c39:No. 7759

MAJOR, Circuit Judge
(dissenting).
I feel obliged to dissent. The evidence, as related in the opinion, discloses an extremely close case on the facts. As stated-,, the only testimony directly connecting appellant with the crime charged was furnished by the witness Kukovec. It may be said further that the only incriminating, testimony by this witness was that the appellant asked: “Would it be worth $30 to-stay out of the Army?” and his statement, “Well, you know it will make the. pen write easier.” All the other testimony of - Kukovec, including appellant’s telephone-conversation with Nosek, as well as the other circumstances in the case, are as consistent with appellant’s innocence as with his guilt. These incriminating statements were denied by appellant, a licensed -physician of the State of Illinois, who had practiced his profession at 1800 South Ashland Avenue, Chicago, for ten years prio'r to the time in question. He enjoyed a fairly lucrative practice. He was a member of the American and Chicago Medical Society and, at the time, was senring on the staff of two Chicago hospitals. At the trial he placed in issue his reputation for honesty and integrity and proved it was good by a number of witnesses. No witness testified to the contrary.
After his examination of Kukovec, he recommended that he be given a classification of IB because of defective teeth. No witness testified but that this was a proper recommendation. As examining physician for the Draft Board, he had examined some 600 or 700 men, devoting about two hours a day to this service. There is not a scintilla of evidence in the record other than that of Kukovec but that this patriotic service was performed faithfully and honestly.
Prior to the time in question, Kukovec had been given a preferred classification by the Board, of which Nosek was Chairman, on his claim that his father and two minor brothers were dependent upon him for support. Upon complaint by the father that his son was gambling and not contributing to the support of the family, he was notified by the Board to report for physical examination (the one concerned in the present controversy). His own brother testified: “I know my brother’s (Walter Kukovec’s) associates and friends in the neighborhood and know his reputation for truth and veracity. Nobody will believe him on a stack of bibles. His reputation is bad.” On the trial, Kukovec’s testimony was seriously impaired by numerous contradictory statements.
I relate these salient facts, not for the purpose of taking issue with the majority conclusion that a jury question was presented (although of this I have serious doubt), but to show that the evidence, considered in the light most favorable to the Government, is of such a dubious nature as to make the admission of the testimony complained of reversible error. To my way of thinking, an error may, or may not, be reversible, dependent upon the character and weight of the testimony relied upon for conviction. For instance, in the instant case, the testimony against Nosek was so overwhelming it would be easy to conclude that any ordinary error had done no harm and was not reversible. As to the appellant, however, the evidence relied upon is so uncertain and carries so little weight that even a slight error might have affected the result.
Other than the testimony of Kukovec as to his conversation with appellant at the time of his examination, substantially all the evidence is as to what happened in the office of Nosek, including the conversations between these two men, and numerous statements made to Government agents after the consummation of the crime, all outside the presence of the appellant. This testimony was admitted without limitation over numerous objections on behalf of appellant. True, the court indicated that he would instruct the jury as to this line of testimony, and the opinion presumes that this was done because the court’s charge to the jury is not incorporated in the record. Ordinarily, such a presumption may be indulged in, but in the instant situation it does violence to the record.
In addition to the objections which were made and overruled at the time the testimony was offered, appellant renewed his objection at the conclusion of the Government’s case, and requested the court to instruct the jury that conversations and transactions out of the presence and hearing of appellant were not to be considered against him. The record discloses that the court, after hearing counsel on this request, stated:
“I have carefully considered all of the evidence, both last evening and this afternoon during the noon adjournment and I went over it carefully and your objection was raised and timely raised while the evidence was going in which gave the Court ample time to give the matter careful consideration ; * * * ”,
The request was then denied by the court. So the record discloses that the court, after due consideration, refused to instruct the jury as requested, either at the time the objectionable testimony was offered, or at the conclusion of the Government’s case. The court having carefully considered the evidence and deliberately ruled, I am of the view that it is not reasonable to presume that he changed his mind and correctly instructed the jury. But if so, such instruction could only serve to minimize the effect of the objectionable testimony — it could not remove the error of its admission without limitation.
The Government, while contending that the testimony was properly admitted, tacitly concedes that it was not proper upon the question of appellant’s connection with the offense. It is pointed out that neither the objection to the testimony, nor the request that the jury be instructed to disregard it, was so limited. This is a rather technical excuse for the court’s failure to so limit the testimony, especially in view of the fact that appellant, prior to the commencement of the trial, moved for a severance, and specifically pointed out a large amount of testimony, including that now complained of, which would be admissible solely against Nosek, and that appellant would be prejudiced thereby. Thus, counsel for the Government, as well as the court, were warned in advance of the prejudicial situation calculated to develop and should have been vigilant in expressly limiting the testimony, at the time it was offered, so that no prejudice might result to appellant.
The Government argues that the admission of this testimony did no harm. This may be true, but it is a matter of speculation. In view of the character of testimony relied upon for a conviction, I am satisfied it might have done harm and that is sufficient. I think the ends of justice will best be served by a reversal so that the Government may, if it sees fit, submit the case to another jury, with evidence properly limited to the purpose for which it is offered and at the time it is offered.

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