dissenting:
I respectfully dissent.
In my opinion, the cross-examination of the defendant for the purpose of impeaching his credibility extended beyond the bounds of fundamental fairness. Furthermore, the district attorney’s remarks in his closing argument concerning the defendant’s previous conviction effectively deprived the defendant of a fair trial. The errors which occurred in the trial, in my mind, cannot be characterized as harmless and were certainly not harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
Under C.R.S. 1963, 154-1-1, it is proper to ask an accused, when he elects to take the stand and testify in his own behalf, whether or not he has ever been convicted of a felony. The case of Eachus v. People, 124 Colo. 454, 238 P.2d 885 (1951), permitted the defendant to be interrogated about the type of crime that was involved. In this regard, I think the Eachus case improperly construed the legislative intent behind the counterpart of our present statute. See Colo. Sess. Laws. ch. 236, § 1. Unless the defendant’s answer is evasive, I believe it is inconsistent with due process to bring out specific facts concerning a crime for which the defendant has been previously convicted.
In Luck v. United States, 348 F.2d 763 (D.C. Cir. 1965), the United States Court of Appeals for the District of Columbia interpreted a statute very similar to our own. D.C. Code § 14-305 (1961). The court held that the trial judge had discretion to deny impeachment by evidence of previous crimes where “the cause of truth would be helped more by letting the jury hear the defendant’s story than by the *143defendant’s foregoing that opportunity because of the fear of prejudice founded upon a prior conviction.” The court went on to delineate the factors which might be relevant in exercising this discretion, including:
“the nature of the prior crimes, the length of the criminal record, the age and circumstances of the defendant, and, above all, the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction.”
The Luck doctrine has since found acceptance in a number of circuits. United States v. Palumbo, 401 F.2d 270 (2d Cir. 1968) ; United States v. Hildreth, 387 F.2d 328 (4th Cir. 1967); United States v. Allison, 414 F.2d 407 (9th Cir. 1969) ; Butler v. United States, 408 F.2d 1103 (10th Cir. 1969).
In Gordon v. United States, 383 F.2d 936 (D.C. Cir. 1967), cert. denied 390 U.S. 1029 (1968), then Circuit Judge Burger stressed the factor of the added danger of prejudice where the prior conviction is for the same offense as that upon which the defendant is being prosecuted. He also suggested that the court be permitted to determine in advance of the defendant taking the stand whether the search for truth dictates that the defendant be allowed to testify without being prejudiced by a prior conviction.
Although this Court was unwilling to adopt the position taken in the aforementioned cases, it had ample reason to reverse on other grounds. When the district attorney in his closing argument made the comment to the effect that the defendant had been convicted of a felony and was “con-wise,” he clearly went beyond proper limitations, and a mistrial should have been granted. Brown v. People, 132 Colo. 561, 291 P.2d 680 (1955); Heller v. People, 22 Colo. 11, 43 P. 124 (1895); cf. Peters v. People, 151 Colo. 35, 376 P.2d 170 (1962); see Honda v. People, 111 Colo. 279, 141 P.2d 178 (1943).
Society benefits not only when the guilty are convicted, but also when trials are fair. In my view, the defendant was not accorded a fair trial.