(concurring specially).
That conviction or acquittal often depends on whether evidence of prior criminal offenses is admissible is evidenced by the nearly 100 pages devoted to that subject in Corpus Juris Secundum, 22 C.J.S., Criminal Law, §§ 682-692, pp. 1084-1179. It is, therefore, highly important that we have sound reasons for the application of the rule or the exception thereto, and my disagreement with the reasoning of my brothers impels me to conour specially. Because the charges on trial do not require proof of a “specific intent” is not, in my opinion, a sufficient reason, in and of itself, to exclude evidence of prior convictions. The crimes of possession of an unregistered still, I.R.C.1954, § 5601, 26 U.S.C.A. § 5601, and of possessing distilled spirits in unstamped containers, I.R.C.1954, § 5642, 26 U.S.C.A. § 5642, here charged, involve, I think, the element of conscious wrongdoing or a general criminal intent as do most other offenses. See Moris-sette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288. Intent can be an issue even in such crimes. In this case, for example, appellant’s presence at and flight from the distillery could have been innocent, as he claimed, or could have been accompanied by a criminal intent, and, hence, a part of his criminal conduct, as the Government claimed. If there are present all of the other requisites of one of the exceptions to the general rule forbidding evidence of prior convictions, then I do not think that the evidence becomes inadmissible simply because the charge on trial does not require proof of a “specific intent.” The usual purpose of evidence of prior convictions, when admissible at all, is to show that the acts proved to have been committed by the defendant were done with a criminal intent. That was our approach in Fallen v. United States, 5 Cir., 220 F.2d 946, 948, where we said:
“We think that there could have been no real question of Trice’s criminal motive if, in fact, he changed the numbers on the stolen automobiles. Proof of the commission of the act carried with it the evident implication of a criminal intent. In such instances, evidence of the perpetration of other like offenses is not needed to establish criminal motive or intent and is not admissible for such purpose.”
McClain v. United States, 5 Cir., 1955, 224 F.2d 522, and the present opinion seem to me to reverse the order, so as to have us reason from the abstract legal definition of the crime backward, rather than from the acts of the defendant forward to the intent with which they were done, and such reversal, I think, tends not only to confuse rather than to help, but erroneously places crimes not requiring a “specific intent” outside the application of the exception to the rule.
However, even when intent is in issue, the prior wrongful acts must be similar to the one charged, must not be so remote as to be lacking in evidentiary value, and must logically tend to prove the defendant’s criminal intent in some more definite manner than simply by proving that he is generally of bad character. Indeed, in the present development of the law in this Circuit, I believe that the probative value of such evidence to show intent must depend on something more than the defendant’s character, general or specific. See Weiss v. United States, 5 Cir., 120 F.2d 472, on rehearing, 5 Cir., 122 F.2d 675, 682-689; Lloyd v. United States, 5 Cir., 226 F.2d 9; Lindsey v. United States, 5 Cir., 227 F.2d 113. The evidence of the defendant’s seven prior convictions showed merely his tendency to violate the Internal Revenue liquor laws, and constituted proof in no other way that his presence at the still and flight therefrom were done with a criminal intent. Our law makes some allowance for the possi*379bility of reform, and does not yet say “once a moonshiner, always a moonshiner”. For that reason, I concur that the evidence of the prior convictions was not admissible.