State v. Dickson ( 1961 )

HENRIOD, Justice.

I concur in the result but not in the main opinion’s apologia justifying State v. Neal,¹ in which case I declined participation. I think the bona fides of the prosecuting attorney should be no factor in determining the admissibility of erstwhile inadmissible evidence of previous unsubstantiated, unsupported, uncharged and unconvicted offenses, a factor implied in the Neal case. Nor do I think it justifiable to require an accused to give evidence against himself as to such unfounded charges on the tenuous basis that it might show he had “a strong motive for trying to shoot his way to freedom.” Felons generally like to escape, but previous ethereal accusations should be no vehicle in which to carry them to the gaol. .

That portion of the main opinion that refers to the Neal case and states that “The universally accepted general rule is that such evidence [of other crimes] is not admissible if its effect is merely to disgrace the defendant or show his propensity to commit crime [et seq.]” is a disarming statement not pertinent to the Neal or this case. It assumes, unwarrantedly, that the four other “alleged” crimes interjected into the Neal case had been proven. In the Neal case the “alleged” four crimes that supposedly went to show Neal guilty were not' 'shown to have been perpetrated and no foundation was laid to establish such offenses or proof thereof, — the only inference being that because a prosecutor, thumbing through some papers, and this court opining that he was acting in good faith, the inadmissible evidence by some sort of prestidigitation became inadmis-sibly admissible. I cannot subscribe.

1 . 123 Utah 93, 254 P.2d 1053.