concurring in part and dissenting in part.
Having participated in the development of much of what is said in the majority opinion, it having been taken with my approval from my proposed opinion reaching a contrary result, I concur with the majority opinion except in its contrary result based upon the issue of the admissibility of the Logan County convictions.
I cannot agree that the trial court abused its discretion in refusing to grant a new trial because the Logan County convictions were excluded as evidence at the original trial. Having concluded that the defendants have not raised any matter constituting reversible error, I would affirm the judgment and the trial court’s subsequent orders denying relief from the judgment and denying a new trial.
Prior to the trial of this action, the district court ruled that it would not allow Knapp or Brady to introduce evidence of the Logan County convictions. The ruling was very narrow; the court ruled that it would not admit the convictions, but the court did not rule that it would exclude any other evidence relative to the issue of whether or not the seized fox had been purchased or illegally “dug out” by the Fischers:
“MR. ADKINS [Defendants’ counsel]: I just am trying to get in my mind at least, as far as what your ruling was this morning. As I understand it, I cannot present testimony as to the Logan County convictions, the digging up there. But that I can present evidence as to what the Fischers may have told my clients as far as where the fox came from. And I can present testimony basically where these fox came from, they were seized on that day.
“THE COURT: That is a disputed item. You claim they bought them and you are going to offer evidence. And he is going to offer testimony that they are going to say something to the effect that they dug them up.
“MR. ADKINS [Defendants’ counsel]: Right.
“THE COURT: Okay. And that is a factual dispute. I don’t see any particular problem in that. I just want to stay away from the conviction itself. As far *85as statements going back and forth, I don’t care.
“MR. ADKINS [Defendants’ counsel]: I will not introduce the convictions from Logan County.
“THE COURT: That’s what I wanted to stay away from.”
Knapp and Brady’s counsel did not attempt to apprise the court on what basis the Logan County convictions were admissible. The defendants’ counsel did not refer the trial court to Rule 404(b), N.D.R.Ev., relating to the purposes for which evidence of other crimes is admissible, to Rule 609, N.D. R.Ev., relating to convictions that are admissible for impeachment purposes, or to any other authority under which the Logan County convictions might have been admissible.
Rule 404(b), of the North Dakota Rules of Evidence, is basically a formal recitation of the prior existing rule that evidence of pri- or crimes is not admissible unless it is substantially relevant for some purpose other than to show that a person of criminal character has acted in conformity with that criminal character. See, State v. Forsland, 326 N.W.2d 688 (N.D.1982). Rule 404(b), N.D.R.Ev., is a rule of evidence applicable to both criminal and civil cases. It does not distinguish between them. Even if the proffered evidence of other crimes has probative value in proving something other than the convicted person’s criminal propensity, the evidence is not admissible as a matter of course. State v. Phelps, 297 N.W.2d 769 (N.D.1980). Justice Pederson, writing for a unanimous Court in Dahlen v. Landis, 314 N.W.2d 63 (N.D.1981), states in relevant part:
“[Rule 404(b), N.D.R.Ev.] does not authorize automatic admission merely because the proponent advances a proper purpose for' the evidence; instead, the relevance and probative value of the evidence must be demonstrated. See 2 Weinstein’s Evidence ¶404[08], n. 15 at 404-47, and ¶ 404[18] at 404-99-113. In State v. Stevens, 238 N.W.2d 251, 257-58, (N.D.1975), we held that, ‘in the final analysis,’ the key inquiry involved in ruling on the admissibility of ‘other acts’ under Rule 404(b) is balancing the probative value of the evidence against its prejudicial effect. Quoting McCormick, we noted that ‘the problem is not one of pigeonholing, but of balancing, of discretion rather than following a rule.’ State v. Stevens, supra, 238 N.W.2d at 258.” [Footnote omitted.] 314 N.W.2d at 70.
In this case, I do not believe that counsel for Knapp and Brady made the necessary effort to demonstrate the admissibility of the Logan County convictions under Rule 404(b), N.D.R.Ev., or under any other provision of law. Thus, I believe that the district court did not abuse its discretion in refusing to grant a new trial on that ground.
I also believe that the trial court’s exclusion of the Logan County convictions, if improper, did not constitute prejudicial error in this ease. Donald Fischer conceded, on the witness stand, that he and Maurice had “dug out fox” on two separate occasions during June, 1979:
“Q. Now, in June, 1979, did you and your brother, Maurice, dig some fox out?
“A. Yes, we did.
“Q. And do you recall when that was in June?
“A. Well, there were two different occasions. One was the first part of June and one was about the middle of June.”
Defendant Knapp also testified relative to Donald Fischer’s concession of having dug out fox in June:
“A. I informed Mr. Donald Fisher that I was at the Fisher farm investigating a report of illegal fox being held at that particular location.
“Q. What did Mr. Fisher tell you?
“A. Mr. Donald Fisher told me they were his fox.
“Q. Did he tell you anything else?
“A. At that point I gave him his Miranda Warning.
“Q. After you gave him his warning, did he say anything else?
“A. Yes, he did.
“Q. What did he say?
*86“A. I told him we were with the understanding that the fox had been dug up and asked him if this was correct. And he said, yes, it was. And that they had dug two dens. One in early June and one toward the middle of June.”
Donald Fischer’s concession that both he and Maurice had dug out fox in June was not disputed by Maurice or any other party.
The court’s instructions to the jury required the jury to find, as a prerequisite to the Fischers receiving any recovery in this case, that the confiscated fox had been purchased by the Fischers, and not dug out by them, illegally or otherwise. The jury concluded, in its special verdict, that the fox which were confiscated from the Fischers during August, 1979, had been purchased by the Fischers. The jury thereby necessarily concluded that the fox which were dug by the Fischers during June, 1979, illegally or otherwise, were not the same fox which were confiscated from the Fischers during August, 1979. In view of the jury’s finding that the fox had been purchased, despite Donald’s testimony conceding that the Fischers dug out fox during June, 1979, I conclude that the evidence of the Logan County convictions, if admitted, could not have significantly affected the jury’s verdict. For that additional reason, I believe that the trial court’s evidentiary ruling on the Logan County convictions did not constitute prejudicial reversible error.
LECLERC, District Judge, concurs.