Bоwie stands convicted of a sale of heroin on or about Februаry 9, 1960, and of a concealment of marijuana on or about Februаry 13, 1960, both offenses happening in Oakland, California, all charged in violation of the federal narcotics laws. He was acquitted on a сount charging transportation of heroin.
The case was judge-tried, a jury having been waived. Five year concurrent sentences were imрosed on the two guilty counts. On both counts defendant challenges the sufficiency of the evidence. On the concealment count there is an additional specification asserting an illegal search and seizure.
We deem the evidence on the sale count adequate. Just as defendant says, the two principal witnesses, a common-lаw husband and wife, told stories on the stand that did not jibe. But here a trial judge of long experience heard the witnesses. Each witness told of a sale with varying details. The trial judge, aware of all of the cautions to be observed in weighing the testimony of an informer, of one addicted to narсotics, and of one hoping for favorable treatment on one’s own troubles with the law, was convinced that the common-law wife told the truth. After reviewing a record of 188 pages, we, located one flоor above the district judge and not seeing the witnesses, are asked to declare that the witnesses were unworthy of belief — to find the evidenсe was insufficient.
Some states may have rules requiring corroboratiоn in cases of the type of Bowie’s, but in federal cases of this type one witness believed may sustain the burden of proof. And, this is so even though the witness be an informer or an accomplice. Marcella v. Unitеd States, 9 Cir.,
The third count with its concurrent sentence, under Sinclair’s case, Sinclаir v. United States,
But here we have an unusual situation. The government either expressly оr tacitly admits that by itself the third count cannot stand. Apparently this concession is made upon the basis of decisions of the Supreme Court and of this, court on illegal searches, which decisions: *695 were made after the trial in the district court.
If such a circumstance be patent, it is our judgment that the government should not resist appellant’s insistence on cleaning his slate on count three. Howevеr, in such a case, rather than accept the government’s concession here, we believe it best to refer the matter back to the district court to consider it in the light of intervening developments. This conclusion should be confined to the facts here or similar facts. It should nоt be taken as a commitment of the court to review all counts willy-nilly whеreon ■concurrent sentences have been imposed.
The judgmеnt is affirmed as to the first count. It is remanded to the trial ■court with authorization to receive and ■consider any appropriate motion of either party seeking to dispose of count three.