(dissenting):
The decision of this court when the case was here before, Smith v. United States, 114 U.S.App.D.C. 140, 312 F.2d 867 (1962), sustains the admissibility for impeaching purposes of the affidavit of appellant under Rule 17(b). Except for the controlling effect of the prior decision I would reconsider the question.
As to the admission at the trial now under review of the evidence that appellant had engaged in “writing numbers,” the Government quite correctly, as it seems to me, at least inferentially concedes error. It contends, however, that the evidence was harmless, pointing out that it pertained merely to the credibility of appellant, and urging that his credibility was so strongly challenged by other evidence that the jury could not have been prejudiced.
The issue of guilt depended primarily upon whether the jury believed the complaining witness or the accused. The crux of the case was credibility. Defendant had not been convicted of “writing numbers,” and testimony that he engaged in doing so was not competent for the purpose of impeaching his credibility. Yet in the prosecution’s cross-examination of appellant the following occurred: “By the way, you have other income, haven’t you ? A. What kind of income? Q. Oh, you write numbers, don’t you? A. No, sir, I don’t.” Defense counsel objected. The court sustained the objection and struck the remark, and struck the question about numbers. The prosecutor nevertheless persisted. He recalled to appellant his testimony at the previous trial regarding his sources of income and asked if he did not then say something about “writing numbers.” Defense counsel moved for a mistrial, pointing out that the court had warned counsel not to bring this out. Since the evidence was incompetent, and had no relevance to the case on trial, the fact that appellant at the earlier trial had said something about “writing numbers” could not render it relevant and material. The court denied the mistrial, but sustained the objection. Counsel rephrased the question, and again recalled the testimony at the first trial, leading up, again, to the same testimony about writing numbers. Objection was again made. A bench conference followed, at which the prosecutor said, “I am impeaching this man on his former testimony,” which of course could not be done because (1) impeachment cannot be based on evidence which was admitted at a previous trial but which was properly objected to in this trial as incompetent; (2) there as no conviction of “writing numbers” so that evidence of “writing numbers” was not competent impeaching evidence at the second trial any more than it was at the first. The trial court at this point, however, said it did not know of the testimony at the first trial about writing numbers, and added that as to one who had been convicted of other offenses as often as appellant it seemed that answering the question about numbers was of no significance. Defense counsel, in maintaining his objection, pointed out that there was no purpose except impeachment. The prosecutor acquiesced, saying, “I want to impeach him.” He explained again that his purpose was impeachment. Defense counsel pointed out that it was an attempt to prove a crime of which defendant had not been convicted, to which the prosecuting attorney responded, “It goes to his credibility” and shows his character — that he would make a nickel any way he could make one. The objection was overruled. There followed a lengthy review before the jury of appellant’s testimony at the earlier trial and his answers about “writing numbers.”
It will be seen from the foregoing that, the prosecuting attorney was determined to use this evidence to impeach appellant. The prosecutor obviously deemed it of *724critical importance in convincing the jury that the complaining witness rather than the accused should be believed.
I am unwilling to hold that the prosecutor was wrong about the importance the jury might attach to the evidence. I cannot conclude the jury was not influenced by evidence which the Government insisted should be admitted for the very purpose of influencing the jury on the issue of credibility, upon which issue turned the issue of guilt. This evidence may have been just the added factor that turned the scales against appellant. The prosecution was quite anxious that the case should not go to the jury without it.
A conviction aided by such incompetent and prejudicial evidence, duly objected to, should not be sustained on the supposition the evidence did not affect the result.
I would reverse and remand for a new trial on the admissible evidence.