(dissenting):
I share the concern of the majority at the challenged portions of the closing argument of counsel for the Government but rather than finding the remarks immoderate they strike me as so inexcusable and so obviously prejudicial in the impact they were certain to have upon the jury as to require a reversal on this ground alone. Accordingly, I respectfully dissent.
This is not a case between two private lawyers who each have gotten “carried away” in the heat of battle; instead, we are concerned with the remarks of an attorney clothed with the majesty of the Government of the United States of America. I have difficulty reading these remarks as other than a deliberate and calculated effort to insure that if the merits were not sufficient to win the case, there would be a back-up of passion and prejudice.
The majority, of course, recognize the impropriety, and perhaps little attention needs to be given to that phase of the appeal. Nevertheless, several aspects of the impropriety should be noted. The wealth of the plaintiff, irrespective of whether it was reflected in the evidence, could not conceivably have had any relevant bearing on whether he was entitled to utilize available tax procedures. The suggestion that he was not paying the income taxes he should have been paying is at least suggestive of tax evasion, criminal activity, as opposed to tax avoidance, a perfectly proper objective. The jurors’ personal participation in the payment of taxes was brought into play with at least the implicit suggestion that the jurors would have less taxes to pay if people like the plaintiff paid their fair share. The jury was, in short, being invited to rewrite the Internal Revenue Code to require Dr. Epperson to pay taxes on what “we” (presumably referring to the Government) say is his fair share, not what the Code said he had to pay.
The matter of whether this improper conduct should be the cause of reversal, however, "becomes a close question because of the failure of counsel for the plaintiff to make any kind of a reasonable record. The result reached by the majority has the substantial backing of many cases to the effect that before a party is entitled to relief from a verdict allegedly obtained by improper argument, he must ordinarily show that he brought the matter to the attention of the trial court by a proper objection at the time the offense was committed. Annot., 32 A.L.R.2d 9, 86 (1953).
The only objection made was weak, belated, and imprecise. Apparently no effort was made to follow up either by way of further objection, motion for mistrial, or even a request for an admonitory instruction. On the other hand, it must be noted that the learned trial judge did apparently indicate when the objection was made that the argument was not improper. Counsel is in a precarious position when improper argument is made. If immediate objection is made, the interruption of the argument may only serve to emphasize the improper comments in the minds of the jury. An objection out of the hearing of the jury, unless it secures a mistrial, is subject to the same difficulty. An admonitory instruction should be as broad as the error, People v. Fielding, 158 N.Y. 542, 53 N.E. 497, 500 (1899), and this again directs the attention of the jury to the remarks, with there being uncertainty as to whether the instruction will cure the effect of the misconduct. See Washington Annapolis Hotel Co. v. Riddle, 83 U.S.App.D.C. 288, 171 F.2d 732, 740 (1948).
Of greatest significance, however, in tipping the scales in favor of a reversal here is the fact that an official representative of the Government was in effect saying that tax avoidance was egregious conduct which should be penalized for its own sake. The reference to the Doctor paying only eight percent taxes and “I guarantee you, every one of you, pay taxes far in excess of eight percent” could not help but inflame the jury against the cause being litigated because *102“if he doesn’t [pay his fair share], somebody else is going to have to do it for him.”
While generally appellate courts are reluctant, and properly so, to reverse a judgment where the parties have not fully and adequately presented the claimed basis for reversal to the trial court, nevertheless, there are those cases where “refusal to take such action appears . . . inconsistent with substantial justice.” Rule 61, Fed.R.Civ.P.
The present ease, on balance, is one which appears to me to call for such action on the basis outlined in N.Y. Central Railroad Co. v. Johnson, 279 U.S. 310, 318, 49 S.Ct. 300, 303, 73 L.Ed. 706 (1929):
“The failure of the trial judge to sustain petitioner’s objection or otherwise to make certain that the jury would disregard the appeal could only have left them with the impression that they might properly be influenced by it in rendering their verdict, and thus its prejudicial effect was enhanced. See Hall v. United States, 150 U.S. 76, 81 [14 S.Ct. 22, 37 L.Ed. 1003]; Graves v. United States, 150 U.S. 118, 121 [14 S.Ct. 210, 37 L.Ed. 1021]; Wilson v. United States, 149 U.S. 60, 68 [13 S.Ct. 765, 37 L.Ed. 650]. That the quoted remarks of respondents’ counsel so plainly tended to excite prejudice as to be ground for reversal, is, we think, not open to argument. The judgments must be reversed, with instructions to grant a new trial.
“Respondents urge that the objections were not sufficiently specific to justify a reversal. But a trial in court is never, as respondents in their brief argue this one was, ‘purely a private controversy . . . of no importance to the public.’ The state, whose interest it is the duty of court and counsel alike to uphold, is concerned that every litigation be fairly and impartially conducted and that verdicts of juries be rendered only on the issues made by the pleadings and the evidence. The public interest requires that the court of its own motion, as is its power and duty, protect suitors in their right to a verdict, uninfluenced by the appeals of counsel to passion or prejudice. See Union Pac. R. Co. v. Field [8 Cir.], 137 F. 14, 15; Brown v. Swineford, 44 Wis. 282, 293. Where such paramount considerations are involved, the failure of counsel to particularize an exception will not preclude this court from correcting the error. Brasfield v. United States, 272 U.S. 448, 450 [47 S.Ct. 135, 71 L. Ed. 345].”
For the reasons set forth herein, I would reverse and remand for a new trial.