(dissenting). I dissent and vote for reversal and a new trial on the ground that the persistent indulgence of the district attorney in inflammatory remarks in his summary to the jury tended to create such a prejudice against the defendant, and to inspire fear in the minds of the jury in case they did not convict, that a new trial should be had in the interests of justice.
Such remarks were not justified by any language claimed to have been used by defendant’s counsel, and which are not shown by the record.
The learned district attorney in his zeal to obtain a conviction at all hazards was led into the use of language which tended to show that he was not impartial but was a strong partisan. His reference to the fact that defendant could appeal and have any errors corrected, whereas if there was an acquittal the People had no relief, was prejudicial to defendant’s right to a fair and impartial trial, and in my opinion constituted reversible error. (People v. Esposito, 224 N. Y. 370, 376.)
That language in effect suggested to the jury that no harm could come to defendant even if his conviction was the result of errors, because they could be corrected on appeal, whereas if because of an error there was an acquittal the People had no right to appeal. This remark was highly prejudicial to defendant, and in and of itself requires a new trial. (People v. Esposito, supra.)
The statement of the district attorney in his summary, “ The People of the county of Steuben are watching you,” tended to terrorize the jury and force them to render a verdict of guilty to escape the wrath of the public.
We cannot assume that this inflammatory language did not affect the jury in their final deliberations. If the evidence of defendant’s guilt had been overwhelmingly in favor of the contention of the People, so that we could fairly assume that the language of the district attorney did not tend to prejudice the jury against defendant, the error might be overlooked on the theory that his rights were not affected. (Code Crim. Proc. § 542.)
In this case where the evidence to connect defendant with the commission of the crime charged was wholly circumstantial and where there was an entire absence of motive, the prejudicial language *36used by the district attorney ought not to be overlooked. It was of such an inflammatory nature that it tended to create a situation Where the verdict was based more upon passion and prejudice than upon the evidence.
Under the circumstances it is my opinion that defendant was not accorded that fair and impartial trial to which he was entitled under our system of administering the criminal law. (People v. Teiper, 186 App. Div. 830.)
The judgment of conviction should be reversed, and a new trial granted.
Judgment of conviction affirmed.