(concurring in the result) :
I concur in the result.
My reservations in this case do not arise from doubts concerning the general principles announced by the author judge. I am troubled only with the application of the rule which permits specific acts of conduct to be shown if they have substantial value as tending to prove a plan or scheme. I do not care to expound my concepts at length, as I find no appreciable impact of any error on the findings or sentence. But I call attention to the principle that we should not support a ruling of the law officer on a changed theory unless wé test our rule at his level. A trial may become unfair if testimony admitted by him for one purpose is used by us for a different purpose, unsuspected by him and by the parties to the litigation. If we seek to apply different conditions for the admissibility of evidence than were applied by the law officer, we must make certain that all of the testimony which was admitted by him is competent, relevant, and material for the use we make of it. In the instant case I question the Court’s contention that all of the evidence about which the accused complains meets the test of admissibility to prove a plan or scheme on his part. I prefer, therefore, to join with the board of review and hold that the law officer erred.
In view of the fact that I concur with the views expressed in the Court’s opinion .that, assuming error, the totality of evidence erroneously admitted by the law officer was nonprejudicial, a fortiori, the evidence I find improperly received would have the same lack of measurable impact on the findings and sentence.