concurring specially:
It appeared in testimony that defendant had connection with prosecutrix against her resistance; that thereafter he permitted her to walk away in his company; that they met one Creglow, who then had intercourse with .prosecutrix against her resistance; that Creglow left, and that thereupon defendant took her to a room with a bed in it, and situated on some Fairgrounds; that when she arrived seven men were already there — and it is a fair inference that Creglow was one of these men.
As to what 'occurred while the girl was in this room and thereafter, it was testified, over objection, that all the men present, including defendant, left the room except one Slim, who, after the others left, had connection with her against her resistance; that thereafter Slim left the room and another came in, who attempted connection but failed, and left; that thereafter one Frank came into the room and forcibly had connection with prosecutrix; that she was left alone for awhile, and then all of the men came back and sat down and talked together; that then two others came to the door, and two went out and talked to them, and then the four returned. Thereupon defendant and Creglow took her from this room to the Fairgrounds, keeping hold of her in the meanwhile. At this point Slim and Creglow let go of her, but Slim again took hold of her, and thereupon Slim and defendant took her to a wagon bridge, at which point defendant let her go, and Slim held her alone. He took her alone to a house, and after they arrived there, he made her undress and get into bed; came into bed with her, and made her lie and'remain there.
The indictment charges none of these acts, other than *285the actual ravishment of prosecutrix by defendant, and it is urged on this appeal that it was error to admit this testimony as to what occurred subsequent to the alleged ravishment on part of defendant.
The opinion concedes that, as a general proposition, evidence of crimes other than the one charged in the indictment is inadmissible, even where the independent crimes were committed by defendant himself; and that this is, of course, true as to independent crimes of like character committed by others upon the same complainant. In sustaining the admission of this testimony, the opinion plants itself, as it must, upon the claim that there are exceptions which permit the testimony here complained of. I concede the existence of exceptions to the admitted rule, but am unable to agree that the testimony admitted is within any of them. The conditions of fact which are relied upon to make some of these exceptions applicable are stated thus:
1. Defendant used a false pretense to induce prosecutrix to go where he ravished her.
2. After accomplishing his purpose, he took her by a circuitous route until they met Creglow; that he took prosecutrix on in company of Creglow to some sheds, there stepped aside, and that then Creglow ravished her.
3. That because in going from the place where she was ravished by Creglow to the Fairgrounds, she went under protest; therefore, defendant still controlled her actions and kept her in his possession.
4. At the Fairgrounds he met a group of other men; he and Creglow left her in a room on the Fairgrounds, and during their absence she was again ravished by others, either left with her in that room, or who returned to it after having left.
5. That finally she was turned over to the possession of Slim, who took her to his home, kept her there all night and' again ravished her.
It is said by way of deduction from these premises that, *286“By every act, from the first to the final act, when she was surrendered to the custody of Slim, and he took her to his house, it would appear that defendant was supervising and controlling her actions. If her testimony was true, Creglow and the defendant took hold of her, led her from the Fairground, turned her over to the possession of Slim, who then with their knowledge and apparent consent, if her story is true, took her to his home. ’ ’
“Through the mist of it all the jury can (could) discern the presence and dominating character of the accused. ’ ’
I. This asserts that if, subsequent to the ravishment of prosecutrix by him, defendant was “supervising and controlling her acts, ’ ’ this makes the testimony which I challenge admissible within some of the exceptions to the rule.
Conceding, for the' sake of argument, that proof of such domination makes some of the exceptions applicable, I am unable to see how the use of a false pretense to bring prosecutrix to the place where she was assaulted, or that Slim forcibly detained her in his house, proves that, subsequent to the ravishment by Slim, defendant “was supervising and controlling her actions.” That there is other testimony which does establish such domination is immaterial on the point I am now discussing. Assume that the trial court proceeded rightly in receiving what tended to prove supervision and control, it was still error to admit testimony which does not tend to establish such supervision and control. As it is impossible to know upon just what testimony the jury based its verdict, I have no way of knowing whether, or to what extent, the verdict as- a whole was controlled because of the evidence as to this false pretense, and this detention on the part of Slim. That proper evidence of dominance on the part of the defendant might be admissible as a basis for admitting other testimony, or admissible for any proper purpose, is no answer to having let- in testimony which is inadmissible upon the theory advanced for its admission, or any other. Let the fact *287of dominance be material and, therefore, proper evidence of it admissible, it was yet error to admit these two items. The admission of them should be held to constitute prejudicial error: first, because they show on their face that they tend to be injurious; and, second, because prejudice is presumed from the error in admitting them.
II. "While it is at least debatable whether ravishment by others at which defendant connived establishes dominance on his part over the prosecutrix, it is manifest that one who himself rapes a female does exercise unlawful domination over her. Connivance at rape is, at its worst, no more than the equivalent of rape personally committed. Now if, as the opinion concedes, subsequent ravishment by defendant would, standing alone, not make such rape admissible, neither would conduct on his part, which is but the equivalent of a rape committed by him, make what his conduct connived at admissible, standing alone.
As I understand it, the majority realizes this, in that it does not put its holding on the naked fact that other rapes were committed with co-operation of defendant, but on the express ground that the acts were not separate and independent, and had probative force on the conduct of defendant and prosecutrix — which, if true, I concede, puts these acts within the exception to the rule. The opinion says:
“Every fact is so closely related to the first act that they cannot be said to be separate and independent acts. The general rule is that the State is not permitted, in its efforts to establish the crime charged, to introduce evidence of another substantive offense; but the rule is, that, where the acts are all so closely related in point of time and place and so intimately associated with each other that they form one continuous transaction, the whole transaction may be shown, what immediately preceded and what immediately followed the act complained of, for the purpose of showing the scienter- or quo animo of the party charged. Every fact, every circum*288stance surrounding the parties, attending their action, from the time of the meeting to the separation, is material to a proper understanding of their relationship, and has probative force in establishing their conduct towards each other.
“Distinct, independent, substantive offenses, not related to the one charged, committed at different times or different places, cannot be shown against the defendant, but not so when the time, the place, the circumstances and the parties all have some relation to and are directly involved in the act charged at the time of its commission, or immediately before or after; and we think this is the doctrine of the cases cited. ’ ’
On analysis, this asserts that the testimony is not within the rule which excludes distinct, independent, substantive offenses not related to the one charged, and committed at different times and different places, and unrelated to the offense charged, because:
1. The acts are all so closely related in point of time and place and so intimately associated with each other that they form one continuous transaction.
2. What immediately precedes or follows the act complained of is admissible for the purpose of showing the scienter or quo animo of the party charged.
3. The rule does not apply when the time, place or cir■cumstances and the parties all have some relation to and are directly involved in the act charged at the time of its commission, or immediately before or after.
4. Every fact or circumstance surrounding the parties or attending their actions, from the time of meeting to the separation, is material to a proper understanding of their relationship.
5. Every fact and circumstance surrounding the parties or attendant upon their action from the first .meeting to final separation is not only material to a proper understanding of their relationship, but has probative force in establishing their conduct towards each other.
*289III. a. The effect of conduct immediately preceding the act charged is not in the case, because all the acts involved in this testimony were committed subsequent to such act.
b. None of the testimony can be defended on the ground that it tends to show scienter or the animus of defendant. The exception which permits acts not charged to be introduced for that purpose is merely a recognition' of the fact^ that when the purpose and intent with which an unlawful act was committed is under investigation, similar acts committed by the same person at other' times have probative force. Thus, on a charge of obtaining property by false pretenses, that 'defendant had made other false pretenses, — • and, more strongly, of course, if he knew when he made such other pretenses that they were false, — tends to show he did not innocently or mistakenly make the pretense indicted for. Such evidence is rightly admitted because it makes it more likely he made the pretense at bar with fraudulent intent. Manifestly, this reason for letting in evidence of other acts has no place here. That which must be done to constitute rape, of itself, supplies proof of scienter and indicates the animus of the assailant. No question can arise on whether a ravishment may not be due to accident or mistake, or have been accomplished without evil intent. It is clear this testimony should not have been, and was not, received on this theory. •
c. While it is true that the exception may not be applied unless the elements referred to by the majority are present, it does not follow that it may be applied if the things so referred to do appear but stand alone. I do not believe that even if the acts are closely related in point of time and place, are so intimately associated as to form one continuous transaction, and have relation to and are directly involved in “the act charged at the time of its commission,” or immediately after, this will alone base the exception. Nor can I agree that any or every act or circumstance surrounding the parties or attending their actions, from the time of meeting to *290separation, is of necessity material to a proper understanding of their relationship, or necessarily material for any purpose. The true rule, as I conceive it, is this: While closely related acts, steps creating one continuous transaction, and all matters relating to, and directly involved in the act charged, ánd all facts and circumstances surrounding the parties or attending their actions may be admissible, though not acts charged in the indictment, and though such acts are inadmissible if these elements are absent, they may remain inadmissible even though these elements do appear, and their admissibility does not depend so much upon what they are related to or attendant on as upon what they prove concerning the act charged. If the rule is as broad as the majority asserts, it would be proper to show that it hailed immediately after the rape was accomplished; or that the man had no shoes on while committing the crime; or that while engaged in it, he shouted approval of the beating of a horse, which was occurring in his sight; or that he left his victim for a few minutes and went to a neighboring house and there committed a murder, upon which he immediately returned, and again assaulted prosecutrix.
That the subsequent acts at bar were related to the crime charged must be conceded. They were related, in the sense that they are of a character akin to the act charged; that they are all directed to the prosecutrix; that defendant was in some way a participant, and that' all were done in the same neighborhood and on the same day. But if defendant had met prosecutrix at different hours of the same day and at different places and ravished her at each meeting, every element relied.on by the majority would be present; and the relationship to the main act, both as to the character of the subsequent acts and as to parties, would be even more clearly made out than is done by the subsequent acts testified to here. But would that have warranted proof of the acts of rape subsequent to the act charged f
On the other hand, if a stranger had, shortly before *291the ravishment, struck the woman a savage blow upon the head with a heavy club, evidence of this would be admissible, though a distinct crime committed without defendant’s knowledge or co-operation, because it bears on the physical condition of the victim subsequently ravished, with reference to her capacity to make resistance. And so if, after the ravishment, and while the woman was attempting to reach some of her friends, a stranger had abducted her, keeping her for several days, evidence of this act would be admissible because it would explain the failure to make immediate complaint.
If a man in the very act of ravishing a woman should employ one hand in a robbery by violently taking a pocketbook attached to the person of his victim, the act would be intimately related to the ravishment in point of time and place, and would be a part of the transaction in the sense that it occurred during the very time and between the very parties, and involved another crime of violence committed by one upon the other. But it would not be claimed that evidence of this robbery is admissible. It would not be, because, while it meets the other standards, it has absolutely no probative weight on whether the intercourse was accomplished in such manner as to constitute rape, or, for that matter, on whether defendant was guilty of anything but the robbery.
-■^Enough has been said to indicate what I conceive to be me vice of the opinion. While it holds rightly that there must be intimate relationship, both in matter and as to time and place, it errs in holding that this alone suffices, without reference to whether'the act thus related has probative bearing on whether defendant raped prosecutrix, as charged. It also errs in holding that the acts in question had such probative value. True, the conduct in question tends to show that the defendant is a man of the worst moral tendencies and of a very low type, and thus furnishes some evidence that he is more likely to commit a rape than a better man would be. But that affords no basis for applying the exception, because in nearly every instance in which other acts *292are excluded, they would, if admitted, tend to show that the defendant was one more likely to commit the act charged than a better man would be. If this defendant had in his past committed murder and incest and been guilty of numerous seductions, it is clear that proof thereof would tend to show that he had a disposition and record which made it no sudden departure from his standards to commit rape. But, of course, such testimony would not be admissible for such purpose. This squarely presents the essential error in the opinion. Concede that these subsequent acts were by the procurement of the defendant; concede that this shows him t.o be capable of committing rape; concede that they have relationship to the main act in point of time and'place; concede that they were of the same nature, and that they began when the main offense ended, — in what way are they relevant? In what way do they tend to establish the charge in the indictment that this defendant himself raped this prosecutrix, an act which, under the proof, he committed before any of the other acts were done ? In what way are • the subsequent acts “involved” in the prior rape “at the time of its commission ? ’ ’ How do they show ‘ ‘ one continuous transaction ? ’ ’ How do they help to a proper understanding of the relationship between defendant and prosecutrix or “establish their conduct towards each other?” In what way do they competently tend to show that the rape charged was committed ? Suppose the defendant did procure, shortly after assaulting the prosecutrix, the rape of her by others, how does that prove that he had connection with her against her uttermost resistance? This testimony is so far from being proof of the charge as that, if defendant had sought to introduce same and it had been refused, there would be a more serious question. For, so far from proving that prosecutrix yielded after the utmost resistance she was capable of, it tends to indicate that, on the contrary, nothing had occurred between her and the defendant which angered her or created a desire to flee from him, and it indicates, also, that she is one unlikely *293to make resistance. In other words, so far from proving that the defendant did what the law defines to be rape, it indicates, rather, that whatsoever he did was with the consent of the prosecutrix. Now, anticipating that it may be said that since the testimony had this tendency the defendant was not prejudiced, I have to say that, while this may be true theoretically, it is manifest that the direct and natural effect of this testimony was to anger the jury by the exhibiting of conduct so utterly reprehensible as. that the presenting of it in testimony, beyond all question, inclined the jury more strongly to find guilt as to the main charge than it would otherwise have been. If testimony had been admitted that, for a year before and up to the time of the alleged ravishment, the defendant had lived upon the earnings of the prosecutrix as a prostitute, in theory, this would be strong argument to the jury that defendant did not have to use force to obtain intercourse, andf therefore, did not use it. Yet there can be no question that exhibiting him as a parasite, living upon the sale of the woman’s body, would make the average jury much more ready to convict for rape, or anything else that might be charged.
In State v. Hogan, 145 Iowa at 354, the evidence tended-strongly to show concerted action between one Eohn, Hausler,' and the defendant, that each in turn committed the crime, the defendant being last. The crimes were committed in his barn. The three were together at the barn shortly after the offense was committed by Eohn, at the tin^e it was committed by defendant, and for some hours thereafter. Eohn had procured the presence of the prosecutrix at fhe barn, and before the trial of the defendant, Eohn ha,d been convicted of his offense.
Some hours later in the day, in another place, not far away, defendant again committed the offense. The State introduced its evidence concerning both of the alleged acts on the part of defendant, and at the close elected to rely upon the last. Hogan’s ease merely says that the act of Eohn was *294not separate and independent from that of defendant, but “was so connected and related to the acts of the defendant that it was admissible as' one of the surrounding circumstances of the case..” No argument beyond these quoted words is attempted, and, of course, these cannot be said to be more than the assertion of a naked conclusion. To appreciate how little real consideration was given to the question, it may be pointed out that the only citation in support is State v. O’Connell, 144 Iowa 559, wherein an exception, which all concede to exist, was applied: to wit, that on the charge of uttering an instrument on which defendant had forged an indorsement, evidence tending to prove another crime is admissible for the purpose of showing guilty and fraudulent intent on part of the one charged. Aside from this, there is reasonable ground for distinguishing the case at bar from the Hogan case. Its essence is that where one man procures the victim, and he and the defendant thereupon proceed to ravish her by concerted action, and the defendant again uses the opportunity originally- created by the first procurer, then the acts constituting the procurement are admissible. The difference between this and the testimony at bar is that the first does, show acts related probatively to the act charged; while in the last, the acts are connected in point of time and place, and are in a sort of a logical relation, but yet have no probative value as to the act charged. It is one thing to prove against one who committed a rape that he accepted the help of another with whom he joined in the crime, and used the opportunity first provided by the accomplice to repeat the act and so connect with the act elected for prosecution. It is quite another to admit- proof of rape committed with the connivance of the defendant after his own act had been completed. The first is not merely taking evidence of an independent offense, but is also proof of methods employed to obtain the criminal intercourse. The testimony at bar proves merely that the defendant procured the defilement of a woman whom he had already ravished. Regarding the Hogan decision *295as I do, I have no occasion to indicate what I might deem my duty in the premises were it a ruling that substantially what was done in this ease is not error. ^'
There are those who will simply assume that this defendant is guilty of rape and urge that, therefore, there should be no straining at the methods that brought about his punish- . ment. The execution on order of Judge Lynch is always excused with the assertion that justice has been accomplished even though the law was violated in the accomplishment. This line of reasoning should not appeal to a court of last resort. But bad as it would be to entertain such insistence, worse is involved in sustaining the taking of this testimony. The servants of the law should not permit a guilty man to lose a single right which the law gives him. If this can be doubted, it at least is not doubtful that no infraction of the rules of evidence should be permitted to the harm of one who is presumed to be innocent. If lex talionis may prevail as to those who are guilty, even that is no warrant for disregarding the law in such manner that juries may be influenced into finding an innocent man guilty. When this testimony was taken, the presumption of innocence still obtained. Desire to be sure that none guilty shall escape does not warrant the doing of what may unduly bring about a verdict of guilt. The oath of the judge should restrain us from even considering whether and how far we should be tolerant of what was done to bring about the punishment of the perpetrator of an atrocious crime. What we have for review is whether an innocent man may not have suffered a denial of rights guaranteed to him by the law of the land, by and through the introduction of testimony .which, of necessity, must have been highly inflammatory and calculated to be an advocacy of his conviction on general principles.
I agree to the conclusion reached but would reverse, also, because this testimony was admitted.