dissenting:
I would reverse this conviction and remand for a new trial, not withstanding substantial evidence of guilt. *181The constitutional requirement of a fair trial is not influenced by whether the accused is innocent or guilty, nor by the abhorrent nature of the offense charged. The standards of fundamental fairness must be met in each case. Here, newspaper stories disseminated while the trial was in progress, related inadmissible information about the prior crime record of the defendant, and were read by six of the jurors. That kind of prejudicial publicity poisons the mind and sometimes destroys one’s capacity to reach a verdict based solely upon the evidence produced in court. Had such prejudicial matter been erroneously received in evidence we would, of course, set the conviction aside and order another trial. Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966); Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962); State v. Teeter, 65 Nev. 584, 200 P.2d 657 (1948); Walker v. State, 78 Nev. 463, 376 P.2d 137 (1962), dissenting opinion. This case is different from those just cited only because the jurors learned of the defendant’s criminal record from the newspapers rather than from evidence erroneously received during trial. In my view, this difference does not authorize us to rule that the prejudicial impact upon the defendant’s right to a fair trial is somehow diminished or nullified. It is not. Marshall v. United States, 360 U.S. 310, 3 L.Ed.2d 1250, 79 S.Ct. 1171 (1959).
In the Marshall case, supra, the sole question considered was whether the exposure of some of the jurors to newspaper articles about the defendant’s prior felony convictions was so prejudicial in the setting of the case as to warrant the Supreme Court to exercise its supervisory power over the federal district court and order a new trial. It did exercise that power and ordered another trial. In so doing, the court wrote: “The prejudice to the defendant is almost certain to be as great when that evidence reaches the jury through news accounts as when it is a part of the prosecution’s evidence. Cf. Michelson v. United States, 335 U.S. 469, 475, 93 L.Ed. 168, 173, 69 S.Ct. 213. It may indeed be greater, for it is then not tempered by protective procedures.” In Marshall, as here, each juror when questioned by the court, stated that he would not be influenced by the news *182articles and would decide the case only on the evidence of record. Despite this the court reversed. The following are some of the federal decisions which agree with the rationale of Marshall v. United States, supra. United States v. Accardo, 298 F.2d 133 (7th Cir. 1962); Marson v. United States, 203 F.2d 904 (6th Cir. 1953); Lane v. Warden, Maryland Penitentiary, 320 F.2d 179 (4th Cir. 1963). See also the state court decisions of People v. Purvis, 60 Cal.2d 323, 33 Cal.Rptr. 104, 384 P.2d 424 (1963); Commonwealth v. Crehan, 345 Mass. 609, 188 N.E.2d 923 (1962); and cases collected at 31 A.L.R.2d 417.
Judicial frustration attends the problem at hand. The defendant has a constitutional right to a fair trial by an impartial jury. It is the judicial obligation to protect that right. On the other hand the United States Supreme Court has not yet restricted the First Amendment right to freedom of the press where its exercise infects the fairness of the trial of a criminal case. See Irvin v. Dowd, 366 U.S. 717, 6 L.Ed.2d 751, 81 S.Ct. 1639 (1961), concurring opinion of Justice Frankfurter. The corrective action now available to an appellate court is to set aside the conviction and order another trial. Marshall v. U.S., supra; Estes v. Texas, 381 U.S. 532, 14 L.Ed.2d 543, 85 S.Ct. 1628 (1965); Turner v. Louisiana, 379 U.S. 466, 13 L.Ed.2d 424, 85 S.Ct. 546 (1965); Rideau v. Louisiana, 373 U.S. 723, 10 L.Ed.2d 663, 83 S.Ct. 1417 (1963). Little comfort is gathered from this corrective measure. Government must stand the expense of another trial. Jurors are again summoned from their daily tasks to perform jury service. Witnesses are once more subjected to the ordeal of the court room. The defendant’s status is still undecided. The judicial machinery is clogged. I doubt that those in charge of news policy desire multiple trials of a criminal case. With their cooperation we can better realize the goal of a fair trial for all involved.
When a trial court learns that, during trial, jurors have read prejudicial news stories about the defendant, admonition and a cautionary instruction to disregard those stories are essential. The failure to so admonish and instruct will require another trial. United States v. *183Leviton, 193 F.2d 848 (2d. Cir 1951); United States v. Carruthers, 152 F.2d 512 (7th Cir. 1945); Hammons v. People, 153 Colo. 193, 385 P.2d 592 (1963); State v. Cox, 188 Kan. 500, 363 P.2d 528 (1963); Briggs v. United States, 221 F.2d 636, (6th Cir. 1955); King v. United States, 25 F.2d 242 (6th Cir. 1928); People v. Purvis, 60 Cal.2d 323, 33 Cal. Rptr. 104, 384 P.2d 424 (1963). Even when the court does utilize this technique its effectiveness is doubtful. Commonwealth v. Crehan, 345 Mass. 609, 188 N.E.2d 923 (1963). It is difficult, if not impossible, for a juror not to be at least subconsciously influenced by extra-judicial matters to which he has been exposed despite honest efforts to remain fair and impartial and to discharge his oath.
In the case at hand the admonition was not given. It is certain that the statutory admonition, NRS 175.325, to which the majority has referred, is not the admonition required to handle the problem. Nor did the lower court give the cautionary instruction contemplated by the cases cited above. Impliedly, therefore, the court allowed the jurors to retain the prejudicial newspaper information, so long as they remained “fair.” I have found no case which may be read to approve this procedure. None of the cases cited in the majority opinion would authorize an affirmance here.