concurring: A reversal of the conviction on the ground that the trial court failed to give an instruction limiting the purpose for which the evidence introduced under K. S. A. 60-455 was to be considered, in my opinion, was of such a prejudicial nature as to require the granting of a new trial. However, the additional point which goes beyond the issue raised on appeal, disapproving the second paragraph of the syllabus and the corresponding part of the opinion in State v. McCorvey, 199 Kan. 194, 428 P. 2d 762, relating to cross examination, is unwarranted.
First, consideration given this point of jurisprudence is merely academic, and is unnecessary to the court’s decision.
Second, the decision in State v. McCorvey, supra, was made after thorough consideration by the court less than one year ago, and the decision is based upon sound legal reasoning within our present statutory framework. In McCorvey the court was squarely confronted with the proposition decided, and the determination made by the court required either an affirmance or a reversal based upon the decision. Evidence that the decision was not lightly made by the court is indicated by the fact that the Justice to whom the case was assigned disagreed with the decision of the court, and was required under the Supreme Court’s rules to write both the majority and dissenting opinions.
Third, the reversal of McCorvey as to paragraph two of the syllabus and the corresponding portion of the opinion less than one year after its pronouncement, after thorough consideration, destroys the image of our appellate court in adhering to precedent.
Actually, the decision in McCorvey as to paragraph two of the syllabus went further than necessary. In McCorvey the county attorney elicited evidence from the defendant on cross examination concerning similar offenses designed to prove identity of the defendant. In the opinion the court said:
“In discussing the defendant’s contention, it should be noted he did not object to the county attorney’s questions on the ground they were outside the scope of his direct examination (K. S.A. 60-243 [b], 60-404), nor did he *684argue that point at the hearing on the motion for a new trial. . . .” (p. 198.)
Under these circumstances, the court should have affirmed the decision of the trial court on the ground that the point was not raised in the trial court, but the court went further. Even so, in my opinion, the decision of the court was correct.
In McCorvey the defendant took the stand to testify in support of a plea of alibi. Until the defendant took the stand there was no evidence before the jury challenging the identity of the defendant. Under these circumstances, evidence of prior offenses is admissible when relevant to prove a material fact such as identity, and the evidence was not admitted for the sole purpose of impairing the defendant’s credibility. (K. S. A. 60-421; and see, State v. Wright, 194 Kan. 271, 275, 398 P. 2d 339.)
It is therefore proper, in my opinion, to leave the order in which competent and relevant testimony is admitted during the trial largely within the discretion of the trial court, and unless it appears that the exercise of such discretionary power has been abused, it cannot be said the trial court erred.
In the instant case the defendant merely committed a traffic offense which resulted in the death of another, thereby giving rise to a charge of manslaughter in the fourth degree. Now, if it was improper to permit the defendant to be cross-examined on other similar, traffic offenses, the prosecution not having gone into the matter on direct examination, it would appear that the court might well have based its decision upon abuse of discretion, since the posture of the case at the time the questions were put to the defendant on cross examination herein was entirely different from the situation presented in McCorvey. In the instant case counsel for the defendant strenuously objected, when on cross examination the state was permitted to obtain the fact that he had previously pleaded guilty to other similar traffic offenses, the moral turpitude varying in degree from the prior offenses in the McCorvey case, and absent a plea of alibi..
The rule limiting cross examination to the scope of direct examination is designed merely to promote orderly procedure and nothing more. It was never designed to exclude relevant evidence. The rule has never been an inflexible one, especially as to a litigant witness.
In Tawzer v. McAdam, 134 Kan. 596, 7 P. 2d 516, the following quotation was cited approvingly:
*685“ ‘A party to a suit may, on cross-examination, be questioned in regard to any matter pertinent to the issue, whether he testified thereto in his evidence in chief or not.’ ” (p. 604.)
Wigmore criticizes the rule limiting the scope of cross examination to direct examination. (6 Wigmore on Evidence, 3rd Ed. §§1885 to 1891.) He paraphrases the rulings in California and Missouri as follows:
“As applied to an accused the rule is particularly absurd, because the prosecution cannot call him as its own witness.” (p. 548, note 2.)
Wigmore would leave the matter to the sound discretion of the trial judge, as did the court in McCorvey. New cases have bottomed reversible error on violation of the rule asserted by the court solely because of the time element concerning the relevant material evidence elicited. Reversals are based on content of the evidence elicited rather than on the time element. In McCorvey this court did not reverse, and in the instant case this court does not reverse on the issue here under consideration. It merely engages in an academic exercise in jurisprudence. Will the court again reverse its position in the next case to appear when its feet are to the fire?
McCorvey leaves the order of presentation of the evidence to the trial judge’s discretion, and reversal would lie only because of an abuse in the exercise of that power of discretion. Here the court overrules McCorvey solely on the basis of the time element. All agree in the instant case that the evidence in question is relevant and admissible under proper instructions.
It appears the court in its opinion is confusing relevant evidence (that which has probative value as to an issue in the case) with evidence designed to impeach a witness (credibility or smear-type evidence) as limited by K. S. A. 60-421. This section of the statute says:
“. . . If the witness be the accused in a criminal proceeding, no evidence of his conviction of a crime shall be admissible for the sole purpose of impairing his credibility unless he has first introduced evidence admissible solely for the purpose of supporting his credibility.” (Emphasis added.)
The expression “for the sole purpose” must be given its common and ordinary meaning.
It is respectfully submitted State v. McCorvey, supra, as to syllabus ¶ 2 and the corresponding portion of the opinion should not be overruled.
Price, C. J., joins in the foregoing concurring opinion.