in U.S. District Court here on charges of conspiring to defraud the Government of Federal estate taxes.'
The last three paragraphs, under the sub-headline, 'sentenced to year,' read:
'Last October Alker was sentenced to a year and a day in prison and fined $ 30,000 following his conviction by a jury of evading $ 185,000 in income taxes for the years 1947 through 1950.
'The state of Alker's health featured that trial, both in testimony and in his own courtroom appearance. In the early stages he showed up in a wheelchair and later on a stretcher. The defense claimed mental incompetency in seeking a mistrial. The plea was rejected. He was freed in $ 2000 bail pending an appeal.
'Two weeks ago Orphans' Court Judge Harold D. Saylor removed Alker as coexecutor and cotrustee of the residuary trust created under the will of George W. Rentschler, retired plumbing and heating contractor, who died in 1954.'
The article of March 28 concluded with the following paragraph:
'Alker is at present free in $ 2000 bail on appeal of a one-year prison sentence and $ 30,000 fine following conviction last fall of a $ 185,000 income tax fraud.'
It thus appears that at least four jurors knew of the defendant's prior conviction of an offense similar in nature to that on trial. One of these four may very well have read of defendant's removal as co-executor and co-trustee by the state Orphans' Court, and have noted the discrediting implication that Alker had feigned mental and physical disability in the earlier trial.
It is the Government's position that these disclosures resulted in no harm to the defendant. Though its counsel made no attempt to prove Alker's earlier conviction, the Government now confidently asserts that, since Alker testified, he could have been interrogated about his prior conviction to attack his credibility, and that the entire jury could thus have properly acquired the same information. Certainly the Government would not have been entitled to elicit all the information which appeared in the news articles, nor are we quite persuaded that Alker could have properly been examined about his former conviction while his motion for a new trial upon that charge was still pending and undetermined. Our research discloses a definite split of authority on the question, and we think it unnecessary now to pursue the subject. The real desideratum is that, if the Government had properly established the prior conviction, the trial judge would have carefully instructed the jury as to the limited purpose for which that conviction could be considered and would have expressly instructed the jury of its duty to disregard it as substantive proof of the commission of the crime on trial.
Courts have recognized that it is impossible to formulate any rule of universal application as respects the issue of prejudice in cases of this character. Too much depends upon manifold considerations of time and place and circumstances, as well as of substance and context. Marshall v. United States, 1959, 360 U.S. 310, 79 S. Ct. 1171, 3 L. Ed. 2d 1250, while not controlling, is highly instructive. There, the defendant was convicted by a jury of unlawfully dispensing certain drugs without a prescription from a licensed physician. He did not take the stand, and offered no evidence. His defense was entrapment. The trial judge refused the Government's offer to prove that defendant had previously practiced medicine without a license, as tending to refute the defense. During the trial several of the jurors read newspaper articles containing such information, and also stating that defendant had a record of two previous felony convictions. The court, reversing a divided Court of Appeals and ordering a new trial, stated (360 U.S. at page 312, 79 S. Ct. at page 1173):
'The trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial. Holt v. United States, 218 U.S. 245, 251, 31 S. Ct. 2, 6, 54 L. Ed. 1021. Generalizations beyond that statement are not profitable, because each case must turn on its special facts. We have here the exposure of jurors to information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence. 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, 69 S. Ct. 213, 218, 93 L. Ed. 168. It may indeed be greater for it is then not tempered by protective procedures.' (Emphasis supplied.)
Just what part the extra-judicial information in the instant case played in the determination of the verdict can be left only to conjecture. We are convinced, however, that its potentialities for harm were very great. The danger is that jurors may have considered the prior conviction -- particularly in view of the similarity of the offenses -- as indicative of Alker's criminal propensities for tax evasion and may have considered this as indicating a likelihood that Alker committed the offense then charged. This was the one purpose, of course, for which it could not be used. 22 C.J.S. Criminal Law, § 682. The jury was carefully instructed that their verdict was to be based, and based alone, on the evidence presented at the trial and the law as stated by the trial judge. Their oath required them to render such a verdict. We do not doubt the jurors' devotion to their sworn duty, or to the cause of justice under the law. The relevant inquiry, however, is whether the four or more jurors could, with the best will, cast entirely from their minds the knowledge of the defendant's past record, -- whether, in short, they could disabuse their minds of a perhaps unconscious prejudice or predisposition against the defendant. After most careful consideration, we are persuaded that the weight of probabilities rests with the defendant's contention, and that justice demands the award of a new trial.
Now, December 30, 1959, it is ordered that the judgment and sentence is vacated and the defendant, Harry J. Alker, Jr., is granted a new trial.