dissenting: I would reverse and remand for a new trial due to abuse of discretion on the part of the trial judge in admitting rebuttal testimony and permitting cross-examination of defendant concerning illegally obtained evidence seized during an unlawful search of defendant’s home.
Defendant was charged with unlawful possession of a 9-mm. Smith & Wesson handgun. A police officer, Harold A. Reed, testified that the handgun was his and had been stolen in a burglary. He identified the handgun by its serial number. He further testified that he knew who stole the gun and that it was not the defendant.
The defendant testified on direct that he had not placed the handgun in the sack of clothing where it was found by the police. Then, on cross-examination, the following took place:
“Q If I understand your testimony, this 9 mm weapon you have never seen before, never been in your possession. Is that correct?
“A That is true.
“Q Do you know why then a clip for that weapon would be located in your apartment on South Sycamore?
“MR. WOOD: Objection, no foundation for this evidence.
“THE COURT: I assume you are prepared to present evidence along that line.
“MR. ARBUCKLE: Yes.
“THE COURT: Overruled.”
On rebuttal, over the objection of defendant, another officer was permitted to testify that the police had obtained a key to defendant’s apartment from defendant’s mother, who did not live with him or have any interest in the premises he occupied, and made a search. The officer further testified he had found a handgun in the house (he was not asked and did not testify as to its caliber or make), and that he had found “the original type carton that the Smith and Wesson is packaged in.” The box also contained a cleaning rod. He also testified that an empty clip for a 9-mm. Smith & Wesson was found in the apartment and that the clip was similar to the one in the handgun which defendant was charged with possessing. The clip, carton and cleaning rod were not produced at trial.
Although the introduction of the evidence concerning the carton, clip and cleaning rod may have been relevant, I believe that *656the prejudicial effect far outweighs any probative value it had. However, I would reverse and remand for a different reason. There is no showing of perjured testimony of the defendant as there was in the cases relied on by the majority. Walder v. United States, 347 U.S. 62, 98 L.Ed. 503, 74 S.Ct. 354 (1954); Harris v. New York, 401 U.S. 222, 28 L.Ed.2d 1, 91 S.Ct. 643 (1971); State v. Boone, 220 Kan. 758, 556 P.2d 864 (1976). Here the defendant merely stated that he did not put the gun in the sack where it was found. The prosecutor then took it upon himself to prejudice defendant by referring to illegally obtained evidence that clearly was not admissible. At that point, all that was before the court concerning the handgun was its owner’s testimony that it had been stolen from him. The owner did not testify that the handgun was in a carton, or that it had a cleaning rod or an extra clip. The defendant did not at that point or at any time thereafter deny he had a 9-mm. Smith & Wesson, or an original carton for a Smith & Wesson containing a clip and a cleaning rod. Defendant, on cross-examination, did deny he had ever had possession of the particular 9-mm. Smith & Wesson which formed the basis of the state’s case.
Analogous cases include Agnello v. United States, 269 U.S. 20, 70 L.Ed. 145, 46 S.Ct. 4 (1925) and United States v. James, 555 F.2d 992 (D.C. Cir. 1977). In both, the introduction of illegally seized evidence was held to be error, as the defendant had not made the kind of general, exculpatory denials that have been held sufficient to allow the admission of such tainted evidence as is necessary to avoid perjury. In neither case was it found that the defendant had “opened the door” to impeachment by his testimony, either on direct examination or on rebuttal, despite the efforts of the prosecutor to elucidate such general denials. Even Walder, a case the majority relies on heavily, recognizes that a mere denial of complicity, as was present here, is not enough.
Furthermore, the prosecutor not only seized upon the opportunity to discredit defendant, but in my opinion he went further. He referred to the handgun that defendant was charged with having in his possession and asked why “a clip for that weapon” (emphasis supplied) was found in defendant’s apartment. He then assured the court in the presence of the jury that he was prepared to present evidence along that line, leaving the jury with the impression that the clip found in the defendant’s apartment was *657part of a set belonging to the handgun. Then, on rebuttal, an officer testified about the items found in defendant’s apartment. Again, the prosecutor referred to the handgun admitted in evidence which defendant was charged with possessing and had the officer identify it as a 9-mm. Smith & Wesson. He then asked, “Did you find any other parts for that weapon other than the box and cleaning equipment?” (emphasis supplied), whereupon the officer testified he had indeed also found a clip for a 9-mm. Smith & Wesson. Twice the prosecution inexcusably implied that the original handgun carton, clip and cleaning rod were parts for the gun found in defendant’s car when no direct evidence was presented to support that conclusion.
Defendant’s testimony was not sufficiently inconsistent with the physical items unlawfully seized from his home to warrant a police officer testifying as to their discovery, and, when coupled with the prosecutor’s assurance to the court in the presence of the jury that the items seized were in effect a part of the gun defendant was attempting to show was planted, the conviction secured by indefensible means constituted prejudicial error which denied defendant a fair trial.
I would reverse and remand for a new trial.