(dissenting).
Most of the assignments of error, in this case, attack the testimony of the participants Lack and Ossana (both *287named in the charge) wherein they tell of conversations— not in the presence of accused — between themselves and with others as to a scheme to evade the liquor laws of this state — not the offense charged. Were they accomplices?
We have several sections of our code covering bribery. A bribe is defined in par. (6) of Sec. 103 — 1—3, U. C. A. 1943, as follows:
“The term ‘bribe’ signifies any money, goods, right in action, property, thing of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given or accepted with a corrupt intent to influence unlawfully the person to whom it is given in his action, vote or opinion in any public or official capacity.”
As to public officers, bribing is grouped under crimes against the Executive Power, 103 — 26—3, and 4, U. C. A. 1943; crimes against the Legislative Power, 103 — 26—17 and 18, U. C. A. 1943; and crimes against Public Justice, 103 — 26—28 and 29, U. C. A. 1943. Each group is made up of two sections, the first of which refers to the participant who seeks to corrupt the public officer; and the second, which refers to the first by the abbreviation “Id.” and then sets out the necessary acts of the public officer as a participant.
Each section makes the offense a felony without specific punishment which, under the general penal code of this state, Section 103 — 1—15, U. C. A. 1943, is punishable by imprisonment in the state prison not exceeding five years.
As the accused in this trial was, at the time of the alleged offense, an executive officer of the state, the following two sections under crimes against the Executive Power are appropriate for discussion:
“103 — 26—3. Bribing Officers — Felony.
“Every person who gives or offers any bribe to any executive officer, or to any peace officer or to any person authorized to enforce the law in this state, with intent to influence him in respect to any act, decision, vote, opinion or other proceeding as such officer, or person authorized to enforce the law, is guilty of a felony.”
*288“103 — 26—4. Id. Executive Officer Asking for or Receiving.
“Every executive office, or person elected or appointed to an executive office, who asks, receives or agrees to receive any bribe, upon any agreement or understanding that his vote, opinion or action upon any matter then pending, or which may be brought before him in his official capacity, shall be influenced thereby is guilty of a felony.” (Italics added.)
The sections of the other groups are very similarly worded. It seems obvious that the two sections of each group should be read together to determine the nature of the offense of bribery in that grouping, particularly if any issue is raised as to whether or hot one of the alleged participants is an accomplice of the other. When read together, we find various ways in which the offense of bribery may be committed. One may be guilty of bribery if he offers the public officer a bribe under circumstances falling within the section requirements, even though the latter does not accept. In such case, the public officer would not be an accomplice, and his testimony about the offer would not need corroboration. The public officer may be guilty of bribery if he asks for a bribe under circumstances evidencing a desire to enter into the agreements or understanding contemplated by the section of the code, even though the other party does not respond. In this latter case the other party is not an accomplice, and his testimony need not be corroborated to convict the public officer. If, however, both participate — that is, the one gives the bribe and the public officer receives the bribe pursuant to the provisions of the sections, they are both guilty of bribery, and each is, as to the other, an accomplice. In other words, when both participate the testimony of each is tainted with unreliability by reason of his own participation in the crime; and the likelihood of his desire to shift a part or all of the responsibility to other shoulders, coloring his accusations. When they act by “agreement or understanding,” their action is comparable to a conspiracy to commit crime, each participant (conspirator) being as to the other (his co-conspirator) in the position of an accomplice — one *289who aids and abets another in the perpetration of the crime. State v. Bowman, 92 Utah 540, 70 P. 2d 458, 111 A. L. R. 1393, and State v. Erwin, 101 Utah 365, 120 P. 2d 285. For a general discussion pro and con upon this subject, see State v. Sweeney, 180 Minn. 450, 231 N. W. 225, 73 A. L. R. 389. As to responsibility of each see Section 103 — 1—43, U. C. A. 1943, defining “principals.”
The offense charged in the present indictment is that of the “agreement or understanding” between the giver and the public officer. (Note the charge as quoted in the prevailing opinion.) Cyrus Lack is alleged to have given the bribe — and he so testified; and the defendant is the public officer, alleged to have received the bribe — which he denied. The testimony of Lack, then, must be'corroborated, before a conviction may be properly obtained. Robert Ossana, mentioned in the indictment, was also a witness; and, as his testimony indicated at the trial, he gave money to Lack, part of which he understood and intended to be, by agreement, passed on to the defendant. Notwithstanding his gifts were one step removed in transit to the accused, they are the same as if he had given them directly to Harries, and he is an accomplice.
Under the Utah Liquor Control Act, the sale of intoxicating liquor by the drink is illegal. The state retains control of the sale of such liquor; and the liquor is sold by the bottle from either state operated stores, which deal only in that commodity; or from what are called package agencies, established in some private business store, such as a drug store. In each case the liquor is sold upon written application of the consumer, who identifies himself by a liquor permit, issued to him. At times restrictions are placed upon the amount of liquor purchased, pursuant to regulation of the Utah Liquor Control Commission. This, in general, is the process of distribution of intoxicating liquor in this state.
For some time it had been the opinion of the commission, *290apparently founded upon an opinion of an attorney general, that the individual might purchase his liquor from the state liquor dispensaries, take it to his club, keep it in his locker, and treat his friends to drinks, if he so desired, without violating the Liquor Control Act — the same as is believed to be his right if he took the liquor home, and treated his friends there instead of at the club. Pursuant to such an opinion, it fell to the lot of the enforcement division of the commission to see that the clubs did not overstep the bounds of this interpretation of the law; and, as the defendant Harries Was the head of the enforcement division, the responsibilities of such policing fell, to a great extent, upon his shoulders.
The commission seemed to feel that the membership of the old established clubs, such as the Elks Club, American Legion, the University Club, the Alta Club, and others of like purposes and responsibility were those who should be recognized as entitled to such locker room privileges; but that the membership of clubs that mushroomed up, ostensibly for the purpose of taking advantage of such an interpretation should be subjected to investigation by the enforcement division of the commission before they were permitted that privilege. As to all clubs, according to the commissioner, who testified, purchase of liquor by the clubs —as distinguished from its individual members — and the sale of drinks was prohibited; and the clubs were so informed — in fact, many of the clubs, such as those enumerated above, with the exception of the Alta Club, were subjected to legal proceedings for violation of these privileges. The defendant Harries knew of this interpretation and, according to his testimony, made effort to see that all clubs, old line, or newly chartered, lived up to these requirements. These facts show the background of the picture, the details of which were the bed in which was conceived the bribery alleged to have occurred, and which was made the subject of the indictment in this case.
*291Cyrus V. Lack was first an employee, then later the proprietor of the Brigham Street Pharmacy. This establishment also acted as a package agency for the state in the distribution of intoxicating liquors. Lack and the defendant Harries were friends, and Lack was active in support of defendant’s campaign for election as county sheriff. Lack raised money for that campaign, claiming to have obtained it from various individuals, some of whom were interested in the use of intoxicating liquor in either existing clubs, or in establishing clubs wherein such liquor was to be dispensed, ostensibly pursuant to the club privileges mentioned above; but in reality in the purchase and sale of liquor therein. Lack let it become the belief of many that he could sell liquor to clubs without danger of their being prosecuted, except as it might become necessary to temporarily close an establishment for public appearances’ sake. He gave out such information as to indicate that his connection with the enforcement division of the Liquor Commission was through the defendant Harries; and that he would sell liquor in case lots, at a premium, over and above the state liquor store price, which premium he would divide with Harries, who would refrain from molesting the purchaser — unless it became necessary for appearances’ sake, in which case, the purchaser would be warned ahead of time of the raid, so that he could be prepared; and if his place were closed, it would be temporary, only, and the purchaser could buy his property back at public sale, and could reopen after paying a fine of probably $50 to $100. Lack was visited by the representatives of the various old-line clubs, and also by others seeking to open clubs, and after, as he said, consulting Harries, they were included in the list of purchasers from his pharmacy. Liquor was sold in case load lots, hauled away from the store, many times at night, by various persons employed for that purpose. Then a break came, in the form of an announcement, that the Brigham Street Pharmacy had been burglarized, *292and many cases of liquor stolen. There followed an investigation and the present prosecution.
I have recited these facts without regard to the question of law raised upon this appeal, as I believe the pictorial background of the case is important in measuring the strength of the efforts of the accomplices to connect Harries to the scheme. The details of that scheme were testified to by Lack, principally, and by others who dealt with Lack, but whose connections to the defendant Harries are questioned. Harries’ defense is founded upon a denial of such testimony and a limiting of his financial connection with Lack, to the receipt of campaign funds, and to borrowing money from Lack while in Jackson Hole, Wyoming, upon a vacation trip.
The principal witness for the prosecution was Cyrus V. Lack. He testified along the following lines: In April or May of 1946 he had a conversation with defendant Harries about the latter’s campaign for election. Lack was supporting Harries, and this conversation was in the presence of others apparently supporting the defendant. Later, conversations were had concerning the sale of liquor. At one of these meetings a Tony Hatsis was present. At one of the meetings between Lack and Harries, when they were alone, some 60 or 90 days before election, a discussion took place between them about lining up some of the clubs, such as the Elks and the Ambassador Club, both of whom had been asking for liquor. Lack claimed that at that time Harries said to not sell to anyone without first talking to him, Harries. The details of sales, delivery and “protection,” as set out above, were discussed, and it was agreed between them that they would go 50-50 on all money realized over and above the cost of transportation. Furthermore, deliveries were not to be made until Harries had the “coast clear.” About June 1946, Lack met the man named Ossana. The latter was seeking liquor, and had heard about Lack’s activities. Lack put him off until after consulting with *293Harries, and, as Lack testified having an agreement •with him that Ossana should be permitted to buy. Lack subsequently met Ossana and told him the details of the plan, and that he must stand a raid at times; and that he must come to the pharmacy to get the liquor; that he would have protection ; and that he, Ossana, would have to pay a bonus for the whiskey. The conversation with Ossana was not in the presence of Harries, and was admitted in evidence over the latter’s objections. Pursuant to these conversations, sales of some 30 cases were made to Ossana and premiums paid by him. The evening of the day following the first delivery to Ossana, Lack was in the back of the pharmacy with Harries dividing the money received from Ossana, when a Mr. Young came in.
Mr. Young, a clerk in the package agency, was called and testified that he remembered an occasion of going in the back of the pharmacy when Harries was there, and saw Lack pass some money to Harries, and that Harries remarked that they could make a lot of money out of the deal. What deal was not known to Young, according to Lack. Another sale to Ossana was made which evidently became the foundation of the charge in the indictment— and approximately $15.00 per case bonus was paid.
Ossana was from Helper, Utah. He was a proprietor of the Railroad Club in that town. At one time, according to both Lack and Ossana, Lack called him on the phone after talking matters over with Harries. Harries had informed Lack that the enforcement division was going to have to go to work down around Helper and to call Ossana that he, Harries, was sending a man down there who would be dressed in a hunting suit. These facts Lack reported to Ossana. The agent in hunting clothes succeeded in buying a drink at Ossana’s place. This agent was a Mr. London, who did enter the establishment of Ossana in a hunting outfit. He so testified.
*294Following this line of testimony, Lack proceeded to tell of other contacts with club representatives, along similar lines. All of this testimony was over the objection of defense counsel. In each instance a premium charge was made and according to Lack, divided with Harries.
Robert Ossana, the other party mentioned in the indictment, testified confirming Lack’s testimony as to conversations between Lack and Ossana. He also confirmed the testimony of London as to his visit to the Railroad Club in Helper, where liquor was purchased. He first met Harries in 1947, subsequent to the alleged bribe. During that year he had conversations with Harries concerning his place being “knocked over” — that is closed for liquor law violations — in which Harries indicated that he would be closed only for a month or so, and suffer a fine of probably $100.00. Harries also told him, according to Ossana, that he would have to stop buying liquor from Lack, as the latter was through — the implication being that Lack was being dropped for over-stepping the bounds. It was not certain whether violation of the conspiracy agreement was meant, or violation of the liquor laws. He also told of a visit to the Governor, who was apparently making inquiries about Lack’s sale of liquor. Ossana claimed he was told by Harries that his place (the Railroad Club) was to be visited by two women for the purpose of obtaining evidence of sales. He saw these women later simulating drunkenness to get into the Club. Ossana also testified to visiting Harries’ home and discussing such matters there.
Others who had contact with Lack in line with such a scheme of defeating the Liquor Act provisions testified as to their participation. Included in these conversations, besides Ossana, were a representative of the Ogden Elks; of the Salt.Lake Elks; of the Carbon County Country Club; of a tavern in Price, Utah; of the Provo Elks; and of the Fort Douglas Club. The conversations between Lack and each of these gentlemen, of which complaint is made by the *295accused, were not in the presence of the accused, and were along the general scheme of liquor law evasion mentioned above. They were objected to by the defense as hearsay and not connected to the crime charged.
There appears to be no question about the fact that, in bribery, evidence of other similar bribes is admissible for the purpose of showing a general scheme to obtain money corruptly through the abuse of public trust. 8 Am. Jur. 903, Sec. 32, and notes. We should not, however, overlook a few facts particularly appropriate to the present case. The volumes of evidence presented, in this case, of the collection of other bribes is such that it can have but one effect upon the accused, and that is of a highly prejudicial character. Even though this evidence is not properly connected to him, one cannot escape the conclusion that in spite of that lack of connection it probably went a long way toward his conviction, particularly if his connection with the Lack-Ossana deal appeared weak to the jury.
The serious question then is: Was the defendant properly connected with these other bribes ? We should remember that the testimony about this connection comes principally from the mouth of Lack, the accomplice. We have an offense charged, which in substance is the acceptance of a bribe to protect Ossana. The one who allegedly gave the bribe was Lack. I believe his testimony should be corroborated. Is not that requirement of corroboration true, as well, in those other bribes in which he participated? In each instance, if the only link connecting the accused to those other offenses is the testimony of the accomplice, then those other offenses should not be admitted in evidence; and they should be stricken from the record as prejudicial.
In other words, “similar bribes” are not prima facially proven merely by testimony of an accomplice. His testimony of these bribes is subject to corroboration the samé *296as his testimony as to the offense charged. Those “similar bribes” are introduced to prove a material point of the offense charged, that is, motive or intent; and yet we have no knowledge that they were in. any way connected to Harries, except that Lack, the accomplice in the offense, charged, says they were. There is no reason to believe that he would be any more truthful as to them, than he would as to the offense charged; and if he must be corroborated as to the latter, certainly he should be corroborated as to the former — otherwise the rule of corroboration becomes a farce. The rule then, should be this; similar bribes, to be admissible in evidence must be established by prima facie evidence that they actually occurred and that the accused participated therein; and if accused’s connection thereto is established by testimony of an accomplice, that testimony should not be submitted to the jury unless and until it has been corroborated. See Haley v. State, 84 Tex. Cr. R. 629, 209 S. W. 675, 3 A. L. R. 779, and note to the effect that where evidence of other crimes is admissible as an exception tó the general rule, it is admissible only where a prima facie case of guilt of the defendant as to those crimes has been made out. See 20 Am. Jur. 299, Sec. 318 to like effect.
In 4 Nichols, Applied Evidence, 3428, Sec. 11, the rule is stated:
“Where it is competent for the prosecution to prove other crimes similar to the ones charged, the evidence as to the other similar crimes must at least make out a prima facie case that such other crimes were committed by defendant.”
For recent cases to like effect see: Commonwealth v. Petrillo, 338 Pa. 65, 12 A. 2d 317; State v. Cotton, Iowa, 1948, 33 N. W. 2d 880; Wrather v. State, 179 Tenn. 666, 169 S. W. 2d 854; State v. Jones, 27 Wyo. 46, 191 P. 1075. In the case of State v. Patterson, 347 Mo. 802, 149 S. W. 2d 332, 333, the rule is stated that in order for evidence of other crimes to be admissible
*297“There must be competent, relevant evidence of the other crimes before it can be said that they are proven”.
In the case of State v. Stacey, 153 Or. 449, 56 P. 2d 1152, involving an appeal from a conviction of receiving stolen property, where evidence of other like offenses was admitted in evidence to show intent, such evidence having been given by an accomplice, the court ruled that proof of other crimes limited to the uncorroborated testimony of an accomplice was not sufficient to entitle such evidence to admission under the exception to the general rule, and that its receipt in the case was highly prejudicial. The court accordingly reversed solely on this ground, although expressly recognizing that in the absence of this evidence there was sufficient other competent evidence to convict.
The prejudicial effect of allowing evidence of other crimes revealed by an accomplice only, is illustrated by the case of People v. Albertson, 23 Cal. 2d 550, 145 P. 2d 7, 22, a first degree murder trial in which evidence of an assault on the deceased sometime earlier, was admitted in evidence, and the suspicious circumstances surrounding it which tended in some respects to show that the accused had committed the assault. Although dissimilar as to facts, the following quotation reveals a comparable prejudicial effect of using questionable testimony to bolster the case under trial:
“Here, the fact that the circumstantial evidence of the prior merely suspicious occurrences was adduced in great quantity so that it comprises a large part of the voluminous record, cannot serve as a substitute for ‘substantiality’ where none exists. This erroneously admitted proof shows, if anything, that it must by very reason of its voluminousness have tended to confuse the jurors and warp their judgment. Circumstantial proof of a crime charged cannot be intermingled with circumstantial proof of suspicious prior occurrences in such manner that it reacts as a psychological factor with the result that the proof of the crime charged is used to bolster up the theory or foster suspicion in the mind that the defendant must have committed the prior act, and the conclusion that he must have committed the prior act is then used in turn to strengthen the theory and induce the conclusion that he must also have committed the crime charged. This is but a vicious circle. Here the evidence of suspicious prior occurrences *298affords no substantial proof -whatsoever connecting defendant in any way with the charge on which he was tried.”
Let me then glance briefly at some of the corroborating evidence, which, I think is properly before the court — though standing alone it might not have been sufficient to convince the jury of the guilt of the accused:
In the first place, Lack apparently had some source of information that enabled him to impart to those who sought protection, the approach of an investigation. This is evidenced by the fact that he was able to describe the wearing apparel of London, an investigator who entered Ossana’s place — the Railroad Club — and bought liquor. London himself admitted that was the way he was dressed. One witness, Williams of the Carbon County Country Club, spoke of Lack stating that he need have no fears about the transportation problem as a patrolman would protect them from any trouble. A patrolman was employed to haul liquor. A witness, Heath, an investigator for the Commission, told of being sent to Price to get into a club run by a man by the name of Diamanti. He was unsuccessful in getting in, but in the course of his efforts purchased liquor at the Railroad Club (run by Ossana) and at the Price Country Club. These purchases were reported, but the evidence does not disclose any action thereon. Williams, of the Price Country Club, testified that Lack told him that Heath would be fired for being overzealous in his work in Carbon Country, in getting in these places other than Diamanti’s. Shortly thereafter Heath was discharged. Tony Nikas testified of a conversation between Harries, Ossana and himself just before Ossana’s place was raided, wherein Harries told Ossana that his place would have to suffer a raid; and gave him an hour to prepare for it. Prior to this Harries had told Ossana that he was sending two women as investigators to get into the Railroad Club to get the evidence for the raid on that club, and according to the testimony, Ossana arranged a lease of the premises to the *299bartender pursuant to this conversation so that he, Ossana, would not be connected with the transaction. These two women did appear in Price and Helper, and got into the Railroad Club, and assisted in the raid, according to Powell, a liquor agent, who made the raid and the arrest. Tony Hatsis testified that Harries, when he was preparing for his campaign, said that either as sheriff, or in his then present position as liquor enforcement officer, he could afford Hatsis’ protection. This statement was made to obtain campaign funds. Duke Hatsis testified to receiving $20.00 from Harries for loading liquor for Ossana and his partner Meyers at the Brigham Street Pharmacy, after Lack had called to Harries to pay him. He also testified to hauling liquor to the Salt Lake Elks Club. On one occasion while he was loading out of the Brigham Street Pharmacy, he saw Harries in his car on the side street next to the Pharmacy, and also saw Harries on the sidewalk on the side street next to the Pharmacy. This occurred during daylight hours. Mrs. Lund, a clerk in the Pharmacy, told of delivering envelopes to Harries. These envelopes, according to Lack, contained money collected pursuant to the understanding between them.
But now let me refer generally to Lack’s testimony of his transactions with representatives of the Salt Lake Elks, of the Ogden Elks, of the Fort Douglas Club, and of the Provo Elks. In my opinion it was error to submit this evidence to the jury. These transactions involved thousands of dollars, and hundreds of cases of liquor. If accepted as other cases of bribery, they certainly have a powerful effect as probative of a scheme to evade the liquor law, and, if connected to Harries, certainly are forceful links in establishing his unlawful intentions and the likelihood of having accepted the bribe in the Ossana deal. Their connection to Harries, however, lacks corroboration.
We have before us, then, in this evidence, transactions that have a powerful psychological effect as evidence of a *300criminal intent in a bribery charge, -without corroborating evidence identifying the accused as a participant in any of them. Such evidence is highly prejudicial to the accused, as it builds up a tower of culpability in the evasion of our liquor laws, which lulls the uninitiated mind into overlooking the fact it all may be true, and yet not be connected to the accused.
In view of the fact that such evidence is bound to influence the minds of the jurors with the idea of a very bad case of law evasion, it may have supplied the weight of evidence that resulted in a verdict against defendant which would not have been the result had the jury been limited to the corroborating evidence I mentioned, first above, as properly before the court.
A new trial should be granted.