dissenting:
I cannot agree with the conclusion reached in the foregoing opinion that the evidence of attempted sexual intercourse with Nora Porter was not properly admitted by the trial court. In my judgment the evidence as to the crime against nature and the attempted intercourse with Nora Porter was properly admitted by the court as a part of the res gestee of the act of intercourse with Ida Cedergren, upon which the State elected to prosecute and upon which conviction was had.
No precise rule can be laid down governing the ad- , missibility of evidence under the doctrine of res gestee. (24 Am. & Eng. Ency. of Law,—2d ed.—662; 3 Wigmore on Evidence, sec. 1795.) “All the surrounding facts of a transaction, or, as they are usually termed, the res gestee, may be submitted to a jury, provided they can be established by competent means sanctioned by the law and afford any fair presumption or inference as to-the question in dispute. * * * No competent means of ascertaining the truth can or ought to be neglected by which an individual would be governed and on which he would act with a view to his own concerns in ordinary life.” (Starkie on Evidence,—ioth Am. ed.—79.)
The “surrounding circumstances, constituting parts of the res gestee, may always be shown to the jury along with the principal fact, and their admissibility is determined by the judge according to the degree of their relation to- that fact and in the exercise of his sound discretion, it being extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description.” (1 Greenleaf on Evidence,—Lewis’ ed.—sec. 108.)
“The res gestee may be defined as those circumstances ■ which are the undesigned incidents of a particular litigated act and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of anyone concerned, whether participant or bystander. They may comprise things left undone as well as things done. Their sole distinguishing feature is that they should be the necessary incidents of the litigated act;—necessary in this sense, that they are part of the immediate preparations for or emanations of such act and are not produced by the calculated policy of the actors. In other words, they must stand in immediate causal relation to the act,—a relation not broken by the interposition of voluntary individual wariness, seeking to manufacture evidence for itself. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act.” (1 Wharton on Evidence,—2d ed.— sec. 259.)
The decisions as to the admission of evidence of a distinct substantive crime are numerous. In many of them it is stated that such evidence is admitted because the acts are a part of the same transaction as the crime for which the accused is being prosecuted. While reference is not always made in these decisions to the doctrine of res gestee, it is clear that the reasoning in support of the admission of another crime because it is a part of the same transaction is the same as that invoked when other crimes are admitted as a part of the res gestee or surrounding circumstances of the crime for which the accused is on trial. Such evidence of a collateral crime is admitted in these cases because it is relevant to the issue and tends to make it more or less probable, as these other offenses or acts are immediately and closely associated with the act for which the defendant is being tried.
In Hammond v. State, 41 So. Rep. (Ala.) 761, being a prosecution for murder, evidence that immediately after shooting the deceased the defendant shot the brother of the deceased was held admissible. See, also-, State v. Vaughan, 98 S. W. Rep. (Mo.) 2; Commonwealth v. Sturtivant, 117 Mass. 122.
In Davis v. State, 23 S. W. Rep. (Tex.) 684, the defendant was convicted of robbery, and, in a separate trial, of rape. Proof was admitted on both trials showing that he raped the prosecuting witness and afterwards robbed her.
In Rex v. Folkes, 1 Moody’s Eng. Crown Cas. 354, an indictment against -two prisoners, charging each, in different counts, as principal in the first degree and as an aider and abetter of other men in rape, evidence was held admissible of the several assaults on the same woman, on the same occasion, by the prisoner and other men, each assisting the other, in turn, in committing rapes upon the body of the prosecutrix. The doctrine of this case is quoted with approval, and other cases to the same effect cited, in 3 Russell on Crimes, (6th ed.) 407.
In State v. Dooley, 89 Iowa, 584, the defendant was indicted and tried for the murder of a young girl, Nellie Coons. The State was permitted to prove that in the same room where the dead body of Nellie Coons was found there was also found the dead body of her mother, and evidence was admitted showing the condition of the body and clothing. It was held proper to show the condition in which the child’s body was found and its surroundings, and incidentally that of the mother, in order that the connection of the defendant with the crime, and the circumstances and motives which prompted it, might be more fully understood, and the fact that in proving these matters another crime would necessarily be shown did not affect the right of the State to.introduce the evidence in question. This evidence tended to show that an assault with an intent to commit rape had been made upon the mother before she was killed.
In Proper v. State, 85 Wis. 615, evidence was admitted that the accused got into the bed in which the prosecutrix and an older girl were sleeping and had intercourse with the latter, as showing an indecent assault upon both and as corroborative of the testimony of the prosecutrix in respect to previous and subsequent assaults.
In Harmon v. Territory, 15 Okla. 147, the defendant was on trial for rape of one Annie Patt. The evidence showed that the prosecuting witness, with her sister, Lucy, visited, with her uncle, a certain saloon; that the men there threw the uncle out of the room and then committed a rape upon the prosecuting witness. Testimony was admitted, over the objection of the defendant, that, he committed a rape on the same occasion, in another room, upon the sister, Lucy. This evidence was held admissible, under the circumstances, to show why Lucy did not come' to the assistance of her sister.
In Thompson v. State, 11 Tex. Crim. App. 51, in a trial for rape, the prosecuting witness was allowed, over objec: tion, to narrate the circumstances of an assault made by the accused upon her father-in-law when the latter came to her rescue during her struggle with the accused, and she was also allowed to state that her father-in-law was dead at the time of the trial.
In State v. LaPage, 57 N. H. 245, testimony was admitted which tended to show that the prisoner, about, the time of the murder, was frequenting the neighborhood with the view of committing rape upon some one of the several young females who he knew would be likely to pass over the road where the murder was afterwards committed, as was also evidence of obscene and filthy language he had used with reference to these same young ladies, tending to show what thoughts were in his mind, the court holding that there was such connection of time, place and circumstances as to give this evidence a logical connection with the fact in issue. The court in that casé, however, held that the testimony of a woman- that the defendant had four years before committed the crime of rape upon her was improperly admitted.
This court has had occasion to discuss this question in a number of cases and the rule laid down here is in substantial accord with the authorities heretofore cited. The only difficulty is to decide whether in a given case the evidence showing a separate or distinct crime is fairly included within the res gestee of the crime on trial,—that the two acts form one transaction. In Hickam v. People, 137 Ill. 75, (a murder case,) it was held no error to admit' proof of the killing of a person other than the one named in the indictment and an assault upon another in the same difficulty, where the evidence was inseparable from the killing of the person named in the indictment and related to one and the same transaction.
In Lyons v. People, 137 Ill. 602, under an indictment for murder, it was stated that it was the general rule that proof of a distinct and substantive offense could not be admitted in support of another offense, but that that rule did not apply if the evidence tended in some way to prove the accused guilty of the crime for which he was on trial or when the two acts formed but one transaction.
In People v. White, 251 Ill. 67, this court said (p. 70) : “The evidence in any case should be confined to the issue being tried, but where there is a logical and natural connection between two acts, or where they form but one transaction, proof of both is proper.” It was there held, on an indictment for murder, that previous acts of the defendant, committed before the deceased was present, were properly admitted in evidence.
In Parkinson v. People, 135 Ill. 401, the court held that it was not permissible to prove a similar but distinct offense, occurring on another day, from that for which the accused was being tried, but the court stated (p. 405) : “Where a party is indicted for one offense and a complete, detailed narrative of that offense by the witnesses involves a recital of another offense, it is not error to permit them to complete the detailed narrative of the offense for which the party is indicted, notwithstanding the recital of an offense for which he was not indicted.” The evidence in question was to the effect that the complaining witness went with another woman to the laundry of the defendant, when and where he made assaults and committed offenses upon both of them.
In People v. Abrams, 249 Ill. 619, this court sustained a conviction when evidence had been admitted showing the defendant had at the same time and place committed the crime against nature upon two different girls.
The evidence for the State shows that on the day of the offense of which the accused was convicted the complaining witness and Nora Porter were invited by him to the office of the stone yard, taken by him into a room, the door fastened and the alleged offense committed, immediately followed by the other acts, and each of the two little girls given a small sum of money; that all of these occurrences took place in the same room within less than fifteen minutes of time. These acts were so closely and directly associated with each other that they formed, in reality, a part of one transaction, the detailed narrative of which would necessarily include all that took place in the room. Under any definition of res gestee it seems to me they were plainly a part of the circumstances surrounding and giving character to the ultimate fact in the case. These acts were so connected by time, place and circumstance with the central fact, that on reason and authority I can reach no other conclusion than that they were properly admissible as necessary incidents, clearly aiding in ascertaining the truth of the issue being tried.