The opinion
Mr. Justice Hilliard
dissenting.
It appears that for several years both Barnes, the prosecuting* witness, and Stephens, one of the plaintiffs in error, have been professional operating gamblers; that at times jointly, at other times separately, and at still other times in conjunction with others, they conducted a gambling place in Douglas county, called Blakeland Inn; that plaintiffs in error Smaldones, never interested otherwise, were employed there from time to time; that in June, 1936, the place was closed by district court decree, and Barnes, Stephens and another were enjoined from conducting gambling in Douglas county; that subsequent thereto, and notwithstanding, Barnes did open and operate a gambling place in the same county, called Cottonwood Club; that November 9, 1936, as was testified here, but in relation to which no formal charge was ever preferred, that club was robbed of a safe and contents, $1,600, and that the Smaldones, but not Stephens, participated in the alleged robbery; that following the robbery the authorities closed the place; that December 4, 1936, Barnes called on Stephens and suggested reopening* Cottonwood and inquired whether Stephens would object; that, as Barnes testified, Stephens evinced a willingness to that end, provided he were given a “cut” of one-third, which Barnes regarded as too great a share, and offered one-fifth; that neither being willing to yield, Barnes stated he would open Cottonwood on his own account, to which Stephens replied, as Barnes testified, that if he did he would not live a week, Stephens version being that Barnes invited him to join with Barnes and *519 another in reopening- Cottonwood, “the three of us to go in three ways,” but that he declined to have part in it because he was under injunctive order to refrain from gambling in Douglas county, and denied that he made threats against Barnes; that December 8, 1936, occurred the incident out of which this prosecution grew. Barnes had not reopened Cottonwood.
On the other hand, it does not appear that from June, 1936, when Blakeland was injunetively closed, to December 8,1936', the date of the injury to Barnes, any relationship whatever existed between Stephens and the Smaldones, or that they were in communication directly or indirectly. There was no evidence that prior to December 4,1936, when at his own instance Barnes called on Stephens to discuss reopening Cottonwood, their relations were ever other than friendly.
The first point that claims my attention is that the trial court erred in admitting testimony of the alleged robbery at the Cottonwood Club. It is to be remembered that the crime charged here has to do with “Offenses against the person,” 2 ’35 C. S. A. chapter 48, article 4, sections 30-80, while the crime involved in the Cottonwood Club theft comes within the statutory definition. “Offenses relating to property. ” 2 ’35 C. S. A. chapter 48, article 6, subdivision 1, §§84-112. Plaintiffs in error severally objected to the evidence, but upon assurance from the prosecutor that it would be shown that they had part in the robbery—indicative of motive, as said—the court overruled the objection, but remarked that if the evidence did not so disclose and indicate, that it would be stricken. One witness did testify that the Smaldones engaged in the robbery, but there was no evidence that Stephens was in any way connected with the affair. Indeed, the court opinion here says the prosecution “failed” to connect Stephens with the robbery incident. In addition to objecting- to the evidence in the first instance, plaintiffs in error at the close of the people’s case, as well as at the conclusion of all testimony, each by his counsel, moved to *520 strike the claimed offending evidence and for an instruction to the jury to disregard it. Likewise, they emphasized their contention by requested instructions. The court ruled adversely.
I think there was grave error. The charge being tried and the claimed robbery, not only are inherently different and independent crimes, as the decisions say, but are so catalogued by statute. ‘ ‘ The general rule is that evidence of other independent crimes is not admissible.” Cargill v. People, 73 Colo. 218 , 214 Pac. 387 . In Jaynes v. People, 44 Colo. 535 , 99 Pac. 325 , 16 Ann. Cas. 787, cited with approval in the Cargill case, we said that, “The reason for the rule is that no person shall be convicted of an offense by proving that he is guilty of another. Evidence of this character,” we further emphasized, “tends to create a prejudice in the minds of the jury against the accused; multiplies the issues, and may confuse and mislead the jury.” See, also, Warford v. People, 43 Colo. 107 , 96 Pac. 556 ; Webb v. People, 97 Colo. 262 , 49 P. (2d) 381 ; Munfrada v. People, 99 Colo. 80 , 60 P. (2d) 223 ; Smith v. People, 100 Colo. 332 , 67 P. (2d) 498 . It is asserted that the evidence was admissible to prove motive and intent of plaintiffs in error, ‘ ‘ since, ’ ’ as urged by the attorney general, “it is established in this case that the motive and intent of these defendants was to monopolize the gambling racket in and around Denver. ’ ’ The vice of that contention is that nothing of the kind was established. There was no testimony to that effect. It is true that plaintiffs in error and Barnes had to do with gambling at Blakeland—the Smaldones only as employed men, but after that establishment was closed by court order in June, 1936, nothing appears to show that plaintiffs in error, or any of them, engaged or attempted to engage in any form of gambling*. Stephens was personally enjoined from gambling and there was no evidence that he did anything in violation of the decree. He did not set up a gambling establishment for himself or in conjunc *521 tion with, others in Douglas county or elsewhere, nor did he do aught to prevent others from engaging in any activity of that nature. As to the Smaldones, there is nothing to indicate that they at any time or place, were operating gamblers, or that they had, assumed to have, or were thought to have, any power of control in that field. Assuming there was a robbery at Cottonwood—Barnes gambling establishment—and that the Smaldones had part in it, neither of which was established or attempted to be established by formal judicial inquiry (all agree— even this court—that Stephens was not shown to have been involved in it), what purpose other than the gain immediately and directly to be attained, as the result of the robbery, the record considered, could have motivated the Smaldones? By all the books, the testimony was not competent to establish motive for a homicidal attempt a month thereafter. Reception of the testimony, as well as the court’s disposition of the point thereafter, only served to create a “prejudice in the minds of the jury against the accused, ’ ’ the Smaldones in particular, Stephens generally. As to the latter there is the additional favoring fact that it is not now claimed (although, as stated in the court opinion, the prosecutor hoped to establish it) he had part in, was cognizant of, or condoned the alleged robbery. “In all the appellate courts, at the present day,” says the Supreme Court of Washington, “evidence that the defendant has been guilty of a separate and distinct crime from that for which he is being-tried, when offered for the purpose of aiding the conviction of the defendant, is held inadmissible, and reversible error when admitted over proper objections.
‘ ‘ The rule is founded in reason. The defendant comes to the trial prepared to meet only the crime with which he is accused, and he cannot from the nature of things, be prepared to defend against other crimes that may be charged against him. Moreover, it is not the policy of the law to convict a man of one crime by showing that he *522 has, at some time, been guilty of another. * * * its inevitable effect is to prejudice the minds of the jury against him, causing them to find him guilty of the crime charged on doubtful evidence, or evidence that would not otherwise produce a conviction. It violates, also, another well-settled rule of criminal jurisprudence, namely, it permits the state to attack the character of the defendant when he does not himself put his character in issue.” State v. Eder, 36 Wash. 482 , 78 Pac. 1023 . Clearly, as I conceive, the court should have made clear to the jury that the offending evidence was not to be considered. Its power to that end was exhaustively invoked by diligent and capable counsel.
I am not unmindful of the exceptions to the rule, “as where the evidence of another offense tends to prove some element of the one for which the accused is being tried, or the motive for committing the acts which it is claimed constitute the offense for which he is on trial, as where such independent offenses, in connection with the one for which he is being tried, are committed by the accused for some particular purpose which he intends to accomplish.” Jaynes v. People, supra, “When such testimony is received the trial judge should then limit it to the purpose for which it is admitted. * * * These precautions should be observed, because of the fact, as above indicated, that such evidence tends to create a prejudice in the minds of the jury.” Id. See, also, Warford v. People, supra. “As a general rule, the evidence of other crimes in criminal cases is admitted to establish or strengthen some particular element or ingredient of the crime for which the accused is being tried, and in such case it is the duty of the trial court to instruct the jury to consider the evidence as to the extraneous crime, only for the particular purpose for which it was received and in some cases it is decided this is so, even though there be no request on the part of the accused for such instruction, and no exception is taken at the trial *523 to the omission or refusal to give it.” 62 L. R. A. p. 357. Evidence concerning the Cottonwood Club incident, objected to at every stage of the proceedings, was permitted to go to the jury precisely as if it were direct evidence of guilt of defendants of the crime charged. I cannot regard the procedure adopted other than as seriously prejudicial.
On facts developed through deposition or otherwise, by the prosecution before trial, it appeared there would be evidence of the Cottonwood Club incident, and that the Smaldones, but not Stephens, had part in it; that there would be evidence that Eugene Smaldone was seen loitering about the Barnes automobile shortly before the explosion which injured him; while as to Clyde Smaldone and Stephens there would be no such evidence. Based thereon, Stephens and Clyde Smaldone, by motions adequate in substance and form, individually sought separate trials and suffered denial, I think admission of evidence of the Cottonwood Club robbery, incompetent as to Stephens, was prejudicial to him, and that is the test. Kolkman v. People, 89 Colo. 8 , 300 Pac. 575 . Likewise as to the evidence of what Eugene Smaldone was doing just before the explosion. It was prejudicial to Clyde Smaldone and Stephens. I think there should have been order of severance as to each of the movants.
In the district attorney’s closing argument he said: “They have said there is no evidence here against these defendants. I point out to you that the case against defendant O’Hara [O’Hara was included in the information] was dismissed on a directed verdict by the court. If there had not been a prima facie case made as to these other defendants they would not be here. ’ ’ One of counsel for defendants objected to the quoted remarks of the district attorney, saying: “If your Honor please, I dislike very much to interrupt counsel in his argument, but that is a highly prejudicial remark and I ask that the jury be instructed to disregard it. ’ ’ The court: “If there was not a prima facie case, it probably would not be submitted *524 to the jury.” The prosecutor’s comment was highly improper, as I think, and the court should have admonished the jury to that effect. Instead, the court suggested its approval in unmistakable language, and, as said by the Supreme Court of North Carolina, “By suffering the jury to consider it, his Honor added to it the weight of his authority, and thereby suffered them to be misled.” State v. Freeman, 49 N. C. (IV Jones’ Law) 5. There never comes a time in a criminal trial to a jury when the court may say to the jury, the accused is guilty. The expression “prima facie” (presumptive fact) is not pertinent in such a trial. Where at the conclusion of the people’s case in a prosecution against Jones and Smith each moves for a directed verdict of not guilty, the court may grant Jones’ motion and deny that of Smith, but it may not then, or ever, intimate to the jury its estimate of the probative force of the evidence as of any stage of presentation, in its application to Smith. If in the situation I have instanced Smith offered no evidence, still the entire issue would have been for the jury. In such circumstances, I venture to suggest, the conrt would neither be permitted to say for itself, nor be sustained in allowing the prosecutor to say in its behalf, that at the close of the people’s case the guilt of the accused had been established. It will make for clarity of thought to keep constantly in view the issue in a criminal trial. The defense, always and ever, is “Not Guilty.” “It is not incumbent upon the defendant in a criminal case,” said our late distinguished Chief Justice Campbell, “either by his own evidence or that of the people, or both combined, to prove anything to the satisfaction of the jury. It is sufficient * * * if the defendant, by any evidence in the case, succeeds in raising a reasonable doubt in the minds of the jury of the truth of any essential element of the charge made against him.” Zipperian v. People, 33 Colo. 134 , 79 Pac. 1018 . See, also, McBride v. People, 60 Colo. 435 , 153 Pac. 751 . It has been held to be “error for the prosecuting attorney to state in effect that the court be *525 lieves defendant guilty.” 16 C. J. 908, §2257. In Paul v. State, 99 Ark. 558 , 139 S. W. 287 , a case, essentially in point, the prosecuting attorney in closing argument to the jury said: “If there was not enough evidence to convict the defendant * * *, the court would not have permitted the case to go to the jury, and this warrants you in convicting him.” Objection to this statement was overruled, as was a request to the court to withdraw the argument from the jury. The author of the opinion in commenting on this matter said: ‘ ‘ The Attorney General in this case confesses- error, and we think his confession of error is well taken, both on the insufficiency of the evidence to sustain the verdict and as to the argument of counsel. As to the latter he says: ‘In this case the court allowed the prosecuting attorney to state that the court thought defendant guilty, and that would warrant the jury in convicting. The court, by refusing to interfere, approved and indorsed the statement of the prosecuting attorney. The court should in no manner intimate what its opinion of the -facts is and if it does- so it errs. The error is prejudicial, and calls for reversal. ’ The Attorney General is correct in this statement.” The Kentucky Court of appeals, reviewing a parallel record, said: ‘ ‘ The. commonwealth attorney further stated in the argument that inasmuch as the court had sustained the motion of F. M. Ashcraft for a peremptory instruction, and had overruled the same as to -E. P. Ashcraft, that he, the court, had evidently thought the defendant guilty. The defendant objected to this statement. The court overruled the objection. We think this was error. Whatever opinion the court may have had as to applicant’s guilt or innocence, it was not proper for it to have been imparted to-the jury, and, of course was not proper for the Commonwealth attorney to have.-been permitted to state the fact. It could properly-not affect either the fact of defendant’s guilt nor the jury’s duty to themelsves to determine it.” Ashcraft v. Commonwealth, 24 Ky. 488 , 68 S. W. 847 .
*526 My belief is that plaintiffs in error did not bave a fair trial. As a reviewing minister of justice I have no other concern.
Mr. Justice Fbancis E. Bouck concurs in this opinion.
The following dissenting opinion was filed March 13, 1939.