(specially concurring).
Nearly ten years have gone by since I left the trial bench to serve on the appellate bench of this state. In numerous dissents, I have decried the use of prior bad acts to, in effect, establish that a person is a “bad man” and that he acted in conformity with his “bad acts.” Nearly all of this effort has been in vain.* Recently, however, some writings in this Court have caused me to have a glimmer of hope that perhaps it would be recognized, one day, that evidence of crimes where acts other than ones with which an accused is charged, are generally inadmissible. There is no use flailing the decided cases. If the worm turns, someday, hooray. Today, I simply wish to state, once again, the general rule and its exceptions (as the worm is not turning but burrows steadfastly on its way), per SDCL 19-12-5:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (Emphasis added.)
Did his Honor, at the trial court level, commit error, not just in this case, but in any given case, when evidence of a crime or act other than the one with which the accused is charged, was admitted in evidence? The rule is that we on this Court shall determine if the trial court abused its discretion in admitting the evidence. There are many decisions pertaining to this subject, decided by this Court, so I shall just cite one, State v. Dokken, 385 N.W.2d 493, 497 (S.D.1986). A special concurrence by this author in Dokken, id. at 505, specifically cited Chief Eagle, and decried use of extrinsic evidence to prove specific acts. In essence, a court should exclude extrinsic evidence of specific acts. Accord: State v. Padgett, 291 N.W.2d 796 (S.D.1980), and Fed.R.Evid. 608(b). The trial court did not, in the case before us, go into the deep facts of another burglary.
This Court has considered “remoteness” in State v. Means, 363 N.W.2d 565 (S.D.1985) (Henderson, J., concurring in result without writing); State v. Wedemann, 339 N.W.2d 112 (S.D.1983) (Henderson, J., dissenting); State v. Iron Shell, 336 N.W.2d 372 (S.D.1983) (Henderson, J., dissenting); State v. Pedde, 334 N.W.2d 41, 43 (S.D.1983); and State v. Johnson, 316 N.W.2d 652, 654 (S.D.1982). As it can be gleaned, the bad act worm was tunneling for the State. A prior bad act, if too remote, loses its relevancy and should be disregarded. Wedemann, 339 N.W.2d at 115. However, each case depends upon its own particular facts as to a limitation, regarding vintage, on the remoteness. Admission of prior acts must realistically depend upon their nature. Wedemann, 339 N.W.2d at 115.
Here, the trial judge opened his mind, so to speak, on the record, on June 29, 1987, for he stated he had reviewed the parties’ briefs and the files and the evidentiary showing. Also, he stated he had weighed the prejudicial impact against probative value. But, most importantly, he stated that he would allow the admission of the nine-year-old burglary conviction because of its bearing (probative value) on the issue of intent and/or diminished capacity. Cardinal to his thinking: The facts and circumstances were strikingly similar and he was well aware that the defense would focus on the lack of specific intent. Also, the trial judge limited the admission into evidence of this burglary conviction and its date without the attending circumstances. Thus, though the reader of this appellate opinion obtains the facts of both burglaries, as I read over this case, the jury was not presented the particulars. His Honor, at *583trial court level, ameliorated prejudicial impact.
A blackout was a tendered defense. Alcohol-induced blackout was advocated as a defense to the preclusion of specific intent. The trial judge knew this when he ruled because the State’s Attorney for Pennington County filed a Notice of Prior Bad Act and appellant filed a brief in opposition thereto. Without benefit of compromising my previous dissents, therefore, because of the burglaries being committed in the same area of the same city in the same manner by the same defendant, I can join the admissibility of the prior burglary conviction and agree with the other legal discourse of the majority opinion. Here, the bad act worm tunneled into the statutory exception and reposes in the nest of intent.
A typical example would be State v. Chief Eagle, 377 N.W.2d 141, 146 (S.D.1985) (Henderson, J., dissenting), wherein I attacked persuasion by illegitimate means. J. Weinstein & M. Berger, 3 Weinstein’s Evidence, ¶ 608[05] (1982). In Chief Eagle, I stated: “A man should not be convicted because he is a Rad man’; or, that previously he acted as a Rad man’ in a given factual situation for, if convictions were secured in such fashion, the principle that a man may be punished only for those acts with which he was charged, would be violated.” Id. at 147-48.