Kalodner, Chief Judge and Maris and Hastie, Circuit Judges.
Following a jury trial, defendant was found guilty on a two-count Information charging Assault in the First Degree (14 V.I.C. § 295(1)), and Escape from Custody (14 V.I.C. § 661) on February 10, 1965.
The critical issue*fn1 presented on this appeal from the judgment of sentence is whether prejudicial error was committed by reason of reference at the trial to crimes of assault and escape from custody committed by the defendant prior to February 10, 1965.
Testimony adduced by the Government sought to establish that on the night of February 10, 1965 the defendant stabbed his girl friend, Eudora Douglas, with a knife after threatening to kill her, and that after he was placed under arrest by policemen at the scene of the assault he effected his escape and was recaptured after being shot down.
The record discloses that the United States Attorney in his opening statement to the jury said:
" Now, Eudora Douglas and Stanford Oliver, the evidence will show you, were friends in kind of a common law relationship on the British Island on which they lived. They both came here [St. Croix, Virgin Islands] together and continued in that same relationship. Then certain difficulties arose between them and Oliver committed an assault on her. New for this, he was brought before the Municipal Court and was placed on probation. Then, he did certain acts with respect to her of which she complained to the probation officer which then caused him to be taken back into custody until the probation officer could make a determination of what his recommendation would be. So, Mr. Oliver was in custody at police headquarters, the local jail. At about five o'clock in the afternoon of the same day in which he was taken into custody, while he -- together with some other prisoners -- were out in the yard for a period of recreation and fresh air, Mr. Oliver ran away." (emphasis supplied)
Counsel for the defendant immediately moved for a mistrial claiming the remarks to have been prejudicial. The request was denied.
It must immediately be noted with reference to this opening statement that the events to which it related preceded the knifing, arrest and escape which occurred on the evening of February 10th, at about 10 P.M. and were the basis of the present information.
In the course of the Government's case, one Samuel Bough, a deputy probation officer, testified he was "supervising" the defendant on February 10, 1965, and that as a result of a report made to him by Eudora Douglas "that the defendant had threatened to kill her" he "had the accused brought in by my order" for questioning. Objection made by the defendant's counsel to this testimony was overruled.
Two police officers who arrested the defendant following the knifing episode on the night of February 10, 1965 testified that at about 10 P.M. they were searching for "the person who had gotten away in the afternoon" when they happened to arrive at the scene following the assault.
The trial court in its charge to the jury instructed it that "the statements made by the lawyers for both parties do not constitute evidence in this case."
We are of the opinion that prejudicial error was committed when the United States Attorney made reference in his opening statement to the defendant's prior arrest for assault and his escape from custody after being brought in for questioning by the deputy probation officer, and that the error was aggravated when further reference was made to these prior events by the probation officer.
It is settled that "evidence of other offenses is inadmissible in a criminal prosecution for a particular crime" when such evidence is designed "to show a mere propensity or disposition on the part of the defendant to commit the crime." United States v. Stirone, 262 F.2d 571, 576 (3 Cir. 1959), ...