(dissenting).
If the only question were whether William Cohen was in fact guilty, I should have no doubt that the conviction -should stand, but that is not the only question; we must also be satisfied that the jury was not influenced by what the prosecutor said, and personally I do not see how we can be sure. They acquitted both Katherine and William Cohen on the first count, presumably because none of the marked money was found upon Katherine; and if so, that meant that they were not convinced by the testimony of the officers that they saw any money pass to her. Of course it is true that if the money was in fact found on William, his guilt was established beyond doubt, but the only evidence that it was so found was the officers’ testimony, and how can one know that the summation may not have influenced the jury to accept it? When I remember the solicitude with which all irrelevant evidence is excluded which can divert the jury from the issues to which they should confine themselves, I am unwilling to overlook this loathsome charge, not only made without adequate support in the evidence; but, so far as it was supported at all, supported by the misuse of Katherine's convictions. When she took the stand, she admitted that she had been again and again convicted of prostitution, and of other crimes; but such evidence has never been admitted except to discredit the witness (little as we may believe that its' effect will be, or can be, so limited). A prosecutor may not use it as evidence of another crime; yet this prosecutor said literally not a word about William’s connection with the sales in question, and devoted all of his -short address to the charge that William had exploited Katherine as a harlot, and that the money found on him was the result of her earnings.
The excuse is that it was a proper answer to the defence’s argument that William had earned the money as a painter. I agree that that was absurd, and that it was proper to expose it unsparingly; moreover, I agree that if evidence relevant to the crime for which the accused is on trial discloses another crime, the accused must abide its use; he cannot have immunity for one crime because -he has committed another. But in the case at bar not only was it by diverting the evidence of Katherine’s convictions front their proper use that the charge got even such support as it had, but in addition that support appears to me altogether insufficient. It showed nothing more than that Katherine had been long a prostitute and that William had a large sum of money, for whose source Katherine could give no rational explanation. Nobody can of course be sure that the money was not her earnings, although- her last conviction for that offense was in December, 1945, more than a year before the money was found on William; but I cannot imagine that anyone would maintain that this evidence would have supported a conviction of William as a procurer. Both were shown to be engaged in dispensing heroin, an occupation which may well have netted them as large a sum of money. Katherine was an utterly abandoned woman, convicted of larceny as well as prostitution; what they did not make in selling heroin, they may have stolen.
But, even if there had been evidence to support the charge, it was completely irrelevant to that for which William was on trial, and which alone he was advised that he must meet. That might not have been enough, I think, to upset conviction, had it been only an incident in the summation'; and if the judge had corrected it. But it was not an incident; as I have said, it *529was all that the prosecutor presented to the jury in support of the crime of selling heroin, with which it had nothing whatever to do. Moreover, far from correcting it, the judge gave it his approval. On the other hand, the fact that my brothers think that the whole matter is not of enough importance to call for a reversal, troubles me, for I am quite aware of the danger that upon criminal appeals we may catch at shadows, and shrink from phantoms. Little in the end will do> more to discredit criminal procedure than such a disposition, which has by no means disappeared. Moreover, like most legal questions, this is a matter of more or less, and it is usually better to accept the conclusions of one’s fellows. Nevertheless, in spite of these compunctions, I cannot believe that we are faced with only a lapse in taste; William was presented to the jury as among the most debased of human creatures, upon an utterly foreign issue, and without any adequate warrant in the evidence. I cannot agree that this was less than a grave invasion of his right to a fair trial.