(dissenting).
In the able and comprehensive opinion of Judge Miller, I concur in all that is said with respect to the admission of evidence, its sufficiency to sustain the verdict, the correctness of the district court’s instructions to the jury, the law of the case, and the conduct of the trial court and of the district attorney — with one exception. I am of the view that the argument of the district attorney, and the manner in which it was presented, wherein he expressed his individual belief in the guilt of the accused, and the intimation that the jury was under its oath and duty to convict the appellant, constituted reversible error. It is with reluctance that I come to this view, inasmuch as the case has already been tried, on two different occasions, each time for several days before a jury, and it is here before us at the present time on a second appeal. However, the protection of the just rights of persons accused of crime by the government, which in this "case I ■ consider to have been clearly violated, brings me to this position.
In the long history of our law, we have continued to add to the protection of persons accused of crime, with firm ramparts of constitutional safeguards, and procedures to insure a fair trial. Although armed with the presumption of innocence, even an innocent person bears a heavy burden when charged with crime by the indictment of a grand jury, notwithstanding the fact that such an indictment is no more than an accusation based on hearing one side of the case; and to be tried by the government on a criminal charge subjects even an innocent person to great emotional strain and anxiety and physical stress. For, while the . government, in proceedings against an individual in a court of justice, is only another party, nevertheless, the respect which the people have for the' government in its capacity as the representative of their liberties gives it a prestige that is bound to carry over into the courtroom itself. Because of these considerations, courts are particular and zealous to insist upon a strict observance of the rights of the accused to a fair trial.
With regard to this case, it is to be said that the respect of the people for our Constitution and law extends, especially in the federal courts, to respect for the judge and for the district attorney. The district attorney, in the minds of the members of a jury in a federal court, stands as an officer who is engaged in the performance of the highest duties in the administration of justice; and members of juries regard him as — in fact he is — one of the most important and respected officials of law and government. For this reason, the expression of his personal opinion, in an argument before a jury, carries a weight far beyond such an expression by one who does not hold his high office; and it is not difficult to conclude that, during a forceful argument in a criminal case, the expression of his personal opinion that an accused person is guilty may well tip the scales in cases where, otherwise, the jury might conclude there was a reasonable doubt of guilt.
A district attorney, in his argument to the jury, has the right to draw all legitimate inferences from the evidence and to assert a belief, based on the evidence, that the accused is guilty. Nevertheless, it is error for him to indulge in remarks indicating his personal opinion that the accused is guilty; and such remarks in most eases are considered so flagrant as to require a reversal of the conviction.
In the case before us, the assistant district attorney, in his closing argument, after referring to the evidence of the *21frauds claimed to have been perpetrated by appellant, went on to declare:
“These things happen all the time. You read about it, and you like to stand around corners and say, ‘Why doesn’t the Government do something about all this stuff?’ I have heard you. ‘They ought to do something about it. They ought to get these people doing this stuff.’ I have heard you. ‘They’ — you are ■‘they’—
“Mr. Mooney (counsel for defendant) : If the Court please, I object to that, it is arguing inflammatory—
“Mr. Vaden: Excuse me.
“Mr. Mooney: It is, as I said a moment ago, an appeal to prejudice, and nothing else.
“The Court: What was?
“Mr. Mooney: It is just an inflammatory appeal to prejudice, and nothing else — about what people say on corners — nothing else. * * *
“The Court: Well, leave that out, Mr. Vaden. * * *
“Mr. Vaden: I will take that back, the word ‘they.’ I will take that back, Your Honor. But this is the Government. This is the Government. You are the Government. You are the people that have got to decide this thing. There are just twelve people. They are you. His Honor can’t decide it. I can’t decide it. * * * This Grand Jury indicted this man, and when they indict him, we are going to prosecute him. And that is what I am paid for, what I am going to do. I took an oath. You took an oath. I am doing my duty. I am doing it. I am going to do it. It may not be big — but I am going to do it — hot or cold — -if I believe a man guilty. And if I don’t believe he is guilty, no one is going to make me stand here and prosecute him — not going to do it. But if I believe he is, I am going to put witnesses on here. * * ” A little later, the associate of the government attorney, in his argument, declared:
“And now it is dumped in your laps — see. We have about finished. Your own conscience — your own conscience. If your mind cannot rest easily on a verdict — if there is a reasonable doubt — answer me this —can your mind rest easily on a not guilty verdict?
“Mr. Mooney: If the Court please, I think he ought to stop right there. I object to that. * * * He asked the alternate question, in substance — ‘Can your mind rest easily on a not guilty verdict — they should not be allowed to bring the Court a not guilty verdict.’
“The Court: Are you objecting?
“Mr. Mooney: I certainly am, sir.
“The Court: Objection overruled.”
In State v. Thayer, 124 Ohio St. 1, 176 N.E. 656, 657, 75 A.L.R. 48, a special prosecutor stated to the jury that he would not be in the case unless he was convinced of the guilt of the accused. Upon objection by counsel for the accused and request for a mistrial, the prosecutor said, in the presence of the jury, “We feel that it is entirely just in the light of the evidence.” The Supreme Court of Ohio held that, even though the record disclosed no other error, the overruling of the objection and motion by the trial court constituted prejudicial reversible error.
In State v. Gunderson, 26 N.D. 294, 144 N.W. 659, 660, in a criminal case, counsel for the state, in his closing argument, said: “I do not come here to try a case unless the defendant is guilty”. The court immediately intervened and told the jury: “The court now admonishes the state’s attorney that the remark is improper, and suggests that he in no manner refers to his opinions in his further address to the jury.” In reversing the conviction, the Supreme Court said: “No one who is at all conversant with jury trials can fail *22to see the- possible prejudice of this remark. The scales were hanging in the balance. * * * In such a juncture the state’s attorney himself testifies, and seeks to force into the issue his own personality and his own standing and influence. He practically tells the jury that the defendant is guilty, when he knows that he cannot be cross-examined as to his statement. It is universally held that such remarks are not merely a breach of professional propriety and professional ethics, but constitute legal error.”
In the instant case, the district attorney admonished the jury that both he and the jury had taken an oath to do their duty; that he was doing his duty and was prosecuting the accused because he believed him guilty, although no one could make him undertake the prosecution unless he did believe him guilty. The foregoing should be considered together with the statement to the jury— almost an accusation — that the district attorney had heard members of the jury standing around corners asking why the government did not do something about these things, and also saying that the government ought to get the people who did such'things; that neither he, as district attorney, nor the district judge could do anything about it; that the jury had taken an oath to do its duty; and then the question was asked of the members of the jury, whether their minds could rest easily on a not guilty verdict. The impression which these statements and arguments made on the jury seems self-evident — that the jury, as citizens, had been complaining why the government did not get malefactors such as appellant; that the district attorney now had appellant before them in court and believed him guilty inasmuch as no one could make him prosecute unless he believed the man guilty; that the jury itself was the government over whose remissness, in the past, they had complained; that while the district attorney could not do anything about the decision, he had taken an oath to do his duty and was doing his duty because of his belief of the guilt of appellant, and he strongly intimated that since the jury had taken an oath also to do its duty, their minds could not rest easily on a non-guilty verdict. To bring in a verdict of guilty on the ground that the minds of the members of the jury could not rest easily on a not guilty verdict would be a failure on the part of a jury to perform its duty. The criterion is not whether the minds of the members of the jury could rest easily on a verdict of not guilty. In fact, in a criminal case, the members of the jury could well perform their duty in returning a verdict of not guilty and their minds might still be very uneasy in cases where they had the strongest suspicion of the guilt of defendant, and yet could not say that he was guilty beyond a reasonable doubt. Under these circumstances, the district attorney’s personal belief, as expressed to the jury, that appellant was guilty constituted prejudicial error.
A prosecuting attorney in a criminal case is not bound to make his argument to the jury colorless or argue both sides of the case, if defendant is represented by counsel; and he may present force-ably the government’s side of the case. He is not, however, justified in thrusting his personality into the case and expressing his opinion that the defendant is guilty, or stating as a fact anything except what the evidence tends to prove or which he expects in good faith to prove. If he violates this rule, he is guilty of misconduct; and, in the instant case, we are of the opinion that the conduct of the district attorney was prejudicial to the substantial rights of the accused. See State v. Clark, 114 Minn. 342, .131 N.W. 369.
The government cites several cases in support of the contention that it is not necessarily misconduct for the district attorney to express his individual belief in the guilt of the accused, if such belief is based solely on the evidence introduced, and the jury is not led to believe-that there is other evidence known to-the prosecutor but not introduced, justi*23fying that belief. We shall briefly discuss the pertinent cases relied upon by the government.
In Gridley v. United States, 6 Cir., 44 F.2d 716, defendant’s attorney, in his argument to the jury, had stated that the district attorney was seeking an unjust conviction, merely because of his ambition to win the case. The district attorney, in response, declared to the jury that he believed the accused was guilty. To this statement, counsel for defendant objected, and was overruled. The trial court, however, in its instructions to the jury, stated that it was to pay no attention to this statement, but that since defense counsel had charged the district attorney with an improper motive, he was fully justified in defending himself against “those very unjust, improper charges * * * and was abundantly justified in denying the unjust accusations made against him * * *, but I do say to the jury that they are not concerned with the opinion of counsel as to what he thinks about the guilt or innocence, and they will ignore that and pay no attention whatever to it, and he was driven into that statement by the unfair accusations made against him.” The foregoing case is obviously distinguishable from the case at bar.
In United States v. Klein, 7 Cir., 187 F.2d 873, 877, complaint was made by the accused of statements of the district attorney during argument in which, in discussing the evidence, he said “I know — ” with respect to certain evidence thereafter set forth. In these instances, when the expression, “I know,” was used, it was followed by the outline of the evidence on which this statement was based. As the court stated: “For example, when it was said: T know you can drive from Chicago from 12 o’clock noon to four o’clock in the afternoon,’ it was added immediately ‘because we had a man on the stand who did it.’ And again, when he said: T know Estelle Klein is a liar’ he added: ‘because other people whose veracity can’t be doubted have told us from the witness stand that Eddie Klein wasn't in Chicago watching a television set that night but was down here with a gun in his hand, etc.’ ” This is plainly distinguishable from the instant case.
United States v. Battiato, 7 Cir., 204 F.2d 717, 719, is a case nearest to supporting the government’s position in this regard, but that case, too, is distinguishable from the instant case. There, counsel for the accused, in his argument to the jury, had referred to the building which houses the Department of Justice in Washington, and stressed the motto inscribed on that building: “The Government wins when justice is done.” Immediately after this statement by appellant’s counsel, the district attorney began his argument and said: “I for one subscribe to the motto that the Government wins when justice is done. * * * If I, in my own mind, thought for one minute that these defendants were not parties to this case, I certainly would not have the courage to stand up here and argue before you that they were guilty. It is never our intention to prosecute and try innocent men.” In so saying, it seems to me that the district attorney was replying to the defense argument and telling the jury that in his opinion the government would not win if it received a verdict that was unjust to the accused, but that in his opinion, because the accused was guilty, such a verdict would not be unjust. Unless the statement was palliated by the context — which I am not sure it was — I would consider it to be prejudicial.
The court of appeals, in the foregoing case, held that when the context of the statement of the district attorney was taken into consideration, it became clear that no improper argument was presented. There is no context in the instant case that, in like manner, could be said to justify the statements of belief in appellant’s guilt by counsel for the government.
In view of the foregoing, I am of the opinion that the judgment of conviction should be reversed. •