(concurring in the result of Justice Ryan’s opinion). My Brothers Ryan and Levin would in their separate and disagreeing opinions decide this case on one disjunctive part of the pertinent statute. I would decide the case on the other disjunctive part, otherwise utilizing Justice Ryan’s analysis.
They rely on the following language of MCLA 768.27; MSA 28.1050:
"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or * * * is material, any like acts, or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or * * * may be proved * * * ” (emphasis added).
However, supplying the language omitted above and omitting the language above italicized, the act equally says:
"In any criminal case where * * * the defendant’s scheme, plan or system in doing an act, is material, any like acts, or other acts of the defendant which may tend to show * * * the defendant’s scheme, plan or system in doing the act, in question, may be proved * * * .”
In this case the prosecution testimony in question showed "defendant’s scheme, plan or system” and was admissible. People v Kelly, 386 Mich 330, 333-335; 192 NW2d 494 (1971).
Levin, J.(for reversal). Albert Duncan and Leon McIntosh, police officers, were convicted of solicit*20ing a bribe1 and of a related conspiracy offense2 on evidence that they had offered to return to a suspected fence, upon his payment of money to them, property confiscated from him in a criminal investigation.
I would reverse and remand for a new trial because similar acts evidence should not have been admitted to characterize Duncan’s and McIntosh’s intent in the alleged bribe solicitation and, as a result of the admission of such evidence, they were denied a fair trial.
Betty Harris testified that she had acted for Duncan and McIntosh in transmitting the bribe offer to Irving Broadnax, the suspected fence.3 Broadnax4 corroborated her testimony that she had sought money from him, ostensibly at Duncan’s and McIntosh’s request, and said that Duncan, in a telephone conversation, made such an offer.
It is not claimed that any money was paid or that any property was returned.
Duncan and McIntosh denied that they had authorized Harris to make or had themselves made such an offer.
The disputed factual issue was whether Duncan and McIntosh had offered to return the confiscated property in exchange for the payment of money.
Harris was permitted, over objection, to testify *21that she had a year or two earlier solicited and received money from drug dealers for protection against arrest and prosecution which she paid to Duncan and McIntosh. This testimony was nominally offered to show that, in soliciting a bribe from Broadnax, Duncan and McIntosh acted with felonious intent.
The trial judge ruled that the solicitation and receipt of protection money from drug dealers were acts similar to the solicitation of money, from a suspected fence for the wrongful return of property,5 and that Harris’ testimony was admissible under the "similar acts” statute6 to characterize Duncan’s and McIntosh’s intent in soliciting a bribe.
My colleague agrees, on narrower grounds, that the similar acts evidence was admissible: "By pleading not guilty and disputing intent by their proofs at trial, defendants placed their intent in issue.”
A plea of not guilty does not in itself justify thé admission of similar acts evidence on the issue of intent. If it did, similar acts evidence would always be admissible because criminal intent, mens rea, is an essential element in all felony prosecutions.
Similar acts are admissible to prove criminal *22intent only where the defendant’s intent cannot readily be inferred from the evidence probative of the other elements of the offense or where the defendant concedes the act was committed but claims it was committed without felonious intent.
The intent of one who solicits a bribe is not equivocal; felonious intent is readily inferred from the act of solicitation. There is no need, as part of the people’s case-in-chief, to characterize such an act with evidence of other unlawful solicitations to clarify the solicitor’s intent.
Duncan and McIntosh did not "dispute” "by their proofs” or otherwise the intent of the asserted solicitation; rather, they denied that they solicited Broadnax. The disputed issue was not the intent with which the act was committed but whether it was committed.
Duncan and McIntosh did not concede the act of solicitation and assert as a defense that their purpose was to entice or detect wrongdoing and their intent was therefore innocent.
The trial judge did not indicate any awareness that he could, in the exercise of discretion, exclude the similar acts evidence if he concluded that its unfair prejudicial impact outweighed its probative value. He did not exercise his discretion to exclude the evidence.
As a result of the admission of the similar acts evidence, the primary evidentiary focus became whether Duncan and McIntosh had accepted protection money from dope dealers. The charged offense, solicitation of a bribe from Broadnax, was submerged in a plethora of charges and unsubstantiated innuendo regarding the uncharged "ongoing” conspiracy to accept protection money from dope dealers and an array of charges that Duncan and McIntosh had received bribes from a number *23of dope dealers years before on dates and occasions that Harris — who supplied the only evidence tending to show that any such bribe had been solicited or paid — could only vaguely or not at all recall. In this connection, Duncan and McIntosh were cross-examined extensively concerning their life styles, personal expenditures and general performance as police officers.
Duncan and McIntosh did not receive a fair trial.
I
It is long-established judicial policy that evidence tending to show that the accused committed an offense not charged in the information is not admissible for the purpose of showing his criminal disposition, or a character trait or propensity to commit that offense to support an inference that he committed the charged offense.7
The United States Supreme Court, conceding that character is relevant and the "admitted probative value” of character evidence, has said that the "inquiry” is rejected because "it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge”. Michelson v United States, 335 US 469, 475-476; 69 S Ct 213; 93 L Ed 168 (1948).
The United States Court of Appeals for the Tenth Circuit has said that "it is clear that the problem is not a simple evidentiary one, but rather goes to the fundamental fairness and justice of the trial itself’. "[T]he rule is primarily a *24rule of exclusion” and "although there are many exceptions, these do not detract from the general exclusionary approach which the rule demands”. The court identified several factors as contributing "to formulation of a cautious judicial attitude”:
"First, the accused is required to defend charges which are not described in the information or indictment. * * *
"Secondly, although such evidence may have at least some relevance to the offense being tried, its predominant quality is to show up the defendant’s character * * * . Showing that a man is generally bad has never been under our system allowable. The defendant has a right to be tried on the truth of the specific charge containéd in the indictment.
"Third, an obvious truth is that once prior convictions are introduced the trial is, for all practical purposes, completed and the guilty outcome follows as a mere formality. This is true regardless of the care and caution employed by the court in instructing the jury.” United States v Burkhart, 458 F2d 201, 204-205 (CA 10, 1972).
The Michigdii cases are fully in accord: "The general rule is well settled that the prosecution are not allowed to prove the commission of another and distinct offense, though of the same kind with that charged, for the purpose of rendering it more probable in the minds of the jury that he committed the offense for which he is on trial.” People v Schweitzer, 23 Mich 301, 304-305 (1871). People v Lapidus, 167 Mich 53, 57; 132 NW 470 (1911).8
*25II
Similar acts evidence is, however, admissible for other purposes,9 including as proof of intent.10
Such evidence is admissible on issues in doubt or in dispute. "To be admissible, the evidence must be necessary to the issue of intent. Where intent is admitted, the evidence may not be received, and the same thing is true where the nature of the offense on trial is such that proof of its commission carries with it an implication or presumption of criminal intent.” 1 Underhill’s Criminal Evidence (6th ed, Herrick), § 208, p 623.11
Similar acts evidence is admissible to prove intent where the evidence probative of the charged offense is ambiguous or equivocal on the element of intent, People v Lonsdale, 122 Mich 388, 392; 81 NW 277 (1899); People v Petropoulapos, 217 Mich 198, 203; 185 NW 730 (1921); People v Minney, 155 Mich 534, 538-539; 119 NW 918 (1909), or where defendant disputes his intent by admitting the act and denying wrongful intent, People v Seaman, 107 Mich 348, 358-359; 65 NW 203 (1895).12
*26This Court has declared that "[w]here the intent or guilty knowledge is a necessary conclusion from the act done, proof of other offenses of a similar character is inadmissible, and violates the rule that the evidence must be confined to the issue”, People v Lonsdale, supra, p 392,13 and that such evidence is not admissible where there is no need for additional evidence on the issue of intent:
"In the present case the commission of another like offense was wholly unnecessary to show intent. The act itself is one of those which, when proven, conclusively establishes the malicious intent, if committed by a sane person. Any number of like offenses would not tend to *27show malicious intent any more than could one.” People v Minney, supra, pp 538-539 (emphasis supplied).14
The United States Court of Appeals for the Fifth Circuit has similarly declared that the court "must balance the actual need for that evidence in view of the contested issues and the other evidence available to the prosecution, and the strength of the evidence in proving the issue, against the danger that the jury will be inflamed by the evidence to decide that because the accused was the perpetrator of the other crimes, he probably committed the crime for which he is on trial as well”. United States v Goodwin, 492 F2d 1141, 1150 (CA 5, 1974) (emphasis supplied).
Such evidence is not admissible to prove intent where — as in the instant case — the prosecution depends on the credibility of a witness whose "story, if believed, leads ineluctably to the conclusion that the defendants knew what they were doing” (United States v DeCicco, 435 F2d 478, 484 [CA 2, 1970]), or where "if the act were proven, intent would naturally be inferred. * * * [I]ntent is not in issue when evidence of intent is inferable if the proscribed act is proven and defendant does not claim mistake or inadvertence”. United States v Ring, 513 F2d 1001, 1008-1009 (CA 6, 1975).
Nor can the admission of similar acts evidence be justified simply because the defendant pled not guilty and, perforce, the prosecution has the obligation of proving all the elements of the offense including criminal intent. People v Seaman, supra, pp 358-359.15 If similar acts evidence were on that *28account admissible the exception — criminal intent being an essential element in all felony prosecutions — would become the rule; there would be no need for additional exceptions (fn 6) to prove motive, absence of mistake or accident or the defendant’s scheme, plan or system in doing an act. "[I]t is necessary that willfulness and intent be more than merely formal issues in the sense that the defendant is entitled to an instruction thereon. * * * When, as in this case, the government has ample evidence to take the case to the trier of fact for its deliberation, a plea of not guilty cannot, by itself, be construed as raising such a keen dispute on the issue of willfulness and intent so as to justify admission of this type of evidence.” United States v Fierson, 419 F2d 1020, 1023 (CA 7, 1969).
The Supreme Court of California has similarly observed that "[ijt is not and should not be the law, however, that defendant’s not guilty plea places his intent in issue so that proof of [similar acts] is always admissible. Such evidence is admissible in cases where the proof of defendant’s intent is ambiguous, as when he admits the acts and denies the necessary intent because of mistake or accident.” People v Kelley, 66 Cal 2d 232, 242-243; 57 Cal Rptr 363; 424 P2d 947, 956 (1967) (emphasis in original). Other state authority is in accord.16
*29Ill
No act speaks absolutely regarding the intent of the actor. A person charged with a sexual offense may have thought that he was with his spouse17 or that there was consent.18 A person who cuts another with a knife or who performs an abortion may be seeking to save the victim’s life. A police officer who offers to accept a bribe may be enticing or detecting. Nevertheless, the sexual act, the acts of cutting with a knife, performing an abortion and soliciting a bribe speak so unequivocally regarding the actor’s intent that, absent a claim that the intent was innocent, evidence of similar acts is not admissible to characterize intent.
While payment or acceptance of money may be ambiguous or equivocal, and a bribe solicitation might be couched in ambiguous language, the act of soliciting a bribe in unambiguous language is not equivocal. There is no suggestion that any money was paid by Broadnax to Duncan and McIntosh or that there was any ambiguity in the *30language used to transmit the bribe solicitation to Broadnax which might have justified the admission of extrinsic evidence to clarify Harris’ or Duncan’s and McIntosh’s meaning and, indeed, the similar acts evidence was not offered or received for that purpose.
Reliance on People v Johnston, 328 Mich 213, 231; 43 NW2d 334 (1950), is therefore misplaced. Johnston was charged with accepting a bribe. Because the requisite intent could not readily be inferred from the mere payment of money, evidence of other payments that were part of a continuing system or plan was held admissible.19
Johnston follows an. earlier Michigan case holding that the payment of money is inherently ambiguous or equivocal and, therefore, where its receipt is the gravamen of the offense, evidence of similar acts is admissible.20
*31In the instant case no money was paid, nor is payment of money an element of the offenses of soliciting a bribe or conspiring to solicit a bribe.
IV
The "relative credibility” of Duncan and McIntosh and of Harris and Broadnax "was the issue”. See Crinnian v United States, 1 F2d 643, 645 (CA 6, 1924); United States v DeCicco, supra. There could be no concern that if the jury believed the testimony that Duncan and McIntosh solicited a bribe it might nevertheless acquit them because it entertained a reasonable doubt regarding the intent with which the solicitation was made.
In Crinnian, the United States Court of Appeals for the Sixth Circuit reversed a conviction of a prohibition agent for soliciting and accepting a bribe on the ground that evidence he had previously engaged in or promoted transactions involving violations of the prohibition act should not have been admitted. The court declared that "former conduct” involving a violation of the prohibition act might be relevant on the element of intent "where an established fact permitted ambiguity as to intent, as where the taking of money by a prohibition agent might be enticing or might be detecting. There is no such issue here. Either Crinnian asked for and took the money, and is guilty, or he did neither, and is innocent. The relative credibility of Crinnian and Stinson was the issue. Proof that Crinnian had formerly violated the Prohibition Act could have no bearing on the issue, except by showing that he had the *32'criminal mind,’ and this is the very inference that the common law calls irrelevant.” Crinnian v United States, supra, p 645 (emphasis supplied).21
The act of solicitation being unequivocal, there was no need to admit evidence of similar acts to characterize the intent with which the act was committed; the evidence "was wholly unnecessary to show intent”. People v Minney, supra, p 538.
V
My colleague’s conclusion that "the evidence of the four principal witnesses showed the discussions and apparent agreement to return the property for $800” (emphasis supplied) is contradicted by the record:
—Harris testified that Duncan and McIntosh offered to return the property to Broadnax for $1000, that she transmitted counter-offers from Broadnax for lesser amounts and that no agreement was reached because Duncan and McIntosh sought more than Broadnax would pay.
—Broadnax testified that he had such conversations with Harris and a telephone conversation with Duncan regarding the payment of $800 but that no agreement was reached.
—Duncan and McIntosh testified that Harris told them that Broadnax would be willing to pay $1000 for the return of the property, that because they had found her to be irresponsible (see fn 3) they did not take her seriously, that McIntosh *33subsequently reported the conversation to his superior, Lt. Reid,22 who suggested that they meet with Broadnax to see if he would make a bribe offer; when they did meet with him he did not make an offer. It was Duncan’s and McIntosh’s testimony, in sum, that they had no conversation at any time with Broadnax regarding payment of a bribe.
Not only does the record establish that there was no "agreement” for the return of the próperty, Duncan and McIntosh were not charged in the information with entering into an agreement to accept a bribe nor did the people seek to prove such an agreement.
Duncan and McIntosh did not place their intent in issue by simply admitting that they had conversations with Harris and Broadnax and that the conversations with Harris concerned payment of a bribe. The conflict in the testimony over whether Duncan and McIntosh solicited a bribe or Harris approached them does not indicate that the intent of the alleged solicitation was equivocal or that Duncan and McIntosh disputed their intent; it shows only that there is uncertainty and dispute regarding the time, place and substance of the conversations.
Evidence of Duncan’s and McIntosh’s asserted propensity to commit a particular "sort” of offense23 was not admissible for the purpose of resolving the issues of credibility underlying the uncertainty and dispute regarding the conversations — such evidence was not admissible to make it appear more likely that Duncan and McIntosh initiated bribe conversations.24
*34Just as similar acts evidence is not admissible to show intent unless intent is in dispute, neither is it admissible to show "defendant’s scheme, plan or system in doing the act” unless such evidence tends to prove a disputed element of the offense or negative a defense:25
"Motive, intent, absence of mistake, plan, and identity are not really all on the same plane. Intent, absence of mistake, and identity are facts in issue — facta probanda. Motive, plan, or scheme are facta probantia, and may tend to show any facta probanda. ”26
Scheme, plan or system may not be shown in vacuo without regard to the materiality and probative value of such evidence on a disputed element of the offense or of a defense, and is not material or probative on the issue of credibility.27
My colleague’s conclusion that Duncan and McIntosh asserted an enticement defense is also contradicted by the record:
—While their counsel did, in his opening statement, say that the testimony of both the people’s and the defendants’ witnesses would "show * * * that there was talk of a bribe”, Duncan and Mc*35Intosh did not contend that they had any conversation with Broadnax tending to support an enticement defense. They did not intimate, let alone claim, that they "went along with [the scheme] so as to catch Mr. Broadnax in a crime”.
—On direct examination neither Duncan nor McIntosh asserted that they had met with Broadnax to discuss payment of a bribe or entice him into making a bribe offer. On direct McIntosh said only that Lt. Reid asked him to meet with Broadnax to see if he would make an offer; he did not claim that he had followed through on Reid’s request or met with Broadnax for that purpose. It was the prosecutor who brought out on cross-examination that Duncan and McIntosh had met with Broadnax and that Broadnax did not make an offer. On direct Duncan did not advert to the matter at all and, likewise, on cross-examination testified that Broadnax made no offer when they met. Thus, neither on direct nor cross-examination did they claim that they made any suggestion or offer, enticing or otherwise, to Broadnax.
My colleague’s statement "[bjefore any proofs were offered, defense counsel’s opening statement informed the jury that 'our testimony will show along with the prosecution’s testimony that there was talk of a bribe’ ” (emphasis supplied) suggests that the opening statement "opened the door” to the similar acts evidence. In neither his opening statement nor his closing argument, however, did defense counsel intimate in the slightest an enticement defense.
The record shows that "our testimony” related to conversations with Harris in which she indicated Broadnax’ willingness to pay a bribe rather than enticing offers from Duncan and McIntosh. It also shows that the prosecutor offered similar acts *36evidence at the preliminary examination. It further shows that during his opening statement and in argument and colloquy with the court "before” defense counsel’s opening statement the prosecutor said he would offer similar acts evidence at the trial. The similar acts evidence came in through the testimony of Harris as part of the people’s case-in-chief and was not offered in response to an enticement defense or any other defense.
The prosecutor did not, at the trial, contend that similar acts evidence was being offered to respond to an "anticipated” enticement defense. The United States Court of Appeals for the Second Circuit has said that it was "not impressed” by the prosecution’s belated attempt to justify the admission of similar acts evidence on the ground "of obviating in advance” a defense under the circumstance that the evidence "was introduced during the Government’s direct case before any” defense "was delineated”. United States v DeCicco, supra, p 484. Similarly, see United States v Miller, 500 F2d 751, 763 (CA 5, 1974). The prosecutor made no closing argument in response to this "defense”. This is an afterthought, an "appellate parachute”28 noticed for the fírst time on appeal.
VI
It is common ground that similar acts evidence should be excluded where its probative value is outweighed by its unfair prejudicial effect.29 The hazards of admitting such evidence are acknowledged in my colleague’s opinion.
The United States Court of Appeals for the Fifth Circuit pertinently observed:
*37"All that we demand of trial courts and litigants in this seemingly complex area of criminal jurisprudence is that they deal in reason, not categories. The treasured principles underlying the rule against admitting evidence of other crimes should be relaxed only when such evidence is genuinely needed and would be genuinely relevant.” United States v Miller, supra, p 763.
Where intent can readily be inferred from the evidence offered to prove the other elements of the offense, and such evidence is unequivocal on the element, of intent, and the defendant does not assert an innocent intent, the probative value of similar acts evidence on the element of intent is necessarily outweighed by the inflammatory nature of such evidence.
The record does not support my colleague’s conclusion, in finding "no abuse of discretion by the trial judge”, that he "carefully considered the matter” "of whether the probative value of similar acts testimony is substantially outweighed by its unfairly prejudicial effect”.
The judge declared his view that "these are similar acts”, that was "clear” and "unequivocal”, and that the similar acts go to the "question of whether or not there was scheme or plan. To me, there is no question about it, not one iota.”
In argument and colloquy following the prosecutor’s opening statement and his subsequent proffer of the similar acts evidence there was no recognition on the judge’s part that there were two sides to the question of admissibility of the proffered evidence, let alone that, even if the other acts were "similar” and the evidence was probative of an issue in the case, he could exclude such evidence in the exercise of discretion if its unfair prejudicial effect outweighed its probative value.
*38The judge did not "consider” this aspect of the matter "carefully” or otherwise. He did not exercise his discretion.30
VII
My colleague further states that after so "carefully considering] the matter” and properly exercising his discretion the judge "carefully controlled the proceedings and specifically instructed the jury on the permissible uses of the testimony”. The judge did so specifically instruct the jury, but it is extravagant to conclude that the judge controlled the scope of the proofs resulting from the admission of the similar acts evidence.
Building on the postulate of Harris’ assertions that she had transmitted bribes from dope dealers to Duncan and McIntosh, one to two years before the asserted solicitation of a bribe from Broadnax —and although it was not claimed that any money had been paid to Duncan and McIntosh by Broadnax — Duncan and McIntosh were cross-examined at great length regarding their life styles and standards of living. Duncan’s expenses during and after marriage, including his expenditures for groceries and household expenses, the number of suits he owned, his gambling activities and his vacations were explored:
"How much do you pay in support of [your children]? * * * Do you regularly make those [support] payments?
"Do you have a car? * * * What kind? * * * When *39did you get that car? * * * Did you buy it new? * * * What did you pay for it? * * * Are you making payments on it? * * * How much per month did you spend on car payments? * * * How much per month did you pay for insurance on the car? * * *
"That’s a nice suit you’ve got on. * * * How much did it cost you? * * * How many suits do you have? * * * Where did you buy the suit? * * * You buy your suits for cash? * * *
"Did you take a vacation during the last year? * * * Where did you go? * * *
"When you were living with your wife and children how much did you spend on food per week? * * * What were your monthly house payments? * * *
"When was the last time you worked? * * * How do you support yourself? * * * I think we are all aware of what your ordinary expenses might be. My question is, how do you meet those expenses? * * * Do you have a bank account? * * * What was your take-home pay when you were working as an Inkster Police Officer?
"Do you ever go to the race track? * * * About how frequently do you go to the race track? * * * And do you bet when you are at the race track? * * * Can you give us an estimate of your average bettings during the week? * * * Do you engage or have you engaged in any other gambling activities? * * * What sort of [poker] stakes?”
McIntosh’s personal expenditures were similarly explored:
"Is your daughter a dope addict? * * * How much do you contribute to the support of your daughter? * * * Can you tell us how much you spent on other things that she needed in the past year? * * *
"Do you give your paycheck to your wife? * * * Do you handle your own finances? * * * How much money from your paycheck do you give to your wife? * * * Can you tell us how much you have contributed to your wife and the two children over the past year? * * *
"What kind of car do you drive? * * * Are you *40paying for that car, or is it paid for? * * * How much do you pay per month? * * * How much rent do you pay for your house in Inkster? * * * How many suits do you have? * * * Where did you purchase them? * * *
"Did you take a vacation last year? * * * Where did you go? * * * How long did you stay? * * * How much did the vacation cost you? * * *
"Have you made a large deposit to a credit union this year? * * * Did you make a large deposit to the credit union last year? * * * How much was that deposit? * * * Where did you get the money? * * *
"How often do you go to the racetrack? * * * How much money did you win at the racetrack last year?”
Duncan and McIntosh were also extensively questioned regarding their efforts to apprehend and prosecute dope dealers — how many arrests were made, whether they had ever arrested any of the persons mentioned by Harris and whether they had sought to have Harris make buys from persons known to them to be dope dealers and whether and to what extent they had assisted other governmental agencies investigating narcotics traffic in Inkster:
"Did you ever arrest Willie Currie? * * * You know him to be a dope pusher though? * * * How many buys did Betty Harris make for you? * * * In how many of those cases did you get warrants? * * * In how many of those cases did you get convictions? * * * Tell me how many subsequent possession warrants you got? * * * How many convictions did you get over the past three years? * * * Who? * * * When was the last time you got a possession conviction? * * * Did you ever get a warrant against Willie Currie? * * * Did you ever get a warrant against Willie Currie as a result of using Betty Harris? * * * Did you ever send Betty Harris to make a buy from Ray Johnson? * * * Was he known to you as a dope dealer? * * * But you never explored that avenue of law enforcement [having Harris make buys], is that correct? * * * Did you send Betty Harris to see *41a man named Castleman? * * * And you never sent her to make a buy from him? * * * Is he a dope dealer? * * * But you never explored that avenue of law enforcement, did you? * * * Did you send Betty Harris to see a man named Whethers? * * * Was he known to you as a dope dealer? * * * But you never sent her to make a buy from him? * * * You never explored that avenue of law enforcement? * * * Did you send Betty Harris to see a man named Gaston? * * * Have you heard about whether he is a dope dealer? * * * And you never explored that avenue of law enforcement? * * * Did you send Betty Harris to see a man named Milfred Scott? * * * Have you heard that he is a dope dealer? * * * You never sent her there to make a buy? * * * Did you send Betty Harris to see a man named Perdue? * * * Did she represent that he was a dope dealer? * * * Did you send her to him to make a buy? * * * You didn’t explore that avenue of law enforcement? * * * Did you send Betty Harris to make a buy from Luke White? * * * Have you ever heard about Luke White [being a dope dealer]? * * * About Jimmy Robb, did you ever send Betty Harris to make a buy from Jimmy Robb? * * * Have you ever heard that he deals in dope? * * * But you didn’t send Betty Harris there to make a buy? * * * You didn’t explore that avenue of law enforcement? * * * Did you send Betty Harris to make a buy from Jesse West? * * * You have heard that in fact he is dealing in dope? * * * And you didn’t send her there to make a buy? * * * Yop. didn’t explore that avenue of law enforcement? * * * Why didn’t you send her to these people? * * * You never arrested and got a warrant against any of these dope dealers, did you? * * *
"Your testimony is that you never sent her to make a buy with respect to any of these people you admit now you knew were dope dealers, what I want to ask you is did you take any other measures or steps in an attempt to see that these known dope dealers, known to you, were in fact put out of business or apprehended? * * *
"Do you know when the warrant for arrest was effectuated on Willie Currie? * * * Did you have anything to do with the preparation of the case that resulted in the warrant? * * * Do you know that when *42the officers executed the warrant that Willie Currie’s place of business was closed down, there was no narcotics there? * * * With respect to the warrant against Ray Johnson, what specifically did you have to do with the procuring of that warrant? * * * Did you know that when the officers executed that arrest warrant, the place of business of Mr. Johnson, it was closed down and there was no narcotics there? * * * Now, you have made reference to a warrant against a man named Moore, what did you have to do with the procuring of that warrant? * * * You made reference to a Moss warrant, is that correct? * * * What did you have to do with preparation of that case? * * * Did you contribute any information that supported probable cause for the issuing of the warrant? * * * Did you ever give any names to either the Metro Squad or the Michigan State Police? * * * What names did you contribute?”
That line of inquiry was expanded to include a general inquiry regarding police reprimands and professional records:
"Were you a good policeman? * * * Tell us what you have done as a policeman that was improper? * * * Have you ever been reprimanded by a superior officer? * * * Tell us the last time you were reprimanded by a superior officer? * * *
"Now the date on which you received the reprimand for which you were suspended from duties, do you remember when that was? * * * Now, you have testified that you might have received other reprimands but that you couldn’t remember them specifically, is that correct? * * * Does it refresh your recollection as to the fact of another reprimand? * * * Do you remember any other reprimands? * * * Did you receive a communication on the 27th of May, 1969 * * * from Lt. E. Acker reprimanding you? * * * Your memory has not been jarred as to any other official reprimands that you have received? * * *
"Were you ever fired from the Inkster Police Department? * * * When? * * * Why? * * * You were fired as a policeman because you were playing poker? * * * *43What’s the last time you played poker? * * * Were you fired for playing poker at that time?”
The prosecutor questioned Lt. Reid concerning the number of arrests and convictions Duncan and McIntosh had obtained of narcotics offenders and the possibility of a leak in the department. In evaluating these questions it is noteworthy that Lt. Reid conceded that none of his officers were particularly effective in apprehending dope dealers and that Duncan and McIntosh were not full-time narcotics officers but general detectives who devoted the bulk of their time to other police work.
The prosecutor’s opening statement made reference to and his closing arguments concentrated on the similar acts evidence, asserting that it showed that Duncan and McIntosh were crooked cops, i.e., he exploited the similar acts evidence for the purpose — propensity to commit a particular offense or offenses generally — for which all agree it may not be used.
In his closing arguments the prosecutor made frequent reference to an "on going conspiracy” (not charged), reviewed the testimony concerning Duncan’s and McIntosh’s spending activity, surveyed the narcotics problem in Inkster and emphasized the corrupting effect of heroin on society. He argued the ineffectiveness of Duncan’s and McIntosh’s efforts to reduce the narcotics problem in Inkster: "Did and do the names Duncan and McIntosh strike terror into the hearts of the dope dealers in Inkster? I don’t think so and I don’t think you think so either.”31
*44The prosecution’s case depended almost entirely *45on the testimony of Harris, a drug addict who had worked for Duncan and McIntosh as a paid informant. When first questioned by police she said it was Broadnax who had offered to pay a bribe and later, while in jail — admittedly angry with Duncan and McIntosh for failing to protect her — suffering withdrawal, she offered to change her story and was immediately released and taken to a hospital. At the time of trial she was in a methadone program and Broadnax was on probation.
Harris’ unsubstantiated testimony of "similar” acts and the innuendo of the life style and professional record questioning diverted attention from the quality of the people’s evidence on the charged offense to whether Duncan and McIntosh were good police officers. The focus of the trial was shifted to the nonissue of whether Duncan and McIntosh had received and spent protection money from and had made a sufficient effort to apprehend and convict dope dealers and had otherwise conducted themselves as good policemen.
VIII
In sum, the words attributed by Harris and Broadnax to Duncan and McIntosh were not ambiguous. Duncan’s and McIntosh’s asserted acts of solicitation were not equivocal. If, as Harris and Broadnax claimed, Duncan and McIntosh solicited a bribe, the requisite felonious intent may readily be inferred.
Duncan and McIntosh did not concede the act of solicitation and claim that they were enticing or detecting. No money was paid and, therefore, cases *46where the gist of the offense is the payment of money32 are not in point.
The similar acts evidence was not admissible.
The judge did not exercise his discretion.
The similar acts testimony and the "ancillary” cross-examination of Duncan and McIntosh nominally offered to characterize their intent in soliciting a bribe characterized them, in actuality, as bad cops in violation of the principle that similar acts may not be admitted to show that the defendant is a bad man.
Duncan and McIntosh did not receive a fair trial.
I would reverse and remand for a new trial at which similar acts evidence may be admitted only if Duncan and McIntosh offer an enticement defense.33
Kavanagh, C. J., concurred with Levin, J. Blair Moody, Jr., J., took no part in the decision of this case.MCLA 750.505; MSA 28.773.
MCLA 750.157a; MSA 28.354(1).
When first questioned by the police Harris said that Broadnax had asked her to transmit a bribe offer to Duncan and McIntosh. She had worked for them as a paid informant and was admittedly angry that they had not protected her from a jail sentence. Suffering from heroin withdrawal, she changed her story and offered to testify against them. She was then transferred from the jail to a hospital, was subsequently permitted to go home without serving the jail sentence, and was being maintained on methadone at the time of trial.
He was on probation for another offense.
The view here expressed that the evidence of other acts was inadmissible makes it unnecessary to consider whether such acts were relevant, similar and proved in the manner required by the statute.
"In any criminal case where the defendant’s motive, intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts, or other acts of the defendant which may tend to show his motive, intent, the absence of mistake or'accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.” MCLA 768.27; MSA 28.1050.
See Proposed MRE 404(b). 399 Mich 951, 972 (1977).
See McCormick on Evidence (2d ed), § 190, p 447. See, also, FR Ev 403, 404.
Similarly, see People v Pinkerton, 79 Mich 110, 113; 44 NW 180 (1889); People v Minney, 155 Mich 534, 537-538; 119 NW 918 (1909); People v Seaman, 107 Mich 348, 357; 65 NW 203 (1895); and Lightfoot v People, 16 Mich 507, 510-511 (1868).
See, e.g., People v Kelly, 386 Mich 330, 335; 192 NW2d 494 (1971), where the similar acts evidence was part of a chain of circumstantial evidence tending to identify the defendant as the culprit.
See fn 6, supra.
"Where the requisite intent is presumed or inferred from proof of the criminal act itself, or where the intent of the defendant is not in issue, evidence of other crimes is not admissible.” 1 Wharton’s Criminal Evidence (13th ed), § 245, p 560.
The governing principle is illustrated in McCormick, supra, § 190, p 450, fn 42. The authors discuss cases holding similar acts evidence was admissible to show intent where it was claimed that the defendant was an unwitting tool of his employer, or that he picked a purse from the floor thinking it lost or that shots were not fired purposefully. The authors cite Michigan authority: "However, when the act charged is not equivocal, but the criminal intent is a necessary conclusion from the act, this theory of other acts as showing intent may not be availed of. People v Lonsdale, 122 Mich 388; 81 NW 277 (1899).”
Wigmore explains with an example the principle permitting evidence of similar acts to be admitted to characterize equivocal evidence to prove intent:
*26"[I]f A while hunting with B hears the bullet from B’s gun whistling past his head, he is willing to accept B’s bad aim or B’s accidental tripping as a conceivable explanation; but if shortly after-wards the same thing happens again, and if on the third occasion A receives B’s bullet in his body, the immediate inference (i.e. as a probability, perhaps not a certainty) is that B shot at A deliberately; because the chances of an inadvertent shooting on three successive similar occasions are extremely small; or (to put it another way) because inadvertence or accident is only an abnormal or occasional explanation for the discharge of a gun at a given object, and therefore the recurrence of a similar result (i.e. discharge towards the same object, A) excludes the fair possibility of such an abnormal cause and points out the cause as probably a more natural and usual one, i.e. a deliberate discharge at A.” 2 Wigmore, Evidence (3d ed), § 302, p 196.
The United States Court of Appeals for the Fifth Circuit has said:
"Such exception, for instance, permits the introduction of testimony showing that a person being tried for knowingly passing counterfeit money has, on prior occasions, passed bills shown to be counterfeit, even though the instant prosecution does not involve the passing of the earlier bills. So, too, where an accused’s conduct for which he is on trial is ambiguous in nature, that is where wrongful if done with an improper intent but not criminal if done innocently, testimony of prior conduct by the accused may be shown to assist the jury in resolving the issue of intent.” Bullard v United States, 395 F2d 658, 660 (CA 5,1968).
Lonsdale had been convicted of manslaughter by abortion. Evidence that another woman had applied to Lonsdale for an abortion was held inadmissible and her conviction was reversed. "Upon the record, there is no room for an inference that death resulted from accident, or that the operation was performed to save the life or health of the deceased. On the contrary, if the jury found that the dying declaration of the deceased was true, the crime was complete, and the jury could not find otherwise than that it was done with guilty knowledge and intent.” People v Lonsdale, 122 Mich 388, 392; 81 NW 277 (1899).
The defendant’s conviction for mutilating a horse by cutting out its tongue was reversed because evidence of similar acts had been admitted.
This Court’s recognition that similar acts evidence is not admissible merely because it bears on an element of the offense and that it must also appear that the defendant claims he acted innocently or that there is room for such an inference, appears in the following statement:
*28"Upon principle and authority, it is clear that where a felonious intent is an essential ingredient of the crime charged, and the act done is claimed to have been innocently or accidentally done, or by mistake, or when the result is claimed to have followed an act lawfully done for a legitimate purpose, or where there is room for such an inference, it is proper to characterize the act by proof of other like acts producing the same result, as tending to show guilty knowledge, and the intent or purpose with which the particular act was done, and to rebut the presumption that might otherwise obtain.” People v Seaman, 107 Mich 348, 358-359; 65 NW 203 (1895) (emphasis supplied).
The New York Court of Appeals has said:
"As these principles have been applied in our decisions to evidence sought to be introduced to prove a defendant’s intention [emphasis by *29the court] in the crime charged, the probative 'balance’ has generally warranted admission of this evidence only where the acts involved in the crimes charged are equivocal so that intention is not easily inferred from the acts alone.” People v McKinney, 24 NY2d 180, 184; 299 NYS2d 401; 247 NE2d 244 (1969) (citations omitted).
The Nevada Supreme Court has said:
"[W]hen the other offense sought to be introduced falls within an exception to the rule of exclusion, the trial court should be convinced that the probative value of such evidence outweighs its prejudicial effect. [Citations omitted.] The reception of such evidence is justiñed by necessity and, if other evidence has substantially established the element of the crime involved (motive, intent, identity, absence of mistake, etc.), the probative value of showing another offense is diminished, and the trial court should rule it inadmissible even though relevant and within an exception to the rule of exclusion.” Tucker v State, 82 Nev 127, 130; 412 P2d 970, 971-972 (1966) (emphasis supplied).
See Williams, Criminal Law, The General Part (2d ed), § 35, p 93.
Director of Public Prosecutions v Morgan, [1976] AC 182; 2 All E R 347.
"The offense charged against defendant in the instant case involves a specific intent. As defined by the statute, however, it is not of such nature that the intent, which the jury must find established by the evidence beyond a reasonable doubt in order to convict, may be inferred from the mere fact that on a certain occasion payment of money was made to the accused and accepted by him. In a case of this character it may not be possible to interpret and properly characterize the specific act involved except by reference to a definite and continued course of conduct, plan or system, of which it is a part. As said in People v Vinokurow [322 Mich 26; 33 NW2d 647 (1948)], 'The law should not be so construed as to make defendants in such cases conviction proof.’
"The admissibility of testimony fairly tending to establish a continuing system or plan has been repeatedly recognized not only in this State, but in other States as well. The rule in this regard may well be said to be established by the overwhelming weight of authority. Decisions relating to the trial of offenses not involving a corrupt intent and cases in which intent, if an essential element, is required to be found from the facts and circumstances of the particular act or transaction involved, are, for obvious reasons, not in point.” People v Johnston, 328 Mich 213, 231; 43 NW2d 334 (1950) (emphasis supplied).
"The cases cited are readily distinguishable from the one at bar. It will be observed that in most of those cases the intent followed as a necessary conclusion from the acts constituting the crime charged. In the case at bar the criminal intent did not follow from the mere receiving of the money, and the case is, therefore, an exception to the *31general rule.” People v Petropoulapos, 217 Mich 198, 203; 185 NW 730 (1921).
Similarly, see Farkas v United States, 2 F2d 644, 647 (CA 6, 1924):
"But in this case intent was not in issue. If the money demand was made under threat of informing or in consideration of not informing, no further specific intent is required. Therefor the entire evidence of similar offenses and, of course, of different offenses, should have been excluded.”
See, also, Haynes v Commonwealth, 104 Va 854; 52 SE 358 (1905).
The people contended that the report was belated and not in the manner required by departmental policy.
United States v Goodwin, 492 F2d 1141, 1153 (CA 5, 1974).
See parts I and IV, supra.
McCormick, supra, § 190, pp 447-454.
Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv L Rev 988, 1026, fn 190 (1938).
The separate opinion of another colleague based on the "scheme, plan or system”' clause of the statute (see fn 4, supra) does riot indicate the materiality or probative value of such evidence in the instant case, and ignores both the common-law history of the statute and this Court’s ultimate responsibility for the rules of evidence. Perin v Peuler (On Rehearing), 373 Mich 531, 541; 130 NW2d 4 (1964).
The opinion also assumes without discussion that the act of soliciting a bribe for the return of confiscated property and acts, more than a year earlier, of accepting bribes to protect drug dealers show a common scheme, plan or system.
See Crinnian v United States, 1 F2d 643, 645 (CA 6, 1924); United States v DeCicco, 435 F2d 478, 484 (CA 2, 1970); United States v Burkhart, 458 F2d 201, 204-205 (CA 10, 1972).
People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969).
See People v DerMartzex, 390 Mich 410, 415; 213 NW2d 97 (1973).
See People v Merritt, 396 Mich 67, 80; 238 NW2d 31 (1976); People v Cherry, 393 Mich 261; 224 NW2d 286 (1974); People v Jackson, 391 Mich 323, 332; 217 NW2d 22 (1974); Quigley v Dexter Twp, 390 Mich 707, 709; 213 NW2d 166 (1973); People ex rel Department of Public Works v Union Machine Co, 133 Cal App 2d 167, 171; 284 P2d 72, 74 (1955).
The following excerpts from the prosecutor’s closing arguments are illustrative:
"During the trial when it was made to appear to you that Duncan despite his reported efforts in the area of drug control had in fact effectuated nothing * * * .
« * * * Duncan himself told you that when they went to effectuate *44an arrest on the Currie warrant that when they got there, when the police got there, Currie wasn’t there and there wasn’t any dope. Who tipped Currie?
"Duncan said he owned six suits, he has worn more than six suits during this trial. Duncan hasn’t been working for four months, but he drives an Oldsmobile 98. He goes to the track two, three nights a week and dropped $24 of borrowed money the Friday before he testified.
"McIntosh took a different approach in testifying. He, too, was unnaturally and unreasonably evasive and forgetful. But then he began to testify in a way that I’d like to characterize to you as my ñrst experience with creative testifying [emphasis supplied], * * *
"This case has been thoroughly investigated. This case is before you because it needs to be before you.
"These defendants were charged with these criminal offenses because they deserved to be convicted. The defendants have testified that they told you they didn’t do it. Would you expect them to do otherwise?
"Power, duty, responsibility, you have the power to set guilty men free no questions asked. You have the duty without compassion or sympathy to correctly ascertain the true facts of this case. You have the responsibility of maintaining our civilization and our society and insuring that abhorent and unacceptable acts do not go uncensored. I ask you to do so and to convict both of these men.”
"First, let me say this, we have been talking rather casually, I think too casually, about dope and about dope dealers. When we have mentioned dope at this trial we are talking about narcotics, about heroin. Heroin is that substance which is corrupting our society. Heroin is that substance which is destroying our children. I think it is important for you to appreciate the signiñcance of what we have been talking about at this trial [emphasis supplied].
"[T]here is enough before you so that you may and should conclude that these defendants had sources of income other than their salaries, $11,000 or $12,000 a year, $69 a week child support payments, two homes, two or three nights a week at the track, $2,500 deposit in the credit union, Oldsmobile 98, Lincoln Continental, these facts don’t prove anything. I didn’t argue to you when I spoke before that that proves anything. I presented this evidence so that you might draw an inference if you choose to.
"Make your decision carefully, for you must live with it. Make your decision carefully for the citizens of the City of Inkster must live with it.
"Power, duty, responsibility, you have the responsibility of preserv*45ing our civilization, of maintaining our society, of ensuring that abhorent and unacceptable acts do not go uncensored. I ask you to return a verdict that both of these defendants are guilty as charged.”
See fns 19 and 20, supra, and accompanying text.
If the prosecutor asserts that some part of the people’s evidence tends to establish such a defense and that he is concerned that defense counsel may, after completion of the proofs, argue such a defense, the judge may inquire into the matter and, if defense counsel disclaims any such defense, enter an appropriate protective order excluding collateral evidencé having such a tendency and any reference to such a defense.