(dissenting).
I respectfully dissent. The majority opinion has powerfully depicted the fairness of the trial judge in the conduct of the proceedings by referring to the numerous instances in which jurors were excused for cause and others were given the opportunity to say whether they were open-minded. It has concluded from this that the jury before whom the appellant was tried for his life had not been infected by any prejudice and that in any event the jury’s knowledge that he had committed an earlier murder did him no harm because it was connected with his defense that he had blacked out, as he had also claimed on the first murder.
The undisputed principle which is our starting place is that evidence of appellant’s murder of his wife under similar circumstances twelve years before would not have been admissible here, since such evidence, although relevant, is inherently *48and unduly prejudicial. Michelson v. United States, 335 U.S. 469, 475-476, 69 S.Ct. 213, 93 L.Ed. 168 (1948); see United States ex rel. Scoleri v. Banmiller, 310 F.2d 720 (3 Cir. 1962), cert. denied, 374 U.S. 828, 83 S.Ct. 1866, 10 L.Ed.2d 1051 (1963); United States ex rel. Lowry v. Myers, 364 F.2d 297 (3 Cir. 1966). Yet here it was the appellant’s counsel in his opening statement, and the appellant himself on direct and cross-examination, who brought in the circumstances of the prior murder. The majority attributes this to trial strategy on behalf of the appellant. It seems to me at least equally attributable to the fact that the prior murder had already been revealed in the course of the voir dire examination and to the Hobson’s choice that faced the trial strategist of either ignoring the devastating fact of the prior murder or encountering it head on and emphasizing the circumstances of blackout which the appellant had claimed surrounded it.
There are two instances in which the fact of the prior murder was mentioned in the presence of the venire. After four jurors had been impaneled a venireman whom the prosecutor asked whether he could sit on the jury, replied: “Well, I don’t know as I couldn’t sit on the jury but I don’t believe I would turn a man loose to do it the third time.” This was not the only such remark. After thirteen jurors had been impaneled1 another venireman in acknowledging that he had read newspaper accounts of the crime referred also to the prior murder. When asked by defense counsel whether the newspaper accounts led him to a conclusion as to the appellant’s guilt his reply was: “Well, yes. The fact that the man had done this before' — .”
What the majority opinion calls “the damning fact” that appellant had shot and killed his wife twelve years earlier was therefore twice mentioned by prospective jurors in the presence of the panel and of those jurors who had already been selected to serve. I therefore believe that it cannot be said that defense counsel’s trial tactics were not traceable to a fear of how the jury might be affected by knowledge of the prior murder if the appellant had not attempted to explain it. Whatever may be said the other way, sufficient doubt hovers over the question which in a death case, we must resolve in favor of the accused. As Mr. Justice Reed stated in Andres v. United States, 333 U.S. 740, 752, 68 S.Ct. 880, 886, 92 L.Ed. 1055 (1948): “In death cases doubts such as those presented here should be resolved in favor of the accused.”
It is true that no objection was made at the time by appellant’s counsel, but it is equally true that the court made no effort to remove the harmful effect of this information from the minds of the jurors. The New Jersey courts, as the majority points out, permit voir dire questioning to be conducted in the presence of the entire panel. State v. Rios, 17 N.J. 572, 112 A.2d 247, 254-256 (1955). But they also have been quick to recognize the possibility of prejudice to a defendant in this procedure and therefore have held that the trial judge should respond to the disclosure of improper facts either by admonishing the jury to disregard them or by declaring a mistrial. State v. Hunt, 25 N.J. 514, 138 A.2d 1, 12 (1958); State v. Ernst, 32 N.J. 567, 161 A.2d 511, 515 (1960), cert. denied, 364 U.S. 943, 81 S.Ct. 464, 5 L.Ed.2d 374 (1961). Neither course was followed here, although the wrong was twice committed.
Nor do I believe the record justifies the assertion that appellant’s claim of blackouts inevitably would have driven him to the recitation of the circumstances of the murder of his wife twelve years earlier. There is enough in the record, including his counsel’s opening statement and appellant’s own testimony, to indicate that he could have attempted to show blackouts while imprisoned for the first offense. Indeed, it is difficult to perceive the shrewdness and cunning attributed to the appellant in paralleling his defense here to that in the prior case *49in which he pleaded non vult and was sentenced to imprisonment for second degree murder, when he could have made the claim of blackouts in prison without going into the circumstances of the prior crime.
I would hold, therefore, that appellant was denied due process of law because the jury that tried him was one in whose presence two veniremen had referred to the prior murder without even an admonition from the judge that these statements should be disregarded. I am unable to accept the notion of a courtroom so sterilized that none of the jurors who had already been selected and the large number of veniremen in attendance was infected in the slightest degree by the express statements that the appellant in a widely publicized murder charge had also committed an earlier murder. I am therefore unable to agree that the defense in laying before the jury the detailed circumstances of the prior murder was simply pursuing the tactical maneuver of claiming that he had suffered earlier blackouts.
This leads me to another claim of the appellant’s able counsel. Appellant had subpoenaed the Chairman of the New Jersey Parole Board to produce certain Parole Board records. On the Chairman’s arrival, accompanied by an Assistant Attorney General who opposed his giving testimony, counsel for both sides were called into the judge’s chambers, where neither the appellant nor the court reporter was present. An affidavit of appellant’s trial counsel alleges that after the state opposed admission of the Chairman’s testimony and of the records the parties agreed on the admission of one document, the psychiatric report of the prison’s consulting psychiatrist, who testified at the trial. Appellant claims that the suppressed reports would have aided his defense of blackout by demonstrating the truth of his assertion that he had blacked out in the early weeks of his original imprisonment and had been carried to the prison hospital by guards.
In the leading case of Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934) it was held that due process does not require that a defendant be present when the jury and trial counsel are taken to the scene of the alleged crime for a view. Mr. Justice Cardozo there stated that a defendant’s presence is constitutionally required only when he can contribute something to his defense by being present. The proper application of this test is demonstrated by two recent cases in the Fourth Circuit. In Near v. Cunningham, 313 F.2d 929 (4 Cir. 1963), the exclusion of the defendant in a state trial from the judge’s chambers, where an agreement was made among the trial judge and counsel not to sequester the jury during recesses of the court, was held to violate the defendant’s constitutional right to due process where the decision resulted in exposing the jury to prejudicial remarks. On the other hand, in Root v. Cunningham, 344 F.2d 1, 4-5 (4 Cir. 1965), cert. denied, 382 U.S. 866, 86 S.Ct. 135, 15 L.Ed.2d 104 (1965), it was held that the defendant had no constitutional right to be present during the consideration of instructions by the trial judge and counsel in chambers where there was no evidence of resulting prejudice. Reconciling the two cases, the court said that the defendant’s presence would have been important in Near, but useless in Root: “Near • * * had a better opportunity to know the attitudes of these people [in and outside the courtroom] than his attorney or the court * * Under such circumstances, had he been permitted to attend the conference, he could have informed the court of this hostility and, perhaps, thus prevented the making of the decision which exposed the jury to it to his disadvantage.” In Root, however, only legal points beyond Root’s competence were discussed outside his presence. 344 F.2d at 4-5.
In my view the present case is stronger than the situation in the Near case. Appellant was prejudiced by his absence from the conference which deprived him of possible evidence of prior blackouts while in prison, a subject of supreme importance to his defense. It was not a le*50gal technicality beyond appellant’s grasp, for the contribution he could have made at the hearing in chambers on the parole records would have come from his personal knowledge of the facts, not his opinion on the law. It is a striking illustration of the familiar circumstance that counsel inevitably requires the presence of the client to bring to his attention those facts which are peculiarly within the client’s own knowledge.
Because of the grave prejudice to the appellant resulting from the disclosure at the voir dire of a prior murder and because of his exclusion from the proceeding in chambers involving the Parole Board records, I cannot entertain that assurance that the defendant received a fair trial which alone would justify sending him to his death.
I therefore repectfully dissent.
. Additional jurors were to serve as alternates.