I do not agree with the conclusion that the judgment in this case should be affirmed. The view is expressed in the prevailing opinion that the admission of evidence tending to connect the defendant with the commission of other crimes was not prejudicial, because of the satisfactory and convincing proof of defendant's guilt of the crime charged. It is a well-recognized general rule of law that evidence which may show, or tend to show, that the accused has committed a crime wholly independent of the crime charged, is inadmissible. Underhill, Crim. Ev. (2d Ed.) § 87, p. 154; State v. Shockley, 29 Utah 25, 80 P. 865, 110 Am.St.Rep. 639; State v. Baum, 47 Utah 7, 151 P. 518. *Page 155
To the general rule there are exceptions.
"The exceptions to the general rule arise either from the necessity of the case, as, for example, where two or more crimes constituent [constitute] parts of one transaction so that to prove either necessitates proof of the other, or when the intent is to be proved from circumstances or in the third place where the identity of the accused is expressly in issue, that is to say, where the evidence conclusively shows a crime was committed by some one but there is a sharp conflict as to the person who committed it." Underhill, Crim. Ev. (2d Ed.) § 87, p. 156.
In this case the purpose of admitting evidence tending to show that the defendant was connected with the commission of burglaries other than that charged is thus stated in the instructions to the jury:
"The court has permitted the State to introduce evidence of other acts of the defendant of a similar character to the crime alleged in the information for the purpose of showing guilty intent or the existence of a common scheme, plan or system, and such evidence is permitted to go to the jury for the purpose of showing knowledge or intent of the defendant to repel the inference of accident. Such evidence was permitted to be received for the purpose of showing motive and intent, and for no other purpose, and it can only be considered by you for that purpose; and it is for you to determine whether it in any manner tends to support such motive or intent, or whether the defendant ever did or did not have any such motive or intent. You may not draw any inference against the defendant by reason of this testimony, for any other purpose than the purpose stated, and then only such as in your judgment you believe it fairly entitled to."
It seems clear, that if the defendant broke into the granary of Ashworth, took wheat located therein, and sold the same without Ashworth's consent, as claimed by the state, the acts themselves established the motives and intent of the wrongdoer. That the breaking into Ashworth's granary and stealing his wheat located therein was not an accident is likewise self-evident. Nor does the evidence tending to show that the defendant committed other burglaries than the one charged come within any other exception to the general rule that in the trial for the commission of one *Page 156 crime other independent crimes may not be shown. Apparently we are all agreed that it was error to admit evidence tending to show the defendant was connected with burglaries other than the burglary charged, we are not agreed as to the probable effect of the such evidence. In the case of Jensen v. Utah Railway Co.,270 P. 349, recently decided by this court, the following rule at page 362 was stated to be the test in determining whether or not an error is prejudicial:
"Where the committed error is of such nature or character as calculated to do harm, or on its face as having the natural tendency to do so, prejudice will be presumed, until by the record it is affirmatively shown that the error was not or could not have been of harmful effect. Thus, if the appellant shows committed error of such nature or character, he, in the first instance, has made a prima facie showing of prejudice. * * *State v. Cluff, 48 Utah 102, 158 P. 701; Jackson, Stone, etal. v. Feather River Gibsonville Water Co., 14 Cal. 19;Thelin v. Stewart, 100 Cal. 372, 34 P. 861; 2 Hayne, New Trial and Appeal (2d Ed.) pp. 1608-1614."
That the improper admission of evidence which shows, or tends to show, that an accused has committed crimes other than the one charged, is calculated to do harm, is not open to serious doubt. Jurors are much more prone to believe that an accused is guilty of the commission of a charged crime if it is made to appear that he has committed, or probably committed, other crimes. Numerous cases might be cited where it is held that the improper admission of such evidence is prejudicial error. The cases of State v.Shockley and State v. Baum, supra, will serve to illustrate the rule in this jurisdiction. When it is once established that error is committed, these inquiries naturally present themselves: (1) How may the prima facie showing of prejudice in the improper admission of evidence to overcome? (2) Why should an error be held prejudicial in one case and a similar error be held nonprejudicial in another case? (3) Why should the improper admission of evidence showing, or tending to show, that the accused has committed crimes *Page 157 other than the crime charged, work a reversal in one case and not in another? Evidently the answers to these inquiries must come from an examination of the record, and particularly a consideration of the kind and weight of the evidence adduced at the trial. Thus, when the evidence conclusively shows the accused guilty of the crime charged, the presumption of prejudice is overcome. State v. Cluff, 48 Utah 102, 158 P. 701; State v.Wood, 62 Utah 397, 220 P. 215. When the evidence is not convincing, the presumption of prejudice is not overcome. State v. Baum, supra; State v. Horr, 63 Utah 22, 221 P. 867. It thus becomes a matter of primary importance to determine whether the evidence properly received in this case is of such character as to overcome the presumption of the prejudicial effect of the improper admission of the evidence complained of.
In this case the state relied primarily upon the evidence of an accomplice for the conviction of the defendant. Without the testimony of the accomplice, it is reasonably clear that the evidence would not support a conviction. The accomplice, Dee Patterson, testified in substance that he resided at Beaver, was 22 years of age, was a laborer, and was acquainted with the defendant.
The following is quoted from the bill of exceptions, witness Patterson testifying in chief:
"Q. Did you and the defendant John Cox have any business dealings together? A. No, sir.
"Q. None at all? A. No, sir.
"Counsel for Defendant: Do you object to testifying, Mr. Patterson?
"The Witness: Yes, sir.
"Counsel for Defendant: On the ground that it might tend to incriminate you?
"The Witness: Yes.
"Counsel for Defendant: Under his constitutional rights I don't think any further examination should go on.
"The Court (addressing witness): The Court will direct you to testify. The charge against you has been dismissed for the purpose of making you a witness against your co-defendant, and you will answer the questions. *Page 158
"Q. Calling your attention to about the 18th of March, Mr. Patterson, did you and John Cox at that time have any business dealings together? A. I do not think we had.
"Q. On the night of March 18, 1927, did you in connection with John Cox and Richard Cox break into the granary of Heber Ashworth on his farm down on Devil Creek?
"Counsel for Defendant: I object to the question on the ground that it is leading.
"Counsel for Prosecution: I believe that it is permissible. This witness is an unwilling witness for the State, a co-defendant, and I think it comes within the rule that makes it permissible, even though called by the State to ask leading questions, or even cross examine him.
"The Court: Where he appears to be an unwilling witness leading questions are permissible. Objection overruled.
"The Witness: Yes, sir."
The witness then related that he and the defendant went down to the Ashworth granary in an automobile; that the defendant drove the automobile; that they broke into the Ashworth granary and took some grain; that the grain was taken to Beaver in the automobile, and was unloaded from the automobile into a wagon; and that on the day following the grain was sold to Lawrence White, who paid for the grain by checks. The witness, Dee Patterson, was then cross-examined by counsel for the defendant.
The following is quoted from his cross-examination:
"Q. You are testifying under fear, are you, Patterson? A. Yes, sir.
"Q. And under compulsion? A. Yes, sir.
"Q. And under promises that have been extended to you by the State? A. Yes.
"Q. And you would not testify were it not for that? A. No, sir.
"Q. You still claim your constitutional right to refuse to testify do you? A. Yes, sir.
"Q. And you have given all this testimony under your constitutional right? A. Yes, sir.
"Q. You would not testify as you now testify if it were not for fear? A. No, sir."
The substance of the other evidence is set out in the prevailing opinion. The defendant did not testify, nor did he offer any evidence. *Page 159
Upon the record, I am unable to accede to the view that the proof of the defendant's guilt is so convincing as to overcome the presumption of prejudice arising by reason of the improper admission of evidence tending to show that the defendant was connected with the commission of crimes other than that charged. Obviously, the fact that the defendant did not testify in his own behalf may not be regarded by us as any evidence tending to strengthen the state's case against the defendant. Constitution of Utah, art. 1, § 12; Compiled Laws Utah 1917, § 9279. The testimony of Dee Patterson is of such character that the jury might well have disbelieved the same. He participated in the crime charged, and his testimony as a matter of law is not entitled to the same credence as that of a witness who did not participate in the crime. At the beginning of his testimony, he, in effect, denied that he had been connected with the defendant in the commission of the crime. It was only after Patterson was informed by the presiding judge that the charge against him had been dismissed for the purpose of making him a witness against his codefendant and after he was asked a leading question by the prosecuting attorney that the state was able to secure the necessary evidence. If he is to be believed, his consent to testify was secured by promises of immunity from prosecution and his testimony was given through fear and compulsion. The jurors who tried this case could not justly be blamed if they refused to believe the testimony of such a witness under such circumstances. In the absence of Patterson's testimony, the defendant would have been entitled to a directed verdict of not guilty.
Moreover, before the defendant could be properly convicted, the jury must find as a fact that the testimony of Dee Patterson was corroborated by other evidence which, in itself, and without the aid of the testimony of Patterson, tended to connect the defendant with the commission of the offense charged. If the jury found as a fact that the evidence improperly received supplied the corroboration of *Page 160 Patterson's testimony as required by the statute, obviously the admission of the evidence complained of was prejudicial. It is often difficult for jurists to determine whether or not, in a given case, the corroborative evidence is as a matter of law sufficient to meet the requirements of the statute. This case is not free from such difficulty. Jurors are doubtless confronted with a similar difficulty when required to determine as a fact whether or not the statutory requirement of corroboration has been satisfactorily established. Here evidence was improperly received tending to show that the defendant was connected with commission of other similar crimes. The court instructed the jury that it "has permitted the State to introduce evidence of other acts of the defendant of a similar character to the crime alleged in the information for the purpose of showing guilty intent or the existence of a scheme, plan or system," etc. Does the "evidence of the other acts of the defendant of a similar character to the crime charged in the information" justify the jury in reaching the conclusion that Patterson's testimony was thereby sufficiently corroborated to justify a verdict of guilty? The jury might well answer this question in the affirmative. If the jury based its finding that the testimony of Patterson was sufficiently corroborated to meet the statutory requirement upon the testimony erroneously admitted, obviously its admission was prejudicial. I am thus of the opinion that the judgment appealed from should be reversed, and a new trial granted.