c29:No. 6452

HICKENLOOPER, Circuit Judge
(concurring).
While concurring in the judgment of reversal, I am of the opinion that it is unnecessary, and even inappropriate, that this court pass upon questions not decided by the court below. In the present case the District Court did not consider or decide whether the evidence, without the clari Eying aid of Scott’s declaration, made a ease for the jury. As I have said, I doubt the necessity and propriety of a decision of this issue, at this time, thus precluding the free exorcise of judgment by the District Court when that question is again raised.
I am also of the opinion that the sole purpose for which Scott’s declaration was introduced in evidence, and the sole effect it could have had in the trial of the case, was to prove that appellant was one of the conspirators, and that for such purpose it was inadmissible. Hauger v. United States, 173 F. 54 (C. C. A. 4); Kuhn v. United States, 26 F.(2d) 463 (C. C. A. 9), certiorari denied 278 U. S. 605, 49 S. Ct. 11, 73 L. Ed. 533; Minner v. United States, 57 F.(2d) 506 (C. C. A. 10); Thomas v. United States, 57 F.(2d) 1039 (C. C. A. 10). The doctrine announced by the above cases should, in my opinion, be adopted in this circuit, as it has in the Fourth, Ninth, and Tenth circuits.

Passage view · GavelSight