(concurring in part and dissenting in part): This court is granting a new trial for the reasons stated in its opinion. Our criminal code, G. S. 1949, 62-1718 provides:
“On an appeal, tbe court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
Under this statute are collected a large variety of cases well known to the bench and bar in which this court has applied the above statute with far greater liberality to effectuate its true intent and purpose than it has on some matters involved in the instant case. (See cases referred to above.)
I fully agree with the majority the jury was entitled to whatever testimony it desired to re-examine during its deliberations irrespective of how much time might be consumed thereby. It was reversible error for the court not to grant the jury’s request. I, however, find no support in the record that the bailiff denied the jury’s request without first consulting the court and, therefore, I attach no misconduct to the bailiff’s action in this regard.
Touching the subject of failure to instruct on the subject of lower degrees of homicide it appears to me that in the light of defendant’s own testimony and his claim he killed Bradley only in self defense, he was guilty of murder or .nothing. However, in my opinion, our decisions on that point are not in complete harmony. I, therefore, shall not say there is no authority for this court’s present decision on that point.
I would not reverse the trial court by reason of its refusal to grant a new trial for failure of the bailiff to take and subscribe to an oath just before the jury retired for its deliberations, as required by G. S. 1949, 20-312; 62-1448. No reasonable person will seriously contend an oath required by law is unimportant and should be disregarded. The question now, however, is whether defendant is entitled to a new trial by reason of an omission of the 'oath. On the record presented to this court I do not think so. My decision is not based upon the fact the Cowley county courthouse had no facilities for housing and feeding the jurors and keeping them together, although I shall comment briefly on that matter later. My position is that on the basis of the record presented here defendant is in no position to complain and should not be permitted to unseat the verdict now.
*572A party cannot sit silently by and take the chances of acquittal, without the required oath having been taken, and subsequently, when convicted, insist on a new trial because the oath was omitted. This court has squarely, and, in my opinion properly, so stated. (See State v. Crilly, 69 Kan. 802, 809, 77 Pac. 701, and cases therein cited.)
It is conceded defendant was represented by more than one attorney. On the hearing of the motion for a new trial one of defendant’s attorneys presented an affidavit in which he stated neither of defendant’s counsel was in the court room when the court sent the jury out to deliberate and they did not learn of the omission of the oath until after the jury was discharged. Counsel for the state categorically deny before this court that defendant’s attorneys were absent from the court room at that time. The trial judge, of course, was present in the court room. I shall not say he did not know what attorneys were present. The trial court heard this argument on considering defendant’s motion for a new trial. It denied the motion. In my opinion this court should not on appellate review reverse the decision of the trial court by resolving this factual dispute between counsel for the parties as it is doing by saying:
“In this case the attorney for appellant was not in the court room at the time the jury was sent out to consider the case.” (p. 568.)
We have properly said this court will not do that. (State v. Gillen, 151 Kan. 359, 364, 99 P. 2d 832.) Furthermore, in State v. Crilly, supra, this court quoted with approval from an Illinois case, and said:
“ ‘The requirement of the statute that the jury in a criminal case shall be placed in charge of a sworn, officer upon retirement is waived by the failure of the accused to object at the time to the omission of the oath, and the question is thereafter not open to review upon writ of error, although the point is urged as a ground for new trial by motion supported by affidavits.’ ” (p. 809.)
In addition to the foregoing I cannot escape the conclusion it constitutes a most dangerous rule which permits all the attorneys for a client to absent themselves from court proceedings, without leave of court, and thereafter permits them to upset the verdict of a jury solemnly reached on the ground none of them was present to object to what transpired during their voluntary and unexcused absence.
I quite readily agree it is the duty of the county to furnish a place for the court to conduct its business in harmony with law. I also agree that lack of adequate facilities in the courthouse to provide *573for housing and feeding jurors or inability to comply with other statutory provisions does not constitute a legal excuse for omitting the bailiff’s oath. However, every experienced lawyer knows many courthouses in this state are not adequately equipped to comply strictly with all the requirements of the statutes in question. This is particularly true where a jury consists of both men and women, as many of them now do. All I desire to say presently on this particular point is that I am unwilling to upset verdicts where the statutory requirement concerning the housing and feeding of jurors, or some other similar statutory requirement, has not been complied with strictly, absent some circumstance reasonably tending to show the defendant or the state, for that reason, has not had a fair trial. Any other rule would invalidate literally hundreds of verdicts previously rendered and others to be rendered. I find nothing in this record to indicate that failure of the bailiff to take the oath or that any conduct on his part in any manner prejudiced defendant’s rights. Under all the circumstances stated I would not grant a new trial by reason of omission of the oath.
Defendant’s counsel complain of the conduct of the bailiff in delivering an identified but unadmitted exhibit to the jury in response to the jury’s request for exhibits in the lawsuit. Manifestly, the jury should have access only to exhibits admitted in evidence. But surely it is not the bailiff’s legal duty and responsibility to decide which identified exhibits have been admitted and which ones have not. On the basis of the record presented here I cannot possibly fasten misconduct on the bailiff for that incident. This was defendant’s exhibit. It was identified by his own counsel but for some reason, not here apparent, was not later offered in evidence by the defendant. Furthermore in what manner it prejudiced the jury has not been shown. (See G. S. 1949, 62-1718, previously quoted.)
This brings me to the subject involving admissibility of evidence tending to show characteristics, mental attitude, tendencies, inclinations, motive, intent, etc., of a defendant to commit an act for which he presently stands charged. I need not repeat the three transactions set forth in the court’s opinion concerning which evidence was admitted. There is strong authority that each of the transactions was competent in cases of this particular character for the single specific purpose of disclosing defendant’s dangerous disposition, tendencies, inclinations, etc., as reflected by consistently and over a *574period of many years carrying concealed weapons contrary to law but I shall not labor that point as to each of the separate transactions for reasons which will appear later.
I pause, however, to call attention to the particular offense for which defendant previously was convicted, namely, the offense of assault on another with a deadly weapon, a pistol, “with intent to kill.” In my opinion that evidence was entirely competent for the restricted purpose under which it was admitted. The trial court was most solicitous in stating the sole purpose for which this evidence was admissible. The court repeatedly admonished the jury during the course of the trial concerning the limited purpose for which evidence of any of the three transactions could be considered. The first two transactions heretofore mentioned had occurred more recently than the one now under consideration. This one occurred twenty-two years ago. Concerning it the court advised the jury when evidence of that conviction was introduced, as follows:
“Court: I will let it go in, with the warning to the jury, that they are the judges of the weight and credibility of this evidence. It will be admitted just for the purpose of showing a motive, intent, habit, inclination, plan and system of operation, and for no other purpose, and you are the judges of its weight and credibility.” (My emphasis.)
The evidence for sach limited purpose has been admitted in this state in almost every kind of crime imaginable. See a partial list of such cases collected in the dissenting opinion in State v. Owen, 162 Kan. 255, 264-265, 176 P. 2d 564. In the Owen case the similar offense was committed twenty-eight years previously but there was no evidence of similar transactions thereafter until the one for which he was being tried. It is argued that opinion has been construed generally by the bench and bar to mean the similar offense was too remote to have probative value. I think that is a fair interpretation of the majority opinion although on that basis it is in conflict with a long line of consistent decisions of this court. And in a later well written opinion by Justice Robert T. Price this court returned to its previous rule on the subject of remoteness and held:
“The general rule is that evidence that a defendant in a criminal prosecution has committed another crime independent of, and unconnected with, the offense for which he is being tried, is inadmissible.
“There are several well-recognized exceptions to the foregoing general rule— one of them being that where guilty knowledge is in issue, or an element of the crime charged, evidence of the prior commission of similar offenses by defendant is admissible to prove such knowledge.
*575“Remoteness in time of such evidence, otherwise admissible, affects the weight and probative value and not the admissibility of the evidence.” (State v. Fannan, 167 Kan. 723, Syl. ¶ 1, 2, 3, 207 P. 2d 1176.) (My emphasis.)
The case of State v. Winchester, 166 Kan. 512, 203 P. 2d 229, cited in the court’s opinion, is not, in my judgment controlling or in point with respect to the admissibility of evidence of former convictions or of similar offenses. The question there pertained to a mere colloquy largely between the chief of police and the county attorney and was properly held to be inadmissible. (See p. 515.)
It has been observed the rule in State v. Fannan, supra, previously quoted, is properly limited to offenses “otherwise admissible.” Why was the evidence of defendant’s conviction of assault on another with a deadly weapon and “with intent to kill” not admissible in the present case? In the court’s opinion it is said:
“The gist of the question being tried in this case was whether Palmer, when he fired the shot which killed Bradley, did so in self defense. No similar issue was involved in any of the cases testified to by the three witnesses last named.” (p.575.) (My emphasis.)
With utmost respect to my colleagues I have not found facts in the record to support the italicized statement. However, assuming its correctness, surely the statement cannot constitute a proper test concerning the admissibility of evidence involving previous similar offenses. In a previous case a defendant might have denied he committed the offense or he might have alleged the killing was a mere accident or he might have asserted some other defense such as an alibi. It does not follow facts in the previous offense could not clearly throw light on defendant’s mental attitude, tendencies, inclination, motive, intent, etc., to commit the offense for which he is presently on trial and in which he claims he killed solely in self defense. It is unnecessary to pursue this point. A sufficient answer, in my opinion, to the test laid down by the court in the instant case is that the rule here involved is not limited to offenses for which there has been a conviction. It repeatedly has been invoked as to other similar offenses on which there had been no trial and in which it, therefore, was impossible to know what the defense might be.
It also is noteworthy that G. S. 1949, 62-1449 recognizes the admissibility of evidence of other offenses on which there has been no trial and which could have been, but were not, joined in the same information by providing, in substance, that if evidence concerning them is offered against a defendant in the case being tried prosecu*576tion on such other offenses shall thereafter be barred. (State v. Momb, 154 Kan. 435, 119 P. 2d 544.)
Is evidence of similar offenses properly admitted in a state’s case in chief? Concerning that question there can be- only one answer under our decisions. In State v. Robinson, 125 Kan. 365, 263 Pac. 1081, a 1928 embezzlement case, in the trial of which the author of the instant opinion participated, the state gave notice in its opening statement that in addition to five counts pleaded it would show other transactions, not convictions, of similar character. Such evidence was later introduced in the state’s case in chief over defendant’s objection but with proper admonition of the trial court to the jury respecting the limited purpose for which it was admitted. This court held the evidence was properly introduced in the state’s case in chief. Earlier and many later cases are to the same effect. Obviously the state must prove all elements of an offense in its case in chief or its proof fails. Evidence of intent, with a few exceptions not here involved, is one of them. If the state should wait to introduce evidence of numerous similar offenses until after a defendant has rested .his case the defendant might well have a just complaint on the ground such evidence was not proper rebuttal but testimony which should have been offered in the state’s case in chief.
The state makes a contention which I cannot ignore. Its counter abstract discloses defendant took the witness stand and admitted he committed the three offenses previously discussed and others. It early and consistently has been held by this court that where incompetent testimony is given to the jury, such error is cured where a defendant on his own behalf testifies substantially to the same facts erroneously admitted in the first instance. (State v. Furney, 41 Kan. 115, 21 Pac. 213; State, ex rel., v. Strevey, 138 Kan. 646, 27 P. 2d 253; In re Estate of Langdon, 165 Kan. 267, 273, 195 P. 2d 317.) Our rule is in harmony with the generally accepted doctrine that, “Admission of improper evidence which relates to a fact which is admitted, conceded, uncontroverted, or placed beyond dispute by uncontradicted evidence is harmless error.” (5 C. J. S., Appeal and Error, § 1732a.)
In passing it also may be observed this is not a case in which the defendant might have chosen not to testify in his own behalf had it not been for the admission of the alleged incompetent testimony. The state had shown the defendant had killed Bradley. Defendant admitted that fact but claimed he had done so only in self defense. He, therefore, was obliged to take the witness stand in order to *577establish that defense irrespective of the admission of alleged incompetent testimony. Having adopted an affirmative defense which required him to be a witness in his own behalf he subjected himself to cross examination concerning prior offenses not embraced in his direct examination and concerning subjects involving him in degradation and disgrace, although not pertaining to the charge for which he was on trial. (State v. Pfeifer, 143 Kan. 536, 56 P. 2d 442; City of Wichita v. Hibbs, 158 Kan. 185, 188-189, 146 P. 2d 397; State v. Osborn, 171 Kan. 330, 333, 232 P. 2d 451.) Defendant having admitted the three offenses it follows he cannot now insist upon a new trial by reason of the evidence the state introduced concerning them.
I shall not unduly labor defendant’s contention the court erred in its instruction to the jury set forth in the court’s opinion which referred to prior “similar convictions.” There was only one conviction of a strictly similar offense. With respect to it I would not say the instruction constituted reversible error. It is true defendant also admitted the other two convictions and the court was required to instruct concerning them. It, however, was inaccurate and improper to refer to all of the convictions as “similar convictions.” The other two convictions or offenses should have been covered by a separate and appropriate instruction.