(dissenting). Being unable to concur in the views of the majority of the court as set out in the foregoing opinion, I will briefly state my reasons for this dissent. While approving the decision of the court on other grounds, I am of opinion that the failure of the trial court to sustain defendant’s objection to the United States attorney’s argument of facts not in evidence is reversible error. While it is true that this evidence had been repeatedly tendered by the defendant for certain purposes stated in the record, at the same time its introduction had been rigidly refused by the court. In overruling defendant’s objection to the argument of the government’s attorney, the court stated that both sides had referred to the excluded testimony. The record shows, however, that the references by defendant’s counsel were those made in the attempt to introduce the evidence, and it is also undisputed that, in deference to the ruling of the court, he refrained from any argument thereon, stating that, had he known the court would have permitted it, he would have discussed the excluded indictment. The remarks objected to were made in the concluding argument of the government’s attorney, to which opposing counsel had no opportunity to reply. Neither in ruling upon the motion nor any*177where in its instructions did the court in any way advise the jury that it was improper fo consider these facts not admitted in proof. The effect of the ruling was to indicate that such consideration was proper. We think that the harmful effect of thus signifying approval to a jury of the propriety of its consideration of unsworn and excluded facts must be assumed, and the harmful effect of the argument could only be neutralized by its prompt and emphatic exclusion at the hands of the court.
It has long and uniformly been held by federal courts that a trial judge himself may be guilty of reversible error by charging a proposition of law not applicable to any disclosed facts in a case. The purpose of the rule is to avoid the introduction of any such1 extraneous matters as would lead or permit the jury to form a conclusion upon unsupported facts and upon a false issue. The jealousy of the courts in protecting suitors in their right to a verdict uninfluenced by improper appeals of counsel is emphasized in the recent ease of N. Y. Central Railroad Co. v. Johnson, 279 U. S. 310, 49 S. Ct. 300, 73 L. Ed. 796, decided by the Supreme Court, April 8,1929. In that ease the judgment was reversed, although the point had not been raised by particularizing an exception. The still more recent case of Nations v. U. S., 32 F.(2d) 598 (8th C. C. A.), is to the effect that it was reversible error for a prosecuting officer to base a portion of his argument on an assumed attitude of the press toward defendant which constituted matters not within the record, even though the court formally sustained an objection of the defendant without rebuke of counsel. While I think that this case should be reversed, it is proper to state that the remarks of the government’s counsel were probably occasioned, first of all, by a misapprehension as to what had been proved in a long and hotly contested ease. The continuation of the argument, however, after objection, under permission of the court, in my judgment requires a reversal.
The essentials of a fair and impartial trial are lacking where counsel for one side is permitted, over objection, to argue a question of evidence while that privilege is refused opposing counsel. Due process, including the trial of issues upon sworn testimony only, and the right to be confronted by the witnesses against him, are rights guaranteed by the Constitution, and have been embedded in and most jealously guarded by English Jurisprudence since the birth of Magna Charta. The effort of defendant’s counsel to introduce the testimony was within his rights, and furnished no occasion for criticism if made in good faith and nothing to the contrary is indicated in the record. Whether, if admitted, it would have been explained or amplified by additional testimony does not appear. Its exclusion rendered improper all argument upon its effect. Had counsel for defendant persisted in. argument in defiance of the court’s ruling, he would not only have been guilty of a gross impropriety, but might also have subjected himself to punishment for contempt of court.
Commenting on evidence which has been excluded, the rule is forcefully stated in Thompson on Trials (2d Ed.) vol. 1, p. 819, § 969, as follows.
“An aggravated form of the abuse of the privilege of argument, which is included in the rule stated .and illustrated in the two preceding paragraphs, is presented where counsel, in arguing to the jury, are guilty of the highly unprofessional conduct of stating or commenting on evidence which has been offered and excluded. This attempt to appeal from the judge to the jury, as to what is admissible as evidence in the case, is not only, within the limits stated in the preceding paragraphs, ground for a new trial, but the writer has no hesitation in saying that the presiding judge would be justified in treating and punishing it as contempt of court. Scarcely less unprofessional and pernicious is the practice of counsel presuming to state in argument what they would have proved had they been permitted under the rules of evidence.”
The question of law in the instant case was raised by timely objection and specification of error. Such questions are not to be disposed of as matters of discretion. If error of law was committed, the ease should be reversed, unless the error was harmless. And, as stated above, its injurious effect herein must be conclusively presumed.