delivered the following dissenting opinion.
At the doorway of a consideration of this case, we are confronted by a motion of counsel for defendant to dismiss the appeal and quash the indictment for the reason that Section 2099, L. O. L., under which the indictment was drawn, has been repealed and substituted by an act of the legislature approved January 31,1913. The crime with which defendant is charged was committed during the month of October, 1912. The grand jury returned the indictment December 2, 1912. On February 24, 1913, the trial jury found defendant guilty. The day following judgment was entered. On February 25,1913, the notice of appeal and undertaking were filed.
Section 2099, L. O. L., which was the law extant at the time of the commission of the crime, reads as follows : “If any person shall commit sodomy or the crime against nature, either with mankind or beast, such person, upon conviction thereof shall be punished by imprisonment in the penitentiary not less than one year nor more than five years.” By legislative enactment this section was amended in 1913, becoming effective June 4th of that year, so as to read: “If any person shall commit sodomy or the crime against nature, or any act or practice of sexual perversity, either with mankind or beast, or sustain osculatory relations with the private parts of any man, woman or child, or permit such relations to be sustained with his or her private parts, such person shall upon conviction thereof, be punished by imprisonment in the penitentiary not less than one year nor more than fifteen years ’ ’: Laws 1913, p. 56. From a time antedating the formation of this government the enactment of laws which impose a punishment for acts which were not punishable when committed have been prohibited, and, from a time equally *491remote a statute increasing the punishment of offenses which were committed before its enactment have been inhibited. So vitally are those principles associated with civil government that they are to be found in the federal Constitution and in the constitutions of the several states of the Union. Defendant occupies no position coming within those sacred rules, and therefore cannot beckon them to his aid. The amendatory act is without this case, as the defendant was indicted, tried, convicted and sentenced under the criminal section of the statute existing at the time the crime was committed. The status of the defendant will not be altered in the least by the change in the statute, and nothing remains to be done but the execution of the judgment.
The trial court is accused of committing error when it advised the jury that Harry Work was not an accomplice of Roy Kadel in the commission of the crime alleged in the indictment. The jurors were told that Roy Kadel was an accomplice of defendant, and that a conviction could not be had upon the uncorroborated testimony of an accomplice, but that his testimony must be supported by some evidence tending to connect defendant with the commission of the offense. The testimony of the witness Harry Work is undisputed, and, in narrative form, is that he met Roy Kadel on one of the busy thoroughfares of Portland, and accompanied him unwittingly to the office of the defendant, where both remained in the reception-room until Kadel was beckoned by defendant to enter his private office; that, growing impatient at the failure of Kadel to return, Work stepped into the hall and knocked on the door leading into defendant’s private office, whereupon defendant opened the door and Work entered and saw Kadel wiping his penis with a handkerchief; that Work ejaculated, “Hello, what is this?” and Kadel replied, “McAllister and I are having a little trade,” which, in *492the parlance of the morally depraved, means the performance of the act defined in the indictment; that Work further stated: “Well, I’m in a hurry; I am going back to the hotel” — and defendant remarked, “All right, boys, I’ll see you again”; thereat Work and Kadel stepped into the hallway and were gone. The record discloses that this was the only visitation these two boys ever made to McAllister’s office in each other’s company. This court in State v. Carr, 28 Or. 389 (42 Pac. 215), stated that whenever a conflict exists in the testimony as to whether the witness is or is not an accomplice, the issue must be submitted to the jury, but, where the facts are undisputed, the sole arbiter is the judge. Here, so far as the record unfolds the situation, no voice was raised in protest or contradiction of the testimony given by Work as to the details surrounding the filthy transaction staged in defendant’s office. Under the circumstances it became the plain duty of the trial court to declare that Work was not an accomplice, and in so doing no error was committed.
Additional error is predicated upon the refusal of the lower court to direct a verdict of not guilty, for the reason “there is no testimony in the case connecting the defendant with the commission of the crime outside of the testimony of accomplices. ’ ’ This assignment of error necessitates a brief review of the testimony. Boy Kadel, the person with whom the crime was committed, described in detail every repulsive step taken by defendant in the criminal transaction. Supplementing this testimony is the uncontradicted declaration of Harry Work, heretofore mentioned, and which corroborates Kadel in his statements of many of the situations surrounding the commission of the crime. Above all of this, defendant, when sojourning in Boston, Massachusetts, during the early fall of 1912, and prior to the time of the doing of the act alleged in the indictment, wrote, addressed, and mailed to Boy *493Kadel a postal card in words and figures as follows: “9/29/12. Dear Roy: I send you this as a mark of my appreciation of your frequent calls. [Signed] McAllister. ’ ’ The language employed by defendant in this message to Kadel indicates most strikingly the cordial relations existing between them, and manifests defendant’s appreciation of Kadel’s “frequent calls,” which, were for an illicit purpose. After considering the testimony on this phase of the case, en masse, we can but say the lower court acted wisely in refusing to entertain defendant’s motion for a directed verdict.
Grievous complaint is made by defendant of the action of the trial court in permitting evidence to be given conducing to show that defendant had committed the crime against nature with other persons, and, in the court telling the jury “that evidence of other offenses was admitted solely for whatever tendency it may have to show a motive on the part of this defendant for committing the crime with which he is charged by this indictment, and for whatever tendency it may have to show that the defendant was capable of committing the crime charged.” To my mind this suggests the most serious aspect presented on appeal.
The case of State v. Start, 65 Or. 178 (132 Pac. 512), is relied upon by counsel for defendant as conclusive of the law of this case. Start was indicted and convicted of committing the same disgusting crime. An appeal was taken to this court, and the judgment of conviction was reversed for the reason that a majority of this court held that an error was committed by the trial court in admitting evidence to the jury of the commission by the defendant of similar acts of depravity with other persons. I am aware of the large responsibility I assume in disregarding that case, which has never carried conviction to my mind, and unless overruled will remain a fruitful source of embarrassment in administering punishment to those de*494praved individual's affected with moral viciousness and degeneracy, The value of law is its proximity to reason, its certainty and universality. The two latter elements are the support of the rule known as stare decisis — to abide by decided eases. The abuse in the administration of law is to adhere blindly to a rule that savors of iniquity simply because it is a judicial decision. The first duty of a court is to decide the law correctly so far as it lies within the human mind. The next duty is to smite that rule of human action which is found to be unjust, however well it may be buttressed by precedent. Great reluctance to overthrow an established doctrine would naturally proceed from an established rule where property rights or individual liberty were at stake; but, where neither one nor the other of these long-respected rights have been intrenched by reason of judicial utterance, no hesitation should deter one from uprooting that rule which he believes to be subversive of common justice. The law of the Start case was made subsequent to the commission of the crime by the defendant McAllister, and after his trial and conviction, and therefore in no wise afforded him an assurance of immunity from the commission of an act for which he had been tried and convicted.
The presiding judge was circumspect in admitting the testimony to which objection is made, and told the jury that it could not be considered for the purpose of showing the character of the defendant, or to excite prejudice against him, or be used to corroborate the testimony of Kadel. That a person cannot be convicted of one offense upon the proof that he committed another is a general rule of law that is certainly so old as to have been long laid up among its settled elements, but to this principle of law are several well-recognized exceptions which doubtlessly were in the mind of the trial court when it allowed the jury to receive evidence *495of similar defenses committed by defendant with other persons, upon the hypothesis that the evidence might tend to show a motive and a capacity to commit the crime alleged in the indictment. Criminal motive is the inducement present in the mind of a person, causing him first to intend, then later to commit the crime. It exists as a component in every crime, and frequently is, when discovered, a powerful aid in the detection of the perpetrator. True it is that evidence of an independent crime which has no connection with that for which the accused is on trial cannot be proven simply to disclose a criminal tendency to commit a crime. Yet such evidence is admissible if it shows an emotion which supposedly led defendant to the doing of the act. That is this case. "When the state introduced the testimony of independent, yet similar, crimes committed by defendant upon other boys, it. showed the emotion which prompted defendant to invite to his private office Roy Kadel, the lad with whom the vile act was committed; that defendant’s association with Kadel was for bestial purposes; that defendant’s dealings with Kadel were not prompted by natural affection; that defendant courted Kadel’s friendship for the purpose of satisfying a lustful and unnatural passion. The inquiry logically arises, what motive induced defendant to usher Kadel into his office? Was it in response to a legitimate business transaction? The law presumes it was. To overcome that presumption and to show that defendant entertained an emotion to perform a forbidden and unnatural act with Kadel evidence of similar crimes with other boys was admitted. Where no motive can be shown it is indeed hard to convince the ordinary juror’s mind that defendant has committed the crime with which he is charged, for men do not ordinarily commit unlawful acts unless there is in their minds a motive sufficient to break down the barriers that nature has set up in opposition thereto. *496One of these harriers is a controlled and natural sex instinct for the opposite gender, and when men are accused of a crime involving a perverted or inverted sex instinct, it becomes important to seek the motive that impelled the act. Confessedly no man would commit this unnatural act unless his motive be to satisfy a perverted sexual passion, and to prove that emotion it was pertinent to show that defendant had revealed its existence by similar offenses with other persons. “Mental capacity,” says Wigmore in his excellent work on Evidence, “like other human qualities or conditions, may conceivably be evidenced circumstantially by three classes of facts: (1) The person’s outward conduct, manifesting' the inwárd and causing condition; (2) pre-existing external circumstances, tending to produce a special mental condition; and (3) the prior or subsequent existence of the condition, from which its existence at the time in question may be inferred”: Section 227.
Mental capacity or capability must not be confounded with a mere tendency to commit a crime, as the latter is never a probative fact in the proof of the commission of an offense. Evidence of the former element must be restricted to that character of crimes coming under the classification of unnatural or abnormal offenses — crimes which alone can be associated with mental abnormality, superinduced by moral depravity. If the crime under consideration is one that a normal man, induced by natural impulses might commit, no purpose would be accomplished by showing the mental capacity of the offender, as that specie of testimony would simply show a tendency or likelihood to commit the crime, but if the crime is one impossible of conception by a normal man, then the capacity or the capability is relative and in fact evidential. By way of a concrete example: A is on trial for the crime of murder, arson, larceny, etc., crimes which are sup*497posed to be tbe result of a natural and oft-occurring mental impulse. Let us take tbe first example, murder. Proof of other similar crimes committed by defendant would be incompetent to prove the homicide with wbicb be was charged because that would be proffering evidence of a tendency, and not a mental capacity or capability, to perpetrate tbe crime. But, reversing the illustration, A is accused of and is on trial for committing tbe crime against nature, proof of tbe commission by defendant of crimes of a like nature at other times would evince a mental capacity or abnormal perversity from wbicb guilt of tbe crime might be logically inferred, as no one would do such an unnatural act unless be possessed an abnormal perversion, wbicb is never presumed, but, on tbe contrary, must be proven. In virtue of tbe unnatural quality of tbe crime tbe evidence was admissible.
During tbe delivery of tbe charge to tbe jury the court remarked: “Tbe court thinks that a man with normal sexual instincts is incapable of committing tbe crime, and that it is only a person of abnormal sexual sense that is capable of committing it. So if you are satisfied that one was possessed of this unnatural or abnormal sexual sense, you might infer that be bad a motive, a reason or a force, impelling him to do such an act,” etc. Defendant insists that this expression of the court invaded tbe province of tbe jury, and was prejudicial to defendant. Tbe statute of this state requires tbe court to present to tbe jury “all matters of law wbicb it thinks necessary for their information in giving their verdict, but it shall not present tbe facts of tbe case”: Section 139, L. O. L. When tbe court assumes tbe existence of a disputed fact, it thereby commits an error, but in this case no dispute arose over tbe horrible character of tbe acts, but only as to defendant’s commission of tbe act. Section 729, *498L. O. L., authorizes the court to assume certain facts, such as the laws of nature. This crime from its very name suggests that its commission is unnatural, for it is denominated “the crime against nature.” Therefore, if its commission is opposed to nature and is unnatural, the court gave utterance, to a truism sanctioned by statute when he said “that a man with normal sexual instincts is unable to commit the crime.” No fact is better understood to modern medical science than that sodomy and its allied vicious concomitants are never committed except by persons impelled by a perverted and diseased mind. The court made no error in this respect.
For the reasons herein stated I believe no errors were committed by the trial court and that the judgment of conviction should be sustained, and therefore dissent from the opinion of the majority of the court.
Judgment should be affirmed.
Mr. Chief Justice McBride and Mr. Justice Eakin concur.