(dissenting).
I think the prosecutor far exceeded the bounds of legitimate argument in his summation, and I do not believe that this error was “harmless.” In short, I do not believe that the defendant received the fair trial to which he was entitled.
The prosecutor’s summation was shot through 'with prejudicial, abusive, intemperate language, and constituted error in at least three respects.
1. The prosecutor engaged in a bitter name-calling attack on the defendant. Here are some of his more colorful epithets: He dubbed the defendant “a crook and a phony, that is as plain and as sure as two and two make four, tricky, crafty, and a type of worm.” “The defendant is a type of worm roaming the earth, and to call him that, a man, he is a creature, God help him, not a man but a creature christened John Donald Walker.” “He is the type of bird that preys on society in this slimy field * * * ” [i. e., the field of the confidence man]. The defendant was also described as “ * * * this depraved creature of twisted mind.” This sort of abuse is more than the ardor of aggressive advocacy — it is error. Viereck v. U. S., 318 U.S. 236, 247-248, 63 S.Ct. 561, 87 L.Ed. 734; Ross v. U. S., 6 Cir., 180 F.2d 160, 166-168; Beck v. U. S., 8 Cir., 33 F.2d 107, 114; Volkmor v. U. S., 6 Cir., 13 F.2d 594, 595; Fish v. U. S., 1 Cir., 215 F. 544, 552, L.R.A. 1915A, 809; People v. Fielding, 158 N.Y. 542, 53 N.E. 497, 46 L.R.A. 641; People v. Reimann, 266 App.Div. 505, 506-507, 42 N.Y.S.2d 599; People v. Teiper, 186 App.Div. 830, 175 N.Y.S. 197; Commonwealth v. Capalla, 322 Pa. 200, 185 A. 203, 205-206.
Such conduct is in striking contrast with the standard set for the prosecutor by Mr. Justice Sutherland, speaking for a unanimous Supreme Court in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314: “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. * * * He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
Moreover, in the setting of such strong language, I doubt whether one can say with confidence that the jury accorded my colleagues’ charitable construction to the prosecutor’s description of defendant’s son as “this natural son of an unnatural father.”
2. The prosecutor told the jury (a) that he believed the defendant guilty, and (b) that he did not believe the testimony of a defense witness:
(a) Of defendant’s guilt, the prosecutor said: “If you believe, as I do, on the evidence in this case that the guilt of this man has been proved incontestably; if you believe with me, and you remember back at the start of this trial that the Government’s attitude from the first was that the first twelve people in the box were good enough for me, because I don’t believe a jury of twelve people, and I will take any twelve, could fail to find this defendant guilty of the crime he is charged with, because the *486proof is overwhelming, and if the jury did not so find on this overwhelming evidence in this case, it -might well be said by someone that perhaps they were not competent to serve. * * * ” It was improper, I think, for the prosecutor to state in this manner his belief in defendant’s guilt. Cf. Rossi v. U. S., 8 Cir., 9 F.2d 362, 367; Commonwealth v. Capalla, 322 Pa. 200, 185 A. 203, 206.
(b) Of one defense witness and his testimony, the prosecutor told the jury, “ * * * the colored boy was brought up there to try to suggest to you that maybe the defendant is not guilty of the second count * * * as far as I am concerned, the colored boy is telling you a lie, and he is a perjurer. * * * ” He “was -cute enough to get in the racial discrimination angle, but I ask you to find that he told you nothing of the truth about this case, and I think you will so find.” This, too, was improper. Berger v. U. S., 295 U.S. 78, 86-88, 55 S.Ct. 629, 79 L.Ed. 1314; Weathers v. U. S., 5 Cir., 117 F.2d 585, 586-587; People v. Reimann, 266 App.Div. 505, 507, 42 N.Y.S.2d 599.
3. Finally, in the course of his closing, the prosecutor referred to a document not in evidence. The defendant’s lawyer had attacked the credibility of Mrs. Ashe, defendant’s “wife” and the principal witness for the Government, by -pointing out that the account she gave at the trial of her first meeting with defendant conflicted with the version of the same event which she gave in her initial written statement to the F. B. I. In reply, the prosecutor said: “ * * * this is all he [defense counsel] had to work with in his summation on its face an ostensible pontradiction, but you remember that there is another exhibit here, Court’s Exhibit 1, which I showed to Mrs. Ashe, seven pages, a second statement which she gave to the F. B. I. agents.” Court’s Exhibit 2, Mrs. Ashe's original statement to the F. B. I. was in evidence, but Court’s Exhibit 1 was not. The prosecutor’s reference to it to rebut the attack on Mrs. Ashe’s credibility was clearly error, U. S. v. Toscano, 2 Cir., 166 F.2d 524, 527; People v. Fielding, 158 N.Y. 542, 547, 53 N.E. 497, 46 L.R.A. 641. Further, it seems more than likely that it had a telling effect on the jury. For after pausing briefly to defend Mrs. Ashe’s credibility, the prosecutor went on to say: “ * * * if you believe here that she lied, if you don’t believe her on this, then you should acquit the defendant.” After the charge -had been given and the jury had retired for about a half-hour, the jury returned and asked for “the first original statement to the F. B. I. by Mrs. Ashe, also the second one.” The judge replied, in part: “You may not receive, nor may you have displayed to you Court’s Exhibit 1, because that was not marked in evidence; it was merely marked for identification.” Some eighteen hours later,1 after having been obviously in disagreement at one time, the jury ultimately brought in its verdict of guilty.
I doubt whether the judge’s instruction sufficed to cure this last error, for, to the jury, this was clearly not an open-and-shut case, and it had obviously been impressed by the prosecutor’s misadversion to a document not in evidence on an issue which he himself had styled as crucial to his case. U. S. v. Toscano, supra.
But I do- not rest my dissent on this doubt alone. It must be considered in the setting of the intemperate abuse heaped on the defendant in the closing argument, and together with the prosecutor’s vigorously stated affirmation both of his belief in defendant’s guilt and of his disbelief in the credibility of a defense witness. Taken together, I think that these errors may well have tipped the scales against the defendant.
Reading merely the testimony as it appears in cold type, the case against him seems “strong” to the reader. But it could not have seemed overly so to the jurors since, -as previously noted, at one time they were -in disagreement, and it took them *487some nineteen 'hours in all to agree2 That fact must be borne in mind in applying the test of “harmless error” stated in Kotteakos v. U. S., 328 U.S. 750, 764-765, 66 S.Ct. 1239, 1247, 90 L.Ed. 1557: “And the question is, not were they [the jury] right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury’s decision. The crucial thing is the impact of the thing done wrong on the minds of other men, not on one’s own, in the total setting. * * *
“If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and judgment should stand, * * * But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.”3
With the jury in doubt for many hours, I cannot see how we can say that the errors had no substantial influence. Those errors consisted largely of highly improper colloquial statements by the prosecutor-talk of a kind easily understandable by the jurors, and thus calculated to impress them far more than the formal, legal terms of the judge’s charge as to the substantive legal rules.4 Yet, if the judge had erred in the wording of a substantive legal rule, we would reverse.5 We ignore the actualities and condone abuse if we hold harmless the plain but viciously prejudicial remarks of the prosecutor.
Because of the grave probability that these errors improperly swayed the jury, I think we should hold that defendant did not receive a fair trial, and should give him a new one.
Nor can I agree that tile defendant failed to save objections to these errors. He moved for a mistrial at the close of the summation, laying as his grounds the language I have set forth. Whether or not the trial judge was justified in denying that motion, such highly improper argument called, at the very least, for strong and specific words, in the charge, to cure the errors, even in the absence of a request by defense counsel. Viereck v. U. S., 318 U.S. 236, 247-248, 63 S.Ct. 561, 87 L.Ed. 734; Berger v. U. S., 295 U.S. 78, 85, 55 S.Ct. 629, 79 L.Ed. 1314; People v. Fielding, 158 N.Y. 542, 543, 553, 53 N.E. 497, 46 L.R.A. 641. Cf. Quercia v. U. S., 289 U.S. 466, 472, 53 S.Ct. 698, 77 L.Ed. 1321.
In the past I have often disagreed with my colleagues in the application of the “harmless error” doctrine.6 It is a delicate *488task, at best, which requires a careful weighing of more or less, from, case to case. I feel justified in venturing to state my differences here once again because from time to time the Supreme Court has struck a balance different from ours and has held errors prejudicial which we had called “harmless.” 7 I would reverse this conviction and direct a new trial.
. Including an overnight stay in a hotel. From the record it appears that the jury spent about eight hours in actual deliberation. Cf. Bollenbach v. U. S., 326 U. S. 607, 611-612, 66 S.Ct. 402, 90 L.Ed. 350.
. See Note 1, supra.
. See also Krulewitch v. U. S., 336 U.S. 440, 445, 69 S.Ct. 716, 93 L.Ed. 790; Bihn v. U. S., 328 U.S. 633, 638, 639, 66 S.Ct. 1172, 90 L.Ed. 1485; Bollenbach v. U. S., 326 U.S. 607, 613-615, 66 S.Ct. 402, 90 L.Ed. 350; Weiler v. U. S., 323 U.S. 606, 611, 65 S.Ct. 548, 89 L. Ed. 495; Bruno v. U. S., 308 U.S. 287, 293-294, 60 S.Ct. 198, 84 L.Ed. 257; McCandless v. U. S., 298 U.S. 342, 347-348, 56 S.Ct. 764, 80 L.Ed. 1205; Berger v. U. S., 295 U.S. 78, 82-84, 84-89, 55 S.Ct. 629, 79 L.Ed. 1314; Echert v. U. S., 8 Cir., 188 F.2d 336, 341-342; Sang Soon Bur v. U. S., 9 Cir., 167 F.2d 431, 432-433; Kempe v. U. S., 8 Cir., 151 F.2d 680, 689-690; U. S. v. Dressler, 7 Cir., 112 F.2d 972, 977-981. Compare the words of Judge Magruder: “If the prosecutor is not content to rely on the untainted evidence, and chooses to ‘button up’ the case by the known use of perjured testimony, an ensuing conviction cannot stand, and there is no' occasion to speculate upon what the jury would have done without the perjured testimony before it.” Coggins v. O’Brien, 1 Cir., 188 F.2d 130, 139 (concurring opinion).
. Cf. People v. Fielding, 158 N.Y. 542, 543, 553, 53 N.E. 497, 46 L.R.A. 641; Commonwealth v. Capalla, 322 Pa. 200, 185 A. 203, 205.
. See my dissenting opinion in U. S. v. Farina, 2 Cir., 184 F.2d 18.
. U. S. v. Liss, 2 Cir., 137 F.2d 995, 1001 ; U. S. v. Mitchell, 2 Cir., 137 F.2d 1006, *4881011-1012; U. S. v. Rubenstein, 2 Cir., 151 F.2d 915, 919; U. S. v. Bennett, 2 Cir., 152 F.2d 342, 346, reversed sub nom. U. S. v. Bihn, 328 U.S. 633, 66 S.Ct 1172, 90 L.Ed. 1485; U. S. v. Antonelli Fireworks Co., 2 Cir., 155 F.2d 631, 642; U. S. v. Farina, 2 Cir., 184 F.2d 18, 21.
. Berger v. U. S., 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314; Bruno v. U. S., 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257; Bollenbach v. U. S., 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350; Bihn v. U. S., 328 U.S. 633, 66 S.Ct. 1172, 90 L.Ed. 1485; Kotteakos v. U. S., 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557; Krulewitch v. U.S., 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790.