There was much evidence admitted in this case for which I can find no basis. Much of it seems to be wholly irrelevant and immaterial. A number of cattle men testified that in their judgment cattle would not drift from that part of the range called the Escalante Town Allotment to the Pollock Allotment. No reason or basis for this evidence was given and no proper one is deducible from a perusal of the record. It would seem to have been offered as innuendoes to prejudice the jury. Since, however, no objection was made and none is argued, we have adverted to it only because of a bearing upon what follows in this opinion. After putting in this evidence the state adduced evidence of the crime charged, and then evidence of claimed other offenses. Such evidence cannot be received as proof of other offenses, but is only to be received when it is relevant as fairly tending to prove a fact material to the issue in the case before the court.State v. Wyman, 56 Mont. 600, 186 P. 1; State v. Hill,46 Mont. 24, 126 P. 41; State v. Leroy, 61 Wash. 405,112 P. 635; State v. Starr, 24 N.M. 180, 173 P. 674; People v.Glass, 158 Cal. 650, 112 P. 281. Evidence of other transactions may be given if it fairly tends to prove the motive or intent of defendant in committing the offense charged. *Page 596 State v. Horne, 62 Utah 376, 220 P. 378; State v. Bowen,43 Utah 111, 134 P. 623; State v. Kappas, 100 Utah 274,114 P.2d 205; State v. Siddoway, 61 Utah 189, 211 P. 968. But the evidence of the motive for the commission of the crime charged must grow out of the collateral crime. People v. Glass, supra;People v. Cook, 148 Cal. 334, 341, 83 P. 43; People v.Brown, 130 Cal. 591, 594, 62 P. 1072. It is not sufficient that both crimes may spring from the same motive. If so, one charged with a particular larceny could be convicted of many larcenies because all spring from the same motive — a desire for gain. Evidence is not inadmissible merely because it shows another crime, if it tends to show a common scheme or plan, embracing the commission of two or more crimes, so related to each other that proof of one tends to establish the other. Cases cited supra;State v. Pino, 21 N.M. 660, 158 P. 131; State v. Graves,21 N.M. 556, 157 P. 160; People v. Nakis, 184 Cal. 105,193 P. 92; People v. McCarthy, 14 Cal. App. 148, 111 P. 274. While such evidence is admissible in a proper case, the exceptions to the general rule excluding them "are carefully limited and guarded by the courts, and their number should not be increased." State v. Willson, 113 Or. 450, 230 P. 810,233 P. 259, 39 A.L.R. 84, 94; People v. Argentos, 156 Cal. 720,106 P. 65; State v. Wheeler, 89 Kan. 160, 130 P. 656; 22 C.J.S., Criminal Law, § 683, p. 1091.
When such evidence is received it is proper, and upon request necessary, for the court to instruct the jury as to the purposes for which such evidence has been introduced, admonishing them to confine the application of the evidence to such purposes. It has been said that it is the duty of the judge to so instruct.Kelley v. State, 18 Tex. App. 262[18 Tex. Crim. 262], 269; Alexander v.State, 21 Tex. App. 406[21 Tex. Crim. 406] [21 Tex. Crim. 406], 407, 410;Holmes v. State, 20 Tex. App. 509[20 Tex. Crim. 509] [20 Tex. Crim. 509];People v. Glass, supra; State v. Lewis, 19 Or. 478, 24 P. 914;State v. Rule, 11 Okla. Crim. 237, 144 P. 807; Nichols App. Evidence, Vol. 4, p. 3428. But it has been held that while the court should so instruct, its failure to do so is not error, unless the instruction is asked *Page 597 for. People v. Gray, 66 Cal. 271, 5 P. 240. See Jenkins v.State, 1 Tex. App. 346[1 Tex. Crim. 346]. In the case before us, objection to reception in evidence of the testimony as to other offenses was duly made, but no request was made that the court then advise the jury that the evidence was received only for a limited purpose, nor was any request made for an instruction admonishing the jury to consider such evidence only for particular purposes. In fact the record does not disclose what the purpose of this evidence was. The prevailing opinion states that it was to show a plan or scheme to kill all cattle not belonging to Pollock to prevent a suspicion of theft but the record does not disclose that the state offered it for that purpose, or so contended. Nor does the evidence support that contention. There is no evidence that any animals killed except the Spencer cattle belonged to anyone but Pollock himself. The Bailey cow was not killed. What is referred to as the Bailey calf, which was killed, had Pollock's brand, and no other brand. There is no evidence it was Bailey's calf; no evidence it was not Pollock's calf, except a long drawn inference from the fact it followed the Bailey cow. If the purpose set forth in the prevailing opinion is right, defendants would have killed the Bailey cow, and let the calf with the Pollock brand live. As far as there is any evidence about the LE steer, it indicates it was Pollock's animal. I think the only purpose any of this evidence could serve would be as tending to show Pollock was stealing cattle, and in the case of the LE steer had run the brand. That would indicate the killing was done to hide a theft, and was not a malicious killing of cattle under the statute under which the charge was laid. Proof of a theft, or of a killing to hide a theft cannot, under any construction which admits proof of the crimes, be pertinent to a charge of malicious killing. But no proper objection was made to the evidence, no motions to strike it, and no request that the court limit it or confine its purpose and consideration by the jury in the instructions given. No exception was taken to instruction number 8. Exception was taken to *Page 598 number 9. That instruction is not in good form. It is merely an abstract statement of a rule of evidence, good for use in a text book, but is not a pertinent instruction to limit or guide the jury in considering any evidence in the case. But a mere abstract proposition of law, not pertinent to the case, and therefore not tending to mislead the jury, is not a cause for reversal.
Instruction number 8 was evidently intended by the court to cover the matters discussed supra, but even a casual perusal thereof shows it does not even approach the form or purpose of such instruction. It does not limit the purposes for which such evidence may be considered, or for which it was received. It covers every ground upon which so-called evidence of other crimes has ever been held admissible, without limitation or qualification, and indicates it is prejudicial evidence, that is very potent evidence against accused. It merely states a rule of admissibility for the court or for students at law, and not for guidance of the jury.
Since there was no proper objection to the evidence and no request for instruction on the matter any errors therein do not call for a reversal. Without this evidence, the record amply sustains the verdict and judgment. Under Section 105-43-1, R.S.U. 1933, we must affirm. State v. Nell, 59 Utah 68, 202 P. 7;State v. Cluff, 48 Utah 102, 158 P. 701; State v.Siddoway, supra. I therefore concur in affirming the judgment.