Rosenn and Rosen, Circuit Judges, and VanArtsdalen, District Judge.
Appellant, Francis Clinton Mahon, Jr., was convicted of conspiracy. Title 18 U.S.C.A. § 371 (1966). The conspiracy charge arose from the interstate transportation of forged securities. One substantial issue has been raised in this appeal.*fn1
John Blandford, indicted as a co-conspirator, was called and testified as a government witness. The final questions and answers on his direct examination were as follows:
"Q Do you like Francis Mahon?
Q Why are you testifying today?
A Because it is the truth and I think it ought to be told.
Q Why don't you like Mr. Mahon?
A Francis Mahon tried to kill myself and my two children."
The trial judge immediately called a sidebar conference, during which conference defense moved for a mistrial. During the side-bar conference the government's attorney explained that he asked the questions "because there was prejudice being shown" but that he "had no knowledge of the answer" that Blandford was going to give. The motion for a mistrial was denied. The trial judge then told the jury: "I am ordering the last question and answer stricken from the record and you should consider neither that question nor the partial answer that was given."
Blandford's testimony was essential to the case against Mahon. The answer was directly responsive. The testimony would indicate to the jury that Mahon was a malevolent, violent and dangerous character. Even worse, the testimony could be interpreted in no other way than a factual statement by the witness that the defendant had committed serious crimes constituting, as a minimum, attempted multiple homicides. Any possible inference that could be drawn from the answer would be totally unrelated and irrelevant to the charge for which the defendant was being tried. The prejudice to the defendant, if considered at all by the jury, is too obvious to require extended discussion. The testimony was clearly inadmissible. The government does not contend that it was.
In United States v. Stirone, 262 F.2d 571, 576 (3rd Cir. 1958), Judge Goodrich noted that the general rule as stated by most courts excludes evidence of other offenses in criminal prosecutions. Because of several well recognized exceptions, Judge Goodrich suggested that the rule be stated "a little less mechanically." He formulated the rule for this circuit as follows:
"Evidence of other offenses may be received if relevant for any purpose other than to show a mere propensity or disposition on the part of ...