(dissenting).
I wrote an opinion in this case, but the other members of the court did not agree and I am reduced to dissent as to the last point ruled by the principal opinion.
I believe that the questions, answers, and rulings which occurred in the cross-examination of the witness Gann, when taken in combination and in cumulative effect, constituted prejudice which entitled defendant to a new trial. His motion for new trial challenged error in admission, over objection of defendant, of evidence as to fights which defendant had on other occasions, “defendant not haying first put his good reputation in issue and this being an attack upon it by specific acts.” Separate assignment of error number 5 in his brief presented this, and in his points and authorities 4 and 5 he attempted to cite authority to sustain this contention. When defendant testified as a witness in his own behalf he was cross-examined as. to previous convictions. This was proper, because such affected his credibility as a witness, and was without objection, except that near the conclusion of that cross-examination the prosecuting attorney asked defendant if he had been in any fights “since this occurrence,” and this defendant denied (objection after answer was sustained). In only one instance and at one place in the record did the state attack defendant’s past reputation for law violation, this by reference (in real effect what amounted to statements so couched as to indicate personal knowledge on the part of the prosecuting attorney) to specific incidents of unfair, malicious, violent, and brutal misconduct by the defendant on occasions which were previous to the date of the crime here charged.
In this one and only instance the defendant called George Gann, a police officer of the city of St. James, who testified that he had not been there long and had been acquainted with the people of that community for possibly a year and a half. By this witness defendant attempted to prove reputation of the prosecuting witness, Duck-worth, for law obedience, but the witness failed to qualify and the state’s objection was sustained. In that same direct examination defendant’s attorney asked the witness :
“Q. Well, now, since September the 8th or 9th, 1956, [the case was being tried on June 26, 1957] the defendant, Elmer White, hasn’t been in any trouble down there, has he? A. Not that I know of. I mean, not any— (hesitates) no trouble that I have any knowledge of.”
The full flavor and effect of the cross-examination and the rulings of the court can be shown only by statement verbatim:
“Q. (By Mr. White) Now you say that you’ve — don’t know of any trouble Elmer White [has] been into in several years there? A. Well, not to my personal knowledge.
“Q. You mean you just haven’t seen it? A. I haven’t seen him — it.
“Q. Well, you know he run a tavern for several years? A. I have heard that he did, Mr. White.
“Q. And haven’t you heard about a lot of fights and things he had around that tavern?
“Mr. Bradford: Now wait a minute. If the Court please, the defendant *57hasn’t put his good reputation in issue and so the State’s not permitted to attack it.
“Mr. White: Well, he has by asking that question.
“Mr. Bradford: No, I didn’t ask about his reputation.
“Mr. White: You in effect put it in. Well, you’re asking about the same thing.
“The Court: Well, sustained, I guess in that form. He did ask him if he’d been in any trouble since September the 9th. Anyway, try to bring out what you think the jury should know about the issues in the case in order to help them decide the case fairly and properly.
“Q. (By Mr. White) Now don’t' you know that Elmer’s had many fights ■out there where he’s took unfair advantage of the other persons all the time, striking him unfairly and maliciously and violently attempting to injure them personally and disable them—
“Mr. Bradford: Now, that’s objected to.
“Mr. White: — don’t you know that ?
“The Court: Sustained, unless you limit it to some particular time.
“Q. (By Mr. White) Well, don’t you know when he beat Verlon Riden-hour, who had a plate in his head, beat him unmercifully with a club; don’t you know about that ? A. I have heard of these occasions. I don’t personally know of them. I haven’t lived in St. James that long.
“Mr. White: Well, that is all.”*
(a)Assuming that the inquiry as to whether defendant had been in any trouble since the assault date tendered an issue as to that period (see State v. Carson, Mo.App., 239 S.W.2d 532), I am of the opinion it did not open the issue as to defendant’s conduct during the years of his life preceding that date. A defendant has the presumption of good character until he clearly and expressly puts it in issue. 22 C.J.S. Criminal Law § 676, p. 1069; City of St. Louis v. Tanner, Mo.App., 143 S.W.2d 354; State v. Pinkston, 336 Mo. 614, 79 S.W.2d 1046.
(b) But if we assume that the unfortunate question concerning defendant’s conduct after the assault date opened a veritable Pandora’s box of specific incidents which occurred during his past life and prior to September 8, then it would seem to me that proof of such incidents would be obtainable only by evidence obtained from an inquiry in the nature of a direct examination and not by cross-examination of the character here presented. The witness had not testified concerning the period of time or the lurid incidents which were dug out of the past, coated with the prosecuting attorney’s very personal, opinionated, and colorful description, and flung at the witness.
(c) Be that as it may, I am of the opinion that the whole context of the cross-examination was improper and prejudicial for another reason. Ordinarily proof of independent crimes is not admissible. State v. Leonard, Mo., 182 S.W.2d 548; State v. Cole, Mo., 213 S.W. 110; State v. Ingram, Mo., 286 S.W.2d 733. Cross-examination of character witnesses concerning rumors or neighborhood talk which the witness may have heard is permissible, but only for the limited purpose of testing the reliability of the witness, and not for the purpose, or to accomplish the effect, of proving the fact that other offenses have been committed. State v. Mahan, Mo., 267 S.W. 866; State v. Cooper, Mo., 271 S.W. 471; State v. Mitchell, 339 Mo. 228 96 S.W.2d 341; see discussion Reuben v. U. S., 7 Cir., 86 F.2d 464, 468; see extensive annotation, 47 A.L.R.2d 1261, 1274, et seq.
*58In State v. Carroll, Mo., 188 S.W.2d 22, the Supreme Court endeavored to secure some fairness toward defendants by laying down some restrictions covering cross-examination of character witnesses. Among them are: That the inquiry must not be as to matters remote; it must be directed to rumors and not be of the “don’t you know” variety; above all, the questions must not be couched in such manner that they amount to an implied or indirect assertion of the existence of such facts. They should not be thinly veiled assertions that the prosecuting attorney knows such facts to be true. 58 Am.Jur., Witnesses, secs. 660 and 661, p. 364; State v. Seay, 282 Mo. 672, 222 S.W. 427; Pittman v. U. S., 8 Cir., 42 F.2d 793, 796; Little v. U. S., 8 Cir., 93 F.2d 401, 408; see Underhill’s Criminal Evidence, 4th Ed., sec. 172, p. 302. Neither should the questions and cross-examination go into detail any more than is necessary to identify the rumors or misconduct to which the attention of the witness is directed. It must be remembered that the defendant is helpless to defend his real, if any, innocence against a flank attack of this sort, and the inquiry should not contain a hair-raising, skull-splitting recounting of unsavory facts in order to slip before the jury a recital of malevolent or gruesome details (which may or may not be true and if true may have been justified) which are bound to influence the jury. 58 Am.Jur., Witnesses, sec. 659, p. 364; Annotation, 71 A.L.R., § II dl, p. 1519; State v. Beckner, 194 Mo. 281, 91 S.W. 892; State v. Crow, 107 Mo. 341, 17 S.W. 745(3); State v. Parker, 172 Mo. 191, 72 S.W. 650; Magee v. State, 198 Miss. 642, 22 So.2d 245.
In this instance I think the sum total of the prosecuting attorney’s inquiries polluted the atmosphere of fairness which should surround a criminal trial by discharging therein the fact that defendant ran a tavern for several years (in a period not covered by the examination in chief); had had a lot of fights “and things” there; that he, impliedly to the knowledge of the prosecuting attorney (“don’t you know”), “took unfair advantage” “all the time”; that he maliciously attempted to injure and disable persons; and finally, that he took a club and “unmercifully beat” a man “who had a plate in his head” If the jury members had not made up their minds to a verdict of maximum punishment by then, no doubt this series of statements accomplished that result.
Prosecuting attorneys are more than advocates. They are officers both of the state and of the courts. It is not their duty to secure willy-nilly and at all costs a conviction. They should be impartially fair and they should abide by the established rules of evidence and procedure. State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524; State v. Bowenkamp, Mo., 39 S.W.2d 753; State v. Wellman, 253 Mo. 302, 161 S.W. 795, 800; State v. Nicholson, Mo.App., 7 S.W.2d 375. Nor is the trial of a criminal case a gladiatorial contest in which the weaker or the inept must inevitably succumb before the more experienced, the more persistent, or the more fierce and violent fighter. It sometimes becomes the duty of the court to intervene, even though there is no objection. State v. Lasson, 292 Mo. 155, 238 S.W. 101, 104; State v. Rhoden, Mo., 243 S.W.2d 75, 78; State v. Connor, Mo., 252 S.W. 713, 722; see State v. Shipley, 174 Mo. 512, 74 S.W. 612; State v. Dixon, Mo., 253 S.W. 746, 748. The trial court has a discretion to exercise in regard to cross-examination of character witnesses. State v. Wilson, Mo., 248 S.W.2d 857; State v. Wilson, Mo., 34 S.W.2d 98. And in this case I think it should have been exercised to restrain the inquiry.
(d) My brethren hold that defendant did not object enough and that he got all he asked for, and so it can well be argued by taking the questions and objections singly and one at a time; but in my opinion this sweeps under the rug the broader question of cumulative prejudice. Defendant objected twice and received only qualified rulings. Either such rulings were not sufficient to inform the prosecuting attorney *59and to restrain him from proceeding with that line of inquiry on the one hand, or if so, then on the other hand the prosecuting attorney proceeded in defiance of such rulings. The defendant objected, but the objections netted no result. In baseball parlance, the prosecuting attorney got on base with his vehement and colorful accusations of misconduct, whether through a hit or a base on balls. Defendant did not object to the last question, but of what avail another and further objection here? So far as the practical effect upon the fortunes of the defendant was concerned, his ■two previous objections had been overruled. No further ruling of the court on the last question could have removed the prejudice which had already been engendered. The damage had already been done. “The astute lawyer for the state had sunk his fangs deep in the life blood of the defendant — too deep for the poison to be withdrawn.” State v. Webb, 254 Mo. 414, 162 S.W. 622, loc. cit. 628. It is not necessary for a defendant to further prejudice himself before a jury by making repeated objections to the same character of testimony when it is obvious that such objections will be useless. State v. Sanford, 317 Mo. 865, 297 S.W. 73, 77; State v. Goldfeder, Mo., 242 S.W. 403, 404. And even though the objections are sustained, if the mere asking of the questions has injected ineradicable poison and prejudice, the defendant is entitled to a new trial. State v. Burns, 286 Mo. 665, 228 S.W. 766, 769; State v. Teeter, 239 Mo. 475, 144 S.W. 445; State v. Nicholson, Mo.App., 7 S.W.2d 375; see State v. Archie, 301 Mo. 392, 256 S.W. 803; State v. Dixon, Mo., 253 S.W. 746. I think that these questions and objections cannot be considered and ruled upon singly but must be looked at in combination. One cannot fairly take the individual questions and objections separately and assess the full force of their effect, any more than one can pull the petals one by one from a rose and from examining these individual petals say, “This flower has no beauty or fragrance.” It is the sum total and combination of the cross-examination which worked injury to the defendant and in my opinion denied him a fair trial. The evidence in this case strongly indicates the defendant was guilty of a vicious and brutal assault; but we should not let our abhorrence of his acts lead us into approval of that which was prejudicial to his rights and which, approved or even condoned, may in the future be used to convict innocent men. For such reason I believe the case should be remanded for retrial.
Italics are my emphasis.