dissenting.
The rule enunciated in State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954) — that evidence of other crimes, offenses, or circumstances is inadmissible if its only relevance is to show the character of the defendant or his disposition to commit an offense of the nature of the one charged — is still the law. The exceptions to the rule, and there have been many, have not engulfed the rule. The cases cited by the majority all fall within the exceptions to the McClain rule. They suggest neither an extension of the rule nor a re-writing of the rule. I, therefore, disagree with the majority’s statement, ante p. 6, that
based on the facts of the cases decided in this [Sjtate, evidence of a separate crime is admissible to prove the crime for which a defendant is being tried if the separate crime is similar to the one for which the defendant is being tried, and was committed within a time not too far removed from the crime with which the defendant was charged.
Thus, while I concur in what I believe to be a close non-suit issue, I dissent from the majority’s resolution of the McClain issue and the improper closing argument issue.
I
In my view, the only relevancy of the evidence that the defendants’ other child, YaVonka, suffered from Battered Child Syndrome and had been removed from defendants’ home was to show the disposition of the defendants to abuse their children. There was no evidence in this case that defendants had been the exclusive caretakers of YaVonka. There was no evidence that YaVonka was in the care of defendants at the time she received her injuries. Significantly, Doctor Sinai testified that the defendants told her on 10 May 1979 that they had been caretakers of YaVonka for only about two weeks. Again, the evidence against defendants was far from overwhelming, and the improperly admitted evidence was prejudicial. That the McClain rule is alive and well is evidenced by the recent words of our Supreme Court in State v. Shane, 304 N.C. 643, 653-54, 285 S.E. 2d 813, 820 (1982):
[SJubstantive evidence of a defendant’s past, and distinctly separate, criminal activities or misconduct is generally excluded when its only logical relevancy is to suggest defend*633ant’s propensity or predisposition to commit the type of offense with which he is presently charged. [Citations omitted.] ‘Logical relevancy’ is capably demonstrated whenever such evidence has some bearing upon genuine questions concerning knowledge, identity, intent, motive, plan or design, connected crimes, or consensual illicit sexual acts between the same parties. [Citations omitted.]
* * #
In addition, it must affirmatively appear that the probative force of such evidence outweighs the specter of undue prejudice to the defendant, and, in close cases, fundamental fairness requires giving defendant the benefit of the doubt and excluding the evidence. [Or, as it is more descriptively said in the game of baseball, the tie must go to the runner.] [Citations omitted.]
Id., 304 N.C. at 653-54, 285 S.E. 2d at 820.
II
“The trial court has a duty, upon objection, to censor remarks not warranted by either the evidence or the law. . . .” State v. Monk, 286 N.C. 509, 516, 212 S.E. 2d 125, 131 (1975). In the case sub judice, the defendants interposed several objections to the district attorney’s argument, ante, pp. 7-8. The trial court overruled each objection, and the district attorney was permitted to continue the same line or argument. The majority correctly points out that the district attorney made several misstatements of the law, and further notes “that there was no testimony in this case that Jo Von Byrd, for whose homicide the defendants were being tried, had a Battered Child Syndrome. The testimony was that YaVonka Byrd had a Battered Child Syndrome.” Ante, p. 8. Yet, the majority finds no prejudicial error. I disagree.
The district attorney’s statements were grossly improper. The district attorney straightforwardly told the jury that since the State showed the Battered Child Syndrome, that the defendants were ipso facto guilty. That is not the law. The trial court lent its imprimatur to the statements by failing, in the face of repeated objections, “to sustain objection to the prosecuting attorney’s improper and erroneous argument [and by failing] to instruct the jury that the argument was improper with prompt and *634explicit instructions to disregard it.” State v. Monk, 286 N.C. at 518, 212 S.E. 2d at 132.
The erroneously admitted evidence concerning the defendants’ other child, YaVonka, and the improper arguments relating to the Battered Child Syndrome by the district attorney, were sufficiently prejudicial, in my view, to warrant a new trial.