concurring and dissenting: I concur in the result reached by the majority in affirming the trial court.
I dissent from the majority opinion insofar as it suggests the wording of Fed. R. Evid. 403 is sufficiently similar to K.S.A. 60-445 to justify the judicial adoption of a new evidence rule that removes the trial court’s discretion and restricts the manner in which a prosecutor is allowed to prove a charge of criminal possession of a firearm under K.S.A. 21-4204(a)(4)(A).
The prevailing rule in Kansas as to proof of the elements of a charged crime is set forth in State v. Wilson, 215 Kan. 28, 31-33, 523 P.2d 337 (1974). Justice Kaul, speaking for a unanimous court, stated:
*817“Defendant claims error in tire admission of evidence of a previous felony conviction of burglary and larceny. The trial court admitted the testimony on the basis that it went to prove the firearm possession count. Defendant, prior to trial, offered to stipulate that he had a previous felony conviction and presented a motion to the trial court that the prosecuting attorney be restrained from submitting evidence pertaining thereto. The prosecuting attorney refused to so stipulate and insisted on presenting the evidence. Defendant claims reversible error in this regard. The state responds that there is no law that requires any party to stipulate to any fact in a lawsuit and, further, that even though the stipulation had been entered into, the fact of a prior conviction had to be presented to the jury since it was a necessary element of the firearm offense defined in K.S.A. 1973 Supp. 21-4204. This court has often held that evidence otherwise relevant in a criminal prosecution is not rendered inadmissible simply because it may show a crime other than that charged. (State v. Calvert, 211 Kan. 174, 505 P.2d 1110; State v. Pierce, et al., 208 Kan. 19, 490 P.2d 584; and State v. Crowe, 207 Kan. 473, 486 P.2d 503.) It is an established rule of law that an admission by a defendant does not prevent tire state from presenting separate and independent proof of the fact admitted. (Bizup v. People, 150 Colo. 214, 371 P.2d 786, cert. den. 371 U.S. 873, 9 L. Ed. 2d 112, 83 S. Ct. 114; and Parr v. United States [5th Cir. 1958], 255 F. 2d 86, cert. den. 358 U.S. 824, 3 L. Ed. 2d 64, 79 S. Ct. 40.)
. “The prevailing rule in this regard is stated in Wharton’s Criminal Evidence [12th Ed. 1972 Cumulative Supp.], Confessions and-Admissions, § 399:
“ ‘The making of an admission by the defendant does not bar the prosecution from proving the fact independently thereof as though no admission had been made, particularly since facts when voluntarily admitted often lose much of their probative force in the eyes of the jury,’ (p. 63.)
“To the same effect the rule is stated in 31A C.J.S., Evidence, § 299:
“ ‘A party is not required to accept a judicial admission of his adversary, but may insist on proving the fact.’ (p. 766.)”'
This rule was followed by State v. Johnson, 216 Kan. 445, 532 P.2d 1325 (1975), and State v. Farris, 218 Kan. 136, 542 P.2d 725 (1975), as set forth in the majority opinion, but the holding of both cases was grounded on the reasoning of Wilson set forth above. There is not, in my opinion, any reason to change this rule based on the holding of Old Chief v. United States, 519 U.S. 172, 136 L. Ed. 2d 574, 117 S. Ct. 644 (1997); Brown v. State, 719 So. 2d 882 (Fla. 1998), or State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997).
As the majority correctly points out we construe our own rules of evidence and Old Chief is not binding in Kansas. See Atteberry v. Ritchie, 243 Kan. 277, 284, 756 P.2d 424 (1988). While the *818majority may find Old Chief persuasive, my comparison of the wording of Fed. R. Evid. 403 to K.S.A. 60-445 leads to a different conclusion.
K.S.A. 60-445 states:
“Except as in this article otherwise provided, the judge may in his or her discretion exclude evidénce if he'or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.”
Federal Rule of Evidence 403 states:
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”'
' The scope and extent of the rule and statute quoted above differ materially. K.S.A. 60-445 is directed solely to “surprise” and “reasonable opportunity to anticipate.” There is no “surprise” when a prosecutor is proving an element of a crime charged.
The scope and extent of Rule 403 is widely broader and speaks of “unfair prejudice,” “misleading the jury,” “undue delay,” “waste of time,” and “needless cumulative evidence.” To suggest that these provisions are similar is to read into K.S.A. 60-445 wording that it does not contain. The provisions of the Wisconsin or Florida statutes or rules of evidence may match precisely with the Federal Rules of Evidence, but ours in Kansas do not.
A better argument for the majority position might exist if any felony conviction could be the basis for a criminal possession of a firearm charge. However, the specific identification of felonies one must have previously committed to be charged under K.S.A. 21-4204(a)(4)(A) strongly suggests the Kansas Legislature intended the name and nature of the prior felony to be an element of the State’s proof in a criminal possession of a firearm charge. An examination of the standard instruction to be given when the charge is criminal possession of a firearm is as follows:
“The defendant is charged with criminal possession of a firearm. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
*819“C. 1. That the defendant knowingly had possession of a firearm;
“2. That the defendant within 10 years preceding such possession had been (convicted of_, a felony) (adjudicated as a juvenile offender because of the commission of an act which if done by an adult would constitute the commission of a felony);
“3. That the defendant (did not have the conviction of such crime expunged) (had not been pardoned for such .crime); and
“4. That this act occurred on or about the- day of_, 19_in_, County, Kansas.” PIK Crim. 3d 64.06.
Under this instruction, an element of the illegal possession of a firearm charge is the specific description of the felony the accused has previously committed. Under the facts of this case, it can only be one of those felonies listed in K.S.A. 21-4204(a)(4)(A). The wording of K.S.A. 21-4204(a)(4)(A). was set forth in the majority opinion, but more importantly to a juror s consideration is the common names of the crime. Jurors should be entitled to know that K.S.A. 21-3401 is murder in the first degree, K.S.A. 21-3402 is murder in the second degree, K:S.A. .21-3403 is voluntary manslaughter, K:S.A. 21-3404 is involuntary manslaughter, K.S.A. 21-3410 is aggravated assault, K.S.A. 21-3411 is aggravated assault of a law enforcement officer, K.S.A. 21-3414 is aggravated batteiy, K.S.A. 21-3415 is aggravated battery against a law enforcement officer, K.S.A. 21-3419 is criminal threat, K.S.A. 21-3420 is kidnapping, K.S.A. 21-3421 is aggravated kidnapping, K.S.A. 21-3427 is aggravated robbeiy, K.S.A. 21-3502 is rape, K.S.A. 21-3506 is aggravated criminal sodomy, K.S.A. 21-3518 is aggravated sexual battery, K:S.A. 21-3716 is aggravated burglary, K.S.A. 65-4127a, K.S.A. 65-4127b, and K.S.A. 1995 Supp. 65-4160 through K.S.A. 1995 Supp. 65-4164 are unlawful acts relating to possession or sale of opiates, narcotic drugs, or designated stimulants. The reasons for the charge come alive when the underlying felony is stated and proved. When they are allowed to be admitted generically, they lose their probative force in the eyes of the jury as this court observed in Wilson.
While I believe it is a mistake for us to change the long-time rule of Wilson, Johnson, and Farris, it would be more palatable if *820an accused were at least required to stipulate and admit that he or she had within the preceding 10 years been convicted of the named crime that was included in the listing in K.S.A. 21-4204(a)(4)(A). This would allow the jury to know the precise felony that had previously been committed which is the basis for prohibiting the carrying of a firearm. This is what the legislature intended when it enumerated only certain specific felonies that can'be the basis for a criminal possession of a firearm charge.
While the majority holding is fact specific to the crime charged, this- ruling opens up the whole area of stipulation or admission to accuseds in any status element or status crime. To remain consistent with this ruling, we will be asked to allow those accused of crimes to have the right to limit or control the evidence to be presented when they are tried. This is not the first step we should or need to take. I fear unending controversy will result from our actions.
If the Federal Rules of Evidence had been adopted by the Kansas Legislature, our following Old Chief would be more defensible. These rules have not been adopted by our legislature and we should not impose them judicially. This is contrary to our traditional judicial role of allowing this kind of change to be legislatively made.
While logical and sufficient reasons have been previously given for us not to abandon a long-standing rule, it must be also pointed out that in doing so, we violate the doctrine of stare decisis. We need not discuss the history or reason for this doctrine which are well set forth in Jones v. Hansen, 254 Kan. 499, 512-13, 867 P.2d 303 (1994), and Bowers v. Ottenad, 240 Kan. 208, 226-27, 729 P.2d 1103 (1986). We should not adhere to precedent when substantial and compelling reasons dictate a change, but I do not find sufficient justification to abandon our prior decisions under the circumstances of this case.
McFarland, C.J., and Lockett, J., join the foregoing dissenting opinion.