It is the universally accepted rule that when a person is on trial for his life or his liberty any evidence relative to other offenses committed by him is inadmissible. The reason for this rule is primarily that such evidence is not relevant to the issues of the case, that is, the accused's guilt or innocence of the particular crime with which he is charged. In addition, it would subject him to charges against which he is unprepared to defend, thereby prejudicing his cause. However, as pointed out in the original opinion this rule "is subject to a number of exceptions, as where such evidence tends directly or fairly to prove his guilt of the crime charged, or to connect him with it, or to rebut the defensive theory or a special defense, or to establish the absence of mistake or accident, or where the crime charged and the other offense are closely related or connected * * *." 22 C.J.S., Criminal Law, § 683, p. 1089.
We granted a rehearing in this case when for the first time in the state's application for rehearing our attention was called to the fact that in cases of rape, a crime involving sex, there is an additional exception to this general rule. As pointed out in the majority opinion on rehearing, it is the weight of authority in other states that evidence of other offenses of a similar nature committed by the accused on the same alleged victim are admissible in the trial of sexual offenses, if not too far remote, *Page 407 for corroboration purposes and to show the lustful disposition of the accused.
The trial judge in the instant case admitted the evidence objected to on the theory that it showed "the probability or improbability of the prosecuting witness' story, and also for the purpose of corroborating her testimony."
It is difficult for me to appreciate the rationale of the applicability of the rule in the case at bar. To allow the prosecuting witness to testify in corroboration of her own testimony that she was raped on the date charged in the indictment that she was raped by the accused some eight days previous thereto is, in my opinion, something to which I cannot quite agree. Nor can I agree that the alleged prior act of the accused in this respect can be said to any more create a presumption as to the lustful disposition of the accused than the act for which he was being tried would show. Moreover, the lustful disposition of the accused is not an element of the crime of rape nor can it be said to be an issue in the case.
I therefore cast my lot with the minority, feeling and believing that such evidence is not only contrary to the fundamental basis for the admissibility of evidence, that is, its relevancy to the issues involved, but that it is in direct violation of the constitutional *Page 408 guarantee to every accused that he shall have a fair and impartial trial, for such evidence, in my opinion, can have no other effect than to prejudice and confuse the jury.
I think the verdict in the instant case illustrates this for if the jury believed the story told by the prosecuting witness and was neither confused nor prejudiced, it is reasonable to assume it would have brought in a verdict of guilty as charged, that is, it would have found the accused guilty of aggravated rape. On the other hand, if it did not believe her story that she was raped on September 12, 1944, which she attempted to corroborate by a story that she was also raped on September 4, 1944, then it was its duty to acquit the accused, not to bring in a verdict of attempt to commit rape, for while such a verdict is responsive to a charge of aggravated rape, my appreciation of the case is that no such issue was developed in the case from a factual standpoint.
I have no doubt that but for the abhorrence and deep-rooted contempt with which all sex crimes are viewed this additional exception to the general rule would never have found its way into the jurisprudence of the courts of the land.
*Page 409I therefore respectfully dissent from the majority opinion.