Summary
recognizing rule that evidence of prior criminal acts not admissible to prove general bad character of accused but may be admissible for limited purpose, such as identity, plan, scheme, design
Summary of this case from Banek v. ThomasOpinion
No. 18,515.
Decided September 21, 1959. Rehearing denied October 13, 1959.
Defendant was convicted of receiving stolen goods and brings error.
Reversed and Remanded With Directions.
1. CRIMINAL LAW — Receiving Stolen Goods — Knowledge. An integrant of the crime of receiving stolen property is knowledge that it has been stolen.
2. Receiving Stolen Goods — Evidence — Sufficiency. Proof that ascends no higher than the level of suspicion, surmise or conjecture has no substance in our system of jurisprudence.
3. Evidence — Similar Offenses. A defendant should be tried only for the offense with which he stands charged, and not for a crime wholly independent of the offense for which he is on trial.
4. Evidence — Similar Offenses — When Proper. A presumption of guilt should not be generated against an accused by showing that he committed a crime indicating that he is a depraved person who likely would commit the crime for which he is being tried.
5. Evidence — Similar Offenses — Admissibility — Instructions — Terms Used. Where evidence of similar transactions is offered, the prosecutor should advise the court of the purpose thereof, and if such evidence is admitted the court should then and there instruct the jury as to the limited purpose for which the evidence is being received and for which the jury may consider it; the general charge should renew the instruction on the limited purpose of such evidence, and care should be taken to avoid the use of such terms as similar or other "offenses" or similar "crimes".
6. Evidence — Similar Transactions — Purpose. A requirement that the prosecution should state the purpose for which evidence of similar acts or transactions is offered, is but one aspect of the general rule requiring a party to show the relevancy of evidence to which objection is made, thereby putting its admissibility in doubt.
7. Evidence — Other Transactions — Purpose — Instructions — Duty of Court. Upon request of the party adversely affected by admission of evidence of other acts or transactions, the court should, at the time of its reception, direct the jury as to the only purpose for which it may be considered.
8. Evidence — Other Transactions — Instructions — Failure to Give Error. Failure to give a limiting instruction at the request of counsel at the time testimony of other acts or transactions was received, was error.
9. Evidence — Other Transactions — Instructions. The trial court should instruct the jury on the limited purpose of evidence of other acts or transactions in its general charge.
10. Evidence — Other Transactions — Use of Terms. Trial courts should avoid the use of such terms as "other crimes" "other offenses," "similar offenses" and kindred expressions in cautioning the jury at the time of admitting evidence of other acts or transactions, and in giving its general charge.
Error to the District Court of Pueblo County, Hon. S. Philip Cabibi, Judge.
Messrs. LATTIMER ROBB, Mr. ALFRED Z. CRADDOCK, for plaintiff in error.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, DEPUTY, for defendant in error.
STULL was accused by information of the crime of receiving stolen goods, and upon trial was found guilty by the jury. From the ensuing judgment and sentence he sues out this writ of error. In the proceeding before us he assigns twenty six grounds for reversal, all of which easily fall into five general categories. One of these, insufficiency of evidence to sustain a conviction, compels reversal of the judgment and to this we now attend.
The chief prosecution witness, an unmarried female, was the cashier-bookkeeper of the Rocky Mountain Bank Note Company. Stull, a married man, was a salesman for the company and his duties required considerable travel in the states of Colorado and Kansas.
In her testimony this witness related how the friendship between her and Stull developed; how she travelled to distant points to be with him; and how by embezzlement she obtained money from her employer to turn over to him. It appears from her testimony that she told Stull that she " might receive" some money from a Frank Smoot upon his death. The record is not clear as to the date of his death although it may be fairly inferred that he died during the time the witness was advancing money to Stull.
Actually, she gave him money on several occasions in an envelope at the dock of the company, during working hours. There was no showing that other persons were not at the dock when these moneys were delivered to him. Testimony as to when and how she paid gambling losses is not clear; the evidence does not indicate that is was covertly done. She paid a great many of his bills directly, and his business expenses may have been, for aught the record reveals, taken care of openly.
She testified that she never told Stull the source of the money she was turning over to him. When the company learned of her defalcations she called Stull, who was absent from the city, and told him for the first time that she had been embezzling money and advancing it to him. In this conversation she asked Stull not to hate her, and further testified:
"Q. Now, what was the reason for saying, then, to Mr. Stull on the phone, Please don't hate me.' A. I didn't want anybody to despise me, him or anybody else for what I had done. Q. Then, you were afraid then, that when Mr. Stull found out you were embezzling money from the bank note company, that he might hate you, is that right ? A. Not necessarily. Q. You said this to Mr. Stull? A. Well, yes, I guess that would be it, then."
Other witnesses testified to the fact that Stull had deposited these sums in bank accounts, one of which was an out-of-state bank. It would appear that the purposes for which Stull said he needed the money were generally not the purposes for which he obtained the money. Notwithstanding he had this money in several bank accounts at the time her misdeeds were discovered, and notwithstanding her request that he make provision to return the money so that she could make her employer partially whole, Stull lied to her, telling her of his inability to get the money. Other circumstantial evidence of similar import was relied upon.
An integrant of the crime of receiving stolen property is knowledge that it has been stolen. C.R.S. '53, 40-5-12: Curl v. People, 53 Colo. 578, 127 Pac. 951, Ann. Cas. 1914 B, 171; Sitterlee v. People, 67 Colo. 523, 186 Pac. 527. Interrogation as to Stull's knowledge that the money delivered to him was embezzled evoked negative responses; not one witness testified that the accused knew the money was embezzled, but on the contrary, such testimony as was elicited on the subject was to the effect that he did not know. Negation of "the essential element of guilt — defendant's knowledge that the property was stolen at the time he received it — " makes an incomplete case, one which should not have been submitted to the jury for deliberation and verdict. Sitterlee v. People, supra.
Being confronted with the question whether there was knowledge on the part of Stull that the money was embezzled at the time he received it, our answer must be that as the possibility of it cannot be denied, so neither can the probability of it from the proof adduced be affirmed. Proof that ascends no higher than the level of suspicion, surmise or conjecture has no substance in our system of jurisprudence, whether the problem considered be criminal or civil. State v. Oxendine, 223 N.C. 659, 27 S.E.2d 814 (receiving stolen goods case); 1 Underhill's Criminal Evidence (5th ed.) § 17, pg. 21, 22; 1 Wharton's Criminal Evidence (12th ed.) § 11, pg. 26, 27; Neal v. Wilson County Bank, 83 Colo. 118, 263 Pac. 18; Denver R.G.R. Co. v. Thompson, 65 Colo. 4, 169 Pac. 539. See Sitterlee v. People, supra.
In our view this evidence lacked the content necessary to permit submission of the case to the jury. In fact, much of the evidence for the prosecution directly disproved knowledge on the part of Stull that the money was embezzled. In this respect the District Attorney is to be commended. As an officer of the State, he represents the people, of whom the defendant is a member, and his duty is to present all available evidence tending to aid in ascertaining the truth. Be it remembered that the State is just as intensely interested in the acquittal of the innocent as it is in the conviction of the guilty, State v. Guilfoyle, 109 Conn. 124, 145 Atl. 761.
There is considerable similarity between the present case and the case of Monteresi v. State, 160 Fla. 489, 35 So.2d 582. We quote:
"* * * Here a trusted employee, over a period of years — from day to day, misappropriated about $9,514.30 of his employer's money and gave it to appellant to play a number game commonly known as Bolita. Appellant would call upon the employee just before or after the usual working hours to get the money. The sums ranged from one to three hundred dollars a week. In the meantime all winnings were played back into the game. Finally the employer was called to meet an overdraft and learned, for the first time, of the embezzlement.
"[1] It was necessary for the state to show that appellant knew * * * that the money was embezzled. In this regard this statute is similar to the companion law of receiving stolen property. Sec 811.16 Fla. Stat., 1941, F.S.A.
"[2] We find a total lack of evidence to meet the announced rule. We cannot attach guilty knowledge to appellant simply because the money was passed to him out of the usual hours of business and out of the presence of others. The evidence, in its present state, is insufficient to sustain a conviction. The judgment is reversed and a new trial is granted."
Our determination that the evidence was insufficient to justify submission of the case to the jury ordinarily would make unnecessary the consideration of any of the other points ascribed as grounds for reversal; but we cannot leave unnoticed the procedure adopted by the trial court in receiving evidence of so-called similar transactions, because it followed dangerous innovation where once an established mode prevailed and in resorting to such innovation the trial court used a pattern for the admission of evidence of other transactions which should not be emulated ever. Motivation for our discussing the similar transactions doctrine springs from (1) the fact that this court has permitted a creeping corruption of the rule and its application to develop by inconsistent pronouncements in its decisions, and (2) an abiding desire to keep future error from emerging in this or any other trial in which recourse is had to this kind of evidence. That the trial court was led astray is understandable when a review of our decisions reveals an appalling internal inconsistency in the similar transactions rule and how it shall be used.
A defendant should be tried only for the offense with which he stands charged. Gill v. People, 139 Colo. 401, 339 P.2d 1000, Decided June 1, 1959. He should not be tried for a crime wholly independent of the offense for which he is on trial. Nor should he be expected or required to meet anything other than the specific accusation made against him. An accused has the right to know precisely what he is to defend against.
And a presumption of guilt should not be generated against an accused by showing that he committed a crime indicative that he is a depraved person who likely would commit the crime for which he is being tried. Basic to our criminal law concepts is the commandment that: "Thou shalt not convict a person of an offense by proof that he is guilty of another."
Bearing in mind that evidence of similar acts has inhering in it damning innuendo likely to beget prejudice in the minds of jurors, and that such evidence tends to inject collateral issue into a criminal case which are not unlikely to confuse and lead astray the jury, it becomes exigent that courts observe the fine balance in regard to such evidence that must exist between the necessity of proof on the part of the prosecutor and the danger of unfair prejudice to the defendant Warford v. People, 43 Colo. 107, 96 Pac. 556; Jaynes v. People, 44 Colo. 535, 99 Pac. 325, 16 Ann Cas. 787; Webb v. People, 97 Colo. 262, 49 P.2d 381.
To cope with the intrinsic dangers of admitting in evidence proof of similar acts and yet to make available such evidence in the proper setting, this Court has from time to time laid down some rather stringent conditions for the admission of evidence of other conduct of the defendant. These conditions are rules which have as their aim the equilibration of the necessity of proof and the danger of unfair prejudice, of which we have just spoken.
We enumerate. First, the prosecutor should advise the trial court of the purpose for which he offers the evidence. Secondly, if the court admits such evidence, it should then and there instruct the jury as to the limited purpose for which the evidence is being received and for which the jury may consider it. Thirdly, the general charge should contain a renewal of the instruction on the limited purpose of such evidence. Lastly, the offer of the prosecutor and the instructions of the court should be in carefully couched terms: they should refer to "other transactions," "other acts," or "other conduct," and should eschew such designations as "similar offenses," "other offenses," "similar crimes" and so forth. For an excellent discussion of this phase of the criminal law, see Melville, Criminal Evidence, page 9 et seq.
"When such testimony is received, the trial judge should then limit it to the purpose for which it is admitted. Perhaps we have never determined that a failure to so limit it when not requested by the defendant is reversible error. but we have intimated in Warford v. People, supra, that this course should be pursued by trial courts. We also think that, when evidence of the character under consideration is offered by the district attorney, good practice requires that he should state the purpose for which it is offered, and that the trial judge in instructions given, when requested by the defendant, should instruct the jury on the subject of the purpose for which they may consider such testimony. These precautions should be observed, because of the fact, as above indicated that such evidence tends to create a prejudice in the minds of the jury; but of this he will not be permitted to complain if the evidence is competent, and his rights are safeguarded in the manner we have suggested." (Emphasis supplied.) Jaynes v. People supra.
When asked in the instant case what purpose the prosecutor had in offering certain evidence, he stated that it was "offered to show plan, scheme and design. and that "this is being offered as one of the circumstances * * * which bears upon the knowledge, and also bears upon the plan, scheme and design which were the transactions or similar." After argument the trial court determined to admit the evidence, whereupon the following colloquy took place:
"Mr. Robb: I would like to ask one thing. You will give an instruction to the jury at this time as to what this — "The Court: No. if the case is submitted to the Jury, I will give an instruction covering this particular evidence. Mr. Robb: Note an exception."
In the general charge the Court advised the jury as follows:
"You are instructed that there has been testimony introduced here which might have a tendency to show participation by the defendant in offense other than that charged in the information. You are further instructed that the defendant is entitled to be tried on the charge contained in the information and upon no other, and you are to consider the evidence concerning the activities of this defendant prior to the acts with which he is charged in the information only so far as you deem them explanatory of the events leading up to and surrounding the acts charged in the information." (Emphasis supplied)
1. The district attorney should state the purpose for which evidence of similar acts or transactions is offered. This is the first requisite to a proper application of the rule. Jaynes v. People, supra; Reppin v. People, 95 Colo. 192, 34 P.2d 71; Schneider v. People, 118 Colo. 543, 199 P.2d 873. Such requisite is but one aspect of the general rule requiring a party to show the relevancy of evidence, to the admission of which objection has been made and the propriety of its reception for any purpose thereby put in doubt. Farwell Co. v. McGraw, 13 Colo. App. 467, 59 Pac. 231; Baldwin v. Central Sav. Bank, 17 Colo. App. 7, 67 Pac. 179; Byers v. Tritch, 12 Colo. App. 377, 55 Pac. 622; Nichols, Applied Evidence, pg. 3350 et seq.
2. Upon request of the party adversely affected by admission of evidence of other acts or transactions the trial court should, at the time of its reception, direct the jury as to the only purpose for which it may be considered. Again this is but one facet of the general rule regarding the admission of evidence for a particular purpose only.
It will be noted that counsel for Stull requested a limiting instruction at the time the trial court admitted the testimony of other acts in evidence, and that the trial court denied the application. Such denial is reversible error. Besides Jaynes v. People, supra, there are a number of decisions proposing that such an application, timely made, should be granted. Warford v. People, supra; Hillen v. People, 59 Colo. 280, 149 Pac 250; Cargill v. People, 73 Colo. 218, 214 Pac 387; Reppin v. People, supra; Dockerty v. People, 96 Colo. 338, 44 P.2d 1013; Grandbouche v. People, 104 Colo. 175, 89 P.2d 577; Williams v. People, 114 Colo. 207, 158 P.2d 447, 159 A.L.R. 509; Sanders v. People, 109 Colo. 243, 125 P.2d 154; Schneider v. People, supra. Other decisions apparently approving the same protective procedure are Housh v. People, 24 Colo. 262, 50 Pac. 1036; Chipman v. People, 24 Colo. 520, 52 Pac. 677; Schuette v. People, 33 Colo. 325, 80 Pac 890: Clarke v. People, 53 Colo. 214, 125 Pac 113; Max v. People, 78 Colo. 178, 240 Pac 697; Roll v. People, 78 Colo. 589, 243 Pac 641.
And such limitation in aspects other than similar transactions has been sanctioned in recent cases. Brown v. People, 124 Colo. 412, 238 P.2d 847; Bernard v. People, 124 Colo. 424, 238 P.2d 852; Thompson v. People, 139 Colo. 15, 336 P.2d 93. This Court recited the procedure employed by the trial court in these words in approving its action:
"On various occasion throughout the course of the trial the district attorney offered evidence indicating flight, escape and attempted escape, but all on the part of either one or both Bernard and Sexton. Proper and prompt objection to the receipt of such testimony was made on behalf of defendant Brown, and in each instance, the court carefully advised and cautioned the jury that such evidence did not apply to this defendant, and should not be considered by the jury in connection with him. Furthermore, in its final written instructions the Court included one on escape and attempted escape wherein it specifically directed the jury not to consider any such evidence against any defendant who had not, under the evidence herein, escaped or attempted to escape." (Emphasis supplied.) Brown v. People, supra. Here is what this court said in a civil suit involving evidence of similar conduct ( Melcher v. Beeler, 48 Colo. 233, 110 Pac. 181, 139 Am. S.R. 273):
"* * * At the trial the plaintiffs offered, and the Court admitted in the evidence over the objections of the defendant, two letters reflecting upon the business integrity of the plaintiffs, which were not counted upon in the complaint as constituting libels for which damages were claimed. Prior and contemporaneous publications of similar import to those for which damages are claimed in an action for libel are competent to show malice: hence, in the case at bar, the letters objected to were competent for that purpose and the general objection to their admission was properly overruled. They were admitted, however, without any caution to the jury to the effect that they could only be considered on the question of malice. Counsel for the defendants at the time the letters were introduced made no request for a cautionary instruction limiting the purpose for which the letters were competent; but notwithstanding this omission upon their part, we think the better practice is that when testimony is competent only for some particular purpose that the Court should so advise the jury, at the time of its introduction but by this suggestion we must not be understood as holding that it is error for the Court not to do so when counsel objecting to its reception failed to make a request of the Court to advise the jury for what purpose it is competent. * * *" (Emphasis supplied)
And there is such compelling reason for a trial court to immediately instruct the jury for what purpose it may consider evidence admitted only for a particular purpose. Perhaps no better statement of the reason can be found than that appearing in State v. McCurtain, 52 Utah 63, 172 Pac 481:
"Before leaving this subject we desire to add, however, that it is by far a better and safer practice in any case where evidence is admissible for a certain purpose or as against a particular defendant that the Court, at the time the evidence is received, instruct and admonish the jury of the purpose for which the evidence is received and tell them that they should not consider it for any other purpose. If that not be done the jurors will be very apt to consider the evidence for every purpose. and the matter will be this fixed in their minds which will not easily be eliminated by an instruction given at the conclusion of the trial which, in many cases, the jury will not receive until many days after the evidence has been received. An instruction may thus fail to produce the desired effect. As a matter of course, it is always proper to also charge the jury at the conclusion of the trial of the purpose for which certain evidence was received and may be considered. It will be more likely, however, to produce the desired effect if the jury is told at the time the evidence is received the purpose for which it is received and may be considered by them. To follow the course just outlined will also obviate the very error which is insisted on in this case." (Emphasis supplied.)
To like effect is the opinion of Judge Phillips, speaking for the 10th Circuit Court, in Minner v. U.S., 57 F.2d 506, see People v. Carmichael, 314 Ill. 460, 145 N.E. 673.
Unfortunately, this salutary rule has not had uniform application. Sometimes the court has held or intimated that a defendant was adequately protected by a cautionary instruction contained in the general charge, advising the jury of the purpose of such evidence and directing them to consider it for such purpose only. Helser v. People, 100 Colo. 371, 68 P.2d 543; Torbert v. People, 113 Colo. 294, 156 P.2d 128; Wolf v. People, 117 Colo. 321, 187 P.2d 928; Armijo v. People, 134 Colo. 344, 304 P.2d 633.
In some cases no request was made at the time of admission for a limiting instruction. Even when such has occurred this court has suggested as the best procedure that the trial Court should on its own motion advise the jury that the evidence is being received for a particular purpose and should not be considered by the jury for any other purpose. Warford v. People, supra, Jaynes v. People, supra; Melcher v. Beeler, supra; Williams v. People, supra.
Our system of jurisprudence is always striving towards the unattainable — perfection. At the very least, judicial action should conform to the best rule. Whenever and wherever the best rule can be used, it should be invoked. Indeed, experience at finding the best has been one of the chief methods by which the rules of the common law were developed.
Exceptions to the rule announced in the Jaynes case are indicated in two opinions. An exception was forged out of a situation where the district attorney, at a time within the discretion of the trial court, must elect upon which of a series of acts he will stand. Shier v. People, 116 Colo. 353; 181 P.2d 366. Another possible exception might be inferred from dicta in Schneider v. People, supra, involving a confession encompassing other murders similar to the one charged against the defendant.
3. The trial court should instruct the jury on the limited purpose of evidence of other acts or transactions in its general charge. Decisions from this Court abound with holdings to this effect. We cite those in which it appears, either by express pronouncement or by fair inference, that evidence of other acts or transactions had been or should have been admitted where the district attorney had or should have advised the trial court the purpose for which such evidence was offered, and the court thereupon had or should have cautioned the jury for what purpose it might consider such evidence, and finally had or should have instructed the jury on the particular purpose of such evidence in its general charge. Warford v. People, supra; Jaynes v. People, supra; Meyers v. People, 65 Colo. 450 177 Pac 145; Dockerty v. People, 74 Colo. 113, 219 Pac 220; Whitfield v. People, 79 Colo. 108, 244 Pac 470; Reppin v. People, supra; Dockerty v. People, 96 Colo. 338, 44 P.2d 1013; Schneider v. People, supra; Wolff v. People, 123 Colo. 487, 230 P.2d 581; Moore v. People, 125 Colo. 306, 243 P.2d 425; Hood v. People, 130 Colo. 531, 277 P.2d 223.
These eleven cases, just cited, represent a substantial body of law on the matter of the procedural requisites for the admission of other acts or transactions. They begin with Warford v. People, supra, decided in 1908, and conclude with Hood v. People, supra, decided in 1954, and hence the rule they espouse has attained a durability and maturity that should convince of its wholesomeness and utility.
So much more could be written about the three requisite procedural steps:(1) the duty of the district attorney to inform the court of the purpose of offered evidence of other acts or transactions; (2) the duty of the court at the time of receiving such evidence to advise the jury of the limited purpose for which it may be considered; and (3) the duty of the court in instructing the jury to again inform the jury of such limited purpose in the general charge; but further discussion would unduly lengthen this opinion. The last requisite has to do with the substantive elements of the rule regarding other acts or transactions. This elements will now be considered.
4. Trial courts should avoid the use of the terms, "other crimes" "other offenses" "similar offenses" "separate and other offenses" and kindred expressions in cautioning the jury at the time of admitting evidence of other acts or transactions, and in instructing them in the general charge. "The prisoner relies and has a right to rely, upon the court to see that he has a fair trial" White v. People, 8 Colo. App. 289, 45 Pac. 539. Does the prisoner have a fair trial where the trial court labels conduct, other than that for which he is being tried, as another offense or crime?
On January 11, 1943, the answer appears to have been, "He does" for on that day a rehearing was denied in the case of Montez v. People, 110 Colo. 208, 132 P.2d 970. It was said in that case:
"By Instruction No. 17 the jury was informed that evidence of 'separate and other offenses' had been admitted for the purposes above stated and could be considered by them for no other purpose, and that 'The defendants cannot be tried for, nor convicted of, any offense, not charged in the indictment. Defendants claims that by use of the word offense as first employed in the instruction the court advised the jury that the transactions referred to, which generally were similar to the one charged, were crimes and, hence, in effect, said as a matter of law that defendants were guilty of the latter. While in view of the context, the use of the word 'transactions' instead of 'offense' might have been preferable, the clarity of the remainder of the instruction convinces us that the jury could not have been misled nor the defendants injured thereby." (Emphasis supplied.)
One week after the rehearing was denied in the Montez case, the court's answer to the question appears to be, "He does not" for there was released at that time the opinion in Johnson v. People, 110 Colo. 283, 133 P.2d 789, in which it was held:
"Error is assigned to the giving of Instruction No. 15 which is as follows: You are further instructed that there has been testimony submitted in this case as to separate and other offenses than the offense charged in the indictment filed herein. You are instructed that the said testimony is not to be considered by you as to the guilt or innocence of the defendants herein of the offense charged in the indictment, but is admitted for the purpose of showing intent, design or system and is to be considered by you for no other purpose.'
"It is contended that the court should not have stated in effect that the charge in this indictment was an offense and that there were other offenses committed by defendants in addition to the one charged; in other words, that defendants were not only offenders, but continuing offenders. Whether the transactions admitted in evidence other than the one charged in the indictment were similar and whether they showed a criminal intent in the transaction made the basis of the charge, or that the latter was a part of a scheme or plan to defraud the county, was for the jury to determine from all the surrounding facts and circumstances of the case, and it was prejudicial error for the court to tell the jury that the other transactions were offense as matter of law. * * * The prejudice resulting from a failure to clearly instruct a jury as to effect to be given evidence of similar transactions is pointed out in Jaynes v. People, 44 Colo. 535, 99 Pac 325, and we need not here reiterate the statements there made."
There is no way in which the language of these two cases can be reconciled. Firmly convinced that Johnson v. People, supra, states sound law, and since it is the later decision we adhere to and reaffirm, its pronouncement. particularly should we do so, because the word "transactions," used by the trial court, received special approbation by this court in the later case of Moore v. People, supra.
Decisions of this court have approved the reception of evidence where the trial courts have properly safeguarded the defendant and have advised the jury in terms of "other acts" or "other transactions." Meyers v. People, supra Torbert v. People, supra; Silliman v. People, supra. Instructions using the terms." similar offenses" "separate and other offenses" "similar crimes," and the like are bad for three very good reasons: (1) the trial court may not direct a verdict of conviction, for in doing so it invades the provinces of the jury. Rowan v. People, 93 Colo. 473, 26 P.2d 1066; Carson v. People, 93 Colo. 478, 26 P.2d 1068. Nor may it by indirection accomplish such purpose. To the jury the same kind of conduct being deemed by the trial court on offense committed at another time would logically lead the jury to believe the proof offered to sustain the charge established the offense. The magic of mathematical certainty would tug at the jurors' minds certain facts equal an offense, ergo, same kind of facts should equal an offence. (2) To be an offense it must be proved by the same quantum of proof as the crime for which the defendant is being tried. The trial court may not by indirection avoid the requirement of proof beyond a reasonable doubt where it wishes to dub another act as an offense. To the jury cursory proof of an act labelled by the trial court "an other offense" "or similar offense," etc., makes greater proof regarding the charge tried before them loom as something overwhelming. (3) It is out of the tune with Johnson v. People, supra, Torbert v. People, supra, and Moore v. People, supra.
For the reasons herein stated, the judgment is reversed with directions to dismiss.
MR. CHIEF JUSTICE KNAUSS, MR. JUSTICE MOORE and MR. JUSTICE DOYLE dissent.