(dissenting).
My study of the record leads to the firm conclusion that defendant did not have a fair trial, and I feel obliged to register a dissent. In doing so, I realize the futility of any extended discussion, and shall attempt to confine myself to a few of the errors which are typical of many others.
First, with reference to the indictment. I do not disagree with the conclusion of the majority that the allegations of the indictment comport with language contained in the statute. The difficulty arises from the fact that each count in question goes far beyond the statutory provisions. There is nothing in the statute which proscribes the transportation of a female in an “environment” which “would tend to cause her to give herself up to a condition of debauchery which would eventually and naturally lead to a course of sexual immorality.” Whether this allegation foreign to the language of the statute invalidated the indictment need not be resolved in dissent; however, it can hardly be doubted but that it created an issue by which the trial court was led astray and which was utilized by the government to obtain the admission of much incompetent testimony.
The government in its brief states, “This was a White Slave Traffic Act case brought under the construction of such Act in the cases of Athanasaw v. United States (1913) 227 U.S. 326 [33 S.Ct. 285, 57 L.Ed. 528], and United States v. Lewis (7 Cir., 1940) 110 F.2d 460. The indictment was couched in the language of the indictment in the Lewis case.” This must be a novel theory and I think unsound. It has always been the rule, so far as I am aware, that an indictment must be predicated upon the language of a statute, upon the matters thereby proscribed, rather than upon language used by a court in discussing the statute. Moreover, the indictment was not “couched in the language of the indictment in the Lewis case.” There, it was alleged, 110 F.2d at page 462, that the transportation was for an immoral practice, to wit, “prostitution and debauchery.” There was no such indefinite and uncertain language as “environment” or “tend to cause” or “which would eventually and naturally lead to a course of sexual immorality.” Neither was there such language in the indictment of the Athan-asaw case. There, it was alleged that the transporation was “for ‘the purpose of debauchery’ ”. [227 U.S. 326, 33 S.Ct. 286.] It is true that in both of those cases the court discussed and held that the environment in which the girls were placed was a material factor in proving the charges alleged. But a reading of the opinions in those eases discloses that they furnish little, if any, support for the theory pursued by the government in the instant case, which, as the record discloses, was reluctantly followed by the trial court.
A person unacquainted with the charge would obtain the impression that the sole issue in the case was the environment of a two-block section contained in Calumet City. On this premise, all kinds of evidence calculated to inflame the minds of the jury and create prejudice against the defendant was admitted, which cannot possibly be justified by any rule of which I am aware. Some of this evidence is referred to in the majority opinion, and as shown, statements made out of the presence of the defendant and activities with which he had no connection were shown, all on the issue of environment. The majority opinion gives a fair summary of the government’s impeachment of its witnesses, Sarbo and Swartz, by showing statements they had previously made to agents of the F.B.I. It was not shown and it is not claimed that defendant was connected with any of the statements or events related in this testimony. The majority concedes that this was error, with which I agree. To say that it involves “clumsy handling” by government’s counsel is a temperate characterization, and to me the view is inescapable that this performance by government’s counsel was prejudicial to defendant. More than that, the majority in disposing of this issue states, “The burden to show reversible error is on the defendant.” I think that is an er*616roneous pronouncement, and even the cases relied upon furnish little, if any, support. In McCandless v. United States, 298 U.S. 342, 347, 56 S.Ct. 764, 766, 80 L.Ed. 1205, the court stated, “ * * * an erroneous ruling which relates to the substantial rights of a party is ground for reversal unless it affirmatively appears from the whole record that it was hot prejudicial.” See also Bihn v. United States, 328 U.S. 633, 638, 66 S.Ct. 1172, 90 L.Ed. 1485. In Kotteakos v. United States, 328 U.S. 750, 764, 66 S. Ct. 1239, 1247, 90 L.Ed. 1557, the court stated, “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.”
These cases and many others which could be cited support the rule that when an error has been shown or admitted relating to the substantial rights of a party, it is grounds for reversal unless it affirmatively appears from the record that it was not prejudicial. If in the mind of the' reviewing court the error was calculated to prejudice the rights of the defendant, or even if the court is in doubt on that score, it is its duty to reverse.
A government witness, an admitted prostitute by the name of Juanita Rose Cooper, was permitted to testify that she had sexual relations in a room above the Four Aces with a man whom she knew only as Frank, in January, 1953. This was some four months subsequent to the time the girls named in the two counts of the indictment under consideration were transported. More than that, it was some three months after the girls so named had returned to their homes in Indiana. There was no showing that the witness Cooper’s alleged acts were known to the defendant at any time, much less at the time of the transportation, nor was her conduct known to the girls named in the indictment. A government witness, Virginia Warren, was permitted to testify that she was in the Derby Club in December, 1952, when an intoxicated girl from the street came in, took off her clothes and asked for somebody to buy her a drink. Again, this incident took place long after the transportations in question and after the transportees had returned to their homes in Indiana. The court approved an instruction in the Athanasaw case, 227 U.S. 326, 33 S.Ct. 285, 286, “The intent and purpose of the defendant at the time of the furnishing of this transportation * * * is the very gist and question in this case.”
The testimony of government’s witness, Ann Christine Cresno, was, in my view, highly prejudicial to defendant. It occupies seven pages of the printed transcript and consists in the main of a harangue between counsel and the court regarding the attempt to obtain from this witness the admission that in 1952 she had performed abortions in the two-block area in question. This the witness denied and, upon being declared a hostile witness by the court, the government’s counsel was permitted to cross-examine her. Finally, for the purpose of impeachment I suppose, the witness was asked if she had not in a conversation with F.B.I. agents stated that she had performed such abortions. She denied making such a statement. After the government laid the basis for impeachment of this witness, the record discloses that no effort was made to do so.
The character of the charge in this, case was such as to make it difficult for a defendant to obtain a fair trial. It was grossly unfair for the government to attempt to create in the minds of the jury the belief that Calumet City was an abortion center. The fact that it did not succeed was not likely to remove from their minds the damaging effect of the effort.
The majority opinion refers to the fact that on cross-examination of the defendant the government attorney inquired whether he had previously been convicted of disorderly conduct. This the defendant denied. After laying a basis for impeachment, the government made no effort to prove that defendant’s denial *617was false. Defendant in his brief states there was no such conviction, “which the District Attorney well knew never existed and was done solely to prejudice the jury against the defendant.” A serious charge has thus been leveled at government’s counsel. No denial or explanation is attempted. Counsel’s conduct was reprehensible if the question complained of was asked with knowledge that there was no record of a conviction. If the question was asked through a mistaken belief that such a record existed, fairness required as a minimum that it be admitted, not ignored. Assuming that this incident alone would not constitute prejudicial error, it is significant when added to the accumulation of errors which in their totality should, in my opinion, be held to constitute reversible error. Paraphrasing the language of Mr. Justice Jackson in Krulewitch v. United States, 336 U.S. 440, 453, 69 S. Ct. 716, 93 L.Ed. 790, defendant was confronted with a hodgepodge of acts and statements by strangers, which he did not authorize and about which he had no knowledge, which in all probability helped persuade the jury that the trans-portations in question were for the purpose denounced by the statute.