objection. They constituted a link in the identification proof. On the back of each was a typewritten statement. These statements were not received in evidence. Their existence escaped the notice of defendant’s counsel. Later the court, not being advised of any words on the reverse side of the exhibits, permitted the exhibits to go to the jury room. It is fair to say they may have been read by the jurors, but also there is no competent proof to show they were read by any of the jurors.
What were the statements? One stated that defendant had been convicted of a robbery charge and was serving a sentence in the Oklahoma penitentiary. This was, *982 however, a harmless statement, in view of defendant’s own testimony that he had been convicted of robbery with a gun and was serving his sentence when he escaped. This fact he related in his confession, and repeated it on the witness stand. It was undisputed. There could therefore have been no harm in the statement of a fact which was thus admitted.
The other statement (the sole support for the reversal here) was on the back of the other exhibit. It stated that defendant had been arrested — “charge rape; dism. for want of prosecution.”
It is my conviction that the court properly denied the motion for a new trial for several good reasons.
(a) It is significant that no error was committed by the court nor was the jury guilty of misconduct during this trial. It was the failure of defendant’s counsel to note the writing on the back of the exhibit and to call it to the court’s attention, that furnishes the groundwork for the new trial - motion.
While we must be steadfastly determined to see that conviction is not based on incompetent or improper evidence or upon extraneous facts, it must also be appreciated that in the trial of all cases, civil and criminal, courts must rely, to a large degree, upon counsel, to inform them of the contents of exhibits. Ordinarily courts may safely do so. In fact, it would take an unusual case to justify the granting of a new trial because of failure of counsel to protect the rights of his accused client. If any other rule were adopted, an accused defendant could hire an incompetent counsel and then, after conviction, employ an abler or more diligent counsel to appeal and assign the mistakes and omissions of his predecessor counsel as grounds for reversal. We are not asserting that counsel for the accused in this case was necessarily negligent in not reading the back of the exhibit in question. Facts (hereafter related) may have made him justifiably indifferent to this evidence. However, his actions as representing defendant are what is significant.
(b) Putting to one side, however, the fact that defendant is chargeable with the responsibility for this statement’s reaching the jury room, and approaching its possible effect on the jury, we are confronted at once by the apparent lack of proof that the jury actually saw and read the exhibit. The burden of showing this statement reached the jurors, — of showing error, — is on the defendant. It is not sufficient that it may have reached them.
When the exhibits were identified (later admitted), they were material and important. They were a link in the chain of evidence establishing defendant’s kidnapping of Hamilton who was thereafter killed. Later in the trial they became unimportant because of defendant’s confession, and his testimony as his own witness. On both occasions he admitted all the facts which the fingerprints tended to establish. In other words, he admitted the kidnapping of Hamilton, the driving about in Hamilton’s car in two or three states with Hamilton in his custody, his later killing' Hamilton with a shot from the revolver which he had theretofore effectively used to kidnap his prisoners.
Of what interest to the jury then were the fingerprint photographs? Why should the jury study or even examine them? The facts they disclosed were not controverted. Defendant’s punishment was the serious question over which the jurors were deliberating. This no doubt accounts for defendant’s counsel’s unusual lack of interest in the exhibits and his failure to examine them carefully. He doubtless then-knew defendant was to take the stand, confirm his confession, and admit — what could not well have been denied — his action in kidnapping Hamilton and later killing him. Defendant’s counsel’s reliance, then, as here, was apparently on the unconstitutionality of the Federal Kidnapping Law, Title 18 U.S.C.A. § 408a. et seq. Hence his indifference to the exhibits showing defendant’s fingerprints.
But it is idle to speculate over the possibility or the likelihood of the jurors’ weighing this evidence. The burden was on the defendant to show that the jurors saw and read the statement in question. 1 He failed to supply that proof although the jurors could have established the fact if true. No juror testified that he saw or read it.
*983 111 other words, if the jurors saw and read the exhibits they could have been sworn and examined on the motion for a new trial, or their affidavits could have been presented in support of the motion.
The court in Mattox v. United States, 146 U.S. 140 , 13 S.Ct. 50, 52 , 36 L.Ed. 917 , settled the question, when it held that affidavits of jurors are admissible to prove the reading by them of a document not in evidence. Tn that case, defendant offered the affidavit of jurors to show that the sheriff improperly informed the jury of other crimes committed by the defendant, also that a newspaper commenting on the trial and argument of counsel was delivered to the jury while it was deliberating. The District Court held such affidavits could not be received or heard on the motion for new trial. On appeal this ruling was reversed.
The court said:
“The allowance or refusal of a new trial rests in the sound discretion of the court to which the application is addressed, and the result cannot be made the subject of review by writ of error * * *.
“In United States v. Reid, 12 How. 361, 366 [ 13 L.Ed. 1023 ], affidavits of two jurors were offered in evidence to establish the reading of a newspaper report of the evidence which had been given in the case under trial, but both deposed that it had no influence on their verdict. Mr. Chief Justice Taney, delivering the opinion of the court, said: ‘The first branch of the second point presents the question whether the affidavits of jurors impeaching their verdict ought to be received. It would, perhaps, hardly be safe to lay down any general rule upon this subject. Unquestionably such evidence ought always to be. received with great caution. But cases might arise in which it would he impossible to refuse them without violating the plainest principles of justice. It is, however, unnecessary to lay down any rule in this case, or examine the decisions referred, to in the argument. Because we are of opinion that the facts proved by the jurors, if proved by unquestioned testimony, would be no ground for a new trial. There was nothing in the newspapers calculated to influence their decision, and both of them swear that these papers had not the slightest influence on their verdict.’ The opinion thus indicates that public policy, which forbids the reception of the affidavits, depositions, or sworn statements of jurors to impeach their verdicts, may in the interest of justice create an exception to its own rule, while, at the same time the necessity of great caution in the use of such evidence is enforced..
“There is, however, a recognized distinction between what may and what may not be established by the testimony of jurors to set aside a verdict. * * *
“‘Public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow the verdict, because being personal it is not accessible to other testimony; * * * But as to overt acts, they are accessible to the knowledge of all the jurors; if one affirms misconduct, the remaining eleven can deny ; one cannot disturb the action of the twelve; it is useless to tamper with one, for the eleven may be heard. Under this view of the law, the affidavits were properly received. They tended to prove something which did not essentially inhere in the verdict, an overt act, open to the knowledge of all the jury, and not alone within the personal consciousness of one.’ * -¡: *
“But a juryman may testify to any facts hearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind. So a juryman may testify in denial or explanation of acts or declarations outside of the jury room, where evidence of such acts has been given as ground for a new trial.”
'["here are state courts which exclude, this sort of proof but the Federal courts now uniformly hold that such affidavits are admissible. 2 While I have not found judicial precedents as numerous as those that support the last mentioned proposition, I am convinced that the affidavits or tes *984 timony of third parties as' to statements made by jurors to them are not admissible. 3 With nearly as great unanimity the courts have held the affidavits of counsel as to what jurors told them to be inadmissible on motion for new trial. 4
In the instant case, there is before us nothing^-not even the affidavit of counsel for defendant. When arguing orally in this court he volunteered the statement that he questioned a juror who told him that the jurors read the back of the photograph. The record shows no corroboration of such statement. The record contains no affidavit, — merely an unsupported motion for a new trial.
However, it is my view, that even though counsel’s statement were set forth in an affidavit, and it had been made and presented to the District Court in support of the motion of a new trial, it would not change my conclusion, for the jurors, and they alone could supply the proof of extraneous influences,- — such as here under consideration.
It therefore, seems to me clear that the record fails to show that incompetent evidence reached the jurors.
Wigmore states the rule in his recent (third) edition of his treatise on evidence, thus (Sec. 2354(6) ; “So far as any of the foregoing facts may be evidenced at all by jurors, they should be evidenced by the juror’s own testimony under oath, either by affidavit or on the stand, and not by his hearsay statements reported by others.”
(c) There is another reason for refusing a new trial. The jurors could not have been prejudiced by the statement even if they read it.
• Wherein lay the prejudice in this statement that defendant had been accused of a crime and the charge dismissed for want of prosecution? True, had such a question been asked and objected to, it would have been ruled out by the court. But we are considering, not its admissibility over objection, but its prejudicial effect. And this, on a motion for new trial.
It must be borne in mind that the jury was considering far more serious questions than a charge preferred and dismissed in the accused’s earlier life.
Defendant was charged with, and by his confession and his own sworn story, was guilty of robbery with a gun for which he was serving a sentence, of escape from the penitentiary, of kidnapping, not merely Hamilton but two other innocent citizens, of “holding up” and robbing several places of business, of pointing a gun, and on his own admission, with intent to shoot and kill if funds were not produced, and finally of committing the offense of kidnapping an innocent young man (Hamilton) — a stranger to him — whom he also shot and killed.
To tell a jury that a mature man in possession of his mental faculties with such a record had once been charged with a felony which was dismissed, was harmless,— weighed nothing on scales whereon lay evidence so heavy and so damning. The jury was deliberating over the fate of a kidnapper, who had killed his victim.
The entire story, which is not contradicted came from defendant’s own lips. He gave his own picture of a wilful, criminal, irresponsible personality, devoid of human qualities. He pictured himself as a robber bold, a deliberate, cold blooded hold-up gun man, — a killer. No heat of *985 passion prompted him: no grudge of long standing actuated him. He killed his victim without reason or excuse. He robbed other victims at the point of the gun to get money. He stole automobiles and levied tributes on their owners as a pirate of old. Yet his counsel now argues that the information which the jury obtained of an earlier felony with which he had been charged and which charge had been dismissed, affected their verdict.
Guilty by his own words of admission of a robbery with a gun, of three kidnappings, of three hold-ups at the point of a gun, and of murder, he asserts prejudice because of a statement he was also once charged with a felony which was dismissed for want of prosecution. The Court’s credulity must have some boundaries. A reasonable limitation calls for the recognition of a difference between a possibility and a probability. Another necessitates one assuming that jurors are no less sensitive to their responsibilities than the rest of us or that their judgments are controlled by influences or arguments which would have no weight with anyone else.
Juries are not instruments upon whose alleged ignorance or unsophistication, defendants may rely to escape from the punishment of tlieir crimes, when every other avenue of escape has been closed.
And in this connection what effect must be given to the fact that the statement declared the charge was dismissed for want of prosecution? Told by the court that they must predicate their verdict on the charge before them and on no other, defendant nevertheless asserts the jury disregarded instructions and based its verdict oil a stray statement that defendant had once been charged with a felony which had been dismissed for want of prosecution. In weighing the possible prejudice of such a statement, it would be unfair to overlook that part which says the charge was dismissed. That statement carries to any man of reason, information more significant than the statement he was once charged with a felony.
Quite applicable to this situation is the case of Holmgren v. United States, 217 U.S. 509 , 30 S.Ct. 588, 590 , 54 L.Ed. 861 , 19 Aun.Cas. 778, where an indictment was sent into the jury room by the order of the court. Unknown to the court the clerk had written on the back of this indictment the following words: “Arraigned Nov. 2, 1905. Mch. 14, 1906. Pleads not guilty. Tried April 5, 6, 7, 1906. Verdict not guilty on the 1st and 2d counts of the indictment, and guilty on the 3d count of the indictment. April 13, 1906. New trial is granted.”
The Court said: “* * * The indorsement itself shows that a new trial was. granted upon the former conviction on the third count. This action of the court in setting aside what the jury had formerly done is quite as likely to influence the jury favorably to the accused, as was the fact of former conviction by the jury to work to his prejudice.”
(d) There is another ground for the affirmance of this judgment. Tt has repeatedly been held that the denial of a motion for a new trial in a criminal case, in the Federal courts, is not reviewable on appeal. 5 The court’s ruling thereon is not ground for reversal.
*986 Concede, we may, that there are exceptions to this rule and that appellate courts should and will set aside judgments which are believed to be influenced by incompetent information which reached jurors. This, I assume is on the theory that plain error, although not assigned, may be noted on appeal. But is this one of those exceptions? I think not.
There was, it should be emphasized, no error in the trial of this case. In reviewing the action of a trial court denying a motion for a new trial, weight must be given the judgment of the trial judge who saw and heard the evidence. He, quite as well as I, can say whether the evidence (which may (?) have reached the jurors) affected their deliberations, and equally pertinent, whether on a new ■ trial on the same evidence (except the exhibits) a change in the verdict might be reasonably possible. He concluded it would not. I think the sariie. Even if I did not think so, it would not be decisive of the question. For we are here reviewing an order involving discretion on the part of the trial judge.
In the leading case of Holt v. United States, 218 U.S. 245 , 31 S.Ct. 2, 5 , 54 L.Ed. 1021 , 20 Ann.Cas. 1138, we have a somewhat similar situation where the court said: “We are dealing with a motion for a new trial, the denial of which cannot be treated as more than matter of discretion or as ground for reversal, except in very plain circumstances indeed. Mattox v. United States, 146 U.S. 140 , 13 S.Ct. 50 , 36 L.Ed. 917 . See Holmgren v. United States, 217 U.S. 509 , 30 S.Ct. 588 , 54 L.Ed. 861 [19 Ann.Cas. 778]. It would be hard to say that this case presented a sufficient exception to the general rule. The judge did not reject the affidavit, but decided against the motion on the assumption that more than it ventured to allege was true. * * * If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it. will be hard to maintain jury trial under the conditions of the present day. Without intimáting that the judge did not go further than we should think desirable on general principles, we do not see in the facts before us any conclusive ground for saying that his expressed belief that the, trial was fair and that the prisoner has nothing to complain of is wrong.”
In Holmgren v. United States, 217 U.S. 509 , 30 S.Ct. 588, 590 , 54 L.Ed. 861 , 19 Ann.Cas. 778, the court was considering a situation heretofore described. The indictment contained an indorsement showing the conviction of the accused on a previous trial on the third count of the indictment. This indictment was permitted to be taken into the jury room. The court refused to disturb the order denying defendant’s motion for a new trial, saying: “It has been frequently decided that the allowance or refusal of a new trial rests in the sound discretion of the trial court.”
Quite similar also is the case of Quercia v. United States, 1 Cir., 70 F.2d.997, 999, a decision by the first circuit, wherein the court said:
“The appellant, after the verdict of guilty, filed a motion for a new trial on the ground that the indictment handed to the jury, when they retired for their deliberations according to the usual practice, bore the notations of the prior conviction. The fact is admitted, as well as the fact that no objection thereto was raised at the time by counsel for Quercia through oversight, no doubt, as both were familiar with the practice of handing the indictment to the jury on its retirement, and of the clerk’s custom of noting on the back thereof the verdict of the jury and the sentence by the court.
“The granting of a new trial is within the discretion of the trial judge. The only issue of law involved on appeal is whether he has abused his discretion. The trial judge carefully considered all the circumstances in this case, together with fact that the jury must have realized, if they saw and read the notation of a prior conviction, that there had been error committed in the prior trial, and that the appellant was having a new trial. *• * *
*987 “We think the trial judge properly held that the granting of a new trial was a matter within his discretion, and no abuse of discretion is shown on this record.”
In the recent case of United .States v. Socony-Vacuum Company, supra, the Supreme Court said [ 60 S.Ct. 855 ]: “* * this case falls within the well established rule that neither this Court nor the Circuit Court of Appeals will review the action of a federal trial court in granting or denying a motion for a new trial for error of fact, since such action is a matter within the discretion of the trial court. * * * Certain exceptions have been noted, such as instances where the trial court has 'erroneously excluded from con-sideraron matters which were appropriate to a decision on this motion’. * * * ”
Upon the record before us, undisputed in all of its salient facts, it seems to me almost humanly impossible that any new trial could result differently. “Reversal would nor promote the ends of justice.” Such being the situation the court properly imposed a sentence which the law provided for the criminal transgressions such as tile defendant committed.
Holt v. United States, 218 U.S. 245 , at page 251, 31 S.Ct. 2 , at page 6, 54 L.Ed. 1021 , 20 Ann.Cas. 1138, “If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day.”
Ogden v. United States, 3 Cir., 112 F. 523 : Callahan v. Chicago, M. & St. Paul Ry. Co., C.C., 158 F. 988, 994 ; Stevenson v. Tenn. Copper Co., C.O., 193 F. 268 ; McKibben v. Phi. & Ry. Co., 3 Cir.. 251 F. 577 ; McDonald v. Bless, 288 U.S. 204 , 35 S.Ct. 788 , 59 U.Ed. 1800; City of Amarillo v. Emery, 5 Cir., 69 F.2d 626 ; Southern Pac. Co. v. Klinge, 10 Cir., 65 F.2d 85 ; King v. United States, 6 Cir., 25 F.2d 242 ; Fullerton v. Govt, of Canal Zone, 5 Cir., 8 F.2d 968 ; See also, Cyclopedia of Fed. Procedure, Sec. 2426; 90 A.B.R. page 249.
Gambon v. City of New York, 153 Misc. 401 , 274 N.Y.S. 653 ; Lambert v. Caronna, 206 N.C. 616 , 175 S.E. 303 ; Breeden y. Hurley, 13 Tenn.App. 599 ; Ward v. Morris, 159 Ga. 526 , 126 S.E. 291 ; Askew v. Redwine Bros., 32 Ga. App. 540 , 123 S.E. 906 ; Ruwiseh v. Knoebel, 233 Ill.App. 526 ; Miller v. Berne Hardware Co., 64 Ind.App. 473 , 116 N.E. 54 ; Beaubien v. Detroit United Ry., 216 Mich. 391 , 185 N.W. 855 ; May v. City of Atlanta, 9 Ga.App. 391 , 71 S.E. 499 ; Bauwens v. Goethals, 187 111.App. 563; Gregory v. Bijou Theater Co., 138 App.Div. 590 , 122 N.Y.S. 1085 ; Messinger v. Antokolitz, 74 Misc. 588 , 134 N.Y.S. 555 .
Noble v. Key Syst., 10 Cal.App.2d 132 , 51 P.2d 887 ; Winters v. Bisaillon, 152 Or. 578 , 54 P.2d 1169 ; Walter v. Ayvazian, 134 Cal.App. 360 , 25 P.2d 526 ; Bennett v. Nazzaro, 144 Misc. 450 , 258 N.Y.S. 828 , affirmed 237 App.Div. 866 , 261 N.Y.S. 1018 ; Williams v. Slaughter, 159 Okl. 254 , 15 P.2d 27 ; Bourre v. Texas Co., 51 R.I. 254 , 154 A. 82 ; Corbin v. McCrary, 22 Ga.App. 472 , 96 S.E. 445 ; Johnson v. Smith, 118 Wash. 146 , 203 P. 56 ; Pittsburgh, C. C. & St. L. Ry. Co. v. Collins, 168 Ind. 467 , 80 N.E. 415 ; Waltham Piano Co. v. Freeman, 159 Iowa, 567 , 141 N.W. 403 ; Broadway Bldg. Co. v. Saladino, 81 Mise. 73, 142 N.Y.S. 1076 ; Johnson v. Seel, 26 N.D. 299 , 144 N.W. 237 ; Chicago R. I. & P. Ry. Co. v. Brown, 55 Okl. 173 , 154 P. 1161 .
Ruling' of District Court on Motion for Now Trial renewable only in exceptional cases:
United States v. Socony-Vacuum Oil Co.. 60 S.Ct. 811 , 84 L.Ed. -, May 6, 3910 ; Ifairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474 , 53 S.Ct. 252 , 77 L.Ed. 139 ; Moore v. United States, 150 U.S. 57 , 14 S.Ct. 26 , 37 L.Ed. 996 ; Henderson v. Moore, 5 Oranch 31, 3 U.Kd. 22; Texas & P. R. Co. v. Harvey, 228 U.S. 319 , 33 S.Ct. 518 , 57 L.Ed. 852 ; Kingman & Co. v. Western Mfg. Co., 170 U.S. 675 , 18 S.Ct. 786 , 42 L.Ed. 1192 ; Sparrow v. Strong, 3 Wall. 97 , IS L.Ed. 49; Holmgren v. United States, 217 U.S. 509 , 30 S.Ct. 588 , 54 L.Ed. 861 , 19 Ann.Gas. 778; Embry v. Palmer. 107 U.S. 3 , 3 S.Ct. 25 , 27 L.Ed. 346 : Blunt v. Smith, 7 Wheat. 248 , 5 L.Ed. 446 ; Wright v. Hollingsworth, 1 Pot. 365, 7 L.Ed. 96 ; United States v. Engelsberg, 3 Cir., 51 ¿\2d 479, certiorari denied 284 U.S. 648 , 52 S.Ct. 29 , 76 L.Ed. 550 ; Cochran v. United States, 8 Cir., 41 F.2d 193 ; Collenger v. United States, 7 Cir., 50 F.2d 345 , certiorari denied, 284 U.S. 654 , 52 S.Ct. 33 , 76 U. Ed. 554; Enrique Rivera v. United States, 1 Cir., 57 F.2d 816 ; Ryan v. United States, 7 Cir., 58 F.2d 708 ; Lefco v. United States, 3 Cir., 74 F.2d 66 ; Benetti v. United States, 9 Cir., 97 F.2d 263 ; Powell v. United States, 9 Cir., 35 F.2d 941 ; Quercia v. United States, 1 Cir., 70 F.2d 997 ; Pickett v. United States, 216 U.S. 456 , 30 S.Ct. 265 , 54 L.Ed. 566 ; Holder v. United States, 150 U.S. 91 , 14 S.Ct. 10 , 37 L.Ed. 1010 ; Wheeler v. United States, 159 U.S. 523 , *986 16 S.Ct. 93 , 40 L.Ed. 244 ; Addington v. United States, 165 U.S. 184 , 17 S.Ct. 288 , 41 L.Ed. 679 ; Boyd v. United States, 9 Cir,. 30 F.2d 900 ; Block v. United States, 2 Cir., 9 F.2d 618 ; Neely v. United States, 4 Cir., 2 F.2d 849 ; McIntosh v. United States, 7 Cir., 1 F.2d 427 ; Noble v. United States, 9 Cir., 300 F. 689 ; United States v. McDonald,
D.C., 293 F. 433 ; Collins v. United States, 8 Cir., 219 F. 670 ; Allen v. United States, 7 Cir., 4 F.2d 688 , certiorari denied Mullen v. United States, 267 U.S. 598 , 45 S.Ct. 353 , 69 L.Ed. 806 ; Bowers v. United States, 9 Cir., 244 F. 641 ; Linn v. United States, 2 Cir., 251 F. 476 .