(dissenting).
The female defendant had a record of thirteen arrests for prostitution. Since she did not take the stand, this record could not be used against her and her husband in open court. If it reached the jury out of court, it probably created just as much prejudice. Two copies of a newspaper article which told the whole story were found in the jury room. The judge thought, and the district attorney conceded, that this article was so prejudical that appellants were entitled to a new trial if the jurors read it.1 If the jurors had been polled, and all had denied reading the article, it might have been within the court’s discretion to deny a new trial. However, that is not what occurred. When the judge asked the jury whether they had read newspaper articles about the trial, no one replied; and when he asked whether they had heard about the articles, only one juror replied. I think this was not a case in which silence could safely be interpreted as a denial. If anything, silence implied an admission. The judge’s questions could hardly fail to remind the jury that they ought not to have read anything about the trial. “Have you read the articles?” was roughly equivalent to “Have you committed the impropriety of reading the *468articles?” A juror who could honestly exculpate himself by a denial would be likely to do so. Even apart from any implied admission, it was exceedingly probable in the absence of any denial that some jurors had read an article which was available to all and could not fail to be interesting to all.2 I think a mistrial should have been granted. In other respects I concur in the opinion of the court-.
Note, 46 L.R.A.,N.S., 741, 742 ff.
Griffin et al. v. United States, 3 Cir., 295 F. 437, 440; Harrison v. United States, 6 Cir., 200 F. 662, 669.