The opinion
SPEAR, Justice
(concurring specially).
I concur in the result reached in the majority opinion, because the interpretation of I.C.R. § 9-1209 and I.C. § 9-1302 and I.C. § 19-2110, by this court in State v. Owen, 73 Idaho 394 , 253 P.2d 203 (1953), and State v. Storms, 84 Idaho 372 , 372 P.2d 748 (1962), as Justice McFadden has correctly stated in the majority opinion permits the prosecution to introduce either by cross-examination of an accused who has taken the stand in his own behalf or by introduction of the record of a judgment, the name and nature of each and every felony of which the accused has been previously convicted. This is done, under the principle set forth in Owen and Storms that this is a proper method of impeaching the testimony of the accused. In the cause at hand the State was permitted' to inquire into the nature of no less than ten felonies for which the accused had been previously convicted.
It is obvious to me that such evidence was introduced not for the purported reason, i.eimpeachment, but, rather for the purpose of prejudicing the jury against the accused and depriving him of a fair and impartial trial on the merits of the one charge for which he was being tried.
I am fully cognizant of the fact that State v. Owen, supra, correctly states the majority rule in the United States, but I am firmly convinced it is erroneous. The better rule, and the reasoning upon which it is based, is ably set forth in the dissenting opinion of Justice Keeton in State v. Owen, 73 Idaho, beginning at page 425, 253 P.2d 203 , and the majority opinion in State v. Coloff, 125 Mont. 31 , 253 P.2d 343 (1951), particularly the specially concurring opinion of Chief Justice Adair, beginning at page 346. Under this rule when an accused has taken the stand as a witness in his own behalf and is asked the general question, “Have you ever been previously convicted of a felony?” and the accused answers in the affirmative, the prosecution is prohibited from interrogating any further concerning the number or nature of such previous felony or felonies. The accused has been labeled indelibly in the minds of the jurors as a felon, and thus his testimony has been impeached.
On the other hand, should the defendant deny he has ever previously been convicted of a felony then, of course, the prosecution is entitled to elicit either by cross-examination, or the record of the judgment, any and all felony convictions in the record of the accused.
The record in this cause discloses that the only objection to the additional cross-examination after the general question had been answered in the affirmative, was on the grounds of self-incrimination. However, counsel can hardly be held responsible for failing to raise the proper objection in the face of State v. Owen, supra.
*879 Perhaps a more enlightened rule is the one adopted for the District of Columbia by the United States Court of Appeals for that circuit. The relevant part of D.C. Code, § 14-305 (1967), provides:
“A person is not incompetent to testify, in either civil or criminal proceedings, by reason of his having been convicted of crime. The fact of conviction may be given in evidence to affect his credibility as a witness, either upon the cross-examination of the witness or by evidence aliunde; and the party cross-examining him is not hound by his answers as to such matters.” (emphasis supplied)
The key words in this portion of the code are “may he given.”
It will he noted that our impeachment statute, I.C.R. § 9-1209 provides:
“A witness may he impeached hy the party against whom he was called * * * ” (emphasis supplied)
by showing that he had been convicted of a felony.
In recent cases construing the above quoted D.C.Code, the United States Court of Appeals has left to the discretion of the trial judge whether any, some, or all the prior convictions of an accused are admissible for the purpose of testing his credibility. Under these decisions the defendant who has a criminal record may ask the court to weigh the probative value of the convictions as to credibility against the degree of prejudice which the revelation of his past crimes would cause; and he may ask the court to consider whether it is more important for the jury to hear his story than to know about prior convictions in relation to his credibility. See Luck v. United States, 121 U.S.App.D.C. 151 , 348 F.2d 763 (1965); Brown v. United States, 370 F.2d 242 (D.C. Cir.1966); Stevens v. United States, 370 F.2d 485 (D.C.Cir.1966); Gordon v. United States, 383 F.2d 936 (D.C.Cir. Sept. 18, 1967.)
The reasoning behind all these decisions is especially well set forth in Stevens v. United States, supra, as follows:
“A serious question of fundamental unfairness arises when an evidentiary rule may deter a defendant from testifying in his own behalf or if he does testify subjects him to evidence highly prejudicial on the issue of guilt though inadmissible for that purpose.1 The pres-
“1. I do not refer to those special circumstances in which evidence of like offenses is admissible during the prosecution’s cases in chief to show a course of conduct.” (370 F.2d at 486)
ent rule permits this on the theory that it helps the jury determine whether or not to believe the defendant. Yet, to test the rule by this case, how does the bare fact that appellant was found guilty of larceny in 1935, when he was in his early twenties, affect his credibility in testifying at his 1965 trial? And if we assume the 1935 conviction to be relevant to his 1965 credibility, does not the effect of that conviction, together with his record of seven other convictions, carry over to the issue of guilt at the 1965 trial, an issue as to which his prior convictions were inadmissible? I think it does. A jury cannot be expected to departmentalize such evidence.
“Perhaps the evidence of a prior criminal record should be limited to a conviction which bears clearly on credibility— perjury, for example. * * * ”
There is substantial merit to the rule being applied in the District of Columbia; as, if and when this question is properly raised on appeal sometime in the future, it deserves careful consideration by this court.
McQUADE, J., concurs in this concurring opinion.