I concur in the judgment. I am of the opinion that there was sufficient evidence of the corpus delicti to warrant the admission in evidence of the alleged confessions of defendant. But I have no doubt on the proposition that the lower court erred in its action relative to the cross-examination of defendant in regard to alleged statements made by him on other occasions as to prior convictions, and in allowing proof to contradict his testimony on that subject. Furthermore, it is clear to me that the court erred in allowing the cross-examination of Lenus Klemmer on the matter of the one hundred dollar check, a matter not touched upon in his direct examination, and one altogether foreign to any issue in this case. The claim that this testimony was admissible to show interest and bias on the part of the witness appears to me, under the circumstances of this case, to be absolutely without foundation. Whatever may be said as to the question of prejudicial effect of the testimony tending to show statements of defendant admitting prior convictions other than the one he had acknowledged, there is no question in my mind as to the prejudicial effect of the testimony given by Lenus Klemmer on cross-examination relative to the one hundred dollar check. An examination of the record in this case has satisfied me that the case is not one *Page 414 where it may fairly be said that a verdict of guilty would or ought to have been rendered in the absence of this testimony. So far as I can see, there is nothing substantial to connect defendant with the commission of the alleged offense except his alleged confessions, the making of which was denied by him, and the testimony as to which, to say the least, is not at all satisfactory. The testimony of one of the two witnesses who testified as to the alleged confession, as to the possession by defendant of a check for two hundred and seventy-five dollars, signed by Otto Klemmer, was almost conclusively shown to be unfounded in fact. In view of the circumstances of this case, as shown by the record, I do not think that section 4 1/2 of article VI of the constitution warrants an affirmance.
It may be added that the foundation for a conclusion that if a burglary was committed, it was burglary of the first degree, is exceedingly slight, and it is extremely doubtful if it is sufficient. I am not prepared to assent to a conclusion that such a matter may not be shown by the confession of the defendant alone.
Sloss J., and Henshaw, J., concurred.