The opinion
Mr. Justice Bock
dissenting.
I deeply regret my inability to concur in tbe denial of a rehearing herein. Tbe administration of justice, of necessity, must be impersonal. A reviewing court in its rulings is not only concerned with the immediate persons affected but, more so, with a correct declaration of tbe legal principles involved. Tbe guilt or innocence of defendants is solely tbe province of tbe jury, under proper rulings on the evidence and correct instructions covering tbe law applicable. Tbe immediate individuals involved may be guilty of tbe crime charged, but our concern is more than that. What we establish as tbe law and proper and admissible evidence in this case extends to similar future cases. In fact, it is humanly impossible to foretell what effect tbe pronouncement of erroneous legal principles may have upon the liberties of men in tbe future. Trial courts are expected to apply tbe legal principles, which we announce or approve, in subsequent trials involving similar issues. We are not concerned here with mere technical errors, which a reviewing court may disregard as being nonprejudicial, but we are concerned with a fundamental right to a fair trial.
Section 16, article II, of our state Constitution states, “That in criminal prosecutions tbe accused shall bave tbe right * * * to demand tbe nature and cause of tbe accusation. ’ ’ That, of course, means before trial, and it is to be inferred that tbe words, “nature and cause of tbe accusation” relate to tbe crime on which tbe defendant will be tried, and no other. Fehringer v. People, 59 Colo. 3, 9 , 147 Pac. 361 .
To try tbe accused on any offense other than tbe one *527 charged is not, under American jurisprudence, a fair trial. Consistent with this statement, and as applied to proof of other offenses than those charged, we have the general and universal rule that, “On a prosecution for a particular crime, evidence which in any manner shows or tends to show that accused has committed another crime wholly independent of that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible. The rule extends to proof of an accusation of another crime, as well as to evidence of its actual commission. ” 16 C. J. 586-7. There are, however, exceptions to this rule, as, for instance, evidence designed to prove intent, motive and malice, or a plan or system of criminal action.
The information here charged defendants, first, with the substantive crime of assault on one Leo Barnes, with intent to kill and murder him; and second, that they conspired to and with each other to kill and murder Leo Barnes.
The people, over repeated objections by counsel for defendants, introduced evidence showing a burglary committed at Cottonwood Inn in Douglas county, Colorado, on November 9, 1936. No evidence was introduced connecting the defendant Stephens with this burglary. His first alleged complicity in the offenses charged was of date December 4, 1936, four days prior to the attempt to kill Barnes. There was evidence that the other defendants participated in the burglary, but the evidence concerning it was clearly inadmissible as to him, although it was admissible to show motive on the part of the Smaldones.
“Evidence which shows or tends to show the commission of other offenses by accused * * * should be carefully restricted.” 16 C. J. 587. We said in Jaynes v. People, 44 Colo. 535, 544 , 99 Pac. 325 : “When such testimony is received the trial judge should then limit it to the purpose for which it is admitted. Perhaps we have never determined that a failure to so limit it when not *528 requested by the defendant is reversible error, but we have intimated in Warford v. The People, supra [ 43 Colo. 107 ], that this course should be pursued by trial courts.”
Although repeatedly requested by counsel for the defendants, at no time was this evidence concerning- the burglary limited to the purpose for which it was ostensibly admitted. The trial court at one time stated that it was “not going- to give any directions about the effects of this testimony or about whom it applies until all of the testimony is in.” And later, that “if this testimony is not connected up, the jury will be properly instructed on that.” This the court, although requested, failed to do. Nor did the court, although requested, instruct the jury that in so far as the defendant Stephens is concerned, the burglary evidence should be entirely disregarded. This was grevious error and highly prejudicial. At no time did the trial court instruct or advise the jury as to the effect and purpose of the testimony concerning the burglary.
The majority opinion seems to imply that since Stephens participated with the other defendants in an illegal project of gambling, in which he demanded from the complaining witness Barnes cuts in the illicit gains, that the evidence as to the burglary also was admissible against him, if such illegal actions throw light on his motives or on those of his codefendants in committing’ the crimes charged. The fallacy of this position is, first, that there was no evidence of participation in any illegal gambling-projects by Stephens, either at the time of the Cottonwood Inn burglary or at the time of the commission of the crimes charged on December 8, 1936, or between those dates; and second, assuming- that there was, it was simply proof of another offense than the one charged, which the trial court should properly have restricted to its purposes and effect, but which it failed to do. Under no previously known rules of evidence was testimony of *529 the burglary admissible as to Stephens under the charges and the facts and circumstances here involved.
The record shows other prejudicial errors, to which reference is made by the Chief Justice in his dissenting opinion announced in the original disposition of this case. Repetition is needless.
I am of the opinion that rehearing should he granted.
Mr. Chiee Justice Hilliard and Mr. Justice Francis E. Bouck concur in this dissent.