I concur in the affirmance of the judgments of conviction of the defendants Coloretti, Silvers and Ruby. I dissent from the order affirming the judgment against the defendant Torres.
Evidence of declarations made, long after the termination of any conspiracy, by the defendants Coloretti, Silvers and Ruby before the board of directors of the musicians’ union was admitted over the repeated objections of counsel for Torres that it was not binding on Torres. The court properly ruled at the time that this evidence could not be considered by the jury against Torres. In the face of such ruling, several times repeated, the prosecuting attorney frankly admitted, while the testimony was being introduced, that his purpose in eliciting *799it was to involve Torres. This hearsay evidence was the only evidence in the case directly connecting Torres with the putting of knockout drops in the glass of cognac served to De Selva. Substantially it was that Torres put a heavy dose of the knockout drops in the cognac glass; that Silvers said: “For Christ's sake don’t give that to them. It will kill them,” that Torres said that it was meant for De Selva and the bass player; that Silvers refused to serve it to them and that Torres procured a waiter other than the defendants to serve the cognac; and that Torres put enough of the knockout drops in the cognac glass “to kill a mule.”
During the prosecuting attorney’s argument to the jury the following occurred:
“Mr. Mullins: . . . And this time Torres is going to be sure. This time not a few drops, but a whole lot from the bottle and he’s going to see that there is enough in there so that at this time De Selva really gets it, and gets it good. And Silvers, of course, was quite willing to give a Mickey Finn but now he gets seared, it looks like murder to him. Torres is putting in enough to kill a mule.
“Mr. Gillen: I’m going to object to any line of testimony or any statements on that line. We went over that very carefully when the musicians, when the Petrillo boys were on the witness stand.
“The Court: What is your objection?
“Mr. Levin: That it is a deliberate misquotation. Your Honor has stricken from the testimony and has ruled there will be nothing in the testimony that will be hearsay evidence and we went into that entire musicians’ stuff. They came and tried to drag in Torres. Counsel said the purpose of that hearsay was to drag Torres in.
“The Court: No speeches.
“Mr. Levin: It is a deliberate misquotation' and I assign it as misconduct and I ask for a mistrial at this time on that basis.
“The Court: The objection will be overruled. Keep in mind the instructions and admonitions heretofore given both during the course of the taking of the testimony, the limited purpose of any evidence when it was so limited, and the further instruction with respect to counsel’s arguments.
“Mr. Levin: Do I understand Mr. Mullins can now go into the evidence—
“The Court: The Court has ruled, counsel.”
*800Following the last ruling the prosecuting attorney continued to argue the hearsay testimony against Torres.
That it was gross misconduct of the prosecuting attorney to argue the effect of this hearsay testimony against Torres is obvious. That it was prejudicial misconduct seems clear to me from the following considerations:
The jury was instructed clearly that each member of a conspiracy is legally responsible for the act of any other member of the conspiracy. In the face of this instruction the jury found Torres not guilty of the substantive offense of giving De Selva poison in the whisky and soda. This verdict indicates that the jury must have found that Torres did not become a member of the conspiracy until after the whisky and soda had been served to De Selva. If they so believed, the hearsay testimony that Torres put enough knockout drops in the cognac “to kill a mule,” so much that Silvers would not take the responsibility of serving it, could easily have turned the scales against Torres in their determination that he entered the conspiracy after the poisoned whisky and soda had been served.
The error of the trial court in overruling the objection to the prosecuting attorney’s argument of the hearsay testimony against Torres was not cured by the general admonition of the court in connection with the ruling: “Keep in mind the instructions and admonitions heretofore given both during the course of the taking of the testimony, the limited purpose of any evidence when it was so limited, and the further instruction with respect to counsels’ arguments.”
The objection to this line of argument should have been promptly sustained and the jury clearly and plainly instructed at that time to disregard it. Only so, if at all, could its damaging effect have been eradicated from the minds of the jury. The effect of permitting the erroneous argument to stand and to be continued by the prosecuting attorney while at the same time giving an instruction in such general terms, not pointed directly to the objectionable character of the argument being made, must at best have been confusing to a jury of laymen, and at worst might well have convinced them that the judge by overruling the objection to this line of argument had placed his approval upon it.
In the final instructions to the jury, which cover more than 30 pages of the reporter’s transcript, the following instructions, not pointed to this particular evidence in any way, were given on this particular question:
*801“No act or declaration of a conspirator that is committed or made after the conspiracy has been terminated by its purpose have been fully accomplished or by its objective having ended is binding upon his co-conspirators, and they are not criminally liable for any such act or declaration.”
“Now, in the trial of this case, ladies and gentlemen, there were instances when certain evidence was admitted as against one or more of the defendants but denied admission as against others. It may be difficult for you, when considering the case for or against any one certain defendant, to disregard any evidence that was admitted only as to another, but that is your plain duty with respect to evidence not admitted by the Court as against a certain defendant, and you must try conscientiously to so treat such a situation.”
The latter instruction instead of being clearly mandatory was only precatory in an almost apologetic way: “It may be difficult for you . . . but . . . you must try . . . .”
These general instructions in my judgment were not sufficient to undo the effect of the deliberate and wilful misconduct of the prosecutor in arguing matters against Torres which he knew from the previous rulings of the court, and at .another time stated himself, constituted no evidence of Torres’ guilt.
I cannot agree with the statement in the majority opinion that there was no suggestion in the prosecutor’s argument that any of these admissions be considered by the jury in determining the guilt of Torres. “This time Torres is going to be sure . . .he’s going to see that there is enough in there so that at this time De Selva really gets it and gets it good. And Silvers . . . gets seared, it looks like murder to him. Torres is putting in enough to kill a mule.” The requoted language finds no basis in the evidence except in the testimony of the statements made by the other defendants before the officers of the musicians’ union. It does not tend to incriminate the other defendants in any way but is directed solely against Torres. The fact that the prosecuting attorney at another point in his argument stated to the jury that this evidence was not to be used against Torres only emphasizes the flagrancy of his misconduct in making this particular argument. Courts should not condone the attempts of their own sworn officers to sway juries by any such deliberately improper and illegal means.
Despite the opposite conclusion reached by my associates, for whose judgment and experience I have the greatest respect, I *802am unable to agree with them that the portion of the argument of the prosecuting attorney herein discussed did not constitute prejudicial misconduct entitling the appellant Torres to a reversal.
Appellants’ petition for a hearing by the Supreme Court was denied May 10,1948. Carter, J., voted for a hearing.