¶1(dissenting in part).
¶2I concur in all of the opinion circulated by the Chief Justice except the holding that the case should be reversed because the jurors might have indulged in improper speculation as to the contents of the magazine article to the prejudice of the defendant. It seems to me this statement is itself based on speculation.
¶3At the top of page 9 of the proposed opinion a quotation from Section 238, II Wigmore on Evidence, 3d Ed., 1940, p. 5 reads as follows:
“ … Where a person makes inquiries, either by word of mouth or by messenger, or by experimentation searches for knowledge, it is natural to infer that he designs to use the knowledge thus sought; and if the knowledge is needed or is adapted to help in doing the act in question, the inquiries or experiments are thus evidential of a design to do the act. …>>
¶4In the second paragraph of this same section we find:
“Most evidence of this sort needs no judicial ruling to determine its relevancy, and the precedents deal with only a limited number of the possible uses of such evidence. The discretion of the trial Court should control in all these cases; it is impossible to lay down any general rule that will be definite enough to serve as a solution for each instance; and it is poor' policy to attempt in a Supreme Court to pass upon the probative value of each given piece of conduct.”
¶5I fully agree with the statement that there was sufficient proof to tie the magazine article and the defendant together.
¶6The substance of the testimony of Sheriff West as to the magazine article is that it was laying on a little dresser type thing beside the bed of the defendant; that it was open and turned back to a story entitled “The Skull Cap Robber” or something about a robber; that he showed the article to the Assistant District Attorney and one of the officers from Tucumcari; that he forgot the magazine and left it in the appellant’s home, and later telephoned to the officers at Tucumcari to get it but they did not find it.
¶7There seems to be a scarcity of authority on the subject but I believe the cited section of Wigmore favors the state. Bear in mind the fact that the prosecuting witness testified the defendant had a stocking pulled over part of his face when the holdup occurred and that he, the witness, jerked it off.
¶8I believe the testimony was admissible and file this partial dissent.