(dissenting).
This appeal puts this court to the exacting test of deciding objectively whether a new trial should be ordered where there is overwhelming evidence that the appellants were guilty of the crimes for which they were indicted, and impressive indications that they were nefarious leaders within the internal structure of organized crime in America. As disclosed by the majority’s account of appellants’ sordid roles in the loanshark-extortion racket, there is little in their conduct capable of generating a sympathetic judicial environment for them and for their ilk. Thus postured, this appeal provides an ideal vehicle for testing the appellate judicial process, for the reviewing court has no authority to determine the appellants’ guilt or innocence; this is the exclusive province of the fact finder. The appellate function is severely and strictly limited to a determination of whether error of law, of the type properly cognizable on review, took place in the trial proceedings, I am convinced that such error occurred in this case, and that it was reversible error, compelling a new trial.
The precise error was that the court, having permitted, over defense objection, the introduction of evidence that Saper-stein died of arsenic poisoning, failed to give the jury any instruction concerning the relevancy or materiality of this evidence. Indeed, the court at no time offered any explanation as to why the evidence was in fact admitted, even though faced with alternative justifications urged by the government and strenuously objected to by the defense. Appellants were charged with and tried for two crimes; making extortionate extensions of credit, 18 U.S.C.A. § 892, and collecting extensions of credit by extortionate means, 18 U.S.C.A. § 894. To prove its case, the government presented formidable testimony disclosing overt acts by the appellants of threats and actual violence to Saperstein, all of which was relevant under 18 U.S.C.A. § 894(a), employing extortionate means to collect or attempt to collect the debt and punishment for nonrepayment thereof.
Because these threats and acts of violence constituted the principal thrust of the government’s case, the cause of Sap-erstein’s death was an issue not completely free of potential prejudice.. Indeed, the introduction into evidence of death by arsenic poisoning was potentially generative of substantial prejudice unless accompanied by appropriate limiting instructions by the court.
The majority confine their opinion to a post-trial dissertation of how this evidence could have been considered relevant on the issue of Saperstein’s state of mind. Although I am in agreement with much, but not all, of this careful expo*372sition, the fatal deficiency in the majority’s presentation is that it fails to rehabilitate the glaring procedural infirmity at trial — the failure to instruct the jury how they should appropriately consider this evidence in their deliberations. An analysis which simply discloses possibilities of relevancy in vacuo does not assuage the real jurisprudential hurt: permitting this evidence to hang like an unharnessed omnipresence capable of unrestricted use by the jury, including a use which even the government now concedes to be improper.
It was the contention of the government at trial that the evidence was relevant in three particulars:
1. to counteract the inference suggested by defense cross-examination that Saperstein died of natural causes;
2. to show that defendants “had a hand in the death of Mr. Saperstein, that would certainly be an overt act under the indictment as charged; ”
3. “[i]f Mr. Saperstein, because of his state of fear of them, in fear of further physical punishment, [committed suicide], that would be legally relevant and material as bearing on his state of mind.”
The majority quite properly do not attempt to defend the government’s first contention. The rather innocuous defense cross-examination of the victim’s widow revealed that Saperstein was drinking one evening and did not drive the family car home. At trial the government contended this created the inference that Saperstein died of natural causes, thus permitting introduction of the arsenic ingestion to show the actual cause of death. I believe it strains logic to the breaking point to say this cross-examination raised a permissible inference of the cause of death. In any event, the court gave no instruction so limiting its use.
The second justification urged by the government at trial — proof of overt act under the indictment — was also not approved by the majority, and properly so, for the government itself now concedes that this evidence was neither relevant to nor admissible in the government’s case in chief as proof of homicide.1 Under the circumstances revealed at trial, proof of *373coerced suicide would have been tantamount to proof of murder. Taking another’s life by poison is murder whether the deadly ingredient is unwittingly ingested by the victim as a result of the connivance of a criminal actor, or knowingly ingested, under threat, force or duress at the hands of that actor. Of course, the government’s concession has removed consideration of this as. evidence of the overt act of murder or coerced suicide. The majority agree stating, “The government, however, had offered no direct evidence of suicide caused by threat, and the question with which we are confronted therefore, is whether, in light of the evidence previously introduced, death by arsenic poisoning was relevant to Saperstein’s state of mind.” (p. 367.) “They (the defendants) argue that the jury was invited to speculate that De-Carlo and Cecere murdered Saperstein or played a role in having him killed. If the evidence could serve no purpose other than to cause unwarranted speculation by the jury as to the hand which wrought Saperstein’s death we might tend to agree with defendants.” (pp. 368-369.)
But the majority would legitimate the admission of this evidence for the third reason advanced by the government at trial: “While it was possible that such testimony could be misused by the jury, the evidence of death by arsenic poisoning served a legitimate purpose — providing a link to determine Saperstein’s state of mind.” (p. 370.)
Assuming, without conceding, the propriety of admissibility for this limited purpose, the prejudicial trial error is that neither the government nor the trial court informed or instructed the jury that the evidence was to be so received and that their consideration was to be so restricted. This is to be contrasted with the meticulous care accompanying the introduction of the Saperstein letter as state-of-mind evidence described in Part B of the majority opinion. In introducing the letter the government stated, “These documents are offered for the limited purpose of showing the state of mind of the victim in this case.” Contrariwise, when the arsenic evidence was introduced, the government insisted that it was also admissible on two other grounds — rebutting the inference of death by natural cause and proof of overt act. Both of these grounds, as heretofore observed, have now been rejected. Moreover, in the Saperstein letter, the court not only gave a limiting instruction, but insisted that, upon returning the verdict, each juror “[sign] a pledge that he had considered the letter only in order to determine Saperstein’s state of mind.”
I agree completely that “the letter was admitted for a narrow purpose, the trial court properly instructed the jury concerning their use of the contents of the letter, and the jury was capable of drawing the required distinction in order that the defendants would not be unduly prejudiced.” (p. 365.) However, the same instructions for restrictive use should have been prescribed for the arsenic evidence, the other evidence limited to Sap-erstein’s state of mind. Further, although I do not believe that the separate juror “pledge” was necessary, such an unusual precaution for the reception of one piece of potentially prejudicial state-of-mind evidence would create an a fortiori situation for comparable evidence.
Nor am I persuaded that this trial error can be swept under the jurisprudential rug in the guise of trial court discretion. It may have been discretionary for this court to have received this state-of-mind evidence, but once the discretion was exercised and the evidence admitted, a mandatory duty descended upon the court to inform the jury that they did not have unfettered use of this evidence and that it had to be utilized for a limited purpose only. United States v. McClain, 142 U.S.App.D.C. 213, 440 F.2d 241, 245-246 (1971). See also Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748, 750 (1971); Commonwealth v. Wright, 415 Pa. 55, 61, 202 A.2d 79, 82-83 (1964).
Nor do I reach the question of plain error. This evidence was the subject of a specific point for charge which. was *374duly presented and was the subject of colloquy between the court and counsel both prior to the charge as well as thereafter.2
In view of the government’s concession that it was improper for this evidence to be considered as proof of an overt act of homicide, and the majority’s suggestion that such consideration by the jury, without more, would have been prejudicial to the appellants, the failure to give a limiting instruction cannot be construed as harmless error. Clearly there is a “reasonable possibility that the evidence complained of might have contributed to the conviction.” Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); McClain, supra, 440 F.2d at 246.
I conclude that a new trial is necessary. Although I reach this conclusion unhappily and reluctantly, I am convinced that the federal courts are guardians of the rights of all members of society, the rich and the poor, the good and the bad. We owe them all one guarantee; the guarantee of a trial that is fairly conducted, wherein it is as important that the procedure utilized in obtaining a verdict be as just as the verdict itself.
Societal order is achieved by enacting standards of conduct, the breach of which subjects the violator to sanctions. The threat of punishment is designed to preserve this order and to deter its breach. It is the genius of the American system that before an alleged transgressor of these standards may be found guilty and thus have punishment visited on him, he is entitled to and is guaranteed an adjudicatory process which is severely regulated and rigidly controlled by procedural rules.
Thus, although it is necessary that those who in fact break standards of conduct be punished and punished properly, it is equally necessary for society itself to observe the rules it has established for the conduct of judicial procedures.
There must be a proper vindication of both rights — society’s right that its standards of conduct, or laws, be obeyed, and the individual’s right that organized society respect the rules it has established for the conduct of the guilt-determining process. Anything less offends our tradition; and any finding of guilt under the former without a scrupulous respect for the latter yields a conviction that is infirm and legally assailable even where, as here, there is formidable suspicion, if not evidence, that those accused have long participated in a lifestyle of studied defiance of the standards of societal conduct.
I would reverse the judgment of conviction and remand for a new trial.
. At reargument the government conceded that the evidence was neither relevant nor admissible on this ground:
Judge Aldisert: I take it then that you are saying . . . you did not introduce this to show homicide.
U.S. Attorney (Stern) : Absolutely.
Judge Aldisert: But are you saying that if you did, it would have been relevant?
Mr. Stern: No, . . . But I will stand by my statement that the government at no time intended to prove that these defendants murdered Louis Saper-stein.
* * * * *
Judge Aldisert: Let me start over again. In the government’s case, doing what you did do, only what you did do, in the government’s case, would it have been admissible, relevant evidence to show homicide on the part of the defendants?
Mr. Stern: No.
Judge Aldisert: All right.
Mr. Stern: I suggest obviously you can’t prove just because a man bought a gun, if you don’t intend to prove he pulled the trigger.
After the trial court admitted the evidence over objection, the defense had every right to attempt to mollify the effect of the government’s evidence and inquire further into the issue opened by the government. This it could do without waiving its previous objection.
It has long been the rule that when a party’s objection is made and overruled, he is entitled to treat that ruling as the “law of the case’’ and to explain or rebut, if lie can, the evidence which has come in over his protest. Consequently, a party does not waive his objection if lie meets the evidence to which he objected with other evidence which under the theory of the objection would be incompetent. United States v. Modern Reed & Rattan Co., Inc., 159 F.2d 656 (2nd Cir. 1947), cert. denied, 331 U.S. 831, 67 S.Ct. 1510, 91 L.Ed. 1845 (1947); McCormick, Law of Evidence, § 55, at 129-130 (1954); 1 Wigmore, Evidence, § 18, at n. 36 & 36a (3d Ed. 1970 Supp.); cf. Trouser Corp. of America v. Goodman & Theise, Inc., 153 F.2d 284, 288 n. 6 (3d Cir. 1946). That rule is applicable here.
. Even accepting the majority’s view, that the extensive concern generated by defense counsel did not amount to a formal objection, I am persuaded that plain error was present here as in McClain, supra, where the evidence was admissible for only one purpose, to prove malice in a homicide case, and inadmissible for other purposes :
We would hold that whenever evidence is admitted only for a limited purpose, it is plain error, in the absence of manifest waiver, to omit an immediate cautioning instruction. The danger of prejudicial effect from such evidnece is so great that only an immediate and contemporaneous instruction can be considered sufficient to protect defendants. As long as we continue to have rules of evidence which admit testimony for some purposes but not for others, we must guard against its misuse by the jury.
440 F.2d at 246. Cf., United States v. Carter, 401 F.2d 748 (3d Cir. 1968), where the evidence was admissible for several purposes and inadmissible only to show disposition or propensity to commit crime.