ON PETITION EOR REHEARING.
STOCKSLAGEK, J.Counsel for appellant file their application for a rehearing in this case. The individual members of this court gave this case the most thorough investigation, and after repeated discussion of every question involved in the record, reached the conclusion disclosed by the opinion and dissent of Mr. Justice Ailshie.
The very earnest, and we are satisfied sincere, manner in which counsel for appellant present this application and urge that there is error in the opinion has prompted me to again investigate the record as well as the authorities relied upon by appellant. We fully appreciate the grave responsibility resting upon the court and each member of it. We also appreciate the serious consequences to appellant necessarily following the opinion, but these are not questions which should in any manner affect the court. The facts of the case are fully stated in the opinion, and any that were omitted there are shown in the dissenting opinion of Mr. Justice Ailshie. Tins being true, it is unnecessary to review them here.
Counsel for appellant in their application start out with this statement: “The absolute conviction, in the minds of counsel for defendant, not alone that the defendant herein is absolutely innocent of the crime charged against him, but the certain knowledge that the defendant did not have a fair and impartial trial in the court below. Counsel being present at all stages of the case, were able to see and know of certain facts, incidents and influences outside of any evidence in the case which was brought to bear and made its impression upon the jury in this action. These things it is impossible to incorporate into the record in this court in any manner^ which would indicate to the court the effect they had upon the jury.”
This only serves to remind us of the necessity of confining ourselves to the record as it comes from the lower court; any departure from this rule would leave us at sea for the facts *511in the case. It is presumed that the trial court used every exertion to protect the appellant in his rights and to see that he had a fair and impartial trial, and we are not authorized to take this statement from counsel as bearing upon the question under discussion. If it is true, and we know nothing about it, it might appeal with much force to another tribunal of the state, but it has no place in this court.
Counsel next urge that the introduction of the evidence “showing that one of defendant’s women had syphilis was wholly immaterial, and which was introduced for the purpose, and certainly had the effect, of prejudicing the jury against the defendant.”
This statement is followed with a statement from the majority opinion, in which it is said: “The admission of that evidence was an immaterial error which could not possibly have affected the verdict of the jury, hence did not affect any substantial right of the defendant.”
It must be remembered at all times in this ease that the murder of deceased was shrouded in mystery. That he had been murdered was beyond controversy; that there was no direct evidence connecting the defendant, or anyone else, with the commission of the crime. It developed on the trial that ill-feeling had existed between appellant and deceased for some months prior to the homicide; threats made by appellant of various kinds had been made or were proven on the trial. It was shown that appellant believed deceased was responsible for the examination of the women referred to, and was thereby indirectly, if not directly, responsible for the order of the doctor prohibiting this one from carrying on her business. This, it was shown, enraged appellant, and in his anger he said he would fix him (meaning deceased); he would knock his d-d head off; said Levy and the policemen were making him trouble and he would leave. Counsel for the prosecution asked the city physician this question: “You may state whether or.not about this time you examined these women or either of them?” Counsel for appellant objected to this question for the reason that “it is immaterial, incompetent and irrelevant as to what the condition of these women was; it has no connection whatever with *512this defendant or with the crime charged against him; it is absolutely immaterial and made here for the purpose of prejudicing the defendant without connecting him in any manner with it.”
Counsel for the prosecution stated: “We will connect this with subsequent evidence in the nature of threats showing a direct connection between the two. The physician answered: “The brunette or dark one I found had syphilis, and refused to give her a certificate and notified the police. I think this was two or three days before the body of Levy was found.”
With this state of facts before the court, can it be said the evidence was immaterial, or that its admission'was error? The relation between appellant and these two women was shown. The condition of one of them was also shown to be such that she was refused a certificate by the city physician. The fact that appellant suspicioned deceased with being in some way implicated with the police force in bringing about this examination was shown to have enraged appellant to such an extent that he made threats against deceased, thus, verifying the statement of the prosecution. It was not an attempt on behalf of the prosecution to connect this appellant with any other crime, or to degrade him in the minds of the jury, but was for the purpose of showing his feeling toward deceased, and upon what such feeling was based. If it had been shown that the object of the evidence was to debase appellant in the minds of the jury, or that he was an immoral man, or that it connected him with some other misdeed, the contention of appellant, and his authorities, would be applicable. If the evidence of the condition of this woman and the fact that appellant believed that deceased was in some way instrumental in bringing about the examination by the physician had not been brought home to the appellant, and his threats directly connected with the result of the examination, then it would have been error to admit the evidence.
Counsel next urge that the admission of the evidence with reference to the “orange peel” was error. This testimony, as said in the opinion, as well as the dissenting opinion of Mr. Justice Ailshie, is too revolting to find a place in a living rec*513oxd. Suffice it to say, however, that it is shown by the record that it was introduced for the purpose of showing the ill-will and hatred of appellant for deceased, and not that he had been guilty of other crimes, or for the purpose of degrading him in the minds of the jury. Can it be seriously urged that it was possible to so conduct this trial in the lower court without the relation of appellant and these two women being disclosed to the jury? All the surroundings were such that sooner or later this fact must come out. The class of witnesses on behalf of the prosecution who were residing in the “alley,” the further fact that if the prosecution did not disclose the avocation of the witnesses who reside in the “alley,” it was shown on cross-examination that the appellant resided in the “alley” with the two abandoned women, could not be kept from the jury. Can it be said that because one of the women had a loathsome disease and this fact was brought out by the prosecution, this alone prejudiced the jury against appellant? Is it not true that if any feeling of prejudice existed against the appellant in the minds of the jury that it was caused by his immoral conduct and manner of living? Jurors are selected with care by the defendant and should be by the prosecution, to avoid suspicion of bias or prejudice for or against the defendant, and if in the examination of a juror it is shown that he has any bias or prejudice, he is excused on that ground.
It was unfortunate for appellant that his lot had been cast among the residents of the “alley,” and that the evidence upon which he was convicted was mostly from his associates there. It might be said that it was unfortunate for the state that it had to resort to that class of evidence for a conviction. The prosecution was not to blame for this, however. When it was discovered that a murder had been committed, it was the duty of the officers, as well as all good citizens, to ferret out the perpetrator of the crime and bring him to justice. A careful reading of the record in this case does not disclose any particular friendship for the deceased, or ill-feeling toward appellant on behalf of the witnesses who resided in the “alley.” If anything can be gathered from the evidence of the witnesses from the “alley,” it indicates that deceased was looked upon by them *514as a harsh, exacting landlord. Counsel for appellant in their petition say: “If the opinion of the majority of the court in this ease is to be the law governing such cases in this state, then in every prosecution the doors are open for the prosecution to introduce in evidence, immaterial facts and disgusting details of the moral delinquencies or bad character of a defendant in every criminal case.”
' If the facts in the ease under consideration and the opinion of the majority of the court warrant this assertion, then indeed it is a deplorable condition, and we should not, and would not, hesitate to recall the opinion and grant the appellant a new trial. It is further stated that the principle announced in the majority opinion herein is not only opposed by the decisions of the supreme court of all other states, but if adhered to, overrules the prior decisions of this court upon which counsel for defendant relied. He cites State v. Irwin, ante, p. 35, 71 Pac. 608, 60 L. R. A. 716. This was the unanimous opinion of this court constituted of the same members as at the present time. Of this case counsel for appellant say: “This court reversed a judgment of conviction for the reason that counsel for the state in that case had asked a question of the witness which had a tendency to degrade the defendant and prejudice him in the minds of the jury. How much stronger is the case at bar than the Irwin case can be seen by mere comparison of the questions asked in the Irwin ease and the evidence admitted in this ease.” In the Irwin case defendant was charged with rape, alleged to have been committed on one Dora Irwin on the fourth day of July, 1902. During the trial defendant called his son, Daniel Irwin, as a witness on behalf of the defendant, and on cross-examination this question was asked: “Did 'you not in the course of that conversation with Mary Phillips say also, in substance and effect, that you suspicioned your father with having done the same thing with other girls, mentioning one of your family? Did you not in the course of that Conversation with Mary Phillips say also, in substance and effect, that your father’s actions with the other girl — with the member of the family referred to — had caused your mother’s death?” An objection was sustained to this question, but he *515was required to answer the first question which was in the negative. Other questions of a similar nature were asked.
How can it be said that this ease has any application to the case at bar? Here was an attempt on the part of the prosecution to show a separate and distinct crime to the one alleged' in the information. No bearing or relation whatever to the1 crime for which defendant was being tried, hence, the only effect of the evidence was to prejudice the minds of the jury against the defendant, no difference what the object may have been.
The next case cited from this court and upon which appellant’s counsel say they rely in State v. Anthony, 6 Idaho, 383, 55 Pac. 884. This was also a rape case. The defendant was convicted of the crime of rape alleged to have been committed upon a girl ten years of age. “The errors assigned go to the sufficiency of the evidence to sustain the verdict, and in compelling the defendant to testify in regard to an alleged criminal assault on a young girl by name of Marshall, alleged to have occurred in 1895, and in allowing witness, Alfred Marshall, to testify in regard to said alleged criminal assault.” The court, after relating all the facts, says: “An attempt was made to discredit, and impeach the defendant by contradicting him in regard to at particular wrongful act that had not the remotest connection with the crime of which the defendant stood charged and was convicted.” Has this case any bearing on the case at bar? Here was a man on trial for rape alleged to have been committed at a certain time on a certain ten year old girl. The defendant was a witness on his own behalf and on cross-examination was questioned by the prosecution relative to a similar offense with another girl about a year before the crime charged to him and for which he was being tried. The court said the only effect of this evidence was to prejudice the jury, as it had no relation whatever to the crime charged to the defendant and for which he was being tried; hence error.
Counsel for appellant say the rule laid down in these two cases is correct and in harmony with other courts that have had this question before them.
*516Our attention is next called to People v. Wallace, 89 Cal. 158, 26 Pac. 650. Mr. Justice Ailshie in his dissenting opinion, quotes largely from this opinion, hence unnecessary here. It will be observed that the question objected to in this case related to the proposal of defendant to one of the inmates of the theater at a time previous to the murder, and had no relation or connection in any manner whatever to the crime charged to defendant. It was not shown that there would be any attempt to show by the evidence of the witness any threats or ill-will on behalf of defendant toward the deceased by an answer to the question. The court says: “The admission of this testimony was erroneous; it was not relevant to any issue involved in the case, and was clearly calculated to present the appellant before the jury as a low and degraded character.”
I have no quarrel with either of these decisions. I also agree with counsel that the correct rule is pointed out in State v. Anthony and reiterated in State v. Irwin. I am in harmony with their contention that the authorities are uniform upon the question that evidence that defendant has been guilty of or committed other crimes than that with which he was charged is not admissible in evidence. When it comes to applying this law to the facts in the case at bar is where we come to the “parting of the ways.” As heretofore stated, the defendant was on trial charged with the murder of Davis Levy. The evidence connecting the appellant with the commission of the crime was mostly circumstantial. Before he could be convicted of the crime it was necessary to show a chain of circumstances connecting him with it which included motive. To show his motive it was necessary to prove threats, and as a foundation for such threats his reasons for his ill-will and hatred for deceased. This directly connects the action of the city physician in refusing a certificate of health to one of the women with whom it was shown he was living, or had been living, in the “alley,” and his statement that deceased and the police were causing him trouble and that he would have to leave the town; that he- would got even with him, meaning deceased. Were all these facts permitted to go' to the jury by the learned judge who tried this case in the lower court for the purpose of prejudicing the jury *517against appellant, or were they admitted for the purpose of establishing a motive prompting appellant to take the life of deceased?
The law is not one-sided in its application; it applies to all alike. The state has rights that must be guarded as well as the defendant, and because appellant lived in a manner not commendable and made repeated threats of his intention to do deceased bodily harm, and shortly after these threats the body of deceased was found with evidence of a murder having been committed, it will not do to say that he can screen himself from the evidence of these threats because the very foundation of them grows out of his immoral life intimately and closely connected with his manner of living.
I have examined the authorities cited by appellant, and so far as the admission of the evidence complained of is concerned I have not changed my mind since concurring in the opinion of Chief Justice Sullivan. The careful inspection I have given to the record and authorities since this petition for rehearing was filed has convinced me that there is no error in the majority opinion wherein it is stated that the introduction of certain evidence was immaterial error. I will put it stronger and say there was no error in its admission.
Counsel for appellant say: “The court in its majority opinion states that the witness Ragland, who was to receive $50 of the reward in case of conviction, is corroborated by other witnesses. This statement is not borne out by the testimony. The testimony of all other witnesses as to the time the witness Ragland went to Weil’s cigar store and the time when the defendant went there do not agree. Ragland testified that defendant came in there a half hour after he did, whereas four other witnesses who were in Weil’s cigar store at the time testified the defendant came in within five minutes after the time Ragland did, and yet the court in its majority opinion says it was an important fact that the defendant did not arrive at Weil’s store until half an hour after Ragland did.” ¡
I have read the majority opinion very carefully to find the language charged to the court in the latter part of the above statement, but am unable to find any such statement. I will *518state here, however, that the witness Eagland was corroborated in nearly all his statements; that appellant went to the barbershop a few minutes before 8 o’clock and got a bath and shave,- and that he did not leave there until some minutes after the blinds were drawn; was corroborated by the witness Maupin that Eagland went from the barber-shop to Weil’s cigar store, and that he was at the cigar store when appellant came in is also corroborated by Maupin; says that Eagland came in a little after 8 o’clock and that appellant came a little afterward — ten or fifteen minutes past 8. Jacob Cohn said he saw appellant at Weil’s cigar store a few minutes after 8 o’clock; he remained there from 8 to 10 o’clock; Eagland came in after 8 o’clock; «it might have been half-past 8 o’clock when Eagland came in; I don’t know which came in first; have no way to fix the time when either came in.” Jule Weil and L. Weil fixed the time when both appellant and Eagland came to their cigar store by the time they respectively go and come from their meals, at ■one time saying it was before 8 o’clock when appellant came to the store, but taking their testimony in its entirety, it is shown that they, like the witness Cohn, had no definite way of fixing the time. The witnesses, Eagland and Maupin fixed the time by the hour the barber-shop was closed, which it is shown is promptly at 8 o’clock. It is shown by the evidence of L. Weil that appellant left his place of business about 10 o’clock that night, and he fixes the time by the hour the busses go to the depot. The careful inspection I have given to the evidence in this case, as well as the authorities cited by appellant, fails to convince me that there is any reason why the majority opinion should not stand as the judgment of the court. It is so ordered.
Sullivan, C. J., concurs.