dissenting.
I dissent because the facts of this case raise the conflicting issues of receiving evidence prejudicial to *55the defendant and evidence that might he material to the state’s case. The jury’s ability to sift the evidence and follow the court’s general instructions on how to weigh the evidence should not be disregarded. The evidence received was not clearly prejudicial. Article VXI Amended, § 3 of the Oregon Constitution provides in part:
“* “ * If the supreme court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the ease, such judgment shall be affirmed, notwithstanding any error committed during the trial; * * *."
ORS 138.230 provides:
“After hearing the appeal, the court shall give judgment, without regard to the decision of questions which were in the discretion of the court below or to technical errors, defects or exceptions which do not affect the substantial rights of the parties.”
This involves the state’s right as a party as well as the defendant’s rights. See State v. McLean, 255 Or 464, 468 P2d 521, 524, 527 (1970). The state had to prove defendant’s guilt beyond a reasonable doubt as the defendant pleaded “not guilty.” It was entitled to offer its best evidence and that would include that the defendant had committed another rather bizarre crime some five hours after the robbery, of which the jury found him guilty, by again brandishing the same pistol. See State v. Howell, 237 Or 382, 388 P2d 282 (1964) (burglary of two schools on the same day with the same accomplices); State v. La Rose, 54 Or 555, 104 P 299 (1909) (two murderous assaults made in similar peculiar manner).