(dissenting). — The general rule announced in the majority opinion for determining whether there has been former jeopardy is to look at the language of the former indictment, and if, under that indictment, the crime for which conviction is sought in the second prosecution might have been punished, then defendant has been already in jeopardy. Such a rule sounds plausible, and would be reasonable if it were necessary in the indictment to so describe and identify the transaction charged as a crime that it could be distinguished by such description from every other transaction, and if it were required that the proof correspond to the allegations in every particular. But the technical requirements of the law as to allegations and proof in criminal prosecutions have been so far ameliorated by construction and by statute that under an indictment which is as specific as required any one of many distinct and independent transactions might be proven. Time and place need not, in general, be proven as charged, and where the crime relates to chattel property, a description by genus and number is usually sufficient. It will not be questioned that an indictment for stealing a horse would be sufficient if it charged that defendant, at a time and place named, did feloniously take, steal, and carry away one horse, of the goods and chattels of A. B., of the value of $100. Yet under such an indictment the State might prove the transaction relied upon to have been committed at any time within the period of limitations, and *311at any place within the jurisdiction of the court, and the particular description of the animal as to its age, color, and value would be wholly .immaterial. Now, under the rule adopted by the majority, if defendant has been put on trial on such indictment, and convicted or acquitted under evidence tending to show that he stole a white horse twenty-five years old, of the value of $50, from A. B.’s barn in Des Moines on the 1st day of January, 1905, he cannot be subsequently tried for the act of stealing a black horse six years old, of the value of $500, from A. B.’s pasture lot ten miles away (if in the same county) on the 1st day of November, 1904. Or, to use another illustration, if defendant is put on trial for embezzling $5 of the money of A. B., he cannot be subsequently put on trial for an embezzlement of another $5 before the finding of the first indictment. As only one larceny or one embezzlement can be charged in one indictment, a defendant can be punished for but one larceny of a horse or one embezzlement of $5 committed before he is first indicted for one of such crimes, no matter how many such crimes he may have committed. This seems to me a most-peculiar result, and not justified by any authority among the many cited in the majority opinion. In State v. Gallaugher, 123 Iowa, 378, the writer of this dissent has already expressed his dissatisfaction with the construction of our statutes mitigating the rigors of criminal procedure, so as to turn them into pitfalls for the prosecution. It is true, the majority would allow the court to look at the particular transaction sought to be proven on the second trial to discover whether it might have been proved under tire first indictment as constituting a crime, or an essential element of the crime charged in the first indictment; but the prosecution is not to be allowed to show what particular transaction was sought to be proven under the first indictment for the purpose of showing that the two transactions are wholly distinct. Evidence of the identity of the transactions is to be admitted to set the defendant free, although the indictments are for different *312crimes; but evidence tbat tbe transactions are wholly distinct is to be rejected, although the result is to relieve the defendant from punishment for one of two independent crimes which he may have committed. If defendant is indicted for the first crime before he commits the second, he may be punished for both; but if the first is not discovered until after he has committed the second, then he can be punished for but one. I should hesitate to make such a suggestion in a public way, encouraging a criminal who has stolen one horse or embezzled one $5 bill to continue to steal horses or embezzle $5 bills from the same person with the assurance that, no matter how many times the crime is committed before an indictment is returned for one of them, he can be put on trial but once and for a single transaction — provided he is careful to steal but one horse or embezzle but a single sum of $5 at a time — if I did not feel sure that the court would repudiate the rule when put to the test in such a case.
The majority lay emphasis on the right of the State to elect which of several transactions it shall attempt to establish, but why should it be required to elect when there have been two distinct crimes ? Why should it not be allowed to try the defendant for each? But in this particular case stress is laid on the fact that evidence of different transactions was admitted before the State made its election. The time of election was immaterial, for, as the majority say, the evidence of other acts would have been admissible in this case though the State had from the beginning been insisting on conviction for one specific act of criminal intercourse. Nor is this rule peculiar to rape or incest cases. In a prosecution for embezzlement, or for obtaining property by false pretenses, proof of other transactions of the same kind may be shown as throwing light on the purpose or intent of the defendant in the act for which conviction is sought. Incest is no more a continuing offense than is rape or embezzlement, and, if there have been two distinct acts of criminal intercourse, there have been two crimes, for each of which a pun*313ishment may be and should be imposed; and the majority lays down tbe broad rule that, if tbe State might have relied on the second transaction in the trial under the first indictment, defendant cannot be tried for the second even if he also committed the one sought to be proven on the former trial. I should not complain of this rule if it were well established, and in general necessary in the administration of the criminal law, although in some instances it might lead to unfortunate results. But, in my judgment, it has never been recognized in this State, for I have an entirely different understanding of State v. Waterman, 87 Iowa, 255, from that expressed by the majority. As will appear from the elaborate discussion of that case in the majority opinion, it is ambiguous, to say the least. None of the cases cited from other States lead necessarily to the conclusion which the majority draws from them. The rule which I think should be adopted is that the second prosecution will be barred, only where the transaction for which defendant has once been prosecuted is the same as that for which he is proceeded against on the second prosecution, or at least involves the same acts. That identity of transactions is the controlling consideration, is the rule of the greatest number of cases, especially of the modem cases. See State v. Hornsby, 8 Rob. 583 (41 Am. Dec. 314); State v. Norvell, 2 Yerg. 24 (24 Am. Dec. 458); State v. Colgate, 31 Kan. 511 (3 Pac. Rep. 346, 47 Am. Rep. 507); State v. Cooper, 13 N. J. Law, 361 (25 Am. Dec. 490); Roberts v. State, 14 Ga. 8 (58 Am. Dec. 528), and notes; Holt v. State, 38 Ga. 187; Wilcox v. State, 6 Lea, 571 (40 Am. Rep. 53); State v. Klugherz, 91 Minn. 406 (98 N. W. Rep. 99); Gully v. State, 116 Ga. 527 (42 S. E. Rep. 790); Nicholson v. Commonwealth, 91 Pa. 398; Commonwealth v. Arner, 149 Pa. 35 (24 Atl. Rep. 83). That parol evidence is admissible to show what transaction was sought to be proven in the first prosecution is well settled. Nielson, Petitioner, 131 U. S. 176 (9 Sup. Ct. 672, 33 L. *314Ed. 118); State v. Waterman, 87 Iowa, 255, and cases there cited.
The court committed no error, as I think, in convicting the defendant of incest on proof of a different act of sexual intercourse from that for which it sought to convict the defendant. on the former trial for rape. I cannot agree that the acquittal for a rape which the prosecution sought to show was committed on October 28th was an acquittal of incest which the prosecution in the second case sought to show was subsequently committed on the same person.
Si-ierwin, C. J., concurs in the dissenting opinion..