¶1*980Mr. Joseph F. Healy, Jr. (appointed by this court), Washington, D. C., for appellant.
¶2Mr. William II. Willcox, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Harold H. Titus, Jr., Asst. U. S. Attys., were on the brief, for appellee.
¶3Before Wilbur K. Miller, Burger and Wright, Circuit Judges.
¶5Appellant entered a guilty plea to Counts 3 and 4 of a six-count indictment; prior to sentence he sought leave to withdraw these pleas and go to trial on these two counts. After an extended colloquy with appellant in the course of the hearing, the District Court permitted withdrawal of the guilty plea as to Count 3 but declined it as to Count 4 because no valid reason or basis for withdrawal had been claimed or shown. On the remaining guilty plea to Count 4 he sentenced appellant to nine years imprisonment under the Youth Corrections Act, 18 U.S.C. § 5010(c) (1958).
¶6The six-count indictment charged three offenses arising out of unrelated robberies and one attempted robbery on a fourth occasion, spanning a period from April 1962 to January 1963.
¶7At arraignment under Fed.R.Crim. P. 10 on February 25, 1963, appellant entered a plea of not guilty as to all six counts and was released on bail. Two months later, with retained counsel, he withdrew the pleas of not guilty to Count 3 (robbery) and Count 4 (assault with intent to commit robbery) and entered pleas of guilty as to both of these counts.1 Before accepting these guilty pleas, the District Judge, pursuant to Fed.R.Crim.P. 112 and Resolution of the Judges of the U. S. District Court for the District of Columbia promulgated June 24, 1959 thereunder,3 con*981ducted an extensive interrogation of appellant as to the facts of the alleged crimes and his reasons for pleading guilty thereto. Appellant freely admitted the charges: as to Count 3 he said, “I went in and robbed the place … by myself … [and took] about $200.00, sir”; as to Count 4 he said, “Well I entered the liquor store and I demanded money, sir; and well I just remember being shot; that’s about all.” •He stated further that he had brandished •a gun both times but did not shoot it; that on the latter occasion one of the liquor store employees had shot him; and that he had been apprehended the following day when he had gone to the hospital for treatment of the gunshot wound. The District Judge interrogated appellant carefully as to his awareness of the possible sentence; appellant reiterated his guilt4 and said he was pleading guilty because he was guilty and not because the Government had moved to dismiss four other counts should he plead guilty to Counts 3 and 4.5
¶8Three weeks later, appellant, with his retained counsel, filed a motion under Fed.R.Crim.P. 32(d)6 to withdraw his guilty pleas to Counts 3 and 4. On June 27, 1963, the District Court conducted a hearing on the motion and at this time appellant said he was innocent of the Count 3 robbery charge and had pleaded guilty to that count only because he “was so confused and worried … [and] wanted to try to get this over as soon as possible.” As to Count 4, however, he stated to the Court: “Well, Your Honor, I am guilty of that charge. I did attempt to rob this place. That’s all.” 7 The District Judge granted the motion to withdraw the plea as to Count 3 but denied the motion as to Count 4 8 on which guilt was admitted.
¶9Appellant is now represented by court-appointed counsel who urges that the District Court committed reversible error in refusing to permit withdrawal of the guilty plea to Count 4 in the circumstances shown here.
¶10We disagree emphatically. We have held that withdrawal of a guilty plea, made by a defendant unrepresented by counsel, “should be freely allowed” when he seeks withdrawal before sentencing. Poole v. United States, 102 U.S.App.D.C. 71, 75, 250 F.2d 396, 400 (1957).9 More *982recently, in Gearhart v. United States, 106 U.S.App.D.C. 270, 273, 272 F.2d 499, 502 (1959), Judge Washington, speaking for a unanimous court, noted that:
“[T]he Supreme Court in broad dictum already had said that ‘The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for my reason the granting of the privilege seems fair and fust.’ … -x-
“This is not to say that the District Court lacks all discretion in dealing with a motion of the present sort. But discretion must be exercised on the basis of sound information, soundly viewed. Where the accused seeks to withdraw his plea of guilty before sentencing, on the ground that he has a defense to the charge, the District Court should not attempt to decide the merits of the proffered defense, thus determining the guilt or innocence of the defendant. In certain situations, where the issue raised by the motion to withdraw is one of tangential, nature, resolvable apart from the-merits of the case, the District Court, may appropriately hold a factual, hearing to determine whether the-accused has a ‘fair and just’ reason for asking to withdraw his plea of' guilty.”
¶11Far from showing a “ ‘fair- and just’ reason” for a change of plea to Count 4, appellant demonstrated by his repeated statements that he had no reason other than wanting a trial on a charge of which he admitted his guilt.10 Unlike Gearhart, appellant offered no defense to the charge,11 nor did he allege. *983involuntariness or any other factor which would militate against the correctness and truth of his guilty plea to Count 4 which was entered when he was represented by retained counsel.12 His contention is virtually a claim of an absolute right to withdraw a guilty plea prior to imposition of sentence.13 No court has ever so held; our use of the language “freely allowed” plainly implies the existence of some circumstances in which a defendant is not entitled to withdraw a plea of guilty before sentencing, and negates any absolute right to do so.14 Overwhelming authority holds, as has this court, that withdrawal of a guilty plea before sentencing is not an absolute right15 but a decision within the sound discretion of the trial court which will be reversed by an appellate court only for an abuse of that discretion16
¶12*984 A defendant who stands before a court freely admitting his attempted robbery does not remotely meet the standard of offering a “fair and just reason” for withdrawing his plea of guilty prior to sentence.17 He must give some reason other than a desire to have a trial the basic purpose of which is to determine the very facts the defendant has just volunteered to the court on the record and while attended by his own counsel.18
¶13The record reveals a guilty plea, intelligently and voluntarily made with assistance of retained counsel and candid admission of all essential elements of the crime in open court; this is hardly a predicate for an appellate holding that the District Judge abused his discretion in refusing to permit a withdrawal. We are not disposed to encourage accused persons to “play games” with the courts at the expense of already overburdened calendars and the rights of other accused' persons awaiting trial, whose cases may lose both their position on the calendar and the Court’s time and facilities which are thus diverted for no useful purpose.19'
¶14Affirmed.
¶39(dissenting) :
¶40Admitting the acts charged against, him, the defendant nevertheless moved, unsuccessfully, to withdraw his plea of guilty1 and go to trial. On allocution, he stated that he stole because he was poor, in order to provide necessary medical care for his pregnant wife.2 The defendant is not articulate, but his claim seems to make him out as a modern Jean Val-jean, who was convicted of burglary for' stealing bread for his starving children.
¶41At the time of his motion to withdraw his guilty plea, the defendant here had' not been sentenced.3 And it appears *985"that, had the motion been granted, the Government would have suffered no prejudice. Thus I would have thought that, under the circumstances, the defendant should have been allowed to withdraw his guilty plea as a matter of course.4
¶42But Judge Burger’s scholarly opinion has demonstrated that the cases have established a different standard. And the Supreme Court has recently spoken in .a case where, as here, the defendant admitted the acts charged;5 it applied the rule that while he may properly withdraw a guilty plea prior to sentencing, there must be some good^reason for allowing him to do so.6 ^Ehus the issue framed for us is whether sufficient reason exists to withdraw the plea when the defendant claims mitigating circumstances and apparently seeks to have the .jury pass, not on the issue of the historical facts charged, but on the issue of Culpability.
¶43Our jun^ prdperly pass on the culpability of the accused. An element of the crime charged is mens rea, and if “the jury cannot find that that state of mind existed in the accused, it must acquit. Thus, in the extreme instance, a verdict of not guilty by reason of insanity is tantamount to a finding of “proved” on the Government’s charge concerning certain events, but a finding of “not culpable” on the defendant’s claim concerning his state of mind. A verdict of “not guilty” may have a similar meaning; when the defenses of self-defense, privilege or excuse are raised, for example, a jury may find that the deed was done, but that the man is no criminal. Indeed, it has been recognized as an “elementary principle of justice” that “when a man’s life or liberty is at stake he should be adjudged according to his personal culpability as well as by the objective seriousness of the crime.” Fisher v. United States, 328 U.S. 463, 492, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946) (dissenting opinion of Mr. Justice Murphy).
¶44This power of the jury to pass upon culpability is reflected in the institution of the general verdict. Juries decide “guilty” or “not guilty,” criminal or not criminal, rather than bring in a special verdict as to commission of the act charged to the accused. Reflected in the jury’s decision is a judgment of whether, under all the circumstances of the event *986and in the light of all known about the defendant, the prohibited act, if committed, deserves condemnation by the law.7
¶45In one period in England, the Star Chamber punished juries who acquitted men who had obviously done the acts charged.8 But, with the development of the common law, attaints, fines and imprisonments of juries were abolished, leaving juries free to find as the evidence and their oaths led them.9 The Colonial case wherein John Peter Zenger10 was prosecuted for seditious libel stands as a landmark instance where the defendant went to the jury on his admission of the facts charged and his claim, nevertheless, of no culpability. By acquitting Zenger, the jury fulfilled its role as protector against unjust laws or their unfair application. In the century following the Zenger case, it was generally recognized in American jurisprudence that the jury, agent of the sovereign people, had a right to acquit those whom it felt it unjust to" call criminal.11 In a leading case12 at the end of the nineteenth century, the Supreme Court affirmed that the jury had this power, while a strong opinion for the minority13 went further and reaffirmed the American common law tradition that this was no mere power of the jury, but their proper right.14 Modern discussions in both criminal and civil law have re-emphasized this “dispensing-function” of the jury.15
¶46*987The mitigating circumstances the defendant here claims may not be enough ~to convince the jury that his crime is ■excusable, but to my mind his desire to raise the issue of culpability for jury decision may be sufficient cause to allow him to withdraw his plea of guilty and go to trial.
¶47The recent ruling16 of the Supreme Court, handed down subsequent to the decision of the District Court here, indicates that the withdrawal of the guilfy plea before sentence by one who admits his guilt may be proper. The case before us is a stronger one than the case before the Supreme Court, for here the defendant wishes to raise an issue as to his culpability. Perhaps the district judge here, like the district judge in that ease, was unaware that under the law a defendant may change his plea before sentencing, even where he does not challenge the commission of the act charged against him. I would therefore vacate the decision below and remand for consideration in the light of the recent Supreme Court opinion.17