McLaughlin, Kalodner and Van Dusen, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Appellant and four others were indicted for armed robbery of the patrons and bar maid of a tavern in Atlantic County, New Jersey, December 4, 1964. On May 18, 1965, when the cases were to be tried, defendants, Cooper, Ferguson and Perry, Jr., retracted not guilty pleas and pleaded guilty. The trial proceeded as to appellant and Calvin Clidy, both of whom were found guilty on all six counts of the indictment. The New Jersey Superior Court and Supreme Court affirmed the convictions without opinion. In 1968, appellant applied to the United States District Court, District of New Jersey, for a writ of habeas corpus which was denied. 282 F. Supp. 660. This appeal followed.
Appellant's appeal to this court was originally founded upon the following contentions. 1. That at the time of his arrest and interrogation he was denied his right and request to have an attorney assigned to assist him. 2. That he was deprived of his constitutional rights to the assignment of counsel at the magistrate's hearing. 3. That under Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) he was entitled to assignment of counsel at the time of his arrest and interrogation. The district court held that these were the only grounds which were passed upon by the state court. It further found that appellant's allegations "that there was lack of probable cause for his arrest and that the trial court erred by admitting certain evidence, have not been passed on by the Courts of New Jersey and are dismissed, pursuant to 28 U.S.C. 2254, without prejudice, to allow petitioner opportunity to exhaust his State remedies." The opinion of the district court denying the application for habeas corpus was filed March 19, 1968. There have been no further proceedings in the state court by appellant to date. Appellant's own statement in his petition for habeas corpus regarding the above mentioned allegation (which had not been passed upon by the state court) concerning the admission of certain evidence by the state trial court is that it concerns the admission of the oral statement "supposedly given by the petitioner."
We agree with the district court that in New Jersey, arraignment is not part of the trial. N.J. Rules of Practice, Rule 8:4-2. It affords an opportunity to the accused to plead as a condition precedent to trial. In this instance appellant pleaded not guilty. He did not waive any defenses and was not denied due process by not having counsel at his arraignment and magistrate's hearing.
Appellant also contended that he was deprived of a constitutional right by not having counsel assigned to him at the time of his arrest and questioning. He was arrested in this matter December 5, 1964 and questioned on that day and the next. His trial took place in May 1965 and he was sentenced June 22, 1965. Under the Escobedo opinion of June 22, 1964, the state was not required to furnish counsel to a defendant. The Miranda decision, 384 U.S. 436, 86 S. Ct. 1602, 16 L.E.2d 694, inter alia, calling for appointment of counsel for indigent defendants in criminal cases, was not filed until June 13, 1966.
This brings us to the following situation. On May 5, 1969, the day this appeal was submitted for decision, a letter was received from appellant by the clerk of this court asking that the court "consider the point of applicability of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) regarding the admission at trial of the written statement of a co-defendant, Calvin Clidy, wherein numerous references were made to this defendant, and further that this defendant did not have the right to confront and cross-examine said co-defendant." We are satisfied that the request should be granted.
The entire circumstances as to the statement of the co-defendant Clidy are depicted at length in the trial transcript. Clidy's statement was marked for identification. Appellant's attorney suggested that whatever Clidy said in the statement incriminating Hundley be blocked out. The prosecutor advised the judge that either excision of the Hundley references or limiting instructions were satisfactory to the State. The court addressing Hundley's attorney said:
"The Court: Mr. Goldberg, are you satisfied, if I instruct the jury that the statement, S-1, can only be considered by the Jury against the defendant Calvin Clidy and cannot be used or considered by the Jury in any way involving your client, Mr. Hundley?" The attorney answered:
"Mr. Goldberg: Your Honor, I am perfectly satisfied. I know that you will instruct the Jury properly as you always do. I feel that this is the answer to my motion. I am satisfied.
"The Court: All right, thank you."
The attorney for appellant as a matter of trial judgment did not cross-examine Clidy either before or after Clidy's statement was read to the jury. It is evident from the transcript that there would not have been any opposition whatsoever to Hundley's attorney even recalling Clidy to the stand for cross-examination concerning that part of Clidy's statement implicating Hundley. Such inference strongly appears from further sidebar dialogue between the judge and Irwin Goldberg, Esq., counsel for Hundley, as follows:
"The Court: Mr. Goldberg, you represent the defendant Hundley. I have taken the testimony of the officers down to the point of the oral statement which was made by him, and before I go into the question of voluntariness from the standpoint of the Court's findings, I ask you, are you offering any proof by ...