(concurring). I believe it essential to limit the prosecution to prior convictions in offering proof of previous, related conduct as a means of proving the accused’s intent to commit the crime currently charged.
Under the holding of the majority it is sufficient if the accused was personally involved in previous acts which were similar in facts and close in time to those acts for which he is presently being tried. State v. Lombardi (1959), 8 Wis. (2d) 421, 438, 99 N. W. (2d) 829.
In my opinion, it is improper to admit proof of prior misconduct unless the accused had either admitted such offense or had been found guilty thereof. We do not presume guilt; we presume innocence. This is true of current charges as well as previous incidents. In attempting to prove guilt, should the prosecution be permitted to show a defendant’s intent to commit a present crime by the mere fact of his involvement in an earlier episode? I believe that the majority’s position invites the jury to treat the accused as guilty of the earlier misconduct even though such fact has not been proved.
*362Even if Mr. Reynolds had been at the scene in Two Rivers, we would surely not permit any evidence as to that transaction to be offered in his current trial if he had been tried and acquitted of the previous event. For the same reason, since he is presumed innocent of such earlier event, it seems to me improper to allow proof of such event so long as the cloak of innocence relating to that episode still surrounds him.
Under the facts of State v. Kennedy (1962), 15 Wis. (2d) 600, 113 N. W. (2d) 372, it was held that there was no inference or presumption of an intent to steal under sec. 943.10 (1), Stats., by reason of one’s breaking and entering into a school building. As was brought out in that case and is again recognized in the majority opinion in the instant case, the entry may have been for “the purpose of committing a misdemeanor or for an entirely innocent purpose.” Although the prosecution could'not in such manner create an inference of the accused’s felonious intent, the approach of the majority in effect would allow the prosecution to lift itself by its own bootstraps. The state can prove an intent to steal by showing that the accused participated in other occurrences similar in facts and close in time — even though he was never convicted of such prior acts.
A corollary may be drawn to the rule which permits an accused who has taken the stand in his own behalf to be impeached on cross-examination by proof of his having been convicted of previous crimes. The fact that he was previously accused or previously indicted would not be enough to qualify as a proper basis for impeachment. Schroeder v. State (1936), 222 Wis. 251, 259, 267 N. W. 899; Koch v. State (1906), 126 Wis. 470, 474, 106 N. W. 531; see also sec. 325.19, Stats.; 20 A. L. R. (2d) 1421, 1425, 1434. This concept was well expressed in United States v. Haynes (D. C. Pa. 1948), 81 Fed. Supp. 63, 68:
*363“Examination cannot be made as to whether a defendant has ever been arrested, incarcerated, indicted or engaged in the violation of a law. These facts are immaterial for even innocent persons are arrested and subject to indictment.”
The Georgia court of appeals recognized the same analogy in Waters v. State (1950), 82 Ga. App. 608, 609, 61 S. E. (2d) 794:
“Although a witness in a case may be discredited by showing his conviction of an offense involving moral turpitude, he may not be discredited by showing merely that he was charged and tried for such offense, since ‘until there is proof of conviction he is protected by the legal presumption of innocence.’ . . . The same rule applies where a defendant on trial for a criminal offense is sought to be connected with other criminal transactions.”
In the case at bar, the majority opinion, in rejecting the state’s argument that the carrying of the bag by a companion was equivalent to Reynolds’ possession of it, asserts the following:
“The danger inherent in such a theory is that this still does not tie appellant up with the Two Rivers burglary. It is reasonably conceivable that appellant joined up with Kennedy and/or Strong only subsequent to the assault on the Two Rivers school. Every doubt must be resolved in favor of the defendant.”
In my opinion, this would be true even if the proof showed that Reynolds was carrying the bag or had been at the Two Rivers school. Resolving every doubt in his favor, as the majority acknowledges must be done, it is not inconsistent with Reynolds’ innocence that he was at the Two Rivers school, was the owner of the bag or was in personal possession of the bag. Not having been convicted of the Two Rivers event, Reynolds must be presumed innocent as to it.
*364It would appear that the supreme court of Tennessee has adopted a rule comparable to that suggested in this concurrence. Wrather v. State (1943), 179 Tenn. 666, 169 S. W. (2d) 854. In a recent decision, the Georgia court of appeals, in Dandridge v. State (1964), 109 Ga. App. 33, 134 S. E. (2d) 814, said:
“Ordinarily, it is error to admit in evidence, over objection, an indictment against the defendant for another offense upon which there has been neither an acquittal nor a conviction, even though it might otherwise be admissible as an exception to the ‘other transactions’ rule.”
A case which squarely adopted the rule suggested in this concurring opinion is United States v. Haynes (D. C. Pa. 1948), 81 Fed. Supp. 63, 68, where the court said:
“In short, acts of misconduct not resulting in conviction are not the proper subjects of cross-examination to impeach a witness or to establish and show intent, motive, identity, scheme or plan.”
Conclusion.
Actual conviction should be required before the prosecution is permitted to offer proof of previous occurrences. I think our basic concept of presumed innocence makes the adoption of this rule a logical necessity. Innocent persons may become involved in a suspicious occurrence; innocent persons are even sometimes charged or indicted.
I am authorized to state that Mr. Justice Beilfuss and Mr. Justice Heffernan join in this concurring opinion.