The opinion
STRAUP, J.
(dissenting). I concur in the dissent of the Chief Justice. It of course is conceded that operating a still and manufacturing intoxicating or distilled liquor, and unlawfully possessing intoxicating liquor, are separate and not included offenses. It also is conceded that the general rule is that evidence of a separate offense or transaction is not admissible against the accused on trial for another specific offense or transaction. The reason for the rule is that such evidence compels the accused to meet charges of which the indictment or information gives him no notice, raises a variety of issues and confuses them, diverts the attention of the jury from the particular charge before it, tends to create a prejudice in the minds of the jury against the accused and to induce a more ready belief that he committed the charged offense. There are well-recognized exceptions to the general rule. They are stated in
State
v.
Bowen,
43 Utah 111 , 134 P. 623 , and again in
State
v.
De Weese,
51 Utah 515 , 172 P. 290 . They are the subject of elaborate notes in 62 L. R. A. 193, referred to in both of the above-cited cases. To bring the evidence objected to within any of the exceptions stated in such prior cases, it must fall within the exceptions that, where the alleged offense and another claimed offense or offenses constitute parts of one transaction or of a general scheme or plan, and are so related or connected that a complete account of the entire transaction of the one cannot fairly be given without also showing the other, or where the proof of the one involves proving the other. Measured ;by that standard, I think the evidence objected to was improperly received. A case may readily be perceived where one may unlawfully operate or possess a still and at the same time and place unlawfully possess whisky or other distilled products, and where evidence of the possession of the one, or of the en
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tire transaction with respect thereto, cannot fairly or completely be given without also showing the other, or where the proof of the one involves also proving the other. But here it was not shown that the existence or possession or operation of the still was on the accused’s premises, or that he exercised any control over’ if or had anything to< do with it. Nor was there any evidence to show that the keg of whisky in the tree in the field near the accused’s dwelling, but not on his premises, was obtained by the accused, or that it came from the still half a mile or more away partly up the mountain on premises not even claimed to have been owned, possessed, occupied, or controlled by the accused. There thus was no connection shown between the existence or operation of the still' and the keg of whisky in the tree claimed to have been in the possession of the accused. Such facts in no sense where shown to have been parts of one transaction, or that the one bore any relation to the other; much less may it be said that to prove the possession of the keg of whisky in the accused in any degree involved also proving the existence or operation of the still, or that a complete account of the transaction of the one could not fairly and completely have been given without also showing the other. Whatever competent or legally relevant evidence the state may have had as to the accused’s possession of the keg of whisky well and fully could have been adduced without proof of, or any reference whatever to, the still. Though it be assumed that, upon the state’s claim and charge of the accused’s possession of the whisky, and on his denial thereof, it would have been relevant on behalf of the state to show where or from whom the accused obtained the whisky, or who delivered it to him, on the theory that such proof would have legal relevancy bearing on the fact or question of the accused’s possession, yet that is not what the state did. At most it only attempted to show that the accused
could
or
might
have obtained the whisky at or from the still, and that, too, on mere surmise or conjecture wholly without proof that he possessed or operated the still,
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or on mere surmise or conjecture that he might or could have obtained it from another possessing or operating the still. With presumed due diligence on the part of public officials of Iron county and of the district, the state no doubt could have shown many places where or circumstances under which the accused
could
or
might
have obtained the whisky. To show where the accused
might
or
could
have obtained it, and where he in fact did obtain it, are two entirely different propositions. That proof of the former has neither logical nor legal relevancy to prove the latter is plain.
That horse tracks led from the trail towards the still, and that the tracks
could
have been made by shoes on a horse owned by the accused, does not justify the inference that the tracks were made by the accused’s horse, nor, more especially, that the horse was there driven or ridden by the accused. That a part of a pair of overalls was found about the still and the other part tacked up on a doghouse near the accused’s dwelling, without, more, does not justify the inference that the overalls belonged to the accused, or that he took or left the part at or about the still found there. That parts of an oil stove found in the dwelling of the accused were similar to parts, of an oil stove found under the boiler of the still does not justify the inference that the oil 'stove or the still, or both,. belonged to the accused, or that they were placed there by him. Nor do such proven facts, singly or collectively, tend to show that the still belonged to or was possessed or operated by the accused. Here we must not be unmindful of the general rule in criminal cases that it is not enough to prove facts from which an adverse inference may be deduced. The deduced inference must be not only adverse, but must be wholly inconsistent with innocence. If on the proven facts two inferences may be deduced, one inconsistent, and the other equally consistent, with innocence, then the proven circumstances are of no probative value.
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Though it be assumed that such proven facts tend to show that the accused had some connection with, or was about the still, yet the pertinent inquiry is: Were such proven facts or circumstances, and the fact that the keg of whisky was found in a tree in a field near the accused’s dwelling, but not on his premises, parts of one transaction or so
closely
connected with or related to each other that a complete account of the transaction of the accused’s possession of the keg of whisky could not have been shown without also permitting the state to prove the facts or circumstances it was permitted to prove with respect to the still? I think the two were entire, separate, and distinct transactions, and the one in no sense dependent upon the other.
In the prevailing opinion, the rule apparently is laid down that evidence of separate offenses may be given to show ability, means, and opportunity of the accused to commit, or as hearing on the probability of his having committed, the charged offense. I think it more wholesome to stay within the well-recognized exceptions' to the general rule, and not carve out of it additional, or create new, exceptions until the general rule loses its character as such and itself becomes a mere exception. I think what is decided in the prevailing opinion is a departure from the rule announced in
State
v.
Bowen
and
State
v.
De Weese,
supra. By the prevailing opinion the view seems to be entertained that all evidence which logically is relevant is also legally relevant. That, in some instances may be true, in others not, and in many the subject of relevancy of testimony has become matter of precedent and authority. The fact that evidence may be logically relevant does, not insure its admissibility. It must also be legally relevant. Thus when the profession speaks of relevancy of evidence, legal and not mere logical relevancy is meant. 2 Jones Com. on Ev. (2d Ed.) § 592. It is apparent to me that the objectional evidence was offered and permitted, not to show a part of one and a connected transaction, but on mere surmises and suspicion to induce the jury to believe or conjecture that the accused
*395
possessed or operated a still, which had no connection with his alleged possession of the liquor. To a jury — to a layman — evidence that the accused, on a charge of homicide or larceny or other offense, had prior thereto committed other homicides, larcenies, or other offenses, though entirely separate and distinct transactions, might naturally be regarded by them as logically relevant and as tending to show a probability, or at least more readily to induce a belief thereof, that the accused committed the charged offense, but for which evidence a jury might not be persuaded of the accused’s guilt of the charged offense. Yet the general rule is that such evidence, for the reasons already stated, has no legal relevancy and must be excluded. To now lay down a doctrine that such evidence may be given to show ability, means, or opportunity to commit the charged offense or as tending to show a probability or a likelihood that the accused might have committed it, is still worse and still more discordant with the general rule and not within the exceptions.