(dissenting). Upon the trial there was received in evidence over the objection and exception of the defendants, evidence of deposits by Clifford B. Moore in his bank accounts during the years 1925 to 1927 of some $83,000 in excess of his salary and of visits by himself and Mrs, Moore to their safe deposit box. *195This evidence, the court told the jury, was relied upon by the prosecution in support of the charge of conspiracy and as proof of profits derived therefrom. The following request to charge was made and refused: “ There has been read to you entries from the bank account of Clifford B. Moore. Unless, independently of that evidence, you would be willing to convict him of the conspiracy charged, you must dismiss that evidence from your minds. It would not only be wrong and unjust to the defendants, but it would outrage the law for you to consider that evidence at all unless you first concluded from the other evidence that beyond a reasonable doubt Clifford B. Moore was guilty of the conspiracy charged, although he was not indicted for it. So, before you give that evidence any thought, I charge you to first ask yourselves, ‘ On the other evidence before us, can we say he is guilty? ’ ”
The theory upon which the evidence was received was that the prosecution had established prima facie that Moore was a co-conspirator. The admission of this evidence required the existence of other proof prima facie of Moore’s complicity in the conspiracy. (People v. Davis, 56 N. Y. 95.) It was inadmissible as evidence of the conspiracy itself. (Cuyler v. McCartney, 40 N. Y. 221, 228.) The evidence to which our attention is directed, and which it is claimed established prima facie Moore’s complicity in the conspiracy, is his written approval of certain bids, contracts upon which were awarded by the defendant Connolly, and advice as to the rejection of certain bids upon which Connolly is claimed to have acted. This, it is said, established prima facie that Moore was a member of the conspiracy.
Evidence of recent accession of wealth is warranted only upon the theory that the persons against whom it is offered are in conspiracy. Its object in the case at bar was to create the inference that Phillips had bribed Moore in furtherance of the conspiracy. There is too great a void, however, between the fact of Moore’s deposits and the inference sought to be drawn, to warrant the conclusion that Phillips was the cause of them. It is not disputed that Moore’s duties as consulting engineer were, among other things, the approval or rejection of bids for the advice of the defendant Connolly, who was not an engineer. His approval and advice as to rejection of bids is, it seems to me, under the circumstances, as consistent with innocence as with guilt. It follows, I think, that the proof was not sufficient to establish prima facie that Moore was a co-conspirator. Furthermore, while the defendants were not entitled to the charge in the form requested, they were entitled to a charge that before the jury might consider the evidence of bank deposits they must first find beyond a reasonable doubt *196that Moore was a co-conspirator. (Schultz v. State, 133 Wis. 215; People v. Monnais, 17 Abb. Pr. 345, 349; 2 Wharton Crim. Ev. [10th ed.] § 698, p. 1432; Commonwealth v. Brown, 14 Gray, 419, 432; United States v. McKee, 3 Dill. 546, 550; Fed. Cas. No. 15,685; Miller v. Dayton, 57 Iowa, 423, 429, and State v. Roberts, 201 Mo. 702, 727, 728; 100 S. W. 484.) (See People v. Becker, 215 N. Y. 126, 149.) The defendants had a right to an impartial trial upon legal evidence, and this court cannot disregard the admission of inadmissible evidence unless such admission could by no possibility influence the jury. (People v. Altman, 147 N. Y. 473.) It cannot be said that the evidence of Moore’s bank account did not influence the jury, and the failure of the trial court properly to instruct the jury in reference thereto was error. For these reasons I agree with the conclusion reached by Mr. Justice EApper.
I think there was another error by which defendant Connolly’s rights may have been prejudiced. The defendant Connolly called character witnesses, among whom were Justice Humphrey, Father Meehan and Doctor McGill. The learned Deputy Attorney-General who prosecuted the indictment, after telling the jury that he had heard the law in respect to the weight to be accorded character evidence many thousands of times, said in his summation: “But. if Judge Humphrey, Father Meehan, Dr. McGill, that school principal and that life insurance agent, if they were jurors, if they took oath as jurors and heard all the evidence that you have heard in three weeks, every single one of those men would vote for the conviction of Connolly, and I will stake my professional reputation on it.” Upon objection being raised to this statement of the Deputy Attorney-General, the learned trial court said: “I do not thinls there is any impropriety in the suggestion.”
It has been frequently stated that evidence of good character is a matter of substance, not of form, in criminal cases, and must be considered by the jury as bearing upon the issue of guilt even when the evidence against the defendant may be very convincing. (People v. Colantone, 243 N. Y. 134,136.) Our late associate, Mr. Justice Jaycox, in People v. De Martine (205 App. Div. 80, 84), said: “ The proper attitude of the court would have been to instruct the jury that the opinion of the assistant district attorney as to the guilt of the defendant should be disregarded and that, if in the course of his summing up he had asserted his personal opinion, it was the duty of the jury to disregard that opinion entirely, and that it was highly improper for the assistant district attorney to make any statement to the. jury in relation thereto.” The jury may have considered that these remarks of the prosecutor, and their judicial *197approval by the learned trial court, destroyed the value of defendants’ proof of good character.
The error in reference to the admission of evidence of Moore’s bank account, together with the remarks of the Deputy Attorney-General, which I cannot say were not prejudicial, may have influenced the jury, and I, therefore, dissent and vote for reversal of the judgment of conviction.