dissenting:
I respectfully dissent.
The defendant’s motion for a mistrial should have been granted. In my view, the cumulative effect of the errors complained of was to deny the defendant a fair trial. Oaks v. People, 150 Colo. 64, 371 P.2d 443 (1962). The defendant’s trial was contaminated by the district attorney’s repeated *127references to evidence and exhibits offered in the first trial but which were not introduced in the second trial. The first trial ended with a hung jury and caused the court to declare a mistrial because the jury was not able to reach a verdict after extended deliberation.
Lord Hale’s historic instruction on rape points out that the accusation is easy to make and hard to prove, but harder to defend against, even though the accused be ever so innocent. People v. Nye, 38 Cal.2d 34, 237 P.2d 1 (1951). In this particular case, the complaining witness was the daughter of Elliston’s common-law wife. The Elliston’s marriage was an unhappy one, and at the time the charge was made, the defendant and his wife were in the throes of a bitter divorce suit. Whether or not the divorce suit and the bitterness between the defendant and the mother of the complaining witness had anything to do with the accusation was for the jury, but the conduct of the district attorney changed the atmosphere of the courtroom from objectivity to prejudice. When repeated efforts are made to unfairly influence the jury by injecting into the trial extraneous matter which naturally tends to create prejudice, it is speculation to say that the prejudice created by such improper trial tactics may be cured by an instruction that the arguments and objections of counsel are not evidence or by an instruction to disregard the conduct. This is a case where the doubt should be resolved in favor of the defendant. In my view, his acts not only constituted unprofessional conduct, but also unfairly influenced the jury.
True it is that the trial court is in the best position to judge whether a mistrial should be declared. Lee v. People, 170 Colo. 268, 460 P.2d 796 (1969). However, in order to determine whether the conduct was sufficiently bad or whether the jury was prejudiced, the court must examine the facts in each case. Honda v. People, 111 Colo. 279, 141 P.2d 178 (1943). It is clear that a mistrial should be granted when the district attorney, by repeated acts, endeavors to prejudice the jury and causes inadmissible evidence to be placed before a jury. Smith v. People, 8 Colo. 457, 8 P. 920 (1885); State v. *128Farrell, 61 N.J. 99, 293 A.2d 176 (1972); People v. Brown, 3 Ill.App.3d 1022, 279 N.E.2d 765 (1972). Cf., United States v. Young, 463 F.2d 934 (D.C. Cir. 1972).
In my view, the conduct of the district attorney was not robbed of its impact by a mere instruction that the arguments and objections of counsel were not evidence. Loveland v. Nieters, 79 N.D. 1, 54 N.W.2d 533 (1952). See People v. Deal, 357 Ill. 634, 192 N.E. 649 (1934). It is impossible to say that the remarks and the conduct complained of did not affect the outcome of the case. Brown v. People, 132 Colo. 561, 291 P.2d 680 (1956).
One example of the prejudicial and improper conduct in this case is the effort of the district attorney to make certain that the jury knew that the defendant had been accused of several offenses and not just the one for which he was being tried. The district attorney asked the officer who took the offense report from the complaining witness and her mother whether the report mentioned one or numerous offenses. This poisonous question was asked twice, and objections were sustained in both instances. The offense report itself was never admitted into evidence, and the questions were never answered. However, the district attorney utilized his summation to again bring the inadmissible offense report to the jury’s attention. He argued and, in effect, testified that the offense report referred to numerous other offenses. He told the jury:
“He [Officer Comstock] took an offense report .... [D]id it refer to more offences? Numerous. Numerous offenses.”
Since the district attorney had waived his opening summation to the jury, he delivered these remarks when defense counsel had no opportunity to answer.
Moreover, he urged each juror in his argument to consider the case and the crime as though the victim were his own daughter. He also accused the defense lawyer of misrepresentation and bad faith in not producing the note that the victim prepared after the sexual episode allegedly occurred and alluded to the fact that the note was introduced in evidence in the first trial.
*129He also told the jury that a defense witness who substantiated the defendant’s alibi was present during the time that defense counsel made an opening statement and suggested that the witness had tailored his testimony to defense counsel’s remarks. He then reminded the jury that he had sought to exclude witnesses from the courtroom, but that the court denied his request.
The American Bar Association Standards for Criminal Justice Relating to The Prosecution Function and The Defense Function, The Prosecution Function, § 5.8, provides:
“5.8 Argument to the jury.
“(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
“(b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
“(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.
“(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.”
All advocates recognize the elementary rule that the limits of argument do not extend beyond the record and inferences which can reasonably and fairly be drawn therefrom. Assertions of fact which have not been proved amount to unsworn testimony of the district attorney which is not subject to cross-examination. The Standards for Criminal Justice declare that it is unprofessional conduct for a district attorney intentionally to refer to or argue facts outside the record. American Bar Association Standards for Criminal Justice Relating to The Prosecution Function and The Defense Function, The Prosecution Function, § 5.9.
*130For the reasons stated, I would order that the defendant be granted a new trial.
MR. JUSTICE DAY and MR. JUSTICE LEE have authorized me to say that they join me in this dissent.