Before MEDINA, SMITH and HAYS, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge.
From concurrent sentences of 5 years for conspiracy to forge and utter United States Savings Bonds and 7 years on 44 counts of aiding and abetting the forgery or the uttering of the forged bonds, entered in the Western District of New York, John O. Henderson, Judge, defendants Horace Rinaldi and Ralph Carbone appeal. Appellants, although no exceptions were taken to the charge at the time, claim plain error in the charge in four respects. They also claim error in denial of a motion for mistrial after a prejudicial question as to Rinaldi's prior criminal record had been asked by the prosecutor of Rinaldi's wife, and answered in the affirmative. We find no plain error in the charge, and find no prejudice to Carbone from the question asked Mrs. Rinaldi, but find error in the failure to grant a new trial to Rinaldi. We affirm the judgment as to Carbone, reverse and remand for new trial on the appeal of Rinaldi.
The Government's evidence was in part as follows:
The U.S. Savings Bonds in question, owned by a Mr. and Mrs. Steffee of 1100 Grand Avenue, Plainfield, New Jersey, and kept in a metal box at that address, disappeared on the night of December 16, 1960. Rinaldi resided in East Orange, New Jersey, Carbone in Irvington, New Jersey. In late December, Rinadi, one Savo, Grace Insinnia and Patricia Cusano had a conversation about cashing bonds when Carbone should get out of a hospital. In early January they discussed with Carbone cashing bonds in New York state, for which Carbone could supply drivers' licenses. On January 8, 1961 Rinaldi, Carbone, Savo, Grace Insinnia and Patricia Cusano drove from Newark, New Jersey to Buffalo, New York, carrying the bonds in the car. In Buffalo Mrs. Insinnia was dropped at her brother's house. An apartment house in Buffalo was picked out, its zone number ascertained from a mailman and New York drivers' licenses were prepared on blank forms in the name of Mrs. Steffee, payee on the bonds, but using the Buffalo apartment house address. The Cusano woman went into a Buffalo bank with 20 bonds to cash them but was refused, having only one half of a driver's license. Receiving the second half of the license from Carbone she was successful in a second bank in an attempt to cash 15 of the bonds, receiving $1,209.20. She gave the money to Savo, received 20 more bonds and tried another bank, being unsuccessful this time because the license was not signed. The next day she was arrested while signing bonds which she was attempting to cash in another bank. The signature of the payee on each of the bonds was a forgery.
On trial Rinaldi's wife was permitted to testify on direct examination about her husband's employment, health and family life, as well as to his whereabouts January 7, the latter in an apparent effort to contradict testimony as to a conference he purportedly attended at Savo's residence on that day. On crossexamination the following occurred:
"Q. Mrs. Rinaldi, what other name is your husband known by? A. Other than Horace?
"Q. Has your husband ever been convicted of a crime? A. Yes.
"Mr. Pacini: If the Court please, I move for the withdrawal of a juror, and a mistrial. It is absolutely improper, incompetent, and Mr. Stenger knew that.
"The Court: This is a serious area that the District Attorney has approached. I deny your motion for a mistrial. I want to instruct the jury that you must make a conscientious and serious effort to reject from your minds the question and the answer which this woman gave to (1213) the District Attorney's inquiry. Now, you must make a conscientious effort to do that, because that is a completely improper examination of this witness. The other witness was asked that by the defense, that is his privilege, concerning the witness, Mrs. Carbone. It is not the privilege of the Government to ask this woman concerning any record of her husband, if there was such. You don't know anything about that. She has made an answer rapidly, and counsel has made a serious motion to declare a ...