BRETT, J.
The plaintiff in error, Jake Roberson, defendant below, was charged by information in the district court of Ottawa county, Okla., with the murder of Ben (Doc) Wilson. It was alleged in the information he shot and killed Wilson with a .38 caliber pistol in the Blue Goose Cafe in the town of Fairland, Ottawa county, Okla., on February 22, 1947.
It will not be necessary to detail the facts in connection with the killing notwithstanding the fact that the defendant makes, numerous assignments of error as grounds for reversal of the judgment and sentence herein imposed. However, it is essential that we call attention to the fact that the plea of self-defense was supported by substantial evidence. The defendant testified that the deceased was armed with a pistol and fired at him. Defendant’s son testified Wilson fired at defendant two or three times. In this he was supported by the testimony of a reputable doctor, who said that Roberson had been twice nicked in the back of the neck by bullets or fragments thereof. Moreover, there was evidence to the effect that after decedent fired his shot or shots the defendant drew his gun and fired two shots, and that the decedent then dropped his gun on the floor and lunged headlong into the defendant. When the killing was over there was evidence offered by the defendant that when the body of Doc Wilson was turned over a nickel plated pistol allegedly used by Wilson was found under him. Further detailing of the evidence is we deem unnecessary.
[220]*220To determine the issues herein involved it will be necessary only to consider the two assignments urged in the defendant’s brief. Therein he first contends the verdict of the jury is the result of passion and prejudice created and developed by the introduction of highly prejudicial, incompetent and improper evidence, to all of which the. defendant objected and excepted at the time of introduction, and at the close of all the evidence moved the court to withdraw the same from consideration of the jury, and being overruled, did except.
It clearly appears that the defendant attacked the character and reputation of the deceased, to the effect that the deceased Wilson had a bad reputation as being a violent and turbulent person. Evidence was offered by the defendant for that purpose. Before offering evidence as to Wilson being a violent and turbulent person, the defendant had laid the proper predicate by showing that he had acted in self-defense in shooting Wilson. Under the authorities in this state, this procedure was permissible. In Murphy v. State, 72 Okla. Cr. 1, 112 P. 2d 438, 443, it was said:
“On a trial for murder where defendant has laid a proper foundation by evidence tending to show that, in committing the homicide he acted in self-defense, he may introduce evidence of the turbulent and dangerous character or reputation of deceased.
“On a trial for murder where the defense is justifiable homicide in self-defense, and there is evidence to support the same, evidence of specific acts of violence on the part of deceased against persons other than defendant, being known to defendant prior to the homicide, is admissible for the purpose of showing the disposition of deceased to become violent without provocation, and as tending to show Ms condition of mind and violent temper on such occasions and his disposition to use deadly weapons.”
[221]*221In support of the foregoing rule announced in Murphy v. State, supra, this court cited 64 A.L.R. 1029, and Annotation 121 A.L.R. 380; Sneed v. Territory, 16 Okla. 641, 86 P. 70, 8 Ann. Cas. 354; Mulkey v. State, 5 Okla. Cr. 75, 113 P. 532; Mathews v. State, 16 Okla. Cr. 466, 184 P. 468; Elliott v. State, 18 Okla. Cr. 230, 194 P. 267; Edwards v. State, 58 Okla. Cr. 15, 48 P. 2d 1087. In Ammons v. State, 28 Okla. Cr. 433, 231 P. 326, it was said:
“Where the issue of self-defense is raised and there is some evidence to support it, it is error to exclude evidence that the prosecuting witness, prior to and at the time of the difficulty, had the general reputation of be-. ing a violent, quarrelsome, and turbulent man, and that such general reputation was known to the defendant.”
See, also, Jenkins v. State, 80 Okla. Cr. 328, 161 P. 2d 90, 162 P. 2d 336; In re Fraley, 4 Okla. Cr. 91, 111 P. 662. In light of the foregoing authorities, the defendant having laid the proper foundation by evidence establishing his plea of self-defense, it was then permissible for him to attack the character of the decedent for turbulence and violence. It would have been error to have denied the defendant the right so to do under the conditions herein presented.
It is conceded by the Attorney General that at no time did the defendant offer any proof as to his own good character and reputation in any regard. He remained silent in relation thereto, even on the point of being quiet and peaceable. The Attorney General concedes in his answer brief that under the law where the defendant has not made an issue of his reputation in a homicide case, prompted by the almost universal agreement of the courts the state may not attack the same. This concession was to the effect that the state is not entitled to introduce [222]*222evidence of the bad character or reputation of accused unless lie clearly and expressly puts Ms character in issue by introducing évidence of good character. In this connection, see 22 C.J.S., Criminal Law, § 676, page 1069, Note 20, and the numerous authorities therein cited, as well as the consistent holdings to that effect by this court. Flynn v. State, 68 Okla. Cr. 72, 96 P. 2d 96, this court said:
“It is a fundamental principle of criminal law that the character of the defendant cannot be impeached or attacked by the state, unless he puts his character in issue by introducing evidence of good character.”
In the body of the opinion 68 Okla. Cr. at page 85, 96 P. 2d at page 102 it was said:
“In Jones v. State, 20 Okla. Cr. 154, 172, 201 P. 664, 670, this court in the body of the opinion stated:
“ 'It is not admissible to show the bad character of the defendant until after the defendant himself puts his good character in issue, and then only by showing his general reputation, and not by particular acts. Evidence of other criminal acts not in issue in the ease should be excluded; such testimony has a tendency to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the charge at issue, or to take proof of it as justifying the defendant’s condemnation, irrespective of his guilt of the crime for which he is being tried. Moreover, the use of alleged particular acts, ranging over the entire period of the defendant’s life, makes it impossible for him to prepare to refute the charges, any or all of- which may be mere fabrications. The rule as above stated has received the judicial sanction of the courts of this country for more than a century. Underhill on Evidence, § 82; 1 Wigmore on Evidence, 233; 10 R.C.L. 953; Porter v. State, 8 Okla. Cr. 64, 126 P. 699; Corliss v. State, 12 Okla. Cr. 526, 159 P. 1015.’
[223]*223“In Porter v. State, 8 Okla. Cr. 64, 126 P. 699, this court said in the first syllabus:
“ 'Where the character or reputation of the accused is not an element of the crime charged, the prosecution cannot put it in issue by offering evidence of his bad character, unless the defendant first offers evidence of his good character. The prosecution may then rebut it by evidence of bad character.’ ”
As observed in Jones v. State, supra, such attack is limited to the defendant’s general reputation. In Lizar v. State, 74 Okla. Cr. 368, 126 P. 2d 552, 553, this court said:
“The character of the defendant cannot be impeached or attacked by the state, unless he puts his character in issue by introducing evidence of good character.”
See, also, Smith v. State, 75 Okla. Cr. 55, 128 P. 2d 250; Pressley v. State, 71 Okla. Cr. 436, 112 P. 2d 809. In Duggins v. State, 76 Okla. Cr. 168, 135 P. 2d 347, 351, wherein the court said:
“There are two other errors shown in the record which would have been sufficient to have required a reversal of this case, towit: The effort of the county attorney to prove the bad reputation of defendant when the defendant had not placed his reputation in issue by offering evidence of his good reputation. Porter v. State, 8 Okla. Cr. 64, 126 P. 699; Morris v. State, 26 Okla. Cr. 399, 224 P. 377; Martin v. State, 29 Okla. Cr. 136, 232 P. 966.”
Such has. been the consistent and deeply embedded holdings in this state as is revealed by the following cases: Bean v. State, 77 Okla. Cr. 73, 138 P. 2d 503; Edwards v. State, 85 Okla. Cr. 125, 186 P. 2d 333; Giles v. State, 55 Okla. Cr. 145, 28 P. 2d 600; Uptown v. State, 12 Okla. Cr. 593, 160 P. 1134; Scott v. State, 48 Okla. Cr. 7, 288 P. 999; Tindel v. State, 47 Okla. Cr. 268, 287 P. 1109; [224]*224Pearson v. State, 44 Okla. Cr. 19, 279 P. 700; Hales v. State, 39 Okla. Cr. 297, 264 P. 918; Hales v. State, 39 Okla. Cr. 300, 264 P. 919; Harris v. State, 39 Okla. Cr. 4, 262 P. 700; Hargrove v. State, 37 Okla. Cr. 386, 258 P. 1060; Williams v. State, 37 Okla. Cr. 323, 258 P. 356; Wyrick v. State, 37 Okla. Cr. 115, 255 P. 163; Millett v. State, 36 Okla. Cr. 309, 253 P. 1039; Lumpkins v. State, 36 Okla. Cr. 256, 253 P. 909; Alexander v. State, 35 Okla. Cr. 89, 248 P. 873; Lindsey v. State, 31 Okla. Cr. 406, 239 P. 684; Brown v. State, 31 Okla. Cr. 85, 237 P. 141; Todd v. State, 30 Okla. Cr. 410, 236 P. 437; Grubbs v. State, 30 Okla. Cr. 256, 235 P. 1115; McPhetridge v. State, 30 Okla. Cr. 41, 234 P. 785; Martin v. State, 29 Okla. Cr. 136, 232 P. 966; Jenkins v. State, 28 Okla. Cr. 249, 230 P. 293; Smart v. State, 27 Okla. Cr. 433, 228 P. 611; Morris v. State, 26 Okla. Cr. 399, 224 P. 377; Salyer v. State, 25 Okla. Cr. 433, 221 P. 118; Whitlow v. State, 24 Okla. Cr. 307, 218 P. 162; Munson v. State, 23 Okla. Cr. 64, 212 P. 438; Reams v. State, 12 Okla. Cr. 363, 157 P. 273; Rogers v. State, 8 Okla. Cr. 226, 127 P. 365; Watson v. State, 7 Okla. Cr. 590, 124 P. 1101. Notwithstanding the fact that the foregoing rule is all but universally applied throughout the nation, and has been consistently followed both before and since statehood in Oklahoma, the county attorney on cross-examination of the defendant, proceeded on the theory that the defendant, by introducing evidence of specific acts of turbulence and violence committed by the deceased during his lifetime, opened up the subject whereby the state might make similar inquiry of the defendant covering a long period of time and as to specific acts, even though he had not made an issue of his character and reputation. The record reveals the following interrogation of the defendant on cross-examination, by way of attack on the defendant’s reputation, and to prove he was of a violent and turbulent [225]*225disposition, all in relation to specific acts, and in violation of the long established rules hereinbefore referred to:
“Q. Jake, as a matter of fact you have been rather turbulent yourself in the past? Mr. Nesbitt: Objected to, improper cross-examination. The Court: Overruled. Mr. Nesbitt: Exception. * * * Q. Jake, isn’t it true on various occasions you have shot that gun in and about the town? Mr. Nesbitt: Object to that; incompetent, irrelevant and immaterial; improper cross-examination, and if intended as impeaching, the question is not in proper form, has not fixed the time and place. The Court: I think it is too general and indefinite — sustained. (We include the last question only as characteristic of the cross-examination.) Q. About four years ago. Jake, isn’t it true you shot up the front of Dr. Smith’s office? Mr. Nesbitt: Objected to; incompetent, irrelevant improper cross-examination; not in proper form as an impeaching question, too remote in period of time to be of materiality in this case. The Court: There is no explanation in the question, nothing to show by it was shot up, whether it was an altercation or just shooting for fun or what. That is the objection the court has to the question, sustained. (Again we include this question, only because of the prejudicial character of the same. Some of the jurors no doubt believed such was true or the prosecutor would not have inquired about it.)”
The object of this type of cross-examination and the reason .it was permitted clearly appears in the following statements of the special prosecutor and the trial judge:
“Mr. J. J. Smith (Spepial prosecutor) (Out of the presence of the jury) : The state offers to show by this witness that he is a turbulent, high-tempered man given to seeing trouble, given to firing his pistol, having admittedly carried it continuously for several years, upon divers occasions without reason or excuse or provocation; that this evidence now becomes competent so that in rebuttal the offer may be supported by independent proof, not having been competent in chief. Mr. Nesbitt: To which of[226]*226fer tlie defendant objects for the reason that the same is incompetent, improper cross-examination, not in proper form as an impeaching question, too remote in period of time to be of materiality, and for the further reason no proper foundation has been developed in this case to inquire into specific acts of turbulence and violence. The Court: The court is of the opinion that the defendant has opened up the question by his line of testimony in showing that the deceased was a quarrelsome, turbulent and dangerous felloAv, to prove that he likewise is a quarrelsome, turbulent and dangerous person. The court having admitted the testimony offered by the defendant as to the turbulence of the deceased on the theory it had a tendency to show Avho Avas the aggressor and also to show Avhether or not the defendant Avas reasonable and had just cause for fearing the deceased, and that since the defendant had elected to open up that question as to the turbulence of the deceased, that he now likewise is subject to attack by the State for the sole purpose of showing and bearing upon the question of who was the aggressor, the defendant having interposed a plea of self-defense. The court announces the policy to counsel of folloAving this rule- in the trial of this case. The offer made by Judge Smith is not in keeping Avith the question. General proof in keeping with the offer will be allowed. Mr. Nesbitt: The defendant moves to strike all the testimony concerning alleged turbulent acts on the part of the defendant in this case for the reason that it is not only incompetent and subject to objection on the grounds heretofore interposed, 'but on the further ground that there is no evidence to show that the deceased Avas aware or knew of these turbulent acts, or relied thereon. The Court: The Court takes the position that it is immaterial in determining Avhether or not he was the aggressor as to whether or not he knew it, or whether he didn’t. Mr. Nesbitt: Exception.”
With the foregoing announcement by the court, the special prosecutor was then unrestrained in his cross-examination, as revealed by the following questions :
[227]*227“Q. Jake, I will ask you to state if it isn’t a fact that you on many occasions you have promiscuously and indiscreetly used your gun and have caused many disturbances? Mr. Nesbitt: To which question the defendant objects for the same that the same is too general in its terms, improper cross-examination, incompetent, not in proper form as anr impeaching question, no particular time being fixed and for the further reason that none of the alleged turbulent acts on the part of the defendant in this case are shown to have been communicated to or known by the deceased in the case, or that he relied upon them in the manner charged in this complaint. The Court: Overrated. Mr. Nesbitt: Exception. A. No, sir. * * * Q. Jake going back just a minute to that question; in the early fall of 1948 didn’t you shoot at Paul Jones in the top part of your building after a poker game? A. No, sir. Mr. Nesbitt: The defendant objects for the reason that the question calls for incompetent, irrelevant matter; not in proper form as an impeaching question; too remote in period of time to be of materiality in this case, and even if true the same has not 'been shown to have been communicated, known by or acted upon by the deceased in the altercation and controversy in this case. The Court: Overruled. Mr. Nesbitt: Exception. A. No, sir. There never was a card played there after I bought that place. They used to play pitch there before I bought it. * ' * Q. Isn’t it a fact that in the latter part of 39 or the first part of 1940 you pointed your gun, started to shoot your gun at one Bud Nelson, and John Jones grabbed the gun? Mr. Nesbitt: Objected to; improper cross-examination, not in proper form as an impeaching question, too remote in period of time to be of materiality in this case and for the further reason that even if true, which we don’t admit it to be of course, the same is not shown to have been communicated, known by or acted upon by deceased. The Court: Where is that alleged to have occurred? Mr. Smith: In the Blue Goose Cafe. The Court: Overruled. Mr. Nesbitt: Exception. A. No, sir.”
[228]*228There was not a single solitary line of proof to support the questions asked on cross-examination of the defendant. This situation presents a perfect picture of the special prosecutor testifying by inference and innuendo. All of the foregoing evidence and colloquy clearly shows the nature of the cross-examination and under the circumstances its inadmissible character, as well as the theory upon which the same was admitted in evidence. In light of the foregoing authorities and the fact that the defendant had not put his character or reputation in issue, it was clearly reversible error for the state to cross-examine the defendant on the specific prejudicial matters hereinbefore set forth.
In support of the rule invoked by the trial court the Attorney General cites in his reply brief 40 C.J.S., Homicide, § 273, Note 44, wherein the rule contended for by the defendant is stated, as follows:
“It has been held, however, that where accused tenders the factual issue of the bad character of his victim to substantiate his plea of self-defense, he thereby opens the door for the admission of evidence of his own bad reputation as a quarrelsome, violent, and turbulent man”, citing in support thereof the isolated case of State v. Robinson, 344 Mo. 1094, 130 S.W. 530.
Obviously, this case is in direct conflict with and an exception to the rule that the defendant’s character and reputation cannot be attacked until he puts the same in issue by offering evidence of his own good character or by others in his behalf to that effect. In face of the overwhelming weight of authority in support of the rule followed in Oklahoma and most all the other states, we are not impressed with its efficacy. ' The reasons given for not following it are many. Wigmore says in vol. 1, § 57, page 454, Note 1, “the reason for not permitting an attack to be made upon the character and reputation of the [229]*229defendant until he makes such the issue is founded upon the long established policy of avoiding the uncontrollable and undue prejudice, and possible unjust condemnation which such evidence might induce” against the defendant, and to which we add, thus result in his condemnation upon collateral issues and not the primary issue on trial, thereby depriving him of his right to a fair and impartial trial. Not only is the Missouri case in conflict with the general rule, but the propriety of this cross-examination is in direct conflict with the holding in Porter v. State, supra, wherein after stating the general rule, against the right of the state to.attack defendant’s character before he puts his character in issue, in the body of the opinion said, 8 Okla. Cr. at page 67, 126 P. at page 700:
“The fact that appellant placed in issue the general reputation of the deceased as to his being a dangerous man did not place the character of appellant for peace in issue. The questions ashed the witness Steadham, with reference to the character of appellant, were all highly improper. The insinuation which they conveyed was that appellant was an all-around bad man and a horse thief. It presented a style of prosecution of which this court does not approve. No man should he clothed with sanctity or visited with condemnation simply because he is accused of crime. He is entitled to fair treatment on his trial, and the presumption of innocence is his'legal right until he has been convicted by the jury. It would be a reproach to our courts to allow a defendant to be convicted by unfair means. A verdict should be based upon evidence, and not upon suspicions and prejudice.
“In the case of Hicks v. United States, 2 Okla. Cr. 626, 103 P. 873, this court said:
“ ‘Unfairness, whether intentional or not, taints everything it touches, and will vitiate a verdict, unless it clearly appears from the record that there was no rational conclusion at which the jury could have arrived favorable [230]*230to the defendant; and it must be absolutely clear upon this question to wipe this taint out. Such is not the condition of the record in this case.’ ”
In Munson v. State, 23 Okla. Cr. 64, 212 P. 438, in syllabus 2, the court said:
“In the trial of a criminal case the issue is singular, and is based upon the question, ‘Did the defendant commit the crime charged?’ and not upon the question, ‘Has the defendant the reputation of having committed the crime charged, or some similar crime?’ ”
In the body of the opinion 23 Okla. Cr. at page 67, 212 P. at page 439 the cpurt said:
“It has been repeatedly decided by this ceurt that the fact that an offense has been committed cannot be proven by common rumor or general repute.
“It is a fundamental principle of criminal law that the character of a defendant cannot be impeached or attacked by the state unless he puts his character in issue by introducing evidence of good character. Says Bishop:
“ ‘Bad character is never admissible in evidence against a defendant as ground for presuming guilt. This doctrine is absolute; thus, the evidence of stealing a horse cannot be reinforced by showing that the defendant is an associate of horse thieves.’ 1 Bishop’s New Cr. Proc. par. 1112.
“If it were the law that anything which has a natural tendency to lead the mind towards a conclusion that a person charged with crime is guilty must be admitted in evidence against him on the trial of that charge, the argument for the state would doubtless be hard to answer; but the law is otherwise. It is the law that a defendant in a criminal case is presumed to be innocent until the contrary is proved by competent evidence beyond a reasonable doubt. Whether the law in this respect is wise or unwise, whether it accords with human reason and experience, whether it affords too great protection to the criminal or too little to society, are not questions with [231]*231which we have to do. It is not the province of the courts to change and relax the rules of evidence in order to facilitate convictions in a particular class of offense. Until the lawmaking power intervenes and prescribes differently, the same rales of evidence mast govern the trials of defendants in this class of offenses that govern in all other criminal trials. Kirk et al. v. State, 11 Okla. Cr. 203, 145 P. 307; Sims v State, 11 Okla. Cr. 382, 146 P. 914; Richards v. State, 12 Okla. Cr. 224, 154 P. 72; Cantrell v. State, 12 Okla. Cr. 534, 159 P. 1092; Upton v. State, 12 Okla. Cr. 593, 160 P. 1134. It follows that the admission of evidence as to the general repatation of defendant was prejndicial.”
Moreover, the evidence soaght to be elicited, on cross-examination does not fall within any of the recognized exceptions to the general rale that the character and repatation of the defendant cannot be attacked antil he pats the same in issae by offering evidence of his good character. This coart has repeatedly held that evidence of other offenses sach as a considerable portion of the foregoing cross-examination soaght to elicit is admissible only for the following parposes, in Lizar v. State, supra:
“The general rale is that when a defendant is pat apon trial for one offense, he shoald be convicted, if at all, by evidence which shows that he is guilty of that offense alone; and evidence which in any manner shows, or tends to show, that he has committed another crime, wholly independent, even though it be a crime of the same sort, is irrelevant and inadmissible.
“As an exception to this general rale, evidence of other offenses recently committed, similar to that charged, is admissible when it tends to establish a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or when it shows guilty knowledge or intent in the commission of the offense charged, or where the other offenses are a part of the res gestae.”
[232]*232See, also, in this connection Pressley v. State, supra; Bean v. State, supra; Pierson v. State, supra; Wyrick v. State, supra; and in Salyer v. State, 25 Okla. Cr. 433, 221 P. 118:
“Where the prosecuting attorney asks a defendant on cross-examination improper questions, and where the questions are asked without expectation of answers, and where the plain purpose is to prejudice the jury against the defendant, the judgment of conviction will be reversed, unless it appears that the questions could not have influenced the verdict.”
Herein it appears that the questions were asked without expectation of answers, and were of such a prejudicial nature that they no doubt did influence the jury. It clearly appears that most all of the matter sought to be covered in the cross-examination hereinbefore set forth, even if it had been in the form of substantive proof, does not come within any of the exceptions discussed in Lizar v. State, supra. The cross-examination herein complained of constituted an indirect unsupported attack upon the reputation of the defendant in violation of the rule against such attack where the defendant had not made an issue of his character and reputation by offering evidence in support thereof. Therefore, it clearly appears that the cross-examination herein under consideration does not even rise to the high level of an' evidentiary attack, but may be defined as a dangling attack, based only upon speculation, surmise, innuendo, conjecture and inference created by the series of questions asked by the state with the obvious purpose to discredit and destroy the defendant’s reputation, so as to bring about his conviction. regardless of his plea of self-defense, and his evidence in-support thereof, a procedure this court has never sanctioned and often condemned.
[233]*233The writer of this opinion was first impressed by the Missouri rule, and concedes now it is not without arguable merit. But mature consideration leads the majority of the court to the conclusion that to adopt the reasoning of State v. Robinson, supra, on the assumption that it would bring to light the whole truth as asserted «therein, and that the key being with the defendant, he could either open the door by making an attack upon the reputation of the deceased for turbulence and violence or keep it closed by refraining from so doing, would require us to break with long established precedents, which have served the nation and this state well in the administration of justice. Moreover, the adoption of the Missouri rule in our opinion would not result in the exposition of the truth, so much as it would tend to open the door to confusion and irreparable prejudice, which would be created by overzealous and ambitious, special prosecutors (who too many times are interested only in getting convictions regardless of the manner and means.) Then, too, under the Missouri rule, the temptation of abuse is too great to be resisted, to ask questions such as herein involved, on the assumption that the prosecutor would prove the facts of inquiry in rebuttal, and then failing so to do seek to excuse himself on the theory that he had acted in good faith. We believe that the temptation thus created would offset any benefits to be derived from such procedure. In other words, the evils we would flee to would exceed the sins we would seek to avoid. Furthermore, to follow the Missouri rule would plunge us into an extended experimentation relative to a rule of evidence tested in the crucible of centuries of time and designed to protect the rights of the accused. We are of the opinion that the experimentation of the past has established this safeguard around the defendant as a “must” in the administration of justice. Such must continue to [234]*234be the rule if we are to indulge the presumption of innocence until guilt has been established beyond a reasonable doubt. It is contended that the Missouri rule is a progressive one, designed to get the whole truth. If we could be sure that such was the case and the inquiry would end in relevancy of the matter elicited, we would be more impressed with the Missouri rule. But it seems inescapable to us, that it would raise a variety of issues, divert the attention of the one immediately before the jury and, in many instances, provoke the conviction of the accused upon general principles instead of on the issues involved in the particular case. In other words, it would substitute totalitarian justice for fair and impartial justice. As some of the authorities hereinbefore cited hold, the issue on trial in a homicide case is singular. We are not persuaded that the invocation of the Missouri rule would lead to convictions upon the particular charge confronting the defendant, but Ave fear that a conviction would be had in many instances upon proof of other acts in no way connected Avith the charge as laid in the information. Furthermore, it would have a tendency to confuse the defendant in his defense. He would never know what issue he was called upon to meet until the same was sprung as a surprise in the trial of the case. Witness, as an example, the cross-examination in the instant case. The defendant was not only required to answer for the sin with which he stood charged, but many maledictions, in no way connected with the charge. Such procedure Avas contrary to that fundamental rule in our jurisprudence that the accused shall be informed of the accusation he shall be required to meet. Under the Missouri rule no defendant could approach a trial with any degree of certainty relative to the issues he would face by innuendo, speculation, unfounded inference, and many times pure fabrications. Furthermore we must [235]*235bear in mind that while judges, trained in the law, may be able to eliminate from a mass of general criminative facts those which do not directly bear upon the crime charged against the accused, such is not always true of the ability of juries. Certainly, they are not trained in the processes of elimination of irrelevant, from relevant and controlling matter. The reason judges preside over trials is because they are trained in the processes of analysis and exclusion of prejudicial evidence which tends to raise in the jury’s mind an antipathy to the prisoner. If we are to adopt the Missouri rule no such meticulous care as required by judges in eliminating irrelevant issues in the trial of a case would be needed. Under the adoption of this rule, we fear trials would degenerate so far as the defendant was concerned into boards of inquisition to determine the issues, not upon the single fact charged in the information but extend to the entire scope of the life of the defendant which could only result in conviction in many cases on general principles. We can visualize many instances, under the proof, where the defendant would be entitled to be exonerated- on the charge as laid in the information, and yet become the victim of the jury’s general antipathy towards him. 1 Wigmore on Evidence § 194, page 646, gives the reasons for exclusion of evidence such as was sought to be injected into the trial of the instant case in the foregoing cross-examination, as follows:
“It may almost be said that it is because of this indubitable relevancy of such evidence that it is excluded. It is objectionable, not because it has no appreciable probative value, but because it has too much. The natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of [236]*236the present charge. Moreover, the nse of alleged particular acts ranging over the entire period of the defendant’s life makes it impossible for him to be prepared to refute the charge, any or all of which may be mere fabrications.”
He further says at page 650, the reasons for excluding this type of evidence is:
“(1) The over-strong tendency to believe the defendant guilty of the charge merely because he is a likely person to do such acts; (2) The tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped unpunished from other offences; both of these represent the principle of Undue Prejudice (post, § 1904) ; (3) The injustice of attacking one necessarily unprepared to demonstrate that the attacking evidence is fabricated; this represents the principle of Unfair Surprise (post, § 1849).
“* * * (4) that the Confusion of new Issues is a reason for avoiding such evidence * *
This court has demonstrated its willingness to treat the law as a progressive science and to abandon out-moded procedural practices, demonstrated to be erroneous, and not an aid to the administration of justice. Ex parte Lewis, 85 Okla. Cr. 322, 188 P. 2d 367. Likewise we have demonstrated our reluctance to abandon true and tried principles merely for the expediency of the prosecutor in order that he may find it easier to obtain convictions. The first duty of this court is to protect the defendant’s right to a fair and impartial trial, and that we will do, to avoid such situations as we are herein confronted with. It is not our place to legislate but to interpret. If the Legislature finds the rule of evidence herein involved outmoded as a vehicle of justice, they may change the same by laying down a new and different rule. Hence, we are loathe to disturb long established rules of evidence such as are herein involved which have demonstrated their free[237]*237dom from abuses. To tinker with this time honored and proven rule of evidence would tend to destroy the wholesome concept that this is a government of laws and not of men. It would tend to subject a citizen to the caprice of men and not of laws. It would create the possibility for political persecution through the abuse of judicial power by changing the rules of evidence to fit the occasion. It may be said such is not the case at hand and that is true, but, where the possibility of abuse exists there is always the threat, and the measure of judicial wisdom is not only in immediate justice but in anticipatory discernment. In fact, the true test of judicial wisdom is in the pronouncement of rules in any case that will obviate abuses of power. Every case should be measured not in its immediate effect but prospectively. In no other way may, particularly life and liberty, as well as property be secure and this continue to be a government of laws and not of men. State v. Stout et al., 90 Okla. Cr. 35, 210 P. 2d 199. Here we know that the old rule contended for by the defendant has worked well for generations. We would have no excuse to abandon it unless we can clearly see that the new rule contended for would work better. Certainly we would not be justified in abandoning it unless .we could see a minimum of abuse that we do not now see.
Finally, it suffices to say that in any event this is not a case where the Missouri rule can be invoked. The state did not bring this case within that rule. The Missouri rule is not satisfied by merely asking highly prejudicial questions on cross-examination. If the trial court desired to invoke the same, the cross-examination should have been followed up with proof relative to the matters inquired about on cross-examination. Hence, we could [238]*238not invoke the rule in this case were we inclined so to do, which we are not so disposed to do.
The state of this record presents a case where the defendant’s rights were prejudiced by unfair cross-examination, from which conclusions could be drawn by the jury based upon surmise, suspicion, speculation, innuendo and inference only, and not proof. Such procedure was highly prejudicial under the long established principles of this state. Regardless of the defendant’s’ guilt he is entitled to a fair and impartial trial, free from the taint of inquisitorial prejudice. This the defendant did not have in the instant case.
In addition to the foregoing assignment, the defendant made numerous other assignments of error which have substantial merit. One of these assignments deserving more than passing notice related to the court’s failure to grant a continuance on the ground that two of the defendant’s material witnesses were temporarily out of the state. It shall not be necessary to go into an extended discussion of this point. It appears that their whereabouts were known, and that they could have been available at the next term of court, and that the evidence of one of the absent witnesses, Franklin McGinnis, was most material to the defendant. It would have been to the effect that a certain nickel plated pistol, he identified at the preliminary, was the one he saw Doc Wilson have in his hand just before the killing, and that he saw him take it from his pocket and hold it in his hand on his knee. This was material to the plea of self-defense, and to have granted the continuance for the term would not have entailed too great a delay. The crime was committed on February 27, 1947, and the trial set for May 21, 1947. No other request for continuance had been made. Here the motion was not resisted on the ground it was [239]*239made in bad faith and was without merit. This court has held in many cases that the failure to grant a continuance under such conditions as herein involved constituted an abuse of discretion and reversible error. Compton v. State, 48 Okla. Cr. 120, 289 P. 794; Dawes v. State, 34 Okla. Cr. 225, 246 P. 482; Madison v. State, 6 Okla. Cr. 356, 118 P. 617, Ann. Cas. 1913C, 484. This apparent error combined with the other errors hereinbefore discussed, convinces the majority of the court that this case cannot be reconciled by applying the harmless error doctrine to it. But, for all of the foregoing reasons, it must be and is accordingly reversed and remanded for a new trial.
JONES, P. J., concurs. POWELL, J., dissents.