author: PER CURIAM:

text:
    Ramon Luis RIVERA, #033341, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Respondent-Appellee.
    No. 73-2982
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 17, 1974.

      Ramon Luis Rivera, pro se.
    Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Barry Scott Richard, Joel D. Rosenblatt, Asst. Attys. Gen., Miami, Fla., for respondent-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

We affirm the denial of this state prisoner’s petition for writ of habeas corpus for the reasons set forth in Chief District Judge Charles B. Fultop’s Order of Dismissal attached hereto as an appendix. See Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); Ward v. United States, 486 F. 2d 305 (5th Cir. 1973) [Oct. 18, 1973, No. 73-2049].

APPENDIX

ORDER OF DISMISSAL

Ramon Luis Rivera has filed a Petition for a Writ of Habeas Corpus attacking a twenty year sentence imposed on February 4, 1972, in the Circuit Court in and for the Eleventh Judicial Circuit of Florida, Dade County, Florida. The sentence was imposed after a trial by jury resulted in a guilty verdict for the crime of second degree murder.

As grounds for relief the petitioner alleges as follows:

(1) The petit jury which tried his case was selected pursuant to a procedure which systematically excluded qualified persons solely on the basis of race, religion, sex, age, economic and social factors.
(2) Prospective jurors were excluded from jury service solely on the basis of their general objections to the imposition of the death penalty.

The petitioner’s conviction was appealed to the District Court of Appeal, Third District of Florida, which affirmed the conviction. Rivera v. State, 270 So.2d 62 (Fla.App.3rd, 1972). (Examination of the record on appeal reveals that the petitioner’s present claims for relief were presented on the direct appeal. Therefore, the petitioner has fully exhausted his state remedies. See McCluster v. Wainwright, 453 F.2d 162 (5th Cir., 1972).

In State v. Silva, 259 So.2d 153 (Fla., 1972), the Florida Supreme Court ruled that the method employed in Dade County, Florida for the selection of petit juries systematically excluded qualified persons solely on the basis of race, religion, sex, age, economic and social factors. This condemned method was employed at the time that the petitioner’s trial jury was selected. The Florida Supreme Court, however, refused to give retroactive effect to its ruling when it stated:

“Although we are required to hold that there were arbitrary exclusions in the selection of the jurors, those who have been convicted can receive no comfort from this decision. A challenge to the panel, or challenge to the array, is used to question the selection or drawing of prospective jurors. Such a challenge must be made and decided before any independent juror is examined, unless otherwise ordered by the Court. FRCrP Rule 3.300, 33 F.S.A. Such an objection comes too late after verdict and has no place in a motion for new trial or in arrest of judgment. By going to trial before a jury without any objections, a defendant waives all irregularity in the drawing, summoning and impaneling of such jurors. Green v. State, 60 Fla. 22, 53 So. 610 (1910); Lake v. State, 100 Fla. 386, 129 So. 833 (1930); 14 F.L.P., Jury, § 111; 20 Fla.Jur., Juries, § 68.” Id. at 158.

It is clear from the face of the state court record, that the petitioner did not comply with Florida Criminal Procedure Rule 3.300, 33 F.S.A., and, therefore, under Silva, he waived his right to attack the petit jury selection process. If this waiver meets federal constitutional standards then the petitioner would be precluded from asserting his present claim in this federal habeas corpus proceeding.

Recently in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 [decided April 17, 1973] the United States Supreme Court ruled that absent a showing of “cause”, the failure of a federal defendant to attack the composition of the federal grand jury that indicted him by motion before trial pursuant to Rule 12(b)(2), Federal Rules of Criminal Procedure constitutes a valid waiver of that claim. Florida’s Rule 3.300 is identical to its counterpart, the Federal Rule 12(b)(2). If a federal prisoner is deemed to have waived his constitutional right to attack the grand jury selection process by failing to assert a claim pursuant to Rule 12(b)(2) certainly no principle relative to the Great Writ of Habeas Corpus compels the conclusion that a state prisoner stands in any better position. Davis, requires the conclusion that the petitioner here has waived his right to attack the petit jury selection process by failing to comply with Florida Rule 3.300, and by failing to allege any “cause” for noncompliance.

For these reasons it is clear that the petitioner is precluded from presenting his claim in this regard, to this federal court.

With regard to the petitioner’s second claim, he relies on the principles enunciated by the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Examination of that decision, however, makes it clear that in view of the fact that the death penalty, was not imposed in the petitioner’s case, he suffered no prejudice even assuming a Witherspoon, violation. See Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

For these reasons, it is thereupon

Ordered and adjudged that the Petition for Writ of Habeas Corpus be and the same is hereby denied.

Done and ordered at Miami, Florida, this 18 day of June, 1973.

/s./ CHARLES B. FULTON

Chief United States District Judge


source: Caselaw Access Project

author: BELL, Circuit Judge:

license: Public Domain

text:
    Elton D. MARSH, Plaintiff-Appellee, v. GREYHOUND LINES, INC., and Western Greyhound Pension Trust, Defendants, Western Greyhound Pension Trust, Defendant-Appellant.
    No. 73-2051.
    United States Court of Appeals, Fifth. Circuit
    Jan. 14, 1974.

      Sam Sparks, John A. Grambling, El Paso, Tex., Stanley H. Neyhart, San Francisco, Cal., for defendant-appellant.
    Jack L. Brewster, El Paso, Tex., for plaintiff-appellee.
    Before BELL, DYER and CLARK, Circuit Judges.
   BELL, Circuit Judge:

Appellee filed this diversity action claiming -disability retirement benefits from appellant Pension Trust. The Trust provides various long term security benefits for employees of Greyhound Lines, Inc., and is governed by a Board of Trustees consisting equally of union and employer representatives. Appellee sought benefits under a provision allowing payments whenever an eligible employee becomes permanently physically disqualified from his particular job.

For 22 years prior to March, 1968 ap-pellee had been a bus driver for Greyhound. At that time he was in an accident which was entirely the fault of another driver. He did not return to duty as a bus driver, and shortly after the accident commenced work as an over-the-road tractor trailer driver. Subsequently he sought a disability pension, claiming that a hypertension problem had been so aggravated by the accident as to make driving passenger vehicles unbearable. This initial application was denied because of his failure to supply full medical information, particularly a specialist’s examination normally required in the absence of an obvious disability. More than two years later, appellee again initiated claims procedures. He submitted reports of three specialists, plus that of his general practitioner. It was on the basis of the G.P.’s report that he held current Department of Transportation authorization to drive trucks in interstate commerce, despite the opinion of two of the specialists that he was disabled from all commercial driving. The Trustees again denied the application.

This appeal, from a judgment entered upon a jury verdict, raises several issues justifying, in appellant’s view, either a new trial or judgment in its favor. However, we need consider only one issue, that of the sufficiency of the evidence to support the jury’s verdict. On this ground we reverse and direet the entry of judgment for appellant.

I.

To decide this case we must determine the applicable legal standards for testing the Trust’s liability, and must review the evidence on this issue in the light of the standard for directed verdicts.

Concerning the first question, we note that the Plan provides that “all decisions of the Trustees in administering the Plan shall be final.” This provision of course will not be permitted to accord complete and unbridled discretion to the Trust. See e. g., Hainline v. General Motors Corp., 6 Cir., 1971, 444 F.2d 1250. However, Texas law, which governs this diversity case, is fairly clear that such a provision is to be given effect by requiring a showing of bad faith before the courts will interfere with a decision of the Trustees. See Neuhoff Bros. Packers Management Corp., v. Wilson, 1970, Tex., 453 S.W.2d 472. Appellee does not dispute that this is the applicable standard. However, he does contend that bad faith may be established not only by direet evidence, such as evidence of unreasonable requirements, refusal to consider favorable information, or the use of standards more strict than those applied to others similarly situated, but that bad faith may also be inferred from an adverse decision which has no basis in fact. Recognizing that direct evidence of bad faith could easily be concealed in the Trust’s internal procedures and the Trustees’ private opinions, we agree with appellee’s interpretation.

The second element of the standard we must apply concerns the question of when a factual dispute should be submitted to a jury. In this regard we are of course constrained by Boeing Co. v. Shipman, 5 Cir., 1969, 411 F.2d 365 (en banc), which states:

“On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury.”

411 F.2d at 374.

Combining the standards of Neuhoff and Boeing, we conclude that our inquiry must be whether the evidence is such that reasonable men, considering all the evidence, could conclude that the Trustees acted in bad faith. Since we find no direct evidence of bad faith, our principal inquiry may be more narrowly defined as whether the evidence is such that reasonable men, considering all the evidence, could conclude that the Trustees’ decision had no basis in fact. If the evidence so strongly and overwhelmingly supports the conclusion that the decision had a factual basis that reasonable men could not decide to the contrary, then appellant was entitled to a directed verdict. As already intimated, we are of the opinion that the evidence is of such a nature.

We base our conclusion on documentary evidence the validity and credibility of which is unchallenged, and rely both on appellee’s persistent failure to provide medical evidence reasonably required by the Trustees, and on the fact that the medical evidence actually submitted to the Trust did not establish that appellee was permanently disabled.

II.

The Plan clearly requires that a disability pension applicant “submit acceptable medical evidence of permanent physical disqualification from [his] job.” (Emphasis added). Paragraph 7-A(6). The same Paragraph also states that, “Medical evidence submitted must be satisfactory to the Board of Trustees.” Finally, Paragraph 20-A provides that:

“Each Employe and retired Employe shall furnish to the Board of Trustees any information or proof requested by it and reasonably required to administer the Pension Plan. Failure on the part of any Employe or Retired Employe to comply with such request promptly, completely and in good faith shall be sufficient grounds for denying, suspending or discontinuing benefits to such person.”

Against this background we will review appellee’s responses to the Trust’s requests for information.

Appellee’s initial application, in June, 1968, included a “Physician’s Statement of Disability,” on a form provided by the Trust, executed by appellee’s family doctor, Dr. Goodloe. This statement contained a diagnosis of “hypertensive cardiovascular disease” and “anxiety neurosis,” and stated that appellee was unable to work with the public and would never again be able to work for Greyhound. The Trust’s Administrator, Bezore, notified appellee that this was “insufficient to establish permanent disqualification from employment as a bus driver.” After a request for clarification from appellee’s attorney, Bezore replied :

“We would suggest that we be furnished all objective tests reports and a statement from all doctors treating Mr. Marsh since 1962. If there is an absence of objective evidence of disability, we suggest a full report from another qualified expert, not a general practitioner, in the area of the particular illness upon which disqualification is being requested.”

Appellee then supplied a statement by Dr. Goodloe that he had been seeing ap-pellee “for elevated blood pressure since February, 1962,” along with a report of his blood pressure on nine dates. No information about treatment or permanence was included, and there was no specialist’s examination. Bezore replied that this did not “establish permanent disqualification,” and offered to provide assistance upon request. Appellee through his attorney, then refused to supply additional information, on the grounds the text of the Plan did not specifically require a specialist’s report. Shortly thereafter, in December, 1968, appellee’s application was denied, for failure to comply with the Plan by refusing to supply reasonably requested information.

In January, 1971, appellee’s attorney sought to submit a new application, and requested “comments and suggestions as to supporting documentation.” Bezore responded with the following:

“Medical information should be current and should include a full report from a specialist covering history of the disability and all treatment, including dates, since last date of employment with Greyhound, physical findings, current diagnosis, clinical course and lab and x-ray course. The doctor need not confine his answer to the form provided but may attach his report to the form provided.”

In submitting the renewed application, the medical form was not supplied; rather there was only a handwritten note from a cardiologist stating that appellee “has ischemic heart disease and is not able to drive a public passenger vehicle.” Bezore replied that:

“[The Trust needs a] complete medical report as outlined to you in . our [earlier letter (quoted above)]. The simple one sentence statement from [the cardiologist] is inadequate for our requirements. We must have sufficient medical history and dates to enable our Medical Consultants to reach indpendently a conclusion that Mr. Marsh is permanently disqualified from his job.”

Appellee then supplied the medical disability form, executed by the cardiologist. It repeated the diagnosis of ischemic heart disease, and stated that appellee was permanently disqualified from doing any work. However, it was based on a single examination, and gave no information as to treatment, progress or test results. Bezore replied to appellee’s attorney:

“Surely you realize that medical information without a full report or detail and based on a single office visit over a 31/2 year span is unsuitable for a board of Trustees to act favorably upon.
“The importance of detailed medical information should be doubly clear when the applicant has been performing work as physically demanding as a bus driver, since a few days after his last date of work as a bus driver.
“Furnish promptly a full complete detailed and current medical report from a specialist (2) copies of physical exam reports upon which is current . . . and previous [Department of Transportation interstate truck driver cards were] issued, (sic)
“We have been corresponding with you for over three years on this matter and have yet to be furnished anything resembling substantial evidence of permanent disqualification (emphasis added) from Mr. Marsh’s job as a bus driver.”

Subsequently, in February, 1972, ap-pellee filed three medical reports. He submitted, first, a recent report from a cardiovascular specialist finding hypertension and arteriosclerosis, prescribing increase medication to reduce blood pressure, and stating that because of the additional medication appellee should drive neither buses nor commercial trucks; no information about permanence was included, nor was there any discussion, save for appellee’s own statement of his symptoms, of the alleged neurosis which prevented him from driving buses but, in his own mind, not trucks. Second, appel-lee submitted a recent report of a neuro-psychiatrist diagnosing him as suffering from “chronic anxiety reaction” and “post traumatic hypertension” ; however, the report contained little other than a restatement of appellee’s complaints, was based on one office visit and apparently no testing, dealt not at all with either the permanence of the conditions or appropriate treatment, and did not state that appellee was unable to drive buses. Third, he filed a medical report submitted by Dr. Goodloe to the Department of Transportation, dated December 29, 1970; this report indicated that as of that date appellee had normal heart rate, .rhythm and sounds, and lower blood pressure than at any time since 1965, and that he had never suffered from “cardiovascular disease,” “psychoneurotic disorder,” or “any other nervous disorder.”

About three months later, without either additional requests for information or further explanation, the Trustees again denied appellee’s application.

III.

From this course of events we conclude that reasonable men must find bases in fact for two grounds for the Trustees’ decision. The first ground is that appellee failed to supply information required by the Trustees, and thus violated the Plan’s terms. In particular, the file is devoid of specialist’s information about his alleged neurosis, save for a neuropsychiatrist’s diagnosis unsupported by tests or other objective medical data. Nowhere does the file disclose efforts to treat the neurosis, nor is there any medical evidence that it is permanent and not amenable to treatment. We think the file’s weakness with regard to the alleged neurosis is particularly striking in light of the Trust’s repeated requests for information establishing permanent disability, in light of the requests for a specialist’s discussion of the history, treatment and prognosis of the disabling condition, and in light of the fact that it is only the alleged neurosis that woud justify the conclusion that appellee is disabled as a driver of buses but not of trucks.

The second ground for denial which finds a factual basis in the material before the Trustees is the conclusion that appellee is not disabled. Even disregarding the contradictory report by Dr. Goodloe, the medical information establishes only that appellee suffers from a hypertension problem which, in the opinion of several doctors, should preclude him from driving any commercial vehicle. Even assuming that the reports establish a permanent cardiovascular defect, appellee by his own actions regularly belies these opinions, by driving heavy trucks. Further, as discussed above, the medical reports do not establish that appellee suffers from an additional permanent neurosis which prevents him from driving buses but not trucks.

In sum, the record establishes bases in fact for the Trustees’ decision, such that bad faith may not be inferred from the fact that appellee’s pension was denied.

IV.

We now turn to two matters in the record which could be presented as direct evidence of bad faith. They are the facts that the Trust neither asked for additional specific information after receiving the three medical reports submitted in February, 1972, nor did it give reasons for its second denial of appellee’s pension. We conclude that in light of the Trust’s handling of this case since 1968, these facts without more do not constitute evidence on which reasonable men could conclude that it acted in bad faith. As has been described, appellee was informed on numerous occasions that his applicaion was inadequate and that he should submit a thorough and detailed specialist’s report as to the nature and permanence of his disability, and as to treatments for it. We think that the extensive correspondence fairly put ap-pellee on notice of what was required of him and in what ways his application as finally submitted was inadequate, especially inasmuch as he was represented by counsel. In any case, we do not have a situation in which an applicant inquired whether his application was adequate, or sought an explanation of a denial. In these circumstances we do not consider the Trust’s failures to yet again request more information or to explain the denial to be evidence of bad faith.

V.

Finally, we consider the nature of the information required by the Trust. If the requirements were unreasonable, appellee, under Paragraph 20-A, had no duty to satisfy them and their imposition might itself be evidence of bad faith. In this connection, we note that the Trustees were bound to protect all participants in the Plan against payments to unqualified persons. In these circumstances their insistence on exténsive medical information, such that their own consultants could evaluate the alleged disability, was reasonable and prudent. The requirement that medical information be supplied by a specialist is not unreasonable when objective evidence of a disability is not apparent to laymen, and since this requirement is normal in such cases, the Trust has not acted arbitrarily with regard to appellee. Finally, the requirement that a permanent disability be established is mandated by the Plan, which does not compensate for temporary disability. We conclude that the Trust’s information requirements were justified, and while less information might have sufficed, the rigor of the requirements did not reach the level of bad faith.

In sum, appellee has presented no direct evidence of bad faith, and because of the clear evidence of a factual basis for the Trustee’s decision a jury may not infer bad faith from the fact that the claim was denied. Thus appellant was entitled to judgment.

Reversed and remanded with direction that judgment be entered for appellant.

      . The pension plan also provides early and normal retirement benefits, as well as termination benefits. Since appellee has not reached the age for early or normal retirement, and since he has not been terminated as a Gray-hound employee, he is at this time ineligible under either of these provisions,

      . Appellee also sought to recover from Greyhound for vacation or sick leave pay since the date of the accident, basing his claim on the fact that Greyhound had never .discharged him. Judgment N.O.V. was entered for Greyhound, and appellee has not cross-appealed.

      . Without relying on this fact, we note that appellee also failed to submit adequate data about his income during the period for which he sought disability benefits. The Plan provides for a partial reduction of benefits for earnings above a certain level, and states that the computation will be made on a monthly basis. Despite the clear wording of the Plan, and despite requests by Bezore, appellee neither broke his earnings down by month nor suggested that he was unable to do so.


author: DYER, Circuit Judge:

text:
    Albert JOHNSON et al., Petitioners-Appellants, v. STATE OF MISSISSIPPI et al., Respondents-Appellees.
    No. 73-1476.
    United States Court of Appeals, Fifth Circuit.
    Jan. 14, 1974.
    Rehearing and Rehearing En Banc Denied March 15, 1974.
    See 491 F.2d 94.
    James E. Winfield, Frank R. Parker, Isaiah Madison, Jackson, Miss., for petitioners-appellants.
    John Ellis, Dist. Atty., George Chaney, Warren County Pros. Atty., Vicksburg, Miss., A. F. Summer, Atty. Gen., State of Miss., Ed Davis Noble, Jr., Asst. Atty. Gen., Jackson, Miss., for respondents-appellees.
    Before GODBOLD, DYER and GEE, Circuit Judges.
   DYER, Circuit Judge:

This is an appeal from the district court’s order remanding state criminal prosecutions which appellants had removed to federal court pursuant to 28 U.S.C.A. § 1443(1) and 18 U.S.C.A. § 245(b). Because § 245 is not a law providing for the equal civil rights of citizens within the meaning of the removal statute, we affirm.

Appellants are black citizens of Vicksburg, Mississippi who organized a boycott of local businesses for the purpose of gaining equal employment opportunities in the privately owned stores and in city government and its agencies, and to publicize other civil rights grievances. Picketing and leafleting began in late March of 1972 and continued until early May of the same year when the forty-nine appellants were arrested and charged with criminal restraint of trade and criminal conspiracy in restraint of trade. In an attempt to utilize the removal statute, 28 U.S.C.A. § 1443(1), appellants assert that the Civil Rights Act of 1968, 18 U.S.C.A. § 245, is a pre-emptive statute which granted the right to be free from harassment, such as subjection to spurious criminal charges, for having engaged in constitutionally protected activity. Therefore, they assert that they are entitled to have their prosecutions removed from the state court.

At the outset, we note that there is no question of appellants’ right to engage in peaceful picketing. Machesky v. Bizzell, 5 Cir. 1969, 414 F.2d 283; Smith v. Grady, 5 Cir. 1969, 411 F.2d 181; Kelly v. Page, 5 Cir. 1964, 335 F.2d 114. Although the state contends that the arrests were predicated not on peaceful protest, but on acts of intimidation and coercion, the question in this appeal is not whether appellants had a constitutional right to engage in the activity for which they are now being prosecuted, but whether they are entitled to invoke the extraordinary protection of the removal statute. The key to removal under § 1443(1) is whether there exists a law “providing for . . . the equal civil rights of citizens.” Unlike all previous cases which have interpreted the phrase and which have focused on whether a particular statute meets the “equal civil rights” test, the essential inquiry here is whether § 245, which clearly deals with equal civil rights, meets the requirement that the law be one providing such rights.

Our consideration of whether § 245 is within the contemplation of § 1443(1) begins with Georgia v. Rachel, 1966, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, in which the Supreme Court gave careful consideration to the legislative history of the removal statute. The Court’s conclusion that § 1443(1) encompasses “any law providing for specific civil rights stated in terms of racial equality” must be read in conjunction with the Court’s reference to the Civil Rights Act of 1866 as the “model” of a law within the meaning of § 1443(1). The 1866 Act, the substantive provisions of which are now codified as 42 U.S.C.A. § 1981 and § 1982, bestowed certain basic rights regardless of race. The Rachel Court concluded that the Civil Rights Act of 1964, which granted the right to racially nondiscriminatory service in places of public accommodation, was also within the compass of the removal statute. In explicating the rationale for its determination that the 1964 Act, like the model of 1866, was within § 1443(1), the Court said:

That Act [the Civil Rights Act of 1964] is clearly a law conferring a specific right of racial equality, for . it guarantees to all the “full and equal enjoyment” of the facilities of any place of public accommodation without discrimination on the ground of race.

Id. at 792-793, 86 S.Ct. at 1790 (emphasis supplied)

Unlike the defendants in Rachel, the defendants in City of Greenwood v. Peacock, 1966, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944, were unsuccessful in their effort to remove their state prosecutions. The Court in Peacock gave two reasons for reaching a result opposite that of Rachel:

First, no federal law confers an absolute right on private citizens — on civil rights advocates, on Negroes, or on anybody else — to obstruct a public street, to contribute to the delinquency of a minor, to drive an automobile without a license, or to bite a policeman. Second, no federal law confers immunity from state prosecution on such charges.

Id. at 826-827, 86 S.Ct. at 1812.

Focusing on the first point, that is, the absence of a federal law which granted a right to engage in acts which would otherwise be in violation of state law, this Court in Whatley v. City of Vidalia, 5 Cir. 1968, 399 F.2d 521, concluded that the Voting Rights Act of 1965 granted the specific civil right found lacking in Peacock. Section 11(b) of the 1965 Act, now 42 U.S.C.A. § 1973i(b) specifically forbade any “attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote.” Although phrased in prohibitory language, the law created a new legal right, and was, therefore, held to be one which provides for equal civil rights.

Appellants contend that the proscriptions of § 245 must lead to the same legal conclusion as that reached in What-ley. In other words, since § 245, like § 1973i(b), forbids certain forms of harassment such as the bringing of spurious criminal charges, the appellants in the case sub índice have a right of removal equivalent to that accorded the appellants in Whatley. This argument, however, misses an essential distinction between the two statutes. Unlike § 1973i(b), § 245 is exclusively a criminal statute. While a variety of acts which interfere with the exercise of civil rights are made criminal by § 245, that statute confers no rights whatsoever. When compared to the “model” of 1866 cited by the Supreme Court in Rachel, and to the laws since held to be within § 1443(1), § 245 cannot be characterized as a law which provides for the equal civil rights of citizens.

Because of our determination that appellants cannot rely on § 245 as a basis for seeking removal, the order of the district court remanding these cases to the state court must be

Affirmed.

      . The relevant provision of 28 U.S.C.A. § 1443(1) reads:
      Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
      (1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.

      . Appellants rely on the following provisions of 18 U.S.C.A. § 245: § 245
      (b) Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with—
      (1) any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from—
      * * * * *
      (C) applying for or enjoying employment, or any perquisite thereof, by any agency of the United States ;
      (2) apy person because of his race, color, religion or national origin and because he is or has been—
      (A) enrolling in or attending any public school or public college;
      (B) participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by any State or subdivision thereof;
      (C) applying for or enjoying employment, or any perquisite thereof, by any private employer or any agency or any State or subdivision thereof, or joining or using the services or advantages of any labor organization, hiring hall, or employment agency;
      * * ip * *
      (F) enjoying the goods, services, facilities, privileges, advantages, or accommodations of any inn, hotel, motel, or other establishment which provides lodging to transient guests, or of any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility which serves the public and which is principally engaged in selling food or beverages for consumption on the premises, or of any gasoline station, or of any motion picture house, theater, concert hall, sports arena, stadium, or any other place of exhibition or entertainment which serves the public and (i) which is located within the premises of any of the aforesaid establishments or within the premises of which is physically located any of the aforesaid establishments, and (ii) which holds itself out as serving patrons of such establishments ; or

        sp sjs ip s}: s{«
      (4) any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from—
      (A) participating, without discrimination on account of race, color, religion or national origin, in any of the benefits or activities described in subparagraphs (1) (A) through (1) (E) or subparagraphs (2) (A) through (2)(F) ; or
      (B) affording another person or class of persons opportunity or protection to so participate ; or
      (5) any citizen because he is or has been, or in order to intimidate such citizen or any other citizen from lawfully aiding or encouraging other persons to participate, without discrimination on account of race, color, religion or national origin, in any of the benefits or activities described in subpara-graphs (1) (A) through (1) (E) or subpara-graphs (2) (A) through (2) (F), or participating lawfully in speech or peaceful assembly opposing any denial of the opportunity to so participate— shall be fined not more than $1,000, or imprisoned not more than one year, or both; and if bodily injury results shall be fined not more than $10,000, or imprisoned not more than ten years, or both; and if death results shall be subject to imprisonment for any term of years or for life.

      . Subsequent to the filing of this appeal, the grand jury returned no true bills in 43 cases, hence only six of the original appellants still have an interest in removal.

      . § 1981 provides :
      All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
      § 1982 provides:
      All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

      . 42 U.S.C.A. § 2000a(a)
      All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.
      42 U.S.C.A. § 2000a-2
      No person shall (a) withhold, deny, or attempt to withhold or deny, or deprive or attempt to deprive, any person of any right or privilege secured by section 2000a or 2000a-l of this title, or (b) intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person with the purpose of interfering with any right or privilege secured by section 2000a or 2000a-l of this title, or (c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 2000a or 2000a-l of this title.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Alfred HOFMAN and Robert Pearson, Defendants-Appellants.
    No. 73-1904
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 17, 1974.
    Rehearing Denied March 14, 1974.

      Jay Hershoff, Miami, Fla. (Court-appointed), for John Hofman.
    Sky E. Smith, Miami, Fla. (Court-appointed) , for Robert Pearson.
    Robert W. Rust, U. S. Atty., Charles O. Farrar, Jr., Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

       Rule 18, 5th Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5th Cir., 1970, 431 F.2d 409.

   PER CURIAM:

Although they were convicted at the same trial of several persons involved in varying degrees in a counterfeiting operation, Hofman’s and Pearson’s appeals present unrelated issues. Hofman was convicted of dealing in .counterfeit obligations and aiding and abetting, 18 U. S.C.A. § 473 and § 2, and the district court sentenced him to the custody of the Attorney General for five years. On appeal he submits that the evidence of his contact and involvement with the counterfeit money was insufficient to support the conviction.

Pearson on the other hand implicitly acknowledges that the evidence which helped condemn him was all too sufficient. He seeks reversal of the district court’s denial of his motion to suppress it. The jury found him guilty on two counts of violating 18 U.S.C.A. § 472 and § 2 (uttering counterfeit obligations and aiding and abetting), one count of violating 18 U.S.C.A. § 473 and § 2 (dealing in counterfeit obligations and aiding and abetting), and one count of violating both 18 U.S.C.A. § 472 and § 2 and § 473 and § 2. The district court sentenced him to five-year concurrent terms on each count. We affirm both convictions.

Hofman essentially contends that the jury convicted him for simply hanging around a bunch of counterfeiters. The evidence which supports the jury’s conclusion includes: Hof man's admission that he was present in the room where the counterfeit money was counted; his admission he knew the money was counterfeit; the government witnesses’ testimony that Hofman helped count and bag the money; and Hofman’s statement that his fingerprints would be found on the paper cutting machine. We conclude, viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed. 680 (1942), that the jury could reasonably find that the evidence excludes every reasonable hypothesis except that of guilt. United States v. Sidan-Azzam, 457 F.2d 1309 (5th Cir., 1972); Surrett v. United States, 421 F.2d 403 (5th Cir., 1970).

Pearson contends that the district court should have suppressed the counterfeit money which the government agents found in his motel room. While three government agents kept Pearson’s motel room under surveillance, another government agent followed through with a prearranged buying transaction at a nearby shopping center with Tom Aeiego, who had brought the money from the motel. The buying government agent arrested Aciego, then returned to the motel in order to arrest the others involved. The agents had not observed anyone leave, but when they entered the room, it was empty. They found counterfeit money on a sofa-bed and in a closet, in plain view (which Pearson concedes). If the agents validly entered the motel room, then the district court properly admitted the contraband.

Pearson asserts that the government should have obtained an arrest warrant prior to attempting to arrest the individuals (including Pearson) in the motel room. Probable cause to make the arrests is not at issue here, the surveillance and the transaction with Acie-go established that requirement. Although the Supreme Court expressed a preference for arrest warrants in Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L. Ed.2d 142 (1964), we noted in United States v. Morris, 477 F.2d 657, 663 (5th Cir., 1973), that:

To our knowledge all of the courts that have considered the question have decided that a warrant is not a prerequisite to a lawful arrest. A war-rantless arrest is nevertheless valid if the arresting officer has probable cause to believe that the person arrested has committed or is in the act of committing a crime.

See, United States v. Wysocki, 457 F.2d 1155 (5th Cir., 1972); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623 (10 L. Ed.2d 726 (1963).

Secondly, Pearson contends that the attempted arrest was a subterfuge for a warrantless, invalid search, relying on Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir., 1968), and United States v. Sanchez, 412 F.2d 1177 (5th Cir., 1969). In Amador-Gonzalez, the police used a traffic arrest as a pretext for a narcotics search. In Pearson’s situation, the search was closely related to the nature and purpose of the arrest and does not fall within the prohibition of Amador-Gonzalez and Sanchez. The district court properly denied the motion to suppress.

Affirmed.

      . Where the counterfeit money had been counted, assembled in packets, and bagged.

      . The surveillance agents had seen Aciego enter the motel empty-handed and leave with a seemingly full paper bag.

      . That the agents did not actually make the arrests in the motel room does not render their entry invalid. They had probable cause for the arrest and they entered the room in the belief that the suspects were still present. Though their entry was forcible, they first knocked and announced their presence and identity. Receiving no response, they then forced the door.


author: THORNBERRY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Sherman Vernon LYLES, Jr., Defendant-Appellant.
    No. 73-2944
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 17, 1974.
    James O. Ford, Oxford, Miss. (Court-appointed) , for defendant-appellant.
    H. M. Ray, U. S. Atty., Alfred E. Moretón, III, William M. Dye, Jr., Oxford, Miss., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   THORNBERRY, Circuit Judge:

Again we are faced with that oft-recurring question: Did the police have probable cause to arrest the defendant? We agree with the district court that probable cause existed at the time of the arrest, and thus, we affirm.

A jury convicted appellant Lyles on four substantive counts of uttering forged postal money orders in violation of 18 U.S.C. § 500 and on one count of conspiring to utter forged postal money" orders in violation of 18 U.S.C. § 2. On direct appeal, a panel of this Court remanded the case to the district court “with instructions to hold an evidentiary hearing, as if appellant were attacking his conviction collaterally under 28 U.S. C. § 2255,” in order to determine whether probable cause for the arrest existed and whether fingerprints taken at the time of the arrest were admissible in evidence against the defendant. The panel found no merit in appellant’s other contentions and otherwise affirmed the convictions. United States v. Lyles, 5th Cir. 1972, 471 F.2d 1167.

On remand, the district judge found after an evidentiary hearing that there was probable cause for the arrest and that the fingerprints were thus admissible.

Appellant’s counsel has argued strenuously that the arresting officer has embellished his story since the first preliminary hearing in order to create a factual setting which justifies a finding of probable cause. We do not consider that proposition for we have concluded from the facts which are undisputed that a finding of probable cause was warranted.

On February 22, 1971, at about 3:30 in the afternoon, U.S. Postal Inspector Charles Brewer received a telephone call at his office in Jasper, Alabama, from the Assistant Postal Inspector in Chattanooga, Tennessee, informing him that several postal money orders, stolen from the Alton, Illinois Post Office, were being passed in Fulton, Mississippi that very day. Inspector Brewer left his office and arrived in Fulton a few minutes after 5:00 that afternoon. He talked with the Fulton Postmaster and a bank teller who had cashed one of the postal money orders reportedly stolen from the Alton Post Office.

About 6:00 that same evening, Inspector Brewer called Detective Roy Sande-fer of the Tupelo, Mississippi Police Department and informed him that several $90.00 U.S. postal money orders, some of which made out to Edgar Harris and stolen from the Alton, Illinois Post Office in October 1970, had been cashed that afternoon in Fulton. Brewer also furnished Sandefer with a tentative description of two of the possible offenders by reference to an F.B.I. wanted bulletin of a black couple, Harry and Gail Truly, and informed Sandefer that they were probably traveling in a 1962 to 1964 red, or red and white, Chevrolet. Detective Sandefer gave this information both to his fellow officers and to motel operators whom he thought might be visited by the suspects for overnight accommodations.

Shortly before midnight, James Vaughn, the proprietor of a motel in Tu-pelo, called Detective Sandefer and told him that a black man had offered a $90 money order issued to Edgar Harris in payment for a room, which Vaughn rejected, fearing that the money order might be stolen. Sandefer immediately drove to Vaughn’s motel where he was given a full description of the black man who attempted to pass the money order, a description of two other blacks — a man and a woman — -traveling with him in a 1962 to 1964 red Chevrolet convertible, and the money order which was retrieved from a waste paper basket after having been torn in half by the black who attempted to register. The descriptions were then passed on to all other Tupelo police units.

Ten minutes later, Detective Sandefer received a radio bulletin from Tupelo Patrolman Guy Harris who reported that he had observed a car answering the description parked at the Travel Lodge Motel. Sandefer drove to the motel, saw a black male fitting the description given by Vaughn registering at the desk and also saw a black man and woman sitting in a 1962 red Chevrolet convertible. Then and there Detective San-defer placed the two persons in the car and the man at the desk under arrest.

We conclude that the information which Sandefer received from Brewer and Vaughn before the arrest gave the detective knowledge of facts and circumstances or reasonably trustworthy information that would lead a reasonably prudent person to believe that the suspected persons had committed or were committing an offense. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Sandefer knew before the arrest that postal money orders had been stolen, he knew they were made out in the sum of $90, he knew that some bore the name of Edgar Harris, he knew that at least two and possibly three blacks— two men and a woman — were involved, he knew that they were driving a 1962 to 1964 red, or red and white Chevrolet, he had a description of two of the suspects from an F.B.I. wanted bulletin, he had a full description of the suspects from a motel operator, he knew that a black man had attempted to pass one of the stolen money orders just ten minutes before he came upon the suspected vehicle and passengers at another motel, and he knew by his own eyes that the vehicle, its passengers, and the man registering at the desk fit the description given by Vaughn. Probable cause to arrest cannot require more than this. The police cannot be faulted. The convictions are affirmed.

Affirmed.

      . On direct appeal, appellant had contended that the trial judge (1) improperly denied appellant’s motion for change of venue, (2) improperly denied his motion for production of documents, (8) improperly denied his motion to suppress fingerprint evidence without a hearing, (4) improperly admitted tainted identification evidence, (5) improperly denied his motion for a directed verdict of acquittal, and (6) erroneously instructed the jury. 471 F.2d at 1168.

      . The district judge further held that even if the fingerprints were not admissible for any reason, the defendant waived his right to object by not doing so at the trial. On this appeal, appellant is alleging only that the requisite probable cause for the arrest was missing. And because of our disposition of that issue, we need not consider any question of waiver.

      . We note that the pictures of two of the defendants in the instant case taken at the time of arrest bear a remarkable resemblance to the pictures of the Truly couple on the F.B.I. wanted poster.

      . We find that probable cause existed under both constitutional and Mississippi standards. See Miss.Code Ann. § 99-3-7 (1968) ; Norwood v. State, 258 So.2d 756, 760 (Miss. 1972) ; United States v. Atkinson, 5th Cir. 1971, 450 F.2d 835, 839;. Lathers v. United States, 5th Cir. 1968, 396 F.2d 524. The time-honored principle that the legality of an arrest made by a state officer is to be determined according to state law, consistent with constitutional requirements, is still followed by most courts. Henderson v. United States, 5th Cir. 1968, 405 F.2d 874, cert. denied, 395 U.S. 906, 89 S.Ct. 1747, 23 L.Ed.2d 219; Crone v. United States, 5th Cir. 1969, 411 F.2d 251, cert. denied, Chontos v. United States, 396 U.S. 896, 90 S.Ct. 195, 24 L.Ed. 2d 173; United States v. Pearson, 5th Cir. 1971, 448 F.2d 1207; United States v. Atkinson, supra; United States v. Tramontana, 2nd Cir. 1972, 460 F.2d 464; United States v. Day, 3rd Cir. 1972, 455 F.2d 454; United States v. Gearhart, 4th Cir. 1964, 326 F.2d 412; United States v. Williams, 6th Cir. 1963, 314 F.2d 795; United States v. Woods, 7th Cir. 1970, 432 F.2d 1143, cert. denied, 1971, 401 U.S. 966, 91 S.Ct. 983, 28 L.Ed.2d 248; United States v. Bazinet, 8th Cir. 1972, 462 F.2d 982; United States v. Blum, 9th Cir. 1970, 432 F.2d 250; Garcia v. Baker, 10th Cir. 1970, 421 F.2d 671; 1 Wright, Federal Practice and Procedure § 77, at 123; 8 Moore’s Federal Practice If 4.02, at 4-10.
      But Cf. Lathers v. United States, supra; United States v. Miller, 10th Cir. 1971, 452 F.2d 731.
      In applying this principle, the courts have generally not distinguished between federal habeas corpus eases, cases involving an arrest by state officers for a state offense, and cases involving an arrest by state officers for a federal offense. But there are some exceptions. See, e. g., Moll v. United States, 5th Cir. 1969, 413 F.2d 1233, 1236 n. 1; Paige v. Potts, 5th Cir. 1965, 354 F.2d 212, 214; Williams v. Adams, 2nd Cir. 1970, 436 F.2d 30, 32, reversed en banc, 1971, 441 F.2d 394, reversed, 1972, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612; Moss v. Cox, 311 F.Supp. 1245, 1250 (E.D.Va.1970) ; Lathers v. United States, supra.


author: ALDISERT, Circuit Judge. GARTH, .Circuit Judge

text:
    DOUBLE-E SPORTSWEAR CORP., Appellant, v. GIRARD TRUST BANK and X Corporation.
    No. 73-1176.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 20, 1973.
    Decided Nov. 19, 1973.
    See also D.C., 55 F.R.D. 297.

      Peter C. Paul, Rawle & Henderson, Philadelphia, Pa., for appellant.
    Michael O’S. Floyd, Drinker, Biddle & Reath, Philadelphia, Pa., for appellee.
    Before FORMAN, ALDISERT and GARTH, Circuit Judges.
   OPINION OF THE COURT

ALDISERT, Circuit Judge.

This appeal, a diversity action, calls for an interpretation of the Uniform Commercial Code under Pennsylvania law and requires a decision as to the propriety of the entry of summary judgment in favor of the defendant bank. It presents questions of waiver of the Statute of Frauds, Section 2-209(4); of oral modification of a written agreement, Section 2-209(1); and of reasonable notice that strict performance would be required of a term previously waived, Section 2-209(5).

On March 24, 1971, Girard Bank and appellant entered into a written contract in which the bank agreed to sell and appellant agreed to buy a quantity of knitted shirts and sweaters for the price of $11.75 a dozen. The agreement required appellant to deposit $5,000.00 on account of the purchase price, which deposit was made; and gave the bank an option to terminate the agreement on or before April 1, 1971 by sending appellant written notice.

On March 31, 1971, the bank’s attorney, Bruce D. Schuter, telephoned George Langberg, appellant’s attorney, informing him that the bank had received an offer of $14.00 per dozen and inquiring whether appellant would meet the offer. After consulting appellant, Langberg telephoned Schuter advising him that appellant would meet the offer, and according to Langberg’s affidavit “inquired of what . . . [defendant] would require to make the agreement binding and unconditional . . . Mr. Schuter . . . informed me that defendant, for its own protection and to insure its obtaining the highest price for the goods, desired sealed bids from plaintiff and the firm who had made the offer of $14.00 per dozen.”

The attorneys then agreed to a sealed bid arrangement. In his affidavit Langberg stated that Mr. Schuter agreed to a waiver to the right of cancellation and that he [Langberg] advised Schuter that “our understanding should be reduced to writing by a letter agreement which plaintiff was ready to execute that day.”

Schuter directed Langberg to call Spahr, a bank officer, who in a subsequent telephone conversation, ' agreed with Langberg as follows: (1) there would be sealed bids; and (2) “[i]f the sealed bid of another was higher than that of [the] plaintiff, then [the] defendant was deemed- to have exercised option to cancel the agreement dated March 24, 1971.” Although Langberg offered to have the plaintiff “attend” the bank’s offices on that day (March 31, 1971) with the sealed bid and the letter agreement, Spahr advised “that plaintiff was not required to attend in Philadelphia that day and that if plaintiff’s representative would appear at his office on April 1, 1971 with the sealed bid and the letter agreement . he would accept the bid and sign the letter agreement on behalf of the defendant.”

Langberg then prepared the letter agreement, read its contents to Spahr, received Spahr’s approval over the telephone, was reassured by Spahr that it was not necessary to attend in Philadelphia on March 31, 1971, that it was satisfactory to deliver the sealed bid and new agreement in the forenoon of April 1, 1971: “Mr. Spahr assured me that the understanding as reflected in the letter agreement . . . read to him would be signed when the sealed bid . was delivered; he further informed me that there would be no cancellation if plaintiff was the highest bidder or if no sealed bid was received by him from the other offeror.” Later that day the bank’s attorney, Schuter, telephoned Langberg. Langberg then read the letter agreement to Schuter who, in turn, advised Langberg that it was acceptable in all respects.

On the morning of April 1, 1971, plaintiff’s representative appeared at Spahr’s office to deliver the sealed bid and the letter agreement. Spahr refused to accept them. The refused bid was for the amount of $15.50 per dozen. On the same morning, Schuter telephoned Langberg informing him that the bank had, on the previous evening, sold the goods to a third party, Burnette, for $14.00 per dozen. Schuter related that the bank believed it had entered into a binding arrangement with Burnette when Spahr had taken a check from Burnette and had signed a receipt on the back of a business card.

Whereupon the bank orally purported to terminate the March 24, 1971 agreement, returned the $5,000.00 hand money, and sent plaintiff a letter of the same date expressing in writing what had been communicated orally. The plaintiff sued. The bank moved for summary judgment, contending that the bank made a timely termination of the March 24, 1971 written contract. The plaintiff has appealed from the grant of defendant’s motion. We reverse.

I.

We are in complete agreement with the following portions of the district court’s opinion:

The Court’s jurisdiction in this case is based solely on diversity of citizenship, and so we must look to applicable state law. For purposes of this memorandum, the applicable Pennsylvania law will be referred to.
This case involved a contract for the sale of goods within the meaning of the Uniform Commercial Code— Sales. 12A P.S. § 2-105, 2-106.
12A P.S. § 2-201 provides as follows: “Formal Requirements; Statute of Frauds
(1) Except as otherwise- provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.”

It is undisputed that the defendant never signed any Agreement embodying the modification alleged by plaintiff.

Plaintiff contends that there is a genuine issue of fact in this case, namely, whether or not the Bank waived its right to terminate the sales contract. It is asserted that the Statute of Frauds defense is inapplicable to this case because of 12A P.S. § 2-209. That section provides as follows:

“Modification, Rescission and Waiver
(1) An agreement modifying a contract within this Article needs no consideration to be binding.
(2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party.
(3) The requirements of the Statute of Frauds section of this Article (Section 2-201) must be satisfied if the contract as modified is within its provisions.
(4) Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver.
(5) A party who has made a waiver affecting an executory portion of the contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.”

1 Anderson, Uniform Commercial Code 2d Ed., interprets § 2-209(4), (5) as follows:

“§ 2-209:8 Defective modification or rescission as a waiver.
A modification or rescission may be inoperative because it fails to meet the formal requirements imposed by the Statute of Frauds (if the contract, as modified, comes within the Statute of Frauds) or by a clause of the original contract. But even if this is so, the agreement may nevertheless be effective as a waiver, without regard to whether there has been reliance thereon.”
Anderson further states:
“The question of reliance on a waiver becomes important only when it is sought to retract the waiver.” (F.N. 9, § 2-209)
“§ 2-209:9 — Retraction of waiver.
The Code gives the party who has made a waiver the right to withdraw the waiver by reasonably notifying the other party that adherence to the terms of the contract will be insisted upon. Certain limitations upon the right of retraction exist:
(1) Waiver. By definition only a waiver may be retracted. There cannot be a retraction of an agreement between the parties as that would amount to a unilateral repudiation of the agreement between the parties.
(2) Notice. There can be no retraction unless reasonable notice is given to the other party that strict adherence to the waived term will be required.
(3) Estoppel. There can be no withdrawal when the circumstances are such as to estop the party from withdrawing.”

An attempt at modification which does not satisfy the Statute of Frauds can operate as a waiver.

Section 2-209(5) permits the retraction of a waiver by reasonable notice to the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position by plaintiff in reliance on the waiver.

12A P.S. § 1-201(25) provides as follows :

“A person has ‘notice’ of a fact when
(a) he has actual knowledge of it; or
(b) he has received a notice or notification of it; or
(c) from all the facts and circumstances known to him at the time in question he has reason to know that it exists.”

12A P.S. § 1-201(26) provides as follows:

“A person ‘notifies’ . . . another by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other party actually comes to know of it.”

II.

The false premise from which the bank proceeds is that plaintiff is precluded from recovery because any oral modification of a written agreement is offensive to the Statute of Frauds, § 2-201. What the bank seems to overlook is that while an oral modification of a written agreement may theoretically be precluded, the code does explicitly provide for an oral waiver of the operation of the Statute of Frauds: “Although an attempt at modification or rescission does not satisfy the requirements of . [the Statute of Frauds] it can operate as a waiver.” Section 2-209 (4). And once the Statute of Frauds is waived, there is no barrier to an oral modification of the terms of a written contract under § 2-209(1).

The district court found that the defendant “expressly consented to the oral modification, absent retraction, [and] is now bound to the new terms.” What were the “new terms” ? The “new terms” provided that the bank’s right of cancellation, Paragraph 10 of the March 24, 1971 agreement, “shall be deemed eliminated from the agreement” on the happening of certain contingencies. The court made this finding by “accepting the truth of plaintiff’s allegations.”

Appellee devotes the principal part of its brief to a broadside challenge to this finding of the court: “. . . Girard denies that the parties intended to or did in fact enter into any such oral agreement. . . . ” The defendant suggests that “the resolution of this issue is totally unnecessary.” We disagree. Indeed, we consider this to be one of the most material issues in this litigation. While we may fault, for incompleteness, the district court’s explicit language which found an “oral modification” of a written agreement, implicit in its analysis also was a finding of an oral agreement to waive the Statute of Frauds requirement § 2-209(4). This being so, a factual finding of oral modification of Paragraph 10 of the Agreement was permitted, § 2-209(1). If an oral modification be found, then § 2-209(5), retraction of waiver, and its requirement of reasonable notice becomes a critical factual issue.

The bank’s affirmative challenge to the district court’s finding of any oral modification in and of itself generates genuine issues of material fact as to waiver of the Statute of Frauds and oral modification of the written contract. This alone is sufficient to vacate the summary judgment and order these proceedings to trial.

There remains, however, still another issue for the fact finder. We deem as error the court’s determination that as a matter of law plaintiff received reasonable notice of retraction of the waiver under § 2-209(5), simply because the plaintiff received the bank’s message of April 1, 1971. We are not at all certain that the district court even considered the requirement of reasonableness, because its opinion emphasized only subsections (25) and (26) of § 1-201. We perceive this to be a critical issue, factual in nature, to be resolved, on this record, by a fact finder, and not by the court.

In sum, if a fact finder concludes that there was a waiver of the Statute of Frauds and a modification of Paragraph 10, then it must further decide whether there was a retraction of the waiver. In order to do so, the fact finder must determine the precise time at which the bank purportedly gave “notification received by the other party that strict performance will be required . . whether any notice of retraction prior to noon on April 1, 1971, was reasonable under the circumstances, in light of the plaintiff’s offer to send a representative to “attend” the bank in Philadelphia on March 31, 1971, and the bank’s insistence that this would not be necessary and that it “was satisfactory to deliver the sealed bid and new agreement in the forenoon of April 1, 1971”; and whether the plaintiff’s forbearance from “attending” the bank on March 31, 1971, amount to “a material change of position in reliance on the waiver” so as to render the purported “retraction . unjust. . . . ”

So viewed, we find that there are at least genuine issues of material fact as to: (1) whether there was a waiver of the Statute of Frauds; if so, (2) whether there was an oral modification of the agreement removing the bank’s right of ex parte withdrawal; and if so, (3) whether the bank’s purported retraction of the waiver of the Statute of Frauds met the standards set forth in § 2-209(5).

The judgment of the district court will be vacated and the cause remanded for proceedings consistent with the foregoing.

GARTH, .Circuit Judge

(concurring):

I agree with the majority that the presence of unresolved factual issues preclude the grant of summary judgment. However, I do not agree with a major portion of the majority’s analysis leading to that conclusion. Our disagreement centers upon our respective interpretations of a section of the Uniform Commercial Code adopted by Pennsylvania (12A P.S. § 2-209 Section (4)). My research discloses that that section has not been authoritatively interpreted in Pennsylvania or in any other jurisdiction and, accordingly, I feel that an exposition of our different views is warranted, despite the fact that we ultimately reach the same result in terms of the instant case.

An essential predicate for the conclusion reached by the majority is that the term “waiver”, as used in § 2-209(4), means “waiver of the Statute of Frauds” (See footnote 4 of the majority opinion: “Thus, we have concluded that the language of sub-section (4) refers, in this case, to an oral waiver of the operation of the Statute of Frauds . . . ”). In effect, the majority opinion holds that although an attempt to modify the March 24, 1971 written agreement did not succeed (as the modification was not in writing), it nevertheless operated as a complete waiver in toto of the Statute of Frauds.

I cannot agree that § 2-209(4) is to be read in that fashion. Rather it is my view that the “waiver” to which § 2-209(4) refers is a waiver limited to the particular condition, term or portion of the written contract sought to be waived by a party entitled to waive it. It does not constitute nor operate as a wholesale waiver of the Statute of Frauds. Hence, a much narrower reading of this section is required than that given to it by the majority. I understand the majority to be saying that oral modifications may always be viewed as enforceable waivers of the Statute of Frauds. Such a construction would render meaningless the direction of § 2-209(3) that the Statute of Frauds must be satisfied “if the contract as modified is within its provisions.” Under my interpretation of § 2-209(4), after there has been an unsuccessful oral modification, a party entitled to waive a provision can waive that provision by agreeing to an oral modification, but obviously no new or affirmative term can be substituted therefor without satisfaction of the Statute of Frauds.

Any new or affirmative term may or may not be subject to enforcement or may or may not be resisted by the other party. The question of the operative quality of a substituted affirmative term or provision does not concern us here, but is rather left to the operation of the Statute of Frauds (2-201) and to the particular construction to be accorded that situation when it arises.

I suggest that under the majority view, once there has been an oral attempt to alter a written agreement, there could be no writing or Statute of Frauds requirement imposed thereafter on the parties, as once the Statute of Frauds has been waived, all other subsequent modifications would mot require a writing. This, I suggest, could not have been the intention of the drafters of the Code.

Furthermore, if § 2-209(4) is to be read as the majority would have us read it, we would be obliged to ascribe one meaning to the term “waiver” as it is used in § 2-209(4) and another meaning to that term as it is used in § 2-209(5). I cannot believe that the drafters of the Uniform Commercial Code intended any such anomalous result, particularly when it is noted that § 2-209(5) refers to a waiver “affecting an executory portion of the contract . ” and provides that “strict performance will be required of any term waived. . . . ”

One last observation: the Comment under 12A P.S. § 2-209(4) refers to the Restatement of Contracts, Section 224. Nothing in that section would lead to the conclusion that the Statute of Frauds can be waived in toto. Instead, the examples and the text of that section suggest that a more restrictive type of waiver is contemplated.

Within the context of the instant ease, the Girard Bank, by having agreed to the oral modification of the written eon-tract (which written contract included a provision granting the bank an option to terminate the contract at any time up to and including April 1, 1971), waived its option provision when it acceded to the oral agreement of March 31, 1971. The question remains as to whether its [Gir-ard’s] retraction of that waiver was effective and whether it met the requirements of 12A P.S. § 2-209(5). That is a matter for the fact finder, and I agree with the majority that on this record summary judgment is not available to resolve that issue. I therefore concur in vacating the judgment of the district court and in remanding the cause for further proceedings.

      . Paragraph 10 of the Agreement provided: “Seller is hereby granted an option to cancel and terminate this Agreement, for any reason whatever, provided such option is exercised by notice in writing to that effect forwarded to Buyer together with the sum of $5,000 deposited hereunder on or before April 1, 1971, whereupon all liability from either party to the other shall cease and terminate and this Agreement shall become null and void.”

      . Paragraph 11 of the agreement provided in part:
      “A notice shall be deemed sufficiently given when deposited in the United States post office or branch post office on or before the date herein limited therefor.”

      . The parties have not cited us to, nor has our independent research disclosed, any Pennsylvania case dealing with the interrelationship of subsections (1), (3), (4), and (5) of § 2-209.

      . The drafters used the word “waiver” in subsection 2-209(4) as applicable to both subsections 2-209(2) and 2-209(3). Thus, we have concluded that the language of subsection (4) refers, in this case, to an oral waiver of the operation of the Statute of Frauds, “If the language be clear it is conclusive. There can be no construction where there is nothing to construe.” United States v. Hartwell, 6 Wall. 385, 396, 18 L. Ed. 830 (1868), referred to by Justice Holmes as “rather an axiom of experience than a rule of law. . . .” Boston Sand and Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 54, 73 L.Ed. 170 (1928).

      . As expressed in plaintiff’s letter agreement confirming the oral agreement of March 31, 1971: “If we, [the plaintiff] are the highest bidder in the event of (1) or if there shall be no other sealed bidder and we shall be the purchaser of said goods, the purchase shall be upon all the terms, covenants and conditions of the agreement between us dated March 24, 1971 except (a) price which shall be our bid if it be the highest or $14.-00 per dozen if there be no other sealed bids, and (b) paragraph 10 of the said agreement dated March 24, 1971 shall be deemed eliminated from the agreement.”

      . “The Statute of Frauds bars any alleged attempt to alter orally the terms of the Agreement embodying Girard’s option to terminate.” (Appellee’s Point 1.)

      . We have found it necessary to fill the interstices of the code because, while the drafters were meticulous to provide for a retraction of a waiver of a contractual term excluding modification except by a signed writing, § 2-209(5), they failed to provide an explicit provision for retraction of a waiver of the Statute of Frauds. We find this to be a drafting oversight and do not consider our interpretation to offend the “underlying purposes and policies” of the code. Section 1-102. We paraphrase what Mr. Justice Frankfurter has written of Mr. Justice Holmes: “To say ‘We agree to all the generalities about not supplying [commercial codes] with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean,’ is worth more than most of the dreary writing on how to construe . . . legislation.” Frankfurter, Some Reflections on the Reading of Statutes, 47 Col.L.Rev. 527, 531 (1947) (footnote omitted).
      The official comment to § 2-209 (4) and (5) states:
      4. Subsection (4) is intended, despite the provisions of subsections (2) and (3) to prevent contractual provisions excluding modification except by a signed writing from limiting in other respects the legal effect of the parties’ actual later conduct. The effect of such conduct as a waiver is further regulated in subsection (5).
      The purpose of subsection (5), as stated in the comment, was to further regulate “actual later conduct” of the parties as governed by subsection (4). It would seem, therefore, that the code’s retraction of waiver provision, § 2-209(5), would apply equally to waivers of the Statute of Frauds as well as to waivers of contractual terms requiring a signed writing since both are included in Section 2-209(4). Any other interpretation compels the conclusion that a party “who has made a waiver” of the Statute of Frauds could never retract that waiver. We do not believe that this was the intention of the drafters.

      . Section 1-201(25) deals, inter alia, with those instances when a person has notice of a fact. Section 1-201(26) addresses itself in part to how a person notifies another.

      . Whether an actor’s conduct is reasonable is generally a determination for the fact finder, not for the court. Otherwise, for example, in negligence cases it would remove the critical standard of the defendant’s reasonable care from the jury.

      . In my view, that section may be paraphrased to read as follows: “(4). Although an attempt at modification or rescission does not satisfy the requirement of sub-section (2) or (3) it can operate as a waiver of the particular condition, term or portion of the written contract sought to be waived.”

      . 12A P.S. § 2-201(1) provides that:
      “Except as otherwise provided in this section a contract for the sale of goods for the price of $500. or more is not enforceable bp wap of action, or defense unless there is some writing sufficient to indicate that a eontraet for sale has been made between the parties and signed by the party against whom enforcement is sought. . . . ” (Emphasis supplied)

      . It is of interest to note that the terms of the modification to which appellant had agreed would, as a practical matter, not be called into issue by the appellant.

      If sought to be enforced by the appellee bank, there was a letter agreement (memorandum) prepared and signed by the appellant (the party to be charged) satisfying the requirements of the Statute of Frauds. However, this is an issue we need not reach in this discussion, which is concerned only with the question of “what was waived”; i. e., the overall Statute of Frauds (subject only to retraction under § 2-209(5)), or, as I contend, just the bank’s right to terminate.

      . The word “term” means “that portion of an agreement that relates to a particular matter.” (Emphasis supplied) 12A § 1-201(42).

      . The Restatement declares:
      “The performance of a condition qualifying a promise in a contract within the Statute may be excused by an oral agreement or promise of the promissor that the condition need not be performed, if the agreement or permission is given while performance of the condition is possible, and in reliance of the agreement or permission, while it is unrevoked, the promissee materially changes this position.”

      . Obviously we are concerned here with how the courts of Pennsylvania would construe § 2-209(4). As noted, the Pennsylvania Comment cites as accord Restatement of Contracts § 224. While my research discloses no direct case on point with the instant case, § 224 has been cited with approval in Pennsylvania, leading me to the conclusion that the restricted waiver interpretation implicit in § 224 would be the interpretation placed upon § 2-209(4) by the Pennsylvania courts. See, e. g. Edelstein v. Carole House Apartments, Inc., 220 Pa.Super. 298, 286 A. 2d 658, 663 (1971) ; Universal Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550, 244 A.2d 10, 16 (1968).


author: TALBOT SMITH, Senior District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Emerson David REDSTONE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dale REDSTONE, Defendant-Appellant.
    Nos. 73-1321 to 73-1224.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1973.
    Decided Dec. 3, 1973.

      Benjamin C. Pulkrabek, Bismarck, N. D., for appellant Dale Redstone.
    C. J. Schauss, Mandan, N. D., for appellant Emerson Redstone.
    Lynn E. Crooks, Asst. U. S. Atty., Fargo, N. D., for appellee.
    Before GIBSON and BRIGHT, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

The case before us arises out of the stabbing of one Kerry Brunette, allegedly by the Redstone brothers, appellants, and defendant Patrick George Kills Crow. Following jury trial they were convicted in the United States District Court for the District of North Dakota of assault with a dangerous weapon, in violation of 18 U.S.C. § 113(c). Kills Crow and Dale Redstone were sentenced to two years’ imprisonment; Emerson Redstone was sentenced to imprisonment for twenty months. Dale Redstone and Emerson Redstone also received concurrent sentences of two years and twenty months, respectively, for violation of the terms of their probation in a previous ease. The present appeals are brought by the Redstone brothers from the judgments of conviction and from the orders revoking their probation.

Two issues, broadly stated, are presented by these appeals: 1) whether the site of the offense lay within the territorial jurisdiction of the United States; and 2) whether the trial court prejudicially erred in allowing Dale Red-stone’s wife to testify, albeit in a limited fashion, as a witness for the prosecution.

I.

Jurisdiction of the district court was stipulated by the parties as follows:

It is stipulated among the parties that this crime, if it was committed at all, was committed within the boundaries of the Fort Lincoln Military Reservation, also known as the United Tribes Training Center, and that the same is under the exclusive jurisdiction of the United States of America.

Appellants now urge that the district court, in fact, lacked jurisdiction. Because subject matter jurisdiction cannot be waived by the parties, conferred by consent or the lack of jurisdictional basis ignored by the court, we examine the question. Baker v. Riss & Co., 444 F.2d 257 (8th Cir. 1971); Babcock & Wilcox Co. v. Parsons Corp., 430 F.2d 531 (8th Cir. 1970); Roberson v. Harris, 393 F.2d 123 (8th Cir. 1968); Chicago, Burl. & Quincy R. R. v. Willard, 220 U.S. 413, 31 S.Ct. 460, 55 L.Ed. 521 (1911).

In order for an offense to fall within the confines of 18 U.S.C. § 113, it must occur “within the special maritime and territorial jurisdiction of the United States * * *.”

“Territorial jurisdiction” is defined elsewhere as,'inter alia, “any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.” 18U.S.C. § 7(3).

In 1895 North Dakota enacted a statute consenting to purchase of lands for certain purposes by the federal government. The statute, still in effect, reads:

The legislative assembly consents to the purchase or condemnation by the United States of any tract within this state for the purpose of erecting forts, magazines, arsenals, and other needful buildings, upon the express condition that all civil process issued from the courts of this state, and such criminal process as may issue under the authority of this state against any person charged with crime, may be served and executed thereon in the same manner and by the same officers as if the purchase or condemnation had not been made. [10.N.D.C.C. § 54-01-07.]

During the same year, a companion statute, also in force to the present day, was enacted ceding jurisdiction to lands acquired by the federal government for military posts.

The offense in question occurred at the United Tribes Training Center, located on the Fort Lincoln Military Reservation in Burleigh County, North Dakota. Fort Lincoln was built on property purchased from Thomas and Sarah J. Mellon by the federal government in 1898. In view of the foregoing statutes, then, it is plain that the offense occurred within the territorial jurisdiction of the United States.

It is true that 40 U.S.C. § 255 provides that “[u]nless and until the United States has accepted jurisdiction over lands hereinafter to be acquired * * *, it shall be conclusively presumed that no such jurisdiction has been accepted.” But the presumption against acceptance of jurisdiction in § 255 is applicable only to land acquired subsequent to the 1940 amendment. United States v. Johnson, 426 F.2d 1112 (7th Cir. 1970), cert. denied, 400 U.S. 842, 91 S. Ct. 86, 27 L.Ed.2d 78 (1970); Markham v. United States, 215 F.2d 56 (4th Cir. 1954), cert. denied, 348 U.S. 939, 75 S. Ct. 360, 99 L.Ed. 735 (1955); United States v. Heard, 270 F.Supp. 198 (W.D. Mo.1967). Prior to 1940, acceptance was apparently presumed in the absence of evidence to the contrary. Humble Pipe Line Co. v. Waggonner, 376 U.S. 369, 84 S.Ct. 857, 11 L.Ed.2d 782 (1964).

The fact that the land leased to the United Tribes Training Center by the federal' government is no longer used for military purposes is irrelevant. Humble Pipe Line Co. v. Waggonner, supra; Arlington Hotel Co. v. Fant, 278 U.S. 439, 49 S.Ct. 227, 73 L.Ed. 447 (1929); Benson v. United States, 146 U.S. 325, 13 S.Ct. 60, 36 L.Ed. 991 (1892); cf. United States v. Heard, supra. Jurisdiction has been established.

II.

Early in the trial it became apparent that the government intended to call Dale Redstone’s wife, Corstella Red-stone, as a witness for the prosecution, and that Dale Redstone, in that event, would claim his privilege to exclude adverse spousal testimony. Accordingly, the trial judge held an evidentiary hearing out of the presence, of the jury to determine the validity of the marriage. Following the presentation of evidence by both sides, the court ruled “that there is, in fact, a marriage; that the privilege does exist; that the privilege of Mr. Dale Redstone has not been waived, and that this witness may not testify against Dale Redstone.” In response to the ruling, the government proposed to limit Mrs. Redstone’s testimony to the activities of Emerson Red-stone and Kills Crow. Dale Redstone objected to the government’s suggested procedure on the ground that any testimony of his wife, however limited, would prejudice him. Emerson Red-stone and Kills Crow objected on the ground that they were entitled to the benefit of Dale Redstone’s privilege excluding his wife’s testimony and on the ground that her truncated testimony, limited as suggested, would leave the jury with the false impression that only two defendants were present at the Red-stone home the night of the offense.

At the evidentiary hearing’s end, the trial judge concluded:

[M]y approach is going to be this: * * * I’m going to leave Dale Red-stone in this trial until I hear how the testimony comes out. If at that point I determine * * * that the testimony of Mrs. Redstone is relevant and * * * “has substantial influence or is reasonably likely to have substantial influence on the jury,” then I’m going to declare a mistrial of Mr. Redstone *■ * *

Shortly before Mrs. Redstone was to be called to the witness stand, counsel and all three defendants met with the trial judge in chambers. The court presented the following instruction which he proposed to read to the jury before Mrs. Redstone testified:

Corstella Redstone is called by the United States and her testimony may be considered only as evidence affecting the charges against Emerson Red-stone and Patrick George Kills Crow. Her evidence may not be considered by you with reference to the charges against Dale Redstone, her husband. She has been instructed to limit her testimony to the conduct of Emerson Redstone and Patrick George Kills Crow. If she should fail to limit it, you are instructed to disregard any testimony she may give insofar as it bears on the charge against Dale Red-stone.

Emerson Redstone and Kills Crow immediately renewed their objection that a false impression would be left with the jury if Mrs. Redstone limited her testimony. The trial court conceded that possibility and agreed to confine himself “to an instruction that the jury is to disregard any testimony she may give insofar as it bears on the charge against Dale Redstone.”

Mrs. Redstone was called as a witness, and Dale Redstone objected on the ground of “the husband and wife privilege.” The remaining defendants objected “for the reasons stated in Chambers.” The court overruled the objections of Emerson Redstone and Kills Crow, found that “the Defendant Dale Redstone is entitled to the benefit of the husband-wife privilege,” and instructed the jury as follows:

Mrs. Corstella Redstone has been called by the United States and her testimony may be considered only as evidence affecting the charges against Emerson Redstone and Patrick George Kills Crow. [H]er testimony may not be considered by you with reference to the charge against Dale Redstone, her husband.

Mrs. Redstone then testified to the activities of Emerson Redstone and Kills Crow at her home the night of the offense. At one point she testified that she had witnessed the two defendants hitting the victim, Kerry Brunette. She also testified that Kills Crow had told her that same evening that Emerson Redstone had stabbed Brunette.

Brunette followed Mrs. Redstone on the witness stand. He testified that all three defendants had beaten him while he was visiting the Redstone home, and that Mrs. Redstone had tried to stop them.

At the close of the government’s case, all three defendants moved to strike Mrs. Redstone’s testimony. The trial court denied the motion, stating:

At this stage it is my feeling that the testimony of Mrs. Redstone was so weak and innocuous that when considered in the light of the other testimony it will not have substantial influence on the jury as to the guilt or innocence of Dale Redstone.
I also feel that the testimony of Mrs. Redstone was relevant. The hearsay testimony which she gave was received without objection and the direct evidence which she testified to was relevant and, therefore, I feel that a motion to strike is not in order.
* * * I feel that the witness demonstrated the pattern that I am accustomed to where you have a relatively young member of the Indian people who was at least emotionally distraught by her experience in the courtroom and who took refuge in either complete silence or a repeated assertion that she did not know, and those are the factors that cause me to say that the testimony was weak.

The common law rule preventing one spouse from testifying for or against the other in criminal cases involved much of “semi-medieval metaphysics” in its early formulation. It was, in effect, not one rule of law but three. See generally Note, 38 Va.L.Rev. 359 (1952); Note, 33 Tul.L.Rev. 884 (1959). First, on ground of identity of interest, neither spouse was competent as a witness for the other. This principle has since been abrogated in the state by statute and by decision in the federal courts. Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369 (1933). Secondly, neither spouse could appear as a witness against the other unless the accused had allegedly committed a crime against the person of the spouse. This rule of privilege against adverse spousal testimony has survived to the present day in the face of widespread and forceful criticism. See 8 Wigmore, Evidence § 2228 (McNaughton rev. 1961). The third dimension of the common law rule was a separate and distinct privilege against the disclosure of confidential communications between husband and wife.

The instant case involves only the second of these three principles.

Fed.R.Crim.P. 26, provides in part: The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States-in the light of reason and experience.

The United States Supreme Court, Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), applying Fed.R.Crim.P. 26 to the privilege against adverse spousal testimony, upheld the privilege, stating:

While the rule forbidding testimony of one spouse for the other was supported by reasons which time and changing legal practices had undermined, we are not prepared to say the same about the rule barring testimony of one spouse against the other. The basic reason the law has refused to pit wife against husband or husband against wife in a trial where life or liberty is at stake was a belief that such a policy was necessary to foster family peace, not only for the benefit of husband, wife and children, but for the benefit of the public as well. Such a belief has never been unreasonable and is not now. [(Emphasis in original) 358 U.S. at 77, 79 S.Ct. at 138.]

The continuing validity of the privilege was reiterated in Wyatt v. United States, 362 U.S. 525, 80 S.Ct. 901, 4 L. Ed.2d 931 (1960). Thus thére is no doubt as to the present existence and vitality of the privilege against adverse spousal testimony. See United States v. Shipp, 409 F.2d 33 (4th Cir. 1969), cert. denied, 396 U.S. 864, 90 S.Ct. 140, 24 L. Ed.2d 117 (1969); Grulkey v. United States, 394 F.2d 244 (8th Cir. 1968); United States v. Hoffa, 349 F.2d 20 (6th Cir. 1965); Tallo v. United States, 344 F.2d 467 (1st Cir. 1965); Ivey v. United States, 344 F.2d 770 (5th Cir. 1965); Wilkerson v. United States, 342 F.2d 807 (8th Cir. 1965).

In the present case, of course, the trial court recognized the applicability of the privilege, but determined that Corstella Redstone’s testimony, limited, apparently by choice of counsel on both sides, to the conduct of the other two defendants, was “so weak and so innocuous that when considered in the light of other testimony it will not have substantial influence on the jury as to the guilt or innocence of Dale Redstone.”

We disagree. It is our judgment that, under the circumstances of this ease, Dale Redstone’s privilege against adverse spousal testimony was effectively denied. Nor can we say that Mrs. Redstone’s testimony had no substantial influence on the jury verdict as to her husband.

Kerry Brunette, the victim of the offense, plainly testified that he had been attacked by all three defendants at the home of Mrs. Redstone and that she had tried to stop the beating. Mrs. Red-stone’s testimony, then, confirming Brunette’s story as to Kills Crow and Emerson Redstone, must be viewed as equally incriminating to her husband since the jury was well aware that she was prevented from testifying against him by the adverse spousal testimony privilege.

The cautionary instructions, supra, of the trial court, delivered both before Mrs. Redstone took the witness stand and at the close of the case, could not lessen the very real risk that the jury was incapable of ignoring the import of her testimony. See cases cited in Annot., 90 A.L.R.2d 648 (1963); cf. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Our belief that this conclusion is correct is strengthened by those cases which hold that merely calling an accused's spouse as a witness against him, under certain circumstances, can be so prejudicial as to warrant a reversal of conviction. See Tallo v. United States, supra; San Fratello v. United States, 340 F.2d 560 (5th Cir. 1965); Annot., 76 A.L.R.2d 920 (1961); cf. Grulkey v. United States, supra.

Nevertheless, the government suggests that since Dale Redstone knew that his wife would be called to testify, he should have moved for severance in order to bypass the prejudicial effect of her testimony. We are not persuaded that a defendant be held responsible for anticipating, and taking action to avoid, an erroneous and prejudicial evidentiary ruling on the part of the trial court.

Having determined that Dale Redstone’s conviction of assault with a dangerous weapon must be reversed, we must also ascertain to what extent the order of the court revoking his probation for a previous offense was dependent upon the conviction. The record reveals that the trial court found “that there has been a violation of the probation in that the Defendant has been convicted * * Thus we have no alternative but to also reverse the order revoking Dale Redstone’s probation.

Emerson Redstone, on the other hand, asserts that the trial court committed prejudicial error as to him by allowing Mrs. Redstone to testify in such a limited fashion, thereby conveying a misleading picture of actual events to the jury. In answer, we first note that it was for this reason the trial court refused to instruct the jury that Mrs. Redstone had been directed to limit her testimony to the conduct of Emerson Redstone and Kills Crow. Although the record is not completely clear in this respect, it appears that the trial court left the scope of Mrs. Redstone’s testimony to the parties. Secondly, we fail to see how Mrs. Redstone’s testimony in this manner prejudiced Emerson Redstone since Dale Redstone was not acquitted but convicted by the jury. Certainly Emerson Redstone does not suggest that Mrs. Redstone would not have been a proper witness against him had he been tried separately from Dale Redstone.

Judgment of conviction of assault with a dangerous weapon and order revoking probation reversed as to Dale Redstone, affirmed as to Emerson Red-stone.

      . 10 N.D.C.C. § 54r-01-08.

      . See 2 Wigmore, Evidence § 601 (3rd ed. 1940).

      . The trial judge in the present case, in recognizing Dale Redstone’s privilege to prevent his wife from testifying against him, relied heavily on Rule 505, Proposed Rules of Evidence for United States District Courts and Magistrates, as sent to Congress by the Supreme Court.
      Proposed Rule 505 reads:
      (a) General rule of privilege. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying against him.
      (b) Who may claim the privilege. The privilege may be claimed by the accused or by the spouse on his behalf. The authority of the spouse to do so is presumed in the absence of evidence to the contrary.
      (c) Exceptions. There is no privilege under this rule (1) in proceedings in which one spouse is charged with a crime against the person or property of the other or of a child of either, or with a crime against the person or property of a third person committed in the course of committing a crime against the other, or (2) as to matters occurring prior to the marriage, or (3) in proceedings in which a spouse is charged with importing an alien for prostitution or other immoral purpose in violation of 8 U.S.C. § 1328, with transporting a female in interstate commerce for immoral purposes or other offense in violation of 18 U.S.C. §§ 2421-2424, or with violation of other similar statutes.
      According to the Advisory Committee’s Note to Proposed Rule 505:
      About 30 jurisdictions recognize a privilege of an accused in a criminal case to prevent his or her spouse from testifying. It is believed to represent the one aspect of marital privilege the continuation of which is warranted. In Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed. 2d 125 (1958) it was sustained. Cf. McCormick § 66; 8 Wigmore § 2228 (McNaughton Rev.1961) : Comment, Uniform Rule 23(2).
      The House Subcommittee on Criminal Justice, however, has since adopted an extensively revised draft of the rules and submitted it for comment to the bar and judiciary. The revision eliminates all proposed specific rules on privilege and substitutes a single rule which leaves “the law of privileges in its present state — to be developed by the Federal courts in accordance with the standard contained in Rule 26 of the Federal Rules of Criminal Procedure.” Rules of Evidence Proposed by Subcommittee on Criminal Justice of the House Judiciary Committee, Rule 501, Subcommittee Note (1973), reprinted in 13 CrimX.Rptr. 3279 (July 18, 1973).