'Privileges so fundamental as to be inherent in every concept of a fair trial that could be acceptable to the thought of reasonable men will be kept inviolate and inviolable, however crushing may be the pressure of incriminating proof. But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.'28

Because the contention here made as to the status of commissioners, if correct, would affect many part-time commissioners in this Circuit, we have discussed it with great fullness. We are led to the inevitable conclusion that there is no disqualification for a United States Commissioner to represent a person accused of crime in the trial of a criminal case before a court of the United States, in a matter with which he was not connected as a commissioner.

In the case before us there is the added fact that after the appellant employed the firm of which Mr. Dean E. Miller, the United States Commissioner, was a partner, the question of possible disqualification was fully discussed with the appellant. There is in the record a letter dated March 27, 1956, written by the senior partner of the firm which indicates that the matter had been discussed fully with the United States Attorney and, informally, with the Judge of the Court by counsel for the appellant. Appended to it was a waiver. The letter and waiver are reproduced in the margin.29

The experienced trial judge, not content with the written waiver, which was filed in court on March 29, 1956, brought up the matter in open court while the jury was being selected. The following proceedings occurred:

'The Court: Before we continue to select a jury for this case, I have a matter to take up here.

'The Defendant being present, it has come to the attention of the Court that it might be well to see if the Defendant is fully advised that Mr. Miller, who is of counsel for the Defendant, is a Commissioner,-- a United States Commissioner for the District of Idaho. You are, of course, aware of that?

'The Defendant: Yes, sir.

'The Court: And you, Mr. District Attorney, are aware of that?

'Mr. Furey: Yes, Your Honor.

'The Court: Do you waive any question as to his appearing here as counsel for you, Mr. Audett?

'The defendant: Yes, sir.

'The Court: Now, you may proceed.'

The appellant here is not a stranger to the law. There is a record of his conviction of another bank robbery in the Eighth Circuit.30 And there is evidence in the record that he had written a book called 'The Rap Sheet' relating to his various experiences. So, despite the argument that he is of Indian extraction, we are not confronted here with an illiterate person who can rightly claim that he may not have understood the proceedings and the scope of the waiver.

Waivers of the most fundamental rights, such as the right to the assistance of counsel,31 trial by jury,32 and consent to trial by a jury of less than twelve,33 are permissible. And we see no reason why, assuming that an unconscious conflict of interest might exist between the duty of one of his attorneys towards him, and that attorney's duty arising from his employment as a United States Commissioner, the appellant, when apprised of the fact, having chosen not only to retain the commissioner as one of his counsel, but having both in writing and orally in open court waived any question that might arise from such conflict, can be heard to complain.

If a situation existed such as confronted this Court recently,34 where a conflict between two defendants represented by the same attorney appeared, resulting in possible detriment to one of them, the problem of adequate representation might be inquired into. But no such confronts us here. The defendant was tried separately. Both members of the law firm employed fully protected the rights of the defendant. Every witness was cross-examined. The examination of one of the accomplices, Walter Clyde McClure, by Mr. Miller was quite extensive. It covers twelve pages in the printed record. The plea of guilty to the bank robbery and the fact that he is an inmate of a State prison were brought out. The cross-examination of the other accomplice, Donald Wayne Hall, by Mr. Frank E. Meek was even more extensive. It covers twenty-nine pages, in which his previous conviction was stressed.

At the conclusion of the Government's case, Mr. Miller made a motion to acquit. Significantly, the motion was broad enough to cover practically all the points made in this appeal, excepting only the question of disqualification. It is reproduced in the margin.35

The appellant did not take the stand. No other witnesses were offered on his behalf. The record does not indicate whether this was upon the advice of his counsel or not. Assuming that it was, we can draw no inference of dereliction of duty, absent a competent showing that it was anything other than the attorney's best judgment in the circumstances. No exceptions were taken to the instructions by either side. A reading of the instructions convinces us that the Court advised the jury fully as to the law of the case, even giving the cautionary instructions as to the testimony of an accomplice, which are to be discussed further on in the opinion.

Claims of inadequate representation are frequent. But on close examination they will be found, in most instances, to be merely a defendant's dissatisfaction, after conviction, with the manner in which his case was handled. The answer to a contention of this character was given by the Court of Appeals for the Tenth Circuit, in these words:

'But, one who appears before the court with counsel employed for his defense is not deprived of his constitutional right to the assistance of counsel merely because in retrospection he concludes that such representation did not meet his standards of effectiveness.'36

There is no showing that witnesses existed who could have placed the appellant elsewhere at the time when the two accomplices placed him at the bank when the offense was committed, or that any other witnesses existed that would have contradicted the consistent and unshaken story of the two accomplices, which the physical facts testified to by others verify, as to the commission of the offenses and the appellant's participation in it. That, in the view of present counsel, the cross-examination may not have been 'searching' enough is not sufficient to cast discredit on the competence of the attorneys who represented the appellant at the trial.

After all, there are few trial lawyers who, on examining the record of a trial critically, would not say that 'they might have done better'. But such surmises would not warrant this Court in branding the defense in this case as so inadequate as to amount to denial of the right to counsel.

There remains to consider the sufficiency of the evidence in the record to sustain the conviction. So doing we bear in mind that our function is not to weigh and consider the contradictions and inconsistencies which counsel for the appellant finds in the testimony of the two accomplices in connecting the appellant with the robbery. Our province is to determine whether there is substantial evidence to support the verdict of the jury taking the view of the evidence most favorable to the Government. Ours is not the function to determine whether, on the record, reasonable doubt could or would exist.37 The function of the Court of Appeals in a case of this character was summed up with brevity by the Supreme Court, in these words:

'It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.'38

The testimony may be given in brief summary. The character of the bank as a national depository on the day it was entered and the money and things of a total value of $30,000 taken is not in dispute.

The appellant and Hall met at Portland, Oregon in the latter part of September 1953. At a small town adjoining Portland,-- Gladstone, Oregon-- appellant asked Hall how he was doing and if he was making any money or if he was hard up for money, to which he answered 'he was pretty well broke', whereupon appellant asked him if he wished to 'accompany him on a burglary, to burglarize a bank'. Hall declined the invitation. He saw him again in the middle of October.

In the meantime, Hall had talked to Walter McClure, the other accomplice, at whose house he was staying. About October 24, the two went to the appellant and told him that they accepted the proposition and would go with him. Appellant asked them to pick up some tools, which they did. These consisted of a bar

'with a pry bar on one end and a point on the other, something like a marlin spike on the other end, and some wood drills, bits, and two drift punches approximately twelve inches long by about three-sixteenths, and a coil of rope and a six pound hammer.'

On October 26, Hall and McClure met the appellant, who was in a Studebaker car from which they transferred some tools to McClure's car. They followed the appellant three or four blocks, where he left his car and joined them. They drove to Colton on the Washington side of the Columbia River where they attempted to burglarize a bank but were unsuccessful. They then drove to Lewiston, Idaho. Hall and McClure used assumed names in registering at a hotel. The appellant registered in his own name. The next day, after eating breakfast, they drove to Cottonwood, Idaho. After looking over the Cottonwood bank they drove to Arco, Idaho. On October 28, 1953, they returned to Cottonwood and 'cased' the bank. After darkness, they entered the Cottonwood bank by breaking a skylight and lowering a rope coil through the opening. Hall slid down the rope, opened the door to the rear alley allowing McClure and the appellant to enter. The bricks from the safe were removed. Appellant and McClure entered the vault and returned with a 'little leather secretary' and silver and gold coins and other property removed from the safe deposit boxes, amounting to the total value of $30,000. The plunder was later divided equally between the three participants.

Appellant participated in the planning of the entering of the safe and the removal of the property. The three left the building through the back door leaving the tools and the rope at the place of the burglary. All three were later arrested.

Part of the money and property was recovered from Hall and McClure. All were separately indicted on charges of violating the Bank Robbery Statute.39 Hall and McClure pleaded guilty and testified for the Government at the trial.

Counsel for the appellant concede that Hall and McClure agree very closely as to the manner in which the crime was committed, but point to certain inconsistencies in their narrative as to the appellant's connection with the crime.

As already pointed out, it was for the jury to resolve these and other inconsistencies beyond a reasonable doubt. They evidently did so by finding the appellant guilty. And ours is not the function to determine whether, in view of these inconsistencies, a reasonable doubt could or did exist. The jury's verdict determined this question.40

The Court gave to the jury a cautionary instruction which left it to them to determine whether they would convict on the uncorroborated testimony of the accomplices. The full instruction is reproduced in the margin.41 No exception was taken to this instruction. It is now argued that it should have been more elaborate and should have emphasized the motive of the accomplices in securing 'freedom or a reduced sentence' in exchange for this testimony. In view of the absence of a request for additional instructions no error can be predicated on refusal of instructions or error asserted in the instructions given.42 Of course, in rare cases the court may notice plain error.43

That situation does not exist here, for the instruction given covered fully the law as applied in this circuit.44 In truth, appellant's counsel are asking us to adopt the rule, which obtains in certain states, that conviction cannot be obtained on the uncorroborated testimony of an accomplice. The short answer is that the federal doctrine which permits such conviction is sound and consonant with the rule obtaining in the law of evidence that the testimony of one witness, if believed, is sufficient to prove a fact,45 is approved by the Supreme Court and is firmly established in the law of this and other circuits.46

The cautionary instruction, although desirable, is not 'an absolute necessity.'47

The rule requiring corroboration of accomplices is of continental European origin. In the English system questions concerning it did not appear until the end of the Seventeenth Century. Of its purport, Wigmore writes:

'As a matter of common law, then, the doctrine was universally understood (except by one or two Courts) as amounting to no rule of evidence, but merely to a counsel of caution given by the judge to the jury. It followed that the jury might or might not regard the caution by acquitting upon an uncorroborated accomplice's testimony; that they alone were to determine whether corroboration existed and was sufficient; and that the trial judge's omission of the caution was of itself not a ground for a new trial, being a matter solely for the trial judge's discretion.'48

He condemns the reasons behind a contrary policy. The implication that an accomplice testifying for the Government must have relied on promise, express or implied, of immunity or leniency,-- an argument which counsel in this case have stressed, he rejects by stating:

'The promise of immunity, then, being the essential element of distrust, but not being invariably made, no invariable rule should be fixed as though it had been made. Moreover, if made, its influence must vary infinitely with the nature of the charge and the personality of the accomplice. Finally, credibility is a matter of elusive variety, and it is impossible and anachronistic to determine in advance that, with or without promise, a given man's story must be distrusted.'49

So there are ample reasons, historical, psychological and other, for not changing a cautionary rule into a rigid and dogmatic method of proof for ordinary criminal offenses. The exception in treason50 or perjury51 should not obtain in the trial of the ordinary criminal case. In the case of treason the provision is embedded in the Constitution.52 In the case of perjury the rule 'is deeply rooted in past centuries.'53

Any change of the rule should be made by Congressional legislation applicable to all federal courts, and not by judicial fiat, which, unless it be that of the Supreme Court, would affect certain federal courts only.

What has just been said would require the affirmance of the judgment in its entirety. There is one fact, however, of which we take notice as plain error.54 The judgment in this case was rendered on April 10, 1956, and the sentence imposed was the maximum of twenty years on Count I, which charged entering the bank with intent to commit larceny,55 and the maximum of ten years on Count II, which charged the robbery of the bank of property of the total value of $30,000.56 Subsequent to that date, the Supreme Court held that the two subdivisions constitute but one offense and that the imposition of two sentences is illegal.57

The trial judge, by imposing the maximum sentence on Count I and allowing the sentence on Count II to run concurrently, indicated that he intended the maximum sentence to be twenty years. Thus the sentence imposed on Count II became merged in the sentence imposed on Count I. In these circumstances the policy to be followed is to vacate the lower sentence on the second count.58 The fact that the sentences run concurrently and that, consequently, only twenty years would be served, should not stand in the way of such action because

'it is well understood that a multiplicity of sentences impairs a prisoner's opportunities for pardon or parole.'59

The Judgment will therefore be modified by striking therefrom the sentence imposed on Count II. As so modified the Judgment is affirmed.