(dissenting). In this ease the charges made came originally from sources that were discredited at trial, from persons whose credibility was destroyed. Such persons also had the strongest motives of self-interest in making the charges at the time they were made, and in utter disregard of any sense of truth, honor, fairness or justice, they originally falsely accused these defendants of taking 8,400 pounds in English currency instead of 4,000, the charge made at the trial. At trial they admitted the falsity of the original charge made to the District Attorney. Testimony from such discreditable sources was necessary, in part at least, to sustain the verdict. In such a ease it was most important that prejudicial remarks not based on any evidence before the court, should not have been made in an argument to the jury for defendants’ conviction. We think the insinuations made in the summation of the assistant district attorney concerning the People’s witness, Scott, were of this nature, prejudicial to defendants and clearly there was no evidence whatever in the record to sustain them. Neither appellants nor their counsel were responsible in any way for this conduct.
We are not left in doubt that the prejudicial remarks in question made a deep impression upon the jurors’ minds; for, after the jury was out seven hours, the jury returned and asked to have Scott’s original testimony to the District Attorney or Grand Jury read. As there was no such evidence in the record, the jury then asked if they could hear Scott’s testimony at the trial *929and it was read to them. The jury then retired and after two hours further deliberation found a verdict of guilty against all defendants. A motion was made to set aside the verdict specifically on the ground of the prejudicial statements in question. The detective defendants had a prior unblemished record personally and in their official capacity as police officers and had received commendation for exceptional service. Of the other two defendants, one of them had a prior conviction many years before. On the unique state of facts this record presents, we think in the interest of justice a new trial should be directed.
The judgment of the Court of General Sessions should be reversed and a new trial ordered as to all defendants.
Peck, P. J., Callahan and Van Voorhis, JJ., concur in Per Curiam opinion; Dore, J., dissents and votes to reverse and order a new trial, in opinion in which Shientag, J., concurs.
Judgments affirmed.