(dissenting). George Hetenyi stands convicted of the crime of murder in the first degree and awaits execution of a duly imposed sentence of death for having, as charged in the indictment, ‘ ‘ on or about April 22, 1949, in the County of Monroe, New York, wilfully, feloniously and from a deliberate and premeditated design * * * killed [his wife] Jean * * * by shooting ” (Penal Law, § 1044, subd. 1).
We all agree with the Chief Judge when he says in the prevailing opinion that “ The facts there stated, as we believe, were an ample warrant for the finding by the jury that the crime in question was committed by the defendant in Monroe County, New York, as alleged in the indictment ”, for on this, record the evidence of defendant’s guilt of the crime charged is indeed incontestable. Nonetheless, a majority take the view that the judgment of conviction should be reversed and a new trial ordered on the ground that the defendant was prejudiced before the jury, when the Monroe County District Attorney, in the course of his summation in behalf of the People, made remarks which, it is said, might reasonably be understood by the jury as an unfavorable reference to defendant’s failure *89to take the stand in his own behalf, and that he had a bad character.
We have no quarrel with the fundamental soundness of these ancient safeguards and their obvious purpose to assure that an accused shall stand before the bar of justice clothed in the presumption of innocence and with an unblemished character. We are unable however, to agree that on this record the summation by the District Attorney in behalf of the People prejudiced this defendant in a substantial right. It is not unusual that in a long drawn-out and closely contested ease followed by an exhaustive summation, sometimes counsel carelessly and thoughtlessly make remarks that on reconsideration are deemed not only indiscreet and unwarranted by the evidence, but which, if allowed to stand without being corrected, may prejudice a substantial right. Under long-established practice such happenings are not necessarily fatal to the whole case but may be effectively cured by the court under a proper charge to the jury. This, we believe, is indubitably such a case.
According to the record, the People introduced evidence showing the presence of many bloodstains inside the defendant’s automobile. In the course of his summation the Monroe County District Attorney commented on this proof saying in substance that the presence of such bloodstains could be explained by “ nobody in the wide world with one exception ” which, it is said, might be taken by the jury as an unwarranted reference to defendant’s failure to testify in his own behalf with consequent prejudice to a substantial right (Code Grim. Pro., § 393).
At another point, while narrating the sequence of proven events connecting the defendant with the crime, the District Attorney spent some time in detailing the circumstance of the finding of the victim’s body in the Genesee River, and the difficulty experienced by the authorities in establishing identity. In this connection the testimony of Sheriff Skinner, a witness for the People, was discussed. He had testified, in substance, that when he went to defendant’s home in Buffalo and asked him to go to Rochester — and this at a time before the defendant had been accused of any crime and before his arrest — for the purpose of aiding in the identification of the woman’s body found in the Genesee River and believed to be defendant’s wife, the defendant had refused saying: “ I stand *90on my Constitutional rights.” All of this evidence had been received without objection and was in the case for all purposes. It is in connection with such proof that the District Attorney is now said to have commented unfairly and to defendant’s prejudice, when he said:1 ‘ By what ruse this defendant brought her down here [that is to the river] you’ll never know, nor I’ll never know, not as long as he stands on his constitutional rights, so-called ”.
When viewed in the light of the whole record and the whole summation, we cannot say that these comments by the District Attorney so exceeded the bounds of fair comment as to injure and prejudice the defendant before the jury in a substantial right. We are persuaded to this view by the circumstance that the trial court in his charge expressly instructed the jury “ to consider the statements and arguments of counsel on either side only when they are based upon the evidence ” and admonished them to “ disregard any statement, comment or argument which is not supported by the evidence.” To make doubly sure that the jury would draw no unfavorable inference, if indeed it were at all possible, he expressly instructed them as follows: ‘ ‘ The defendant in this case, as you have observed, did not take the stand in his own behalf. Under the law of this State he has a perfect right so to do. He may testify in his own behalf but he is not obliged to do so if he does not choose to do so. The law in this State expressly provides that his neglect or refusal to so testify does not create any presumption against him:” The possible unfavorable effect resulting from the District Attorney’s comment during summation, if indeed any existed, must be deemed to have been cured and corrected by this charge (People v. Priori, 164 N. Y. 459), particularly when the proof clearly points to defendant’s guilt (People v. Gillette, 191 N. Y. 107), which principle has been reiterated in People v. Watson (216 N. Y. 565), and may well be regarded as firmly imbedded in our criminal practice. The case of People v. Minkowitz (220 N. Y. 399), relied on by a majority, is not to the contrary, for there the court failed, on request of defendant’s counsel, to direct the jury to disregard comments made by the District Attorney during his summation on behalf of the People that the defendant had failed to take the stand. In People v. Forte (277 N. Y. 440, 441-442), the court specifically charged that while the *91jury might not draw any unfavorable inference because of defendant’s failure to testify it was “ warranted in taking the facts and circumstances established in the case, which, if he were innocent, he might have controverted or explained, most strongly against him.” While that was not a capital case it nonetheless illustrates that the rule relating to the inference to be drawn from the failure of a defendant to take the stand in a civil case may not be transposed for use against an accused in a criminal case by the court’s charge. The very recent ease of People v. Leavitt (301 N. Y. 113), among other issues dealt with the extremely inconclusive nature of the circumstantial proof as well as other trial errors warranting reversal. In addition, we also note that the trial court over defendant’s objection and request, did not advise the jury that the defendant’s failure to take the stand in his own behalf would not create any presumption against him, an omission which could not very well be overlooked in the circumstance of that case (Code Crim. Pro., § 393).
In the light of these authorities any unfavorable presumption arising from the District Attorney’s remarks — if deemed to have exceeded the bounds of fair comment — must be regarded as having been effectively cured by the subsequent charge to the jury — and had no effect on the verdict — which, as we all agree, is amply supported by the evidence.
We turn now to a consideration of the language used by the District Attorney in commenting on defendant’s frequent and successive changes in his religious affiliations when he said: “ and it shows the character of the man and the character of the man is important in your determinations as to whether he would have committed the crime which has been charged against him.” A majority regard this as an attack on the defendant’s character which was not an issue in the case, and thus injured him in a substantial right.
We cannot accept such view. Inept words by counsel during summation, whether carelessly or deliberately spoken, should not be used to set aside a verdict unless it appears that the verdict depended thereon. Here the verdict, as we have said in the prevailing opinion, has “ ample warrant ” in the evidence. In fact, no other verdict could very well have been found under any reasonable view of the evidence. In this state *92of the record it cannot very well be said that the verdict was in any way dependent on the remarks complained of. If the overwhelming evidence in this case is not enough to overcome the alleged unfavorable presumption, further answer is to be found in the record.
Throughout the trial of this case the defendant’s religious peregrinations were inextricably intertwined in the proof. The defense counsel examined prospective jurors in respect to it. In his opening statement he admonished the jurors to remember that the defendant was being tried for murder in the first degree and not ‘1 for having been a Catholic priest or for having been a Greek Orthodox priest or for having been a Methodist minister or for having been an Episcopalian minister * * *. You must remember this man is charged with murder, not with leaving one faith and joining another. * * * 1 Will you look to it to see that the People sustain the burden of proving not the change of religion, but murder in the first degree.’ ”
When proof of defendant’s religious background was offered by the People not a single objection was made to the evidence that the defendant, a native of Hungary, had been ordained a Roman Catholic priest and had performed ecclesiastical duties in the Roman Catholic Church in both this country and Canada for several years, when he renounced his vows in order to marry the victim herein and then by successive stages changed his religious affiliations finally serving as a probationary assistant in the Episcopal Diocese of Western New York. The. defense counsel, during his summation to the jury, commented at length and exhaustively on this phase of defendant’s life — not that such evidence was improperly admitted, but that it had no probative value in determining the issue of defendant’s guilt. The jury thus heard defense counsel make repeated reference to defendant’s religious affiliations from the beginning to the end of this long trial (April 25, 1951, to May 12, 1951).
We must bear in mind that the alleged harmful comment by the District Attorney came in the course of a long and detailed summation and had reference to a phase of the defendant’s prior religious life, that had little, if any, bearing on the issue being tried and which no reasonable person could possibly interpret as indicating a propensity and tendency to commit the crime of which he was charged. We must give the jury credit *93for being persons of common sense and not totally devoid of reasoning power. The character rule is designed to assure that the accused will stand before the jury unblemished by his past — particularly free from any showing that he is guilty of any crime, in a legal sense, other than the one with which he is charged, or that his past conduct is such as to indicate a propensity to commit the crime charged and furnish an excuse therefor.
An analysis of the leading cases in which the character rule has been applied all point to the conclusion that the prejudice constituting reversible error arises when testimony is received in evidence which tends to establish the commission of a crime other than the one with which the accused is charged (People v. Zackowitz, 254 N. Y. 192; People v. Richardson, 222 N. Y. 103; People v. Thompson, 212 N. Y. 249; People v. McLaughlin, 150 N. Y. 365; People v. Mullens, 292 N. Y. 408; People v. Nuzzo, 294 N. Y. 227).
In the Zackowitz case (supra) proof was adduced showing that the defendant was guilty of another crime for which he was not charged, viz., unlawful possession of two pistols concededly not used in connection with the homicide for which he was being tried, admission of which was deemed by this court as an endeavor to generate an atmosphere of professional criminality.
Much the same situation existed in People v. Mullens (supra, p. 418), where proof, if credited by the jury, indicated commission of a crime not charged, which we viewed as without “ any probative force save as thereby it was implied that the defendants were men whose experience had predisposed them to the commission of offenses of the sort for which they were on trial. Since these numerous extraneous crimes were allowed to be taken into account, we must conclude that the jury were influenced thereby ’ ’.
Another recent case is that of People v. Nuzzo (supra), where again proof of other acts criminal in nature, unrelated to the offense charged, was received over objection, which on appeal was deemed error.
Under the authorities it seems quite clear that the reference to character which is condemned arises when testimony of nonrelated criminal acts is received over objection and which, if credited by the jury, would lead them to believe that the *94accused had a tendency to commit the crime charged. In other words, that he had a bad character which could be taken as accounting for the commission of the crime for which he was being tried.
Here the proof relates not to other criminal conduct but to the defendant’s religious background, a matter having nothing whatsoever to do with the crime of which he was charged. It was in the case because it could not very well be ignored. The inept language by the District Attorney was certainly not evidence and when analyzed in the setting in which it was spoken and in the light of all the proof it hardly seems possible that the jury could have regarded it as other than fair comment. A jury must be deemed possessed of the intelligence of the average man and we believe that the jury here brought -in their verdict because the proof was overwhelming that the defendant committed the crime of which he was charged, and not because of any comment made by the District Attorney during his summation. We believe it reasonable to suppose that the defense counsel and the trial court were of the same view at the time since no objections were taken to such remarks and no requests were made of the court to instruct the jury respecting them. While under our practice the review of a capital case does not depend on noted objections and exceptions, nonetheless it is significant that the defense counsel at the trial made no complaint that such language was prejudicial, while at the same time he devoted several pages of the record to the making of requests to charge relating to other items, some of which were granted and some of which were refused, which rulings, we all agree on this appeal, were properly made. When the comments of the District Attorney are viewed in the light of the whole record and this case is compared with the pattern heretofore followed in other cases, we should regard the alleged prejudice as insubstantial and we should affirm the judgment of conviction herein without regard to any possible technical invalidity under the provisions of section 542 of the Code of Criminal Procedure.
Lewis, Conway and Fboessel, JJ., concur with Loughean, Ch. J.; Dye, J., dissents in opinion in which Desmond, J., concurs ; Fttld, J., dissents and votes to affirm under the provisions of section 542 of the Code of Criminal Procedure.
Judgment of conviction reversed, etc.