In sеparate counts the state charged defendant with burglary and possession of burglary tools. The jury found him guilty *296 of each charge and fixed his punishment at imprisonment for six years and three years, respectively. After the trial court imposed those sentences, to run concurrently, defendant appealed.
The substantive facts are simple. Police stopped a car driven by Alvin Cluck in which defendant Jerry Crane was a passenger. In the front sеat they found a pistol, flashlights, chisels, pry bars and a lock punch. In the hands of a burglar these could be used as burglar tools. In the trunk, the police found items later identified as having been taken from the burglarized home of Joseph Politte. To show defendant’s felonious intent to use the discovered implements as burglar tools, the state introduced evidence of defendant’s prior conviction for burglary and showed that both defendant and his companion Alvin Cluck were known to police as burglars. Defendant offered no evidence and does not challenge the sufficiency of the evidence on either count.
As to the separate charge of possessing burglar tools, defendant does not challenge the admissibility of the state’s evidence of his prior burglary conviction and his reputation as a burglar. Such evidence is admissible to show burglarious intent.
State v. Wing,
Defendant’s primary point relied on is based on his premise that the evidence of his prior conviction and reputation as a burglar, although admissible on the possession charge, was inadmissible and prejudicial on the burglary count. The state conсedes the premise of defendant’s point but denies his conclusion that the court erred in admitting the challenged evidence in the same trial. Defendant persuasively argues that the challenged reputation evidence, although аdmissible on the count charging possession of burglary tools, was inadmissible and prejudicial on the burglary count. We concede a jury might improperly consider the reputation evidence in deciding on defendant’s guilt on the burglary charge.
Rule 24.04, V.A.M.R., Joinder of Offenses, effective since 1971, provides that separate offenses
may
be jointly charged and tried, but granting a motion for severance of charges is discretionary with the trial court.
State v. Brannom,
Defendant has properly preserved for review his challenge to the possession of burglary tools convictiоn.
By defendant’s second point he contends the trial court erred in admitting evidence about the reputation of a Miss Shirley York as a “fence” or receivor of stolen property. This arose during the testimony of police Officer Stephen Sorocko, one of the arresting officers. He testified he had never known defendant but did know defendant’s companion, Alvin Cluck, and also knew that one of Cluck’s associates was Shirley York. Sorocko was then asked if Shirley York’s reputation was known to the police. A side-bar colloquy followed and the state was unable to show any connection between Shirley York and the defendant, other than that Alvin Cluck knew her. The state offered to prove by witness Sorocko that Shirley York had a reputation as a “fence.” Defendant objected to testimony about the reputation of “an accomplice of an acсomplice” as being irrelevant. The court overruled the objection, and Officer Sorocko testified that Miss York’s reputation with police departments was that she was a fence, “a source of stolen prоperty.”
Defendant concedes that evidence of the burglarious reputation of an accused’s associate, such as that of Alvin Cluck, is admissible to circumstantially establish defendant’s felonious intent in possessing burglar
*297
tools.
State v. Watson,
Defense counsel cites no cases directly holding such evidence is inadmissible but we find his argument logical. He cites two analogous cases which, broadly construed, support his contention. In
State v. Richards,
Here, we must decide whether the fact that Alvin Cluck was an associate of a known “fence” was relevant to the issue of defendant’s burglarious intent in possessing the seized tools.
Our own research yields no case directly in point. The rule of “res inter alios acta” does support defendant’s argument. The phrase means “a thing done between others, or between third parties or strangers, [and] forbids the introduction of collateral facts which by their nature are incapable of affording any reasonable presumption of inference as to the principal matter in dispute.”
State v. Dupree,
For that reason thе evidence was irrelevant. “Evidence is considered relevant if the fact it tends to establish tends in turn to prove or disprove a fact in issue, or to corroborate evidence which is relevant and which bears on the principal issue.”
Charles F. Curry & Co. v. Hedrick,
The state argues that Miss York’s reputation is relevant because it corroborates Alvin Cluck’s reputation as a known burglar. Even were we to assume the evidence was relevant, however, it should have beеn excluded because it is prejudicial. Evidence of a collateral matter should be excluded if it brings into a case new controversial matters which cause prejudice disproportionate to the value and usefulness of the offered evidence.
Daniels v. Dillinger,
We hold the trial court’s admission of the testimony of Shirley York’s reputation was erroneous.
This brings us to the question of prejudicial or harmless error. “Error in the admission of evidence should not be declared harmless unless it is so without question.”
State v. Degraffenreid,
The possession chаrge against defendant was circumstantial and the record fails to show the jury disregarded or could not have been influenced by the admission of Shirley York’s reputation as a “fence.” Being unable to conclude the errоr was harmless, it follows that it was prejudicial.
As ruled in
State v. Burchett,
We believe this erroneous admission of evidence was an error materially affecting the jury verdict and requirеs the granting of a new trial. The scope of the new trial—as to one count or both—is within our discretion, “according to the circumstances of the case.” Section 547.290, RSMo. 1969. Thus, in
State v. Dixon,
Similarly, in
State v. Williams,
Here, evidence of the burglary and possession of burglar tools was closely connected both in time and place. While the evidence of defendant’s reputation as a burglar was relevant to the charge of possessing burglar tools it was inаdmissible and prejudicial on the charge of burglary. As in Williams, supra, the two charges were so interwoven that the outcome of one would most likely determine the outcome of the other.
We conclude the judgment should be reversed and remanded for a new trial on all issues, without prejudice to the defendant’s right to seek a severance of the two charges. It is so ordered.