(dissenting) :
I am of the view that there was prejudicial error in refusing to allow appellant to prove his acquittal in Municipal Court in the Town of St. Matthews, and that he is, accordingly, entitled to a new trial. The case of Nordgren v. United States, 181 F. (2d) 718, 12 Alaska 671, relied upon for a contrary conclusion, appears to represent a distinctly minority view on this question. Shepard's Citations indicates that it has never been followed or cited with approval, and the only other decision in accord, coming to the attention of the writer, is the North Dakota case of State v. Heaton, 56 N. D. 357, 217 N. W. 531. There is an annotation on the point in 86 A. L. R. (2d) commencing at page 1132. The following pertinent language is quoted from page 1135,
“The numerical weight of authority has adopted the rule that the acquittal of a defendant of another offense does not *475render proof of that offense inadmissible at a later criminal trial where such proof is otherwise competent. Most courts following the rule hold that where proof of another offense has been admitted, the defendant is entitled to prove his acquittal. But strangely enough there is also authority to the contrary.” (Emphasis added.)
Directly contra to the Nordgren decision is that of the Fifth Circuit in Pilcher v. United States, 113 F. 248. There the defendant was charged with removing distilled spirits, on which the tax had not been paid, from a warehouse. He had been previously acquitted of the charge of breaking the lock on the warehouse. It was held, over objection, that evidence as to the breaking of the lock was admissible and that the judgment of acquittal “could rightfully be considered by the jury in passing upon the credibility of the witnesses testifying on this trial * * The foregoing annotation rather clearly shows, I think, the complete weight of all well reasoned authority to be in accord with Pilcher, rather than with Nordgren.
Cases in accord with Pilcher, subsequent to the annotation, include People v. Griffin, 66 Cal. (2d) 459, 58 Cal. Rptr. 107, 426 P. (2d) 507, cited in appellant’s brief; State v. Calloway, 268 N. C. 359, 150 S. E. (2d) 517; Womble v. State, 8 Md. App. 119, 258 A. (2d) 786. In the last cited case it was held that the defendant had been denied due process of law by the exclusion of the evidence of the acquittal of the prior offenses and that the error being of constitutional dimension, the court could not say that it was harmless beyond a reasonable doubt within the rule set forth in Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. (2d) 705, 24 A. L. R. (3rd) 1065.
A South Carolina case very nearly, though not precisely, in point is that of State v. Houston, 17 SCL (1 Bailey) 300. The defendant there was charged with uttering a forged note, he having been acquitted at the preceding term on a charge of uttering another forged note. Evidence was ad*476mitted tending to prove both the first offense and his acquittal thereof, the defendant contending that evidence of the first offense should not have been admitted. The court held that evidence of the first offense was admissible despite the acquittal, but recognized that the proof of the acquittal might weaken the force of the State’s evidence.
In addition to its bearing upon the weight of the State’s evidence and the credibility of the State’s witnesses, the judge in his charge recognized, correctly I think, that whether or not the defendant had done, or was doing, anything wrong might well bear on the question of whether he knew, or had reason to believe, that the blue light and siren were intended for him. The facts of the instant case demonstrate rather clearly to my mind the soundness of the rule that the acquittal of the former charges was relevant /and admissible as bearing upon the weight of the State’s evidence. The record discloses gross conflicts, exaggerations and incredibilities in the State’s evidence. St. Matthews is a relatively small town with the result that the prosecuting officers had to be rather well known to the town jurors. While we cannot know precisely what consideration or considerations induced the verdict of the town jury, at least one reasonable inference is that jurors who knew the officers well were simply not convinced by their testimony.
Prejudicial effect of the erroneous exclusion in the instant case was enhanced by the fact that the manner in which the objection to the evidence of acquittal happened to be made and disposed of could well have left the jury with the false impression that appellant in fact had been convicted rather than acquitted in municipal court.