(dissenting): Under our appellate practice we do not examine a record for the purpose of determining whether some error might be found, but are concerned only with alleged errors complained of by appellant which were raised in the trial court.
Objection was made below to the admission of evidence, in the state’s case in chief, showing appellant’s former conviction of murder. The objection was the evidence was not admissible as a part of the state’s case in chief, it was not a similar offense and was prejudicial. Counsel for appellant who argued the case on rehearing stated, with commendable frankness, that was the only point he was urging. In the brief it is, however, also stated an instruction touching the purpose for which such evidence could be considered erroneously included the word “motive”.
On the first hearing of the appeal counsel for appellant also contended the county attorney was guilty of misconduct in connection with the introduction of evidence touching the former offense and that such conduct was highly prejudicial. At that hearing he also contended the county attorney was guilty of misconduct to appellant’s prejudice in his argument to the jury. The contention of prejudice resulting from any conduct of the county attorney has been completely abandoned on this, rehearing. The record shows no such complaint was made to the trial court in appellant’s motion for a new trial. Appellant does not now contend he was prejudiced by reason of the county attorney placing too much emphasis on evidence of the former offense and this court should not reverse the trial court on that ground.
Appellant had been convicted of murdering a woman in Oklahoma when he was approximately fifty-two years of age. He was sentenced to confinement for life, but was later paroled. While on *262parole appellant shot and killed Cole with a shotgun, which the state’s evidence disclosed he admitted borrowing for that purpose. Appellant admitted the killing, but claimed he did it in self-defense. The jury believed otherwise and the trial court approved the verdict.
Whether appellant may obtain a reversal of the judgment on the ground the evidence of the former conviction was prejudicial, in view of the fact his counsel had fully informed the jurors thereof individually and collectively on the voir dire examination and in view of the further fact appellant, on cross-examination and without objection, admitted that offense and the manner of its commission, will be treated later. Those facts will be presently ignored in determining the question of the competency of that evidence as a part of the state’s case in chief.
While the question of remoteness of the former offense will also be treated more fully later it is sufficient to say now that, under the repeated decisions of this court, mere remoteness affects only the weight of the testimony and not its admissibility.
Of course, if the evidence of the former conviction was competent at all as tending to throw any light on some element of the offense for which appellant was on trial, it was properly introduced as a part of the state’s case in chief. (State v. Robinson, 125 Kan. 365, 263 Pac. 1081.) By so doing appellant was advised concerning the nature of the testimony he was obliged to meet and it gave him an opportunity to later adduce any appropriate and competent evidence tending to rebut the purpose for which such testimony had been admitted. Was it competent for such limited purpose?
The position of the majority that a court may say, as a matter of law, that appellant’s “conviction of the former offense had no probative value with reference to any element of crime for which appellant was on trial” (emphasis supplied) is, in my view, an arbitrary conclusion, constitutes an unwarranted invasion of the functions of the jury and nullifies our previous decisions. Appellant’s inclination, tendency, disposition and mental attitude were of vital importance as bearing directly upon the question of his intent — that is, whether he intended murder or whether he actually killed only in self-defense. That was the sole issue in this case. Was the killing a mere accident, was it intended for the purpose of defending himself or was it a deliberate murder? Cole died immediately. Appellant was the only remaining eyewitness. The issue of appellant’s intent was the all important question. While appellant claimed he killed Cole in *263self-defense he also testified he did not intend to shoot him. If-that was true the killing was accidental and the intent to murder was absent. Appellant stated:
“I just grabbed up the gun and laid down on him. I aimed to shoot over him." (Our’ italics.)
As to the former murder appellant claimed it, too, was an accident. He made that claim notwithstanding his conviction and sentence therefor and notwithstanding his admission that he had shot the woman twice with a six-shooter. It surely cannot be said it was impossible for reasonable minds of jurors to reach different conclusions with respect to whether the former murder cast any light on the defendant’s tendency, inclination, mental attitude, purpose and intent when members of this court divide four to three on that precise subject. I am perfectly willing to and freely do grant four members of this court the right to say the evidence of the former conviction would have no probative value, if they were jurors, but I deny their right, as a matter of law, to say it could have no probative value whatsoever for eight other jurors. The law has not yet become such a scientific yardstick. If it lays claim to such perfection and infallibility the claim is a hollow pretense for the demonstrated reason that the law is wholly incapable of making such unerring measurement of human reactions.
Of course, it is elementary and I completely agree with the general rule stated in the majority opinion that mere evidence of the commission by the same person of another crime wholly independent of, and unconnected with, that for which he is on trial is not proof he committed the latter offense. It is the exceptions^ the general rule referred to in the majority opinion that are applicable and controlling here. They are found in the same text, 22 C. J. S., Criminal Law, §§ 663, 690. Moreover, we have our own well-established body of law on the subject under consideration. In the case of State v. Frizzell, 132 Kan. 261, 295 Pac. 658, relied upon by appellant, this court said:
“Wharton’s Criminal Evidence (vol. 1, 10th ed.), page 59," after stating the rule, notes nine exceptions thereto, among which are, relevancy to prove identity of person or crime, to prove scienter or guilty knowledge, to prove intent, to show motive, to prove system, to prove malice and to rebut special defenses, and then adds:
“ ‘It is recognized that in many instances the line of demarcation is not clear, but the discretion vested in the trial judge, intelligently and considerately exercised, will enable the prosecution fully to present the charge, on the one *264hand, and, on the other hand, to protect the accused and secure' to him the rights guaranteed to him by the constitution and the laws.’ ” (Our italics.) (p. 263.)
In the Frizzel case evidence of another offense was held particularly applicable for the purpose of rebutting a special defense, the defense of alibi. It was there, as in many other cases, recognized that the exceptions to the general rule are founded on as much wisdom as the rule itself.
In the earlier and familiar case of State v. Ridgway, 108 Kan. 734, 197 Pac. 199, a grand larceny case, in which evidence relating to other offenses of the same sort was admitted, it was said:
“The question raised by objection to the evidence recited and by the instruction, is the old but forever new one of admissibility of other offenses op similar acts to prove an element of the crime for which a defendant is on trial. The general rule, the reasons for it, the exceptions to the general rule, and the reasons for them have been stated so often, it is not necessary to do so again. The subject is thoroughly discussed in 1 Wigmore on Evidence, §§ 300-367. Cases are collated in 62 L. R. A. 193 and 43 L. R. A., n. s., 776.” (p. 736.)
Our later opinions are replete with similar statements. It is unnecessary to labor the point. This court repeatedly has admitted evidence, under properly limited instructions, of other wholly separate and independent offenses of the same sort or character where such evidence only tended to show some element or elements of the offense on trial. While in many of them the relation of' such evidence to the element or ingredient of the offense on trial was not fairly close it was always held the weight thereof was for the jury and not for the court. Some of the numerous cases in which we have admitted evidence of offenses of the same sort under some of the various exceptions to the general rule are State v. Stitz, 111 Kan. 275, 276, 206 Pac. 910 (rape),; State v. Wahl, 118 Kan. 771, 774, 236 Pac. 652 (forging and uttering check); State v. Reuter, 126 Kan. 565, 567, 268 Pac. 845 (larceny of domestic fowls); State v. Hendren, 127 Kan. 497, 274 Pac. 274, syl. ¶ 2 (blackmail and robbery); State v. Dunkerton, 128 Kan. 374, 375, 278 Pac. 57 (possession of liquor); State v. Caton, 134 Kan. 128, 131, 4 P. 2d 677 (bank robbery); State v. Marr, 136 Kan. 602. 605, 16 P. 2d 469 (accessory after the fact in larceny case); State v. Harper, 137 Kan. 695, 696, 22 P. 2d 454 (sale of speculative securities) ; State v. Gwynne, 142 Kan. 13, 15, 45 P. 2d 849 (bank robbery); State v. W. H. France, 146 Kan. 651, 652, 72 P. 2d 1001 (contempt proceedings in liquor case); State v. Briggs, 74 Kan. *265377, 382, 86 Pac. 447 (obtaining money by false pretenses); State v. Chance, 82 Kan. 388,108 Pac. 789 (note forgery); State v. Ridgway, 108 Kan. 734, 736, 197 Pac. 199 (grand larceny); State v. King, 111 Kan. 140, 206 Pac. 883 (murder); State v. Mall, 112 Kan. 63, 65, 209 Pac. 820 (grand larceny); State v. Minnick, 113 Kan. 385, 387, 214-Pac. 111 (receiving stolen property); State v. Hays, 113 Kan. 588, 215 Pac. 1109 (disposing of mortgaged property) ; State v. Turner, 114 Kan. 721, 220 Pac. 254 (liquor); State v. Bartholomew, 116 Kan. 590, 592, 227 Pac. 366 (grand larceny); State v. Crow, 124 Kan. 55, 60, 257 Pac. 735 (embezzlement); State v. Robinson, 125 Kan. 365, 263 Pac. 1081 (embezzlement); State v. Collins, 126 Kan. 17, 266 Pac. 937 (grand larceny); State v. Frizzell, 132 Kan. 261, 265, 295 Pac. 658 (robbery). This list of cases will be referred to later as the general list.
What then is the basis upon which this .court now says the evidence of the former offense had no probative value whatever for any purpose in the instant case? Was it too remote? It will be observed the majority opinion prominently mentions the fact the former offense was committed twenty-eight years previously. The inference the reader quite naturally would make from such statement is that it was.the remoteness of the offense that rendered it inadmissible. But the majority opinion deliberately refrains from so stating for the reason that such is not the law in this state. It is true we have various cases in which prior or subsequent offenses were committed comparatively near the time the offense under consideration was committed. In some of those cases the syllabus, in stating the law of the particular case, quite properly stated the facts with reference to the time the similar offenses were committed and held the evidence was competent. Such cases, however, are not authority for the proposition that if such similar offenses had been remote in time evidence thereof would have been incompetent. In every case that my research has disclosed where the contention of remoteness was squarely presented this court has ruled that mere remoteness of the separate and independent crime affects only the weight and not the admissibility of the evidence. A few examples are State v. Ridgway, supra, p. 737; State v. King, supra, p. 149; State v. Caton, supra, p. 131; State v. W. H. France, supra, p. 652.
Was it a similar offense? Appellant objected to the evidence on the ground it was not. The trial court ruled it was. Both offenses *266were murder. True there was a difference in the types of weapons employed to commit the crimes. One was committed with a shotgun, the other with a revolver. Did that difference change the fact both offenses were murder and render the evidence inadmissible? Not under our decisions.
It is true that in some of the cases cited above the evidence of other offenses disclosed a common method, system, scheme or design and was held competent for the purpose of tending to prove identity of the person committing the crimes or to cast light on the element of intent, purpose or motive. In other words, in the latter cases the evidence was- competent as tending to show intent, that the offense for which defendant was on trial was not a mere accident or mistake as, for example, State v. Robinson, supra, in which various, instances, not convictions, of embezzlement were shown. But, as already indicated,-that is not the only purpose for which evidence of offenses similar in sort may be introduced under exceptions to the general ride. This court repeatedly has held evidence of other offenses of a similar sort may be shown also for the purpose of tending to indicate mental attitude, disposition, inclination, tendency, knowledge, motive, purpose and intent. Among our numerous cases so- holding are the first ten cases in the general list of cases heretofore cited. If evidence of other offenses of the same sort is competent for the purpose just stated when a person is on trial for a violation of the liquor or other laws, why,is it not competent for the same purpose when a person is on trial for murder, a far more serious offense against society?
In State v. Marr, supra, involving the question of similarity of offenses, we held:
“Evidence of a prior conviction of the defendant of the theft of a tire and a wheel of an automobile is sufficiently related to the crime of being an accessory after the fact in aiding one known to have stolen automobile tires, in finding a sale for them, and removing identification wrappers with intent and in order that the offender might escape and avoid arrest, trial, conviction and punishment, to make such evidence admissable to show mental attitude, intent, tendency, inclination and knowledge along that particular type of crime.” (Syl. f 3.)
A person might unlawfully deliver liquor on foot. In other instances he might transport it by wagon, bicycle, motorcycle, automobile, truck or airplane. A person might commit a number of murders by means of poison, containing entirely different chemical ingredients for the very purpose of avoiding similarity of method. *267He might commit a number of murders by means of choking, suffocation, poisonous gases, arson, stabbing or perhaps even by employing different firearms. A person might unlawfully obtain money by entirely different types and schemes of false pretenses. Would evidence of conviction of such offenses be rendered incompetent merely because the precise methods employed to commit the similar offenses were different? Not under our decisions. In State v. Harper, supra, the court had instructed the jury it could consider evidence of previous violations of the speculative securities act only for the purpose of showing identity of the accused and his motive, intent, lack of mistake and plan or system of operation and for no other purpose. We affirmed the conviction but stated the evidence of other offenses was also admissible to prove intention, inclination and tendency of the accused, citing previous cases. It follows the trial court, in the instant case, properly overruled the objection to the evidence on the ground it was not a similar offense.
The rule with respect to competency of evidence of other offenses and the purpose thereof is also applicable, under exceptions to the general rule, for the purpose of rebutting the defensive theory or a special defense. (State v. Frizzell, supra, p. 264.) The rule has general support. (22 C. J. S., Criminal law, § 683, pp. 1089, 1096; 1 Wharton Criminal Evidence, 11th ed., § 358.)
The instruction given by the court is stated in the majority opinion. Appellant’s complaint here concerning it is that it contained the word “motive.” There is no indication in the record counsel for appellant objected to the instruction upon that or any other ground when it was given. There is no indication counsel called the trial court’s attention to the particular point in connection with the motion for a new trial. They do not claim they did so. But let us pass counsels’ failure to direct the trial court’s attention to the alleged error. The word "motive,” of course, technically has a definite legal connotation. It has been similarly employed in various instructions of, this character in the list of'cases previously cited. Assuming, however, the word "motive” had no particular function to perform under the evidence in this case, in what manner did it prejudice appellant’s substantial rights? No attempt is made to show how it did, or even how it might have, prejudiced his rights. It is merely said the word should not have been employed. Under similar circumstances we have said the use of the word “motive” in the instruction did not constitute reversible error. (State v. Frizzell, supra, p. 266.)
*268The instruction did refer to “other similar transactions.” There was only one other similar offense and the instruction should have referred to “a similar transaction” instead tif to “other similar transactions.” Clearly the jury was not'misled by that inaccuracy and no complaint is made now thereof. Under the provisions of G. S. 1935, 62-1718, this court is expressly directed to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. , (See numerous decisions collected under the statute.)
.Since there was no error in the admission of the testimony in the state’s case in chief appellant could not have been prejudiced by its admission under the instruction properly limiting the purpose for which the evidence could be considered.
Let us, however, assume for the moment that this court previously has been wrong and that the evidence should not have been admitted for any purpose in the state’s case in chief. Should we say the fact it was so admitted constituted reversible error under the circumstances of this case? The testimony of the former offense and the manner of its commission was admitted by appellant on cross-examination without objection and without motion to strike out such testimony after it was admitted. The testimony of the former offense was, therefore, properly in this record.
In addition appellant’s own counsel on the voir dire examination had fully advised the jurors individually and collectively that appellant had been convicted of murdering a woman in Oklahoma with a pistol. The jury was informed appellant had been sentenced to die for that offense twenty-five years ago, that his death sentence was commuted to life imprisonment and that he was now on parole. His counsel further informed the jury the state would prove, or offer to prove, the former conviction. The jurors were questioned at- length whether they would permit proof thereof to prejudice their minds, against appellant. The answers of the jurors were all in the negative. Counsel thereupon advised the jurors the trial court would instruct them relative to the purpose for which such evidence could be considered by them and then inquired whether they would follow the court’s instruction. The answers all being in the affirmative, appellant’s counsel waived the tenth challenge.
There is not the slightest indication in this record the jury did not follow the instruction of the trial court as counsel for appellant *269requested it to do. Notwithstanding that fact appellant now challenges the verdict and judgment on the ground the jury was prejudiced by reason of the testimony introduced by the state. He seeks a reversal notwithstanding the fact his own counsel previously had fully informed the jury concerning the alleged prejudicial fact. Parties should not be permitted, to play fast and loose with judicial tribunals in that manner and thereby overthrow verdicts and judgments solemnly reached. It appears counsel for appellant endeavored to persuade the jury by the voir dire examination that appellant had nothing to conceal and wanted the jury to be fully advised concerning his former record. That method was conceived to be the best strategy. Perhaps it was. But if appellant was prejudiced by reason of his former conviction, what is there in this record to indicate the prejudice did not result from the disclosure his own counsel made to the jury? Nothing.
Counsel for' appellant now endeavor to justify their conduct on the voir dire examination by stating they knew from the first trial of the case, which terminated in a hung jury, that the trial court would again admit the testimony of the former offense .and, therefore, they informed the jury concerning it. They had that privilege but they cannot now escape the consequences of exercising that privilege by merely asserting the alleged prejudice resulted by reason of the evidence adduced by the state and not from the same identical facts they previously had related to the jury. If they believed the prior ruling of the trial court was erroneous and that the court would again make the same ruling they should not have narrated the alleged prejudicial facts to the jury, but should have objected to the testimony when the state offered it.
The majority has ruled the disclosure of the former conviction of murder to the jury by appellant’s own counsel did not prevent them from objecting to such evidence when it was offered by the state. Neither did it prevent the trial court overruling the objection when appellant’s own counsel had already fully informed the jury of the alleged prejudicial testimony, had obtained the jury’s commitment that it would not be prejudiced thereby and that it would consider the evidence only for the purpose indicated in the court’s instructions. In my opinion it is neither fair to the trial court, nor logical, to say the trial court, under the circumstances of this case, abused sound judicial discretion in the admission of the testimony. The judgment should be affirmed.
*270On the trial the state complained of the trial court’s rulings restricting its cross-examination of appellant. The state has not cross-appealed from such rulings. Since,'however, this case is being remanded for a new trial it may not be out of place to direct attention to the rule governing such examination. (State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; State v. Pfeifer, 143 Kan. 536, 56 P. 2d 442, and cases therein cited.)
Bxjrch, J., concurs in the foregoing dissenting opinion.