dissenting:
I dissent. This court is again faced with the difficult task of deciding, upon a cold record, whether errors committed during the jury trial of a capital case are to be deemed harmless or prejudicial. Such a decision is one concerning which judges frequently differ. I agree with the majority opinion that the record reveals the commission of three errors by the trial court and, in addition, one instance of prosecutor misconduct. However, I am unable to conclude, as did they, that such accumulation of error occurred without prejudice to the defendant’s right to a fair trial.
1. The prosecutor’s opening remark. It is important to remember that in a criminal case the accused need not testify. Const, of Nev., art. 1, sec. 8; NRS 175.175. In the instant case the sole living witness to the homicide was the defendant. Only he could communicate to others the circumstances surrounding the killing. Whether he would elect to testify at the trial was a decision to be made by him after presentation of the state’s case in chief. He could not be compelled to tell his story of the occurrence. In the case at bar, Walker’s decision to take the stand may well have been influenced by the prosecutor’s opening statement remark, permitted over objection, that he, Walker, was apprehended at the Oklahoma State Penitentiary. Though not a direct statement to the jury of his status as a convict, the implication was clear and had the tendency to connect him with the commission of a separate, distinct and independent crime.1 In State v. Lindsay, 63 *475Nev. 40, 161 P.2d 351, where a witness was asked whether he and the defendant did time together in Walla Walla, Washington, this court held the question to be misconduct and error, because it tended to connect accused with the commission of a crime independent of and unconnected with the one with which he was on trial. Such error, however, was not deemed prejudicial under the circumstances of that case. See also Garner v. State, 78 Nev. 366, 374 P.2d 525.
Thus, during the initial stage of the trial, the jury was indirectly advised of Walker’s status as a convict. Perchance, Walker’s pre-trial strategy was to remain silent, thereby precluding jury knowledge of his crime record. If so, such pre-trial decision may have been changed because of the prosecutor’s opening remark. Trial plans are frequently altered by such a circumstance. In any event, Walker decided to testify. Because of that decision the jury learned, among other things, that he was a “five-time loser,” having been previously convicted of five felonies. Whether his election to be a witness was in fact influenced by the prosecutor’s opening remark is not known to us. However, I am unable to cast from my thoughts this question: Would either the verdict or the sentence have been different had such remark not been made, had Walker elected to remain silent, and had the jury not become aware of his extensive crime record?2 I deem such question appropriate when called upon to decide whether prejudice resulted to a substantial right of one accused of crime. Accordingly, I prefer not to speculate that the trial result would have been the same, particularly in a capital case where the sentence of death has been pronounced.
*4762. The prosecutor’s question re incidence of homosexuality. During presentation of the state’s case in chief, the deputy warden of the Oklahoma prison was asked: “Now, based on your experience as a deputy warden at the Oklahoma State Penitentiary, and your some eight years experience altogether at the prison, and based on your close contact with the inmate personnel, can you state the incidence of homosexuality with the inmate population?” During argument upon the objection interposed by defense counsel, the prosecutor admitted that he could not connect the subject of homosexuality with the defendant. In view of such concession, I believe the mere asking of such question to be misconduct. The majority, though conceding that the prosecutor erred in asking the question, appears to believe it to have been unintended error, committed in the exercise of good faith. I am unable to reach the same conclusion. Had the prosecutor believed that the subject of homosexuality was relevant to the case and that evidence was available to establish the defendant’s affliction in that regard, my opinion would be otherwise. However, with the information that such evidence was not available and could not be offered, I deem the question grossly improper.
Though the trial court sustained the objection and instructed the jury to disregard the question, the possible prejudice resulting from the fact that it was asked and overheard by the jurors, was not, in my judgment, thereby eliminated. Not every error is cured by a correct ruling and admonition. In State v. Teeter, 65 Nev. 584, 200 P.2d 657, this court reversed a second degree murder conviction notwithstanding a correct ruling and admonition, simply because the subject matter sought to be introduced (another offense) and talked about before the jury, was inherently prejudicial. The same reasoning has application here.
Finally, the defendant’s decision to testify may have been influenced by this circumstance, as well as by the subject previously discussed. We do not know. It is sufficient to note that upon conclusion of the state’s direct case, the jury may well have considered Walker *477to be a convict and, perchance, a homosexual. It should not have been permitted the opportunity, at that stage of the trial, to surmise regarding such inherently prejudicial matter.
Thus, it is apparent that Walker’s status as a convict was proper ammunition only by way of impeachment should he testify. It is equally apparent that the incidence of homosexuality among the inmates at the Oklahoma prison was not pertinent to the case at any stage of the trial. Yet, the first was indirectly mentioned before any testimony was offered, and the second referred to during the prosecution’s direct case, perhaps upon the premise that “guilt by association” might be of assistance in obtaining a conviction. I do not find such occurrences compatible with the concept of a fair trial.
3. The written report of the witness Wise. Though not a crucial witness, Officer Wise of the Reno Police Department was an important witness to the state’s direct case. He investigated the scene of the homicide. He photographed the interior of the camper and its contents, the position of the victim therein, processed for fingerprints and, during trial, related his activities and observations, identifying many items which were received in evidence. During cross-examination by defense counsel it developed that Officer Wise had, before trial, made a written report of his investigation. The defense motion to produce such report was denied. This ruling is assigned as error.
Our nation’s highest court in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, considered the matter of discovery during trial.3 In Jencks, crucial testimony against the defendant, charged with filing an affidavit stating falsely that he was not a member of the communist party, was given by two undercover agents of the Federal Bureau of Investigation. They stated on cross-examination that they had *478made regular oral and written reports to the FBI on the subjects of their direct testimony. Defendant moved for production of these reports for inspection by the judge, with a view to their use by defendant for impeachment purposes. The motion was denied. The defendant was convicted. His conviction, affirmed by the Court of Appeals, was reversed by the Supreme Court. The court held that the defendant was entitled to examine the reports without — as some previous cases had required — a preliminary showing of inconsistency between the reports and the agent’s testimony, or a preliminary in camera inspection of the reports by the judge to determine relevancy.4 Though the rule announced in Jencks appears, at this time, to be a rule of procedure and not binding on state courts, it is most persuasive. Indeed, this court, long before Jencks, adopted a similar view. See State v. Bachman, 41 Nev. 197, 168 P. 733.
My colleagues agree that error occurred when the trial court denied the defendant’s motion to produce, but label such error harmless. I cannot concur. The information requisite to such a determination is not contained in the record on appeal. Cf. People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cited by the majority opinion. The written report of Officer Wise was not marked for identification. We do not know whether it was valuable for impeaching purposes; whether it was inconsistent with or in contradiction of his oral trial testimony. Neither can we ascertain whether the written report contained information omitted from his trial testimony, or the contrary. Cf. People v. Chapman, 52 Cal.2d 95, 338 P.2d 428. The uses which experienced trial counsel would have made of such report, had it been produced, are conjectural. Absent such information, a void exists, causing the choice between the harmless or prejudicial nature of the error to be patent guesswork. In such a situation I choose to presume prejudice.
*479Thus, the accumulation of error is apparent.5 The improper reference to the accused’s status as a convict and, by inference, his possible participation in homosexual activity as an inmate of the Oklahoma prison, despite the trial court’s admonition, have the inherent tendency to prejudice. The effect of the failure, during trial, to produce the statement of an important witness for defense use in cross-examination, is unknowable. The accused was tried, found guilty, and sentenced to death. These factors compel me to believe that Walker should be accorded a new trial, free from the errors herein described. Cf. Garner v. State, 78 Nev. 366, 374 P.2d 525.
The state sought to justify the remark, contending that the defendant’s apprehension at the Oklahoma prison, and all circumstances surrounding same, formed a part of the res gestae of the arrest and could be shown where relevant to the issues, citing Fricke, California Criminal Evidence, 285 (5th ed. 1960). This contention is without merit. The so-called “apprehension” was not an *475arrest: it was simply a conference at which the prosecutor questioned Walker regarding the Nevada homicide, and received his answers, the entire proceeding being reported and transcribed. In any event, the circumstance of Walker’s imprisonment was not relevant to any issue in his Nevada murder trial.
Specific reference to Walker’s criminal record was deleted from the confession which was introduced during the state’s case in chief, in accordance with the rule in State v. Skaug, 63 Nev. 59, 161 P.2d 708, 163 P.2d 130.
Discovery during trial is to be distinguished from the pre-trial discovery problem presented in Pinana v. District Court, 75 Nev. 74, 334 P.2d 843, and Pinana v. State, 76 Nev. 274, 352 P.2d 824. An excellent article re all aspects of criminal discovery appears in 49 Calif.L.Rev. 56.
Because of the Jencks opinion, Congress passed the “Jencks Act,” 18 U.S.C., sec. 3500. Thus, this subject, for the purposes of federal court trials, is now governed by statute. Annot., 5 L.Ed.2d 1014.
I agree with the majority that the cause is triable in Washoe County because of the uncertainty as to the exact locale of the homicide. Hence, the erroneous giving of Instruction No. 25 regarding the “in transitu” statute should not be deemed prejudicial.