State v. Fisher , 222 Kan. 76 ( 1977 )

Prager, J.,

concurring and dissenting.

I concur with the majority opinion except those portions of the syllabi and opinion dealing with the admission of evidence of prior offenses pursuant to K.S.A. 60-455. The rationale underlying my position is thoroughly set out in my dissent in State v. Gonzales, 217 Kan. 159, 535 P. 2d 988. While the crime charged here is not the same as in Gonzales, my reasons for the exclusion of such evidence are virtually the same. The majority states “the three like occurrences in the preceding year reflect an antecedent mental condition that evidentially points to the doing of the acts charged.” (Emphasis supplied.) This is merely another way of saying defendant had a predisposition to commit the crimes charged. Evidence of this sort is strictly prohibited by 60-455 and a long line of case law.

Admission of evidence of prior crimes, unless done with great caution, can have the effect of raising collateral issues, compel the defendant to meet charges not contained in an indictment or information, confuse him in his defense, and divert the jury from the charge immediately before it. The evidence of other offenses should be excluded at the new trial which we have ordered in this case.