dissenting: I must respectfully dissent from the court’s affirmance of this case. In my opinion, the court has completely disregarded a settled rule of criminal law which was deliberately formulated and has been adhered to time after time to provide orderly procedure in the administration of criminal justice, and, more important, to insure a defendant a fair and impartial trial.
Long before and subsequent to the enactment of K. S. A. 60-455, this court has consistently held without deviation that evidence of similar but independent offenses was admissible in the discretion of the district court, and may be received in the state’s case in chief, under proper limited instructions, when relevant to the proof of guilt of the accused for the crime with which he was charged. The rule was first adopted in State v. Folwell, 14 Kan. *105, and was consistently applied until the enactment of 60-455 in 1963. A few of our many cases in which the rule was discussed and applied are: *201State v. King, 111 Kan. 140, 206 Pac. 883; State v. Frizzell, 132 Kan, 261, 295 Pac. 658; State v. Palmer, 173 Kan. 560, 251 P. 2d 225; State v. Myrick, 181 Kan. 1056, 317 P. 2d 485; State v. Cushinberry, 180 Kan. 448, 304 P. 2d 561; State v. Stephenson, 191 Kan. 424, 381 P. 2d 335, and cases cited in the foregoing decisions.
Following the enactment of 60-455 its provisions have been construed and applied in many decisions of this court. They were first considered in State v. Shannon, 194 Kan. 258, 398 P. 2d 344, cert. den. Kelly v. Kansas, 382 U. S. 922, 15 L. Ed. 238, 86 S. Ct. 298, and it was said:
“Proof of an independent crime is admissible in the discretion of the court, and may be received in the state’s ease in chief, under proper instructions, if it is relevant to the proof of the guilt of the defendant for the crime with which he is charged. To be relevant it must prove or tend to prove identity of person or crime, to prove scienter or guilty knowledge, to prove intent, to show inclination or motive, to prove plan, scheme, or system of operation and to prove malice. (State v. Myrick, 181 Kan. 1056, 317 P. 2d 485.) The legislature recognized the exceptions to the general mle, as contended by defendant, in enacting chapter 303, section 60-455, Lotos of 1963. The mentioned rules, exceptions and statutes were thoroughly discussed in the well-annotated opinion of State v. Wright, 194 Kan. 271, 398 P. 2d 339 . . .” (l.c. 262.) (Emphasis supplied.)
In State v. Wright, 194 Kan. 271, 398 P. 2d 339, it was said that the rule of evidence stated in K. S. A. 60-455, as applied to criminal proceedings, has not materially changed the case law as it was developed in Kansas prior to the enactment of 60-455. In State v. Lewis, 195 Kan. 389, 405 P. 2d 796, the court adopted the foregoing, statement as a rule of law. (Syl. ¶ 2.) The Lewis case was followed, in State v. Mader, 196 Kan. 469, 412 P. 2d 1001, and was again followed in State v. Taylor, 198 Kan. 290, 424 P. 2d 612, decided. March 4, 1967.
It is obvious this court has construed 60-455 as requiring the state-to present evidence of similar but independent offenses committed by the accused in its case in chief. Our cases are to that effect and I find none to the contrary. See, State v. Lewis, supra; State v. Gates, 196 Kan. 216, 410 P. 2d 264; State v. Poulos, 196 Kan. 287, 411 P. 2d 689, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63; State v. Darling, 197 Kan. 471, 419 P. 2d 836; State v. McCarther, 197 Kan. 279, 416 P. 2d 290, and State v. Taylor, supra.
This court has consistently held that in a criminal action the-burden of proof is upon the state to prove beyond a reasonable-*202doubt the accused committed the offense charged, and that it was required to establish all of the elements of the offense in its case in chief. This is the reason advanced by this court for requiring the state to present evidence of similar but independent offenses in its case in chief. To now relax the rule and permit the state to prove a part of its case in chief through direct testimony, and then wait for the accused to take the witness stand in his own behalf and prove the rest of its case through cross-examination of the defendant violates the long-established rule of this court both before and after the enactment of 60-455 and results in manifest prejudice to the defendant. I would grant the defendant a new trial.