(dissenting).
I respectfully dissent.
The question considered in Division II is not whether evidence of extra-judicial identification is admissible as an exception to the rule against corroborating a party’s own witness. The majority opinion strongly and amply demonstrates such evidence is admissible and defendant does not contest the point. The question is; can the State, in showing such extra-judicial identification in its case in chief, violate our long established rules barring evidence of a defendant’s bad character, or reputation, or prior convictions, or prior arrests in its main case? State v. Brown, 100 Iowa 50, 69 N.W. 277; State v. Eaton, 190 Iowa 212, 180 N.W. 195; State v. Underwood, 248 Iowa 443, 80 N.W.2d 730; 1 Wharton’s Criminal Evidence, Twelfth Ed., section 232, page 492.1 The majority notes this prohibition does not apply where the purpose of the evidence is to show identification but we have not applied this exception to the type case we have here.
It might be well to first view the evidence itself. Through some inadvertence the photograph actually used at trial has been lost. The picture and legend on the reverse side has been certified to this court by trial attorneys as an exact duplicate, front and back, of exhibit D. The effectiveness of the exhibit to bring home to the jury the fact that defendant at least had a police record, if not a felony record, needs no elaboration.2
*797
Of the many cases dealing with this general subject, a good short statement of the problem together with a suggestion as to the proper rule is gleaned from two Canadian cases. Rex v. Dean, (1942), 1 Dominion Law Reports, 702, 706, 706, On*798tario Court of Appeal: “It is argued for appellant that the Crown prevented him having a fair trial by introducing as part of its case in chief this evidence that the accused had been formerly convicted of an offence and had been imprisoned. It is answered for the Crown that whatever may be said about the filing of this exhibit, in the end no harm came of it as appellant became a witness in his own defence, and in the course of his examination-in-chief, being asked by his own counsel whether he had been previously convicted, said he had been convicted twice, once in California and once in Manitoba. It is said further that appellant on cross-examination was properly asked as to these prior convictions and gave some details with respect to them. Appellant’s counsel replies to this that the appellant was forced into the witness box by the evidence of prior conviction improperly admitted against him as part of the Crown’s case.
“It is not arguable that when the question is whether the prisoner is the person who committed the crime charged, evidence that he is a former convict and that the police have his photograph in their gallery is not prejudicial to the prisoner. Not only does it affect his credibility as a witness, but even if he does not become a witness the knowledge will, in every probability, be weighed in the scales against him. It weakens the presumption of innocence to the benefit of which he is entitled.”
This case is followed by Rex v. Watson (1944), 2 D.L.R. 801, 802, 803, (Ontario): “ * * * As was pointed out by counsel for the Crown, the police have in their possession photographs other than those of convicted persons, and mere mention of the fact that the photograph of the person on trial was in the hands of the police is no warrant for assuming that he had a criminal record. Reference may be made to R. v. Kingsland (1919), 14 Cr.App.R. 8. It would be improper for counsel for the Crown to endeavour to make a point of the fact that the photograph of the accused was among the police records. So far as possible that ought not to be disclosed to the jury, and if there is any reason to apprehend the jury may be prejudiced against the accused by reason of some disclosure of the fact that the police have his photograph on their records, it would be well for the trial Judge to warn the jury against allowing their minds to be influenced by that knowledge, to the prejudice of the accused. R. v. Palmer (1914), (10 Cr.App.R. 77). * * *
“It requires constant watchfulness on the part of trial Judges and Magistrates, and of Crown counsel as well, to see that nothing unfair to an accused person is done, or is stated in evidence, in connection with the use of photographs for purposes of identification. Within proper limits, the use of photographs is not only helpful to the administration of justice, but is often indispensable.”
The Canadian cases are quoted because they help put the problem in focus and suggest a reasonable approach. Our own federal courts reach the same conclusion on very similar reasoning.
United States v. Reed, 7 Cir., 376 F.2d 226 (1967), is a case where the photos were not admitted in evidence but were referred to as ‘mug shots’ during testimony concerning extra-judicial identification. The federal courts said: “We hold that the testimony with respect to the ‘mug shot’ of Reed taken in prison vitiated his right to be presumed innocent until proven guilty and was prejudicial error. Repeated objections to this testimony were sustained, but the testimony remained. This testimony made the difference between the trial of a man presumptively innocent of any criminal wrongdoing and the trial of a known convict. His right not to take the stand in his own defense was substantially destroyed. His past record could not have been directly shown by the prosecution as part of its case to prove bad character since Reed’s character was not in issue. The testimony did this indirectly.
*799“The characterization of the photographs as 'mug shots’ taken in prison had the same effect as the penitentiary notations on photographs and the descriptive testimony concerning them held to be prejudicial in United States v. Harman, 349 F.2d 316, (4th Cir. 1965). In remanding for a new trial, the court in Harman said it doubted that anything the judge might have said could have removed the prejudice created by the pictures and noted that he had not mentioned them in his instructions. Id. at 320.” (loc. cit. 376 F.2d at page 228.)
In Castillo v. United States (5 Cir., April 2, 1969). 409 F.2d 762, 764, the same problem arose. The picture from which identification was made was referred to as part of a group of “mug shots” depicting “known users”. In reversing the court said: “In addition the characterizations were wholly unnecessary and served no legitimate purpose. The earlier testimony of Bustos had demonstrated how the testimony could be handled, without prejudice to appellant, to achieve the legitimate purpose of coupling seller and photograph as the same person. Appellant’s character was not in issue. The chain of proof from visual observation of the seller by the witness, to selection by the witness of a picture as one depicting the seller, to undisputed identification by another of the depicted image as that of a particular person who was then arrested, depended not at all on the source or character of the photograph but upon the witnesses’ visual observation of it plus Hambreck’s undisputed ascertainment that the picture they selected was of appellant.”
The two federal cases just cited deal with testimonial evidence only. There is a good deal of law concerning the admissibility of such “mug shots” as distinguished from mere testimony concerning them. United States v. Harman, 349 F.2d 316 (4th Cir. 1965), is such a case. The court cites 20 Am.Jur., Evidence, section 728, page 608, as stating the general rule: " 'Photographs are admissible in evidence in criminal cases upon the same principles and rules governing their admission in civil cases. However, photographs taken from the “rogues’ gallery” collection of photographs, or the files of photographs taken in prison, are generally inadmissible when on their face they are identifiable as such pictures’ ”2. (loc. cit. 349 F.2d at page 322.)
Vaughn v. State, 215 Ind. 142, 19 N.E.2d 239, 241 (1939), is a case where the material on the photograph and card was blocked out and the police or prison picture was then used. The court observed: “ * * *. Pictures of criminals showing a front and profile view, with a number displayed on the breast, are common and familiar. If the evidence had been offered for the good-faith purpose of showing that the witness could identify a photograph of the defendant, these pictures might have been cut apart and that portion where the number is displayed cut away. But it is obvious that thus presented they would have no more relevancy or probative force than a kodak picture taken in the court room or in the defendant’s home. It may well be doubted whether the jurors remained in ignorance of the fact that the photographs and card had to do with some criminal record of the defendant. It was not proper to prove that the defendant had a criminal record, and what may not be done directly may not be done by indirection or subterfuge. If the photographs had any substantial probative force and furnished any further evidence of the identity of the person who committed the crime than was furnished by the testimony of the witness who identified him, and it was impossible to separate the photographs from the prejudicial matter, a different question would be presented. Since proof of another crime improperly admitted is always treated as prejudicial er*800ror, and, since it cannot be said that this exhibit and the manner in which it was presented was not sufficient to cause a juror of average intelligence to at least strongly suspect that the defendant had a criminal history, we cannot say that the admission of the exhibit was not prejudicial.”
Other cases holding use of police or “mug shot” photographs to be prejudicial error are State v. Boyd, 8 Terry 370, 91 A.2d 471; Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509 (1966).
Nearly all of the principal authorities relied upon by the majority do not reach the question we have here. Most of them are authority for the propriety of evidence of extra-judicial identification where the prior identification was by photographs without reference to their source, lineup procedures, identification at preliminary hearing, and the like. It is submitted this is true of People v. Gould, (Traynor, J.), 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865; State v. Childs, 198 Kan. 4, 422 P.2d 898; Colbert v. Commonwealth, Ky., 306 S.W.2d 825, 71 A.L.R.2d 442.
In People v. Gould, supra, the testimony referred to identification by photographs. The source of the photographs was not alluded to in recitation of the testimony and the photographs themselves were not offered in evidence. The case does not mention, much less condone, reference to mug shots or introduction of police photographs into evidence.
State v. Childs, supra, refers to identification of defendant from “police photographs” and “photographs furnished by the police.” The term “mug shots” was not used until the officers testified. Objection was immediately made and the officer later responded without using the term “mug shots”. As to this portion of the case, which really begins to approach our problem here, the Kansas Supreme Court said:
“Notwithstanding the procedural shortcomings which normally would preclude review by this court, we have examined the record and are of the opinion the reference to ‘mug shots’ did not result in prejudicial error under the circumstances narrated. Nothing said herein, however, is to be construed as placing our stamp of approval on this type of testimony, regardless of whether the reference was intentional or inadvertent. We specifically condemn the tactics often employed by overzealous witnesses of injecting clearly incompetent testimony, not otherwise admissible, which implies the accused has a prior criminal record, in an obvious effort to create prejudice in the minds of the jury. Decisions in which the admission of such testimony has been held not to have resulted in prejudicial error must be confined to the specific facts of each case rather than an indication of carte blanche approval of the practice.” (loc.cit. 422 P.2d, page 905).
Neither State v. Childs, supra, nor the case on which it is based, State v. Minor, 195 Kan. 539, 407 P.2d 242, involves use of the pictures. I find it exceedingly difficult to accept the Kansas Supreme Court as authority for the proposition that deliberate use of the term “mug shots” of defendant is permissible as part of the extra-judicial identification evidence. Yet this is what the majority seems to imply.
Colbert v. Commonwealth, supra, involved the following situation: “The appellant voices an objection, on another ground, to the testimony concerning identification of the defendant’s picture among a group of pictures shown to the victim at the police station. The objection is, that since it is common knowledge (or at least belief) that the ‘rogues’ galleries’ maintained at police stations are composed of photographs of known criminals, the admission of evidence as to the de*801fendant’s picture being in such a ‘rogues’ gallery’ was in substance the admission of evidence of another, unrelated crime committed by the defendant. Since we have held that the evidence of identification by photograph was otherwise competent, and since any suggestion from this evidence that the defendant was guilty of other crimes was incidental and remote, we think the evidence was not objectionable on the ground of reference to other possible crimes. See 20 Am.Jur., Evidence, section 311, p. 290; cf. Commonwealth v. Jackson, Ky., 281 S.W.2d 891. In fact, there is authority for the proposition that evidence of other crimes is admissible where it is for the purpose of identification. See 20 Am.Jur. Evidence, sec. 312, p. 292.” (loc. cit. 306 S.W.2d page 828, 71 A.L.R.2d pages 447 and 448.)
Two factors are readily apparent: (1) the photographs were not referred to as “mug shots” or “rogues’ gallery shots” (defendant had to rely on common knowledge alone), and (2) the reference to the incidental and remote suggestion comes in large part from the fact the jury did not know the nature or source of the photographs. Of course, it is clear the photographs were not used. Again, Colbert v. Commonwealth, supra, supplies little precedent for the problem we have here.
Another authority relied upon by the majority is 4 Wigmore on Evidence, Third Ed., section 1130, page 208. To be sure, Wig-more there says testimony of extra-judicial identification ought to be admissible. The majority fails to note the Wigmore text dealing with the use of police photographs. 3 Wigmore on Evidence, Third Ed., section 786(4), pages 162, 163 reads: “In identifying persons or material objects, it is of course more effective if the thing to be identified is so placed with others that the witness’ selection appears to be unaided. This is particularly important in the identification of an accused, where the witness is shown a photograph beforehand. Nevertheless, no general rule has required this— partly because of its frequent impracticability, partly because the lack of such a precaution plainly enough detracts from the value of the testimony, and partly because the witness has usually had so many prior opportunities of private verification that such a public test would often give a false appearance of spontaneous and unaided selection.
"Distinguish here the use of police photographs at the trial; in that case the fact that the photograph came from, the ‘rougues’ gallery’, as shown by marks on the picture amounts to evidence of a prior record of crime, which might be inadmissible on the principles of §§ 193-194a, ante.” (Emphasis added.)
1 Wigmore, sections 193 to 194(a) deal with Particular Acts to Show the Defendant’s Character and notes such evidence is inadmissible as primary evidence of defendant’s guilt. It is submitted that Wigmore’s treatise does not support the result reached here on the facts of this case but rather is contra.
The annotation found at 71 A.L.R.2d 449 is in the same category. It cites many cases for admission of testimony of extra-judicial identification but notes real divergence of authority when reference to police photographs, mug shots and rogues’ gallery shots became involved. Cf. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, Footnote 5.
Of the cases cited by the majority only a few are cases where the “mug shots” were actually allowed in evidence and the procedure was held not to be reversible error. United States v. Robinson, 7 Cir., 406 F.2d 64, 67 (1969) did not involve admissibility of the photographs but only reference to them. Even so the court held: “Thus, although we believe the terminology used by the Government was ill-advised and might call for reversal in some circumstances, such as in Reed, we hold that in the instant case it did not constitute reversible error.”
In Commonwealth v. McLellan, (1966), 351 Mass. 335, 220 N.E.2d 819, the meager*802ness of the record largely accounted for the result.
People v. Purnell, Ill.App., 245 N.E.2d 635 and People v. Maffioli, 406 Ill. 315, 94 N.E.2d 191, are the cases cited by the majority that are comparable to this case on their facts and support the result reached. People v. Maffioli, supra, states: “He first complains that the admission of the photographs from which he was originally identified, each bearing the legend, ‘Police Dept., Rockford, Ill. 6874 John Maffioli 8-26-49’ was prejudicial because the photographs constituted evidence of other crimes. The photographs were not received in evidence for the purpose of showing an arrest for another offense, but were properly admitted as the photographs from which defendant was first identified by eyewitnesses to the crime charged. In addition, the photographs were relevant to the material issue of defendant’s style of haircut and general appearance in August, 1949. * * *.” (loc. cit. 94 N.E.2d, page 193). People v. Purnell relies on People v. Maf-fioli ; neither gives an adequate reason for complete abandonment of the prohibition against showing bad character as substantive evidence.
The rule, ignored by the Illinois courts (and by this court) which creates the conflict here explored, is well put in State v. Myrick, 181 Kan. 1056, 317 P.2d 485: “ * * * All evidence, to be admissible, must be relevant, and the general rules is based upon the principle that evidence of an unrelated prior conviction is irrelevant to prove the offense charged, and has a tendency to prejudice the minds of the jury against the accused and to predispose them to a belief in his guilt. Further, that evidence of a'prior conviction, when offered in the state’s case in chief, violates the rule of policy which forbids the state initially to attack the character of the accused, and that which prohibits proof of bad character by particular acts (1 Wharton’s Criminal Evidence, 12th ed. § 232, p. 492). The rule against the admissibility of such evidence should be strictly enforced (State v. Frizzell, supra [132 Kan. 261, 295 P. 658], Syl. ¶1).”
In State v. Tapia, 79 N.M. 344, 443 P.2d 514, the pictures were neither offered nor admitted and the decision turned on failure to raise the objection at trial.
Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, does not reach the problem we have here: (1) the photógra'phs there involved were snapshots of Andrews and Simmons obtained from Andrews’ sister by the F.B.I. (2) no photographs were offered or admitted in evidence, (3) the evidence was not offered in the main case but on rebuttal. The issues decided in Simmons are simply not relevant to our problem.
I do not suggest the following points constitute a rule, but for me at least, the better considered cases seem to make the following points: (1) Testimony of extrajudicial identification may, if otherwise admissible, be used to corroborate a witness (this is an exception to the general rule barring such corroborative evidence) ; (2) such corroborative evidence may not, by oral reference or use of the pictures themselves, refer to “mug shots”, “rogues’ gallery” or other terms which make it evident defendant has either an arrest or felony record; (3) ordinarily the photographs are not necessary in any event since the issue is whether there was, in fact, a prior identification from a photograph and the impermissible characterization of defendant as a person with a police record by indirection, far outweighs the benefit of the use of the photograph itself; (4) if, under particular circumstances, use of such evidence results in the implication of prior arrest or conviction, a limiting instruction should be given.
These conclusions seem to be necessary in order to allow the State a fair range of identification evidence and, at the same time, honor our long-standing rule against evidence of bad character as substantive proof of crime.
*803Justice Fontron has admirably analyzed this matter at length in State v. Minor, supra. He put the whole matter quite succinctly in his short dissent in State v. Childs, 198 Kan. 4, 422 P.2d 898, 906. The entire dissent reads: “For reasons appearing in my dissenting opinion in State v. Minor, 195 Kan. 539, 407 P.2d 242, I am unable to agree with the majority opinion.
“I am still concerned over the admission of evidence relating to ‘mug shots’ and police photographs at the trial of an accused where his character has not been placed in issue.
“Such a practice, in my judgment, necessarily impugns the fairness of the proceedings and should not be tolerated.”
We have not had this matter before us. The majority opinion as now written allows unrestricted use of, and reference to, mug shots despite our public policy against the necessary implication of such evidence. I would reverse.
RAWLINGS, J., concurs.
. Defendant appellant implicitly concedes the extra-judicial identification exception recognized above but poses the additional problem: “The question thus to be answered is whether evidence of prior crimes can be established to prove identity in such a manner as was done in the instant ease.” (Emphasis added):
. Evidence of prior arrests, as distinguished from prior convictions, has always been held inadmissible. There are fewer exceptions to this rule than there are exceptions to th rule against evidence of prior convictions. Cf. State v. Brown, 100 Iowa 50, 54, 69 N.W. 277.
. 29 Am.Jur.2d §§ 785, 787, 815, does not carry the same rule, possibly because the cases cited in annotation at 71 A.L.R.2d 451, show a split of authority on the problem.