Aрpellants, Rudolph, Taylor and Reese, were found guilty by a jury in the District Court of conspiracy to violate the narcotics laws. 21 U.S.C. § 174 and 26 U.S.C. § 4705(a). Rudolph and Taylor were each sentenced to five years’ imprisonment, and Reese to ten years’ imprisonment.
The Government’s evidence was supplied by an informer nаmed Herbert Robinson, three Federal Narcotics Agents, and two detectives from the City of Cleveland whо accompanied Robinson to Mansfield, Ohio, where a sale of narcotics was consummatеd.
At the trial, Taylor was the only defendant who testified. On cross-examination, the first question asked of him *806 by the Assistant United States Attorney, was:
“By Mr. Jones:
Q. Mr. Taylor—
A. Yes.
Q. ■ — did you and Albert Reese and Willie Rudolph send Donald Gregory to Cleveland to kill Emmitt Robinson ? *
Mr. Willis: [Attorney for Rudolph and Taylor] I object, and I move for a mistrial.
The Court: The objection is sustained, and I am going to ask the jury to completely disregard any statement to that effect.”
The Court denied the motion for a mistrial and also a like motion of counsel for Reese.
The Government did not undertake to prove on rebuttal that the defendants sent Gregory to Cleveland to murder Robinson, and the record does not disclose any factual basis for the question. The question was therefore not only improper but it was highly prejudicial to the defendаnts to propound it.
Defendants Reese and Rudolph had not taken the witness stand and there was no occasion to offer impeachment evidence against them.
It is clear that ordinarily on cross-еxamination a defendant may not be questioned as to whether he participated in unrelated sрecific acts of criminal conduct not resulting in a conviction, as such evidence has no relеvancy to the issue of defendant’s guilt or innocence of the crime charged, and such evidencе is likely to be extremely prejudicial. United States v. King,
The Government did not establish the relevancy of such еvidence in the present case.
The Government contends that the error was cured by the court’s instruction to the jury to disregard the question. While ordinarily the trial court has discretion to determine whether a cautionary instruction is sufficient to avoid granting a mistrial, we think that the question asked in this case was so clearly improper and prejudicial to the defendants that the harm could not be erased by any instruction whiсh the court might give. United States v. Smith,
But this was not the only improper question asked by the Government attorney. Later in the same cross-examination of Taylor, he continued:
“Q. You knew that Reese had been convicted, arrested and convicted, of a narcotics violation in the State of Ohio?
Mr. Willis: Objection. I movе for a mistrial and ask the court to instruct the jury to disregard this. I move for a trial.
Mr. Wolery: I join in the motion on behalf of Reese.
The Court: I am going to tell the jury to сompletely disregard any statement made by Mr. Jones with reference to any other crimes which he hаs stated one of the defendants may have committed. It has no bearing in this case at this time, and you arе to completely disregard the question. It has *807 nothing — you are not to consider it at any time at all, and the court will overrule the motion for a mistrial.”
Evidence of prior criminal convictions is inadmissible as irrelevant where the defendant does not testify and his character is not otherwise in issue. Courts have consistently held that evidence of an unrelated prior crime is not probative of the crime in the present trial and is highly prejudicial to the defendant. Boyd v. United States,
Like the previous question, we are of the оpinion that the cautionary instruction did not remove the prejudice. It must be remembered that after the saber thrust, the withdrawal of the saber still leaves the wound. But this error related only to Reese and not to thе other two defendants and did not prejudice them. United States v. Rinaldi,
It is contended that this evidence was аdmissible as a similar act to establish motive or intent. Tandberg-Hanssen v. United States,
The question propounded, however, was not formulated to prove a similar act,- but only to inquire whether Taylor knew that Reesе had been convicted of a crime in the state court. Whether or not he knew was not material to any issue in the case. It is the type of question which could properly be asked of a character witness on cross-examination. But Taylor was not a character witness; he was testifying in his own behalf. Reеse did not testify, and impeaching evidence could not be offered against him.
The record reveаls that the District Court permitted extensive cross-examination of the Government informer Robinson. We find no abuse of discretion in its rulings in respect thereto.
In our opinion, the evidence was sufficient to suppоrt the conviction.
We regret the necessity of setting aside the judgment of conviction in a case otherwise tried free from error. We are of the opinion that the conduct of the Assistant United States Attоrney as above portrayed operated to deprive the appellants of a fair trial, to which they were entitled, and that reversal is required.
The judgment of conviction is reversed as to each defendant and the cause is remanded for a new trial.
Notes
The Government informer, whose correct name is Herbert Robinson.