One of the Eighth Circuit cases cited with approval in Broadway, however, sheds some light on the type of other-offense evidence which, under its superseded test, should be excluded as too vague and uncertain. In Kraft v. United States, 238 F.2d 794 (8th Cir. 1956), defendant was charged with a scheme to defraud by inducing persons to send him money in anticipation of receiving "rare geraniums" as advertised in several newspapers. Kraft defended against the charge by denying that he had possessed the requisite criminal intent to defraud.
Id. at 1365. Had the government only attempted to show that Mr. Foote had previously been "called on the carpet" for his check writing, we might be faced with "mere accusations of some other offense" as in Kraft v. United States, 238 F.2d 794, 802 (8th Cir. 1956). Here, however, three witnesses testified that appellant admitted prior misuse of college funds and "[s]uch an admission, if made directly, is clear and convincing proof of his participation."
As a general rule, extrinsic evidence of other crimes is inadmissible to prove a defendant's bad character or criminal propensities. United States v. Crockett, 514 F.2d 64, 71 (5th Cir. 1975); United States v. Ostrowsky, 501 F.2d 318, 321 (7th Cir. 1974); Kraft v. United States, 238 F.2d 794, 801-02 (8th Cir. 1956). See generally 2 J. Wigmore, Evidence, § 305 at 205-06 (3d ed. 1940).
In addition to the practical point stressed by the trial judge, that Leonard probably had a pretty fair general idea of how $383,000 was being transmitted to him, the jury could also consider the fact that Leonard had no account at CMB, the peculiar method chosen to deliver the CMB official checks to him, and the pains taken by Leonard to keep them out of his FNCB account. Leonard further argues that the preponderance standard is not high enough for "similar act" evidence and points to statements that such evidence must be "plain, clear and conclusive" to be admissible. Kraft v. United States, 238 F.2d 794, 802 (8 Cir. 1956); United States v. Broadway, 477 F.2d 991, 995 (5 Cir. 1973). This view appears to rest on a misconception.
The Ohio transaction was not introduced merely to show the defendant's bad character, nor was the evidence of prior fraud of a vague and uncertain character. Compare Kraft v. United States, 8 Cir., 1956, 238 F.2d 794, 801-803. The Ohio fraud was almost identical in nature, it involved the same portrait trailer which was the subject of the alleged Florida fraud, and it was recent in time.
We have held that evidence of other crimes cannot be admitted if it is "of vague and uncertain character." United States v. Spica, 413 F.2d 129, 131 (8th Cir. 1969); Kraft v. United States, 238 F.2d 794, 802 (8th Cir. 1956); Gart v. United States, 294 F. 66 (8th Cir. 1923). It is the rule in this circuit as well that other crime evidence must be "clear and convincing."
The majority agrees with this so far as homicide goes but finds exception for arson cases and cases involving confessions. Even when the trial court determines that evidence of a prior act or crime is admissible as coming within one of the exceptions to the general rule, it still must determine whether the proof of the prior act is of a sufficient quality to permit its admissibility, and the courts have held, with considerable uniformity, that in cases falling under exceptions to the rule it is essential that proof of the prior act or offense be plain, clear and conclusive. Evidence concerning prior acts of a vague or uncertain character is not admissible. Kraft v. United States, 238 F.2d 794, 802 (8th Cir. 1956). Consequently, it should be apparent that evidence of prior merely suspicious occurrences is no substitute for clear and conclusive proof.
But the Eighth Circuit has required, in cases where intent or guilty knowledge is sought to be proved by evidence of similar offenses that the proof of other related offenses ". . . be plain, clear, and conclusive, and evidence of a vague and uncertain character is not admissible." United States v. Spica, 8 Cir. 1969, 413 F.2d 129, 131; Kraft v. United States, 8 Cir. 1956, 238 F.2d 794; Gart v. United States, 8 Cir. 1923, 294 F. 66; Paris v. United States, 8 Cir. 1919, 260 F. 529. By the requirement that evidence of other crimes be plain, clear and conclusive, the probative value of the evidence is held to outweigh the possibility of prejudice to the defendant. United States v. Spica, supra, 413 F.2d at 132.
It would serve little purpose in our overall analysis to detail that which we believe was or was not admissible. The law in this area has received full amplification. See Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954); Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892); United States v. Lewis, 423 F.2d 457 (8 Cir. 1970), cert. denied, 400 U.S. 905, 91 S.Ct. 146, 27 L.Ed.2d 142; Kraft v. United States, 238 F.2d 794 (8 Cir. 1956); Kempe v. United States, 151 F.2d 680 (8 Cir. 1945), cert. denied, 331 U.S. 843, 67 S.Ct. 1534, 91 L.Ed. 1864 (1946); United States v. Novik, 124 F.2d 107 (2 Cir. 1941), cert. denied, 315 U.S. 813, 62 S.Ct. 795, 86 L.Ed. 1212 (1942). Assuming arguendo error in some of the comments and testimony, and weighing the overall effect of this error balanced against the testimony relating to the defendants' guilt as a whole, we conclude that at its worst, the error was harmless.
Where a case falls within the exception, the proof must be clear and convincing. It will be unnecessary to discuss the point in this case as to whether or not this line of testimony fell within the exception to the general rule governing the proof of similar offenses, for the reason that in the case at bar we have no proof of an offense, but merely proof of a suspicious circumstance. See also, Zamora v. United States, 369 F.2d 855 (10th Cir. 1967); Kraft v. United States, 238 F.2d 794 (8th Cir. 1956); Weiss v. United States, 122 F.2d 675 (5th Cir. 1941). The trial judge cautioned the jury that this evidence was received for a limited purpose and no error is asserted in connection with the instruction which was given.