(dissenting).
I am unable to concur in the disposition of this criminal appeal. >
By the admission into evidence of other crimes, the accused was deprived of the benefit of those rules which are everywhere recognized as necessary to protect against unfair prejudice. His character may not be attacked unless he puts it in issue, nor may prior criminal conduct be shown except by the record of a former conviction. State v. Harris, 73 Ariz. 138, 238 P.2d 957; State v. Polan, 78 Ariz. 253, 278 P.2d 432. Moreover, every experienced lawyer knows that a conviction is a near certainty if the jury but conclude that the accused is a bad man. State v. Lapage, 57 N.H. 245, 24 Am.Rep. 69.
*337This court was once committed to the proposition that in the prosecution of forceful rape the showing of other crimes of a similar nature against other persons was “wholly beside the issue”. Walker v. State, 23 Ariz. 59, 201 P. 398. Ordinarily, no relevant inference can be drawn from the proof of one crime to logically establish proof of another. Dorsey v. State, 25 Ariz. 139, 213 P. 1011. Certain exceptions to the rule against the showing of other criminal offenses have been recognized. In Taylor v. State, 55 Ariz. 13, 97 P.2d 543, reversed on other grounds, 55 Ariz. 29, 97 P.2d 927, the Walker case was overruled and evidence of similar crimes against other persons was permitted in order to show a scheme or plan to commit the crime involved.
It is quite generally considered that if evidence of another offense has relevancy to prove an issue, it is admissible. Nester v. State, Nev., 334 P.2d 524. Evidence of another offense is admissible when it tends to establish motive, intent, the absence of mistake or accident, and identity. Here, no contention is made that any of these are an issue, for the act of intercourse was admitted, the only remaining question being whether force was used. As stated, the rule that permits the showing of similar offenses is based on their relevancy to establish an issue pertinent to the offense charged. In this case, proof that the accused planned to commit forcible rapes is evidentiary of the fact that a forcible act of intercourse took place.
“The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done. A plan is not always carried out, but it is more or less likely to be carried out. * * * ” 1 Wigmore, Evidence § 102 (3d ed).
The existence of such a plan or scheme is seldom subject to direct proof. It must be inferred from circumstantial evidence, usually prior conduct. For that reason, testimony may be received concerning the commission of crimes other than the one charged, related in character, time and place, but only so related as to support the conclusion that there was in fact a plan which embraced both the related crimes and the offense for which the accused is on.trial. 20 Am.Jur. Evidence, § 314.
It is important to stress that if evidence of another offense is relevant it must reasonably tend to show the plan or scheme, for there is here a double inference: first, from the conduct to the plan; then, from the plan to the consummation by an act. Wigmore, The Science of Judicial Proof § 61, 3d ed.). Since the offense with which the accused is charged is forcible rape, the proof must be such as necessarily tends to establish a plan or scheme to commit forcible rapes. If the proof fails to establish such a plan or scheme, no logical conclusion can be drawn which would sup*338port the prosecutrix that force was used, or negative the accused’s testimony that the act was voluntary.
The majority of this court has predicated its decision of affirmance on certain features common to the offense for which the accused was on trial and the purported offense occurring five days before. I am not convinced that the asserted common features establish a plan or scheme to commit forcible rapes, for the test is not alone that the two offenses have elements common to both, but whether thereby is established a plan from which flowed the offense with which the accused is charged.
“To bring evidence of other offenses within this rule, the test is not whether they have certain elements in common with the crime charged, but whether they tend to establish a preconceived plan which resulted in the commission of that crime.” Lovely v. United States, 4 Cir., 169 F.2d 386, 391.
The fact alone that one woman was raped has no tendency to prove that another woman did not consent. Hence, any similarities in what occurred must not- be the usual in crimes of this type, for these can rationally be explained by coincidence. If there is to be any evidentiary value from the proof of similar offenses, they must indeed be similar in those important aspects where normally one would expect to find differences.
' Certain of the purported similarities relied on by the majority to affirm this conviction have no probative value in establishing such a plan. Force and threats are elements of the offense without which forcible rape patently cannot be committed, and from which, therefore, the evidentiary fact of a distinctive plan controlling these purported rapes cannot be inferred. In the same category is to be placed the alleged “blunt” announcement by the accused that he intended to have sexual intercourse. Seldom will the offense of forcible rape occur without, at some point prior to the consummation either by words or acts, the announcement of the offender’s intention. Likewise, that the incidents happened at night in the accused’s automobile are merely facts so common and so coincidental to these crimes as to have no significant probative force. State v. Sauter, 125 Mont. 109, 232 P.2d 731. Similarities such as these are the usual and the ordinary. No scheme or plan can logically be derived from them because they are repeated from one forcible rape to another, irrespective of the persons involved and without planning.
I have a great deal of difficulty in finding any similarity at all in the other points set forth as grounds for affirming this conviction. It is pointed out that the victims were either lured or forced into the defendant’s car. Concerning the supposed *339related offense occurring in California some 500 miles away, the testimony was:
“ * * * A. We went out to the car and I turned the hack light on and it lights the whole parking area in the back yard, and when I got to the car I slid in from the drivers side to the passengers side and Rich got in behind me after looking at the car for a while.
“Q. What was your purpose in going out into the yard there? A. Just to look at the car. I like cars.”
If it is possible to conclude from this testimony that there was here a luring rather than the grasping of a ready-made opportunity, still there is no similarity to the incident at Tucson, Arizona. A summation of the prosecutrix’s testimony on that point follows:
“ * * * I was just driving along and stopped for a stop light and he [Finley’s companion] pulled up even with me and sort of laughed, or something, and asked if I would go for a drink.
******
“Well, I had kept on driving and as I was driving down there why they kept see-sawing in, you know, catching up, then I would get ahead and then they would catch up * * *.
******
“Well, they got out of their car and come up to the car I was in and talked to me and asked me again to go out and have a drink with them and I refused.”
“Well, they took my arms and pulled me on into their car door.”
The pattern of behavior here is quite different; so different that it tends to rebut rather than support an inference of a common plan controlling the two acts.
It is asserted that after having announced his lustful intention this was immediately followed by ripping off their undergarments. I do not so find the testimony, even if it be assumed that this point has some relevancy. The complaining witness testified:
“I said, ‘Oh, you are not.’ And he said, ‘Yes, I am.’ And he said, ‘Get your pants off.’ I said, ‘Well, I will not.’ And so he made a grab for them and pulled my pants off.”
Concerning the incident in California, the following testimony is fairly descriptive of what occurred:
“Q.- And then he took your levys off, is that correct? A. Yes.
“Q. Did you have underwear on underneath? A. Yes.
“Q. Did he take that off, too? A. He pulled them down when he pulled the levys down.
“Q. He pulled them down as far as your ankles too? A. Yes.”
*340The greatest stress is laid on the asserted Doctor Jekyll-Mr. Hyde transformation. Concerning the incident on the Arizona desert, the testimony on the part of the complaining witness was:
“Q. Did you look at his face and his demeanor? A. I certainly did.
He just looked different and he acted different. He was a completely changed person.”
Concerning the incident in California, the witness testified:
“ * * * then I looked up at him and, from the benefit of the light in the back yard, I could see the expression on his face and that. frightened me very much.
*‘Q. What frightened you about his his expression, Leota? A. Well, it was more or less a mad expression like he was, I don’t know how to put it, — sort of, oh, insane expression of some sort.”
The point to be made regarding this' testimony is that we are seeking to discover a plan, not personality quirks which would tend to establish identity. The concept of a plan to commit rapes necessarily embraces the idea of deliberate behavior. Presumably, the inference sought to be achieved is that the accused consciously decided that if the victims failed to consent he would, by facial expressions, terrify them into submission. Without such an inference, even though there is some possible similarity, no conclusion can be drawn of a preconceived plan to commit the asserted offenses.
The foregoing incidents are absolutely all of the purported facts from which it is urged the plan or scheme to commit the crime of rape can be deduced. Taken singly and collectively, it is simply impossible to conclude from them that the offense for which Finley was tried was the outgrowth of a plan or scheme to commit the crimes of forcible rape.
The majority of this court in support of its position cite People v. Cosby, 137 Cal.App. 332, 31 P.2d 218; Commonwealth v. Ransom, 169 Pa.Super. 306, 82 A.2d 547, affirmed 369 Pa. 153, 85 A.2d 125; and Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348. Of Commonwealth v. Kline, it is sufficient to point out the statement in the later case of Commonwealth v. Boulden, 179 Pa.Super. 328, 346, 116 A.2d 867, that of the six judges now on that appellate court who sat in the Kline case, all of them consider it to be erroneously decided.
In the Ransom case, evidence was introduced of three offenses in which the appellant had assaulted three different women. The defendant offered an alibi, and the evidence was held to be admissible; first, as bearing upon the identity of the accused, and second, as to his design or plan to rape and rob any women that he *341happened to meet while alone and unprotected. The facts of how these rapes and robberies occurred are so distinctly different from this case that no conclusions as to the application of the rules are infer-able.
The facts in the Cosby case are worthy of mention simply because from what occurred there can readily be inferred a preconceived plan or scheme. The defendant telephoned the prosecuting witness who had placed an advertisement soliciting work in the Oakland Tribune, and requested her to come to his residence for an interview. When she arrived, he proposed sexual intercourse; and when she refused, she was assaulted. The evidence establishes that on two other occasions the defendant had called women to his residence under the same pretext of employment by contacting them through an employment agency. After they arrived, substantially the same procedure was used as in the case of the prosecuting witness. The California court said [137 Cal.App. 332, 31 P.2d 219] :
“It is apparent, considering the evidence * * *, that appellant devised the scheme or plan of luring women to his apartment for the purpose of gratifying his lust; that he falsely represented to the employment agency that he was engaged in business that required the employment of women; that in pursuance of such design or plan he called up women who advertised for employment and made appointments with them at his apartment; that his plan or scheme was to lure them to his apartment under promise of providing them lucrative employment; that when he had them there, he indulged in lewd and suggestive language, and when these lewd suggestions did not meet with approval he attacked them and endeavored by force to accomplish his purpose.”
Such a factual situation is wholly different from that presented in this case. As such, it is only authority for the general rule and offers no precedent for the present decision.
Opposed to the authorities relied on by the majority is an abundance of precedent which, when examined in the light of this case, holds to the contrary. Only a few of the later cases need to be mentioned, primarily because this entire problem was thoroughly analyzed and considered by John J. Parker, Circuit Judge, 4th Circuit, United States Court of Appeals in Lovely v. United States, supra, 169 F.2d at page 386, 388. In that case, the accused took the prosecuting witness to the Officers’ Club in Fort Jackson where he offered her drinks. Later, he drove her to a spot on the Federal Reservation where he announced his intentions to have sexual relations. When she did not consent, he assertedly raped her. The prosecution was allowed to introduce testimony that the accused had tak*342en another woman out in his car and raped her on the Fort Jackson Reservation about fifteen days before. The court’s summation of the proper application of the rule under consideration is in this language:
“It is true, of course, that evidence which has a reasonable tendency to establish the crime charged in the indictment is not rendered inadmissible merely because it establishes another crime; and the question which arises with respect to this sort of evidence is whether or not it has such tendency. In ordinary cases, it is perfectly clear that evidence of other crimes committed by the accused has no such tendency and is properly excluded as irrelevant. Evidence of the commission of similar offenses closely related in time and place may, however, be relevant on such matters as identity, guilty knowledge, motive or intent, where these are in issue, or may tend to establish a criminal plan or design out of which the crime charged has originated; but it is well settled that such evidence is not admissible where it has no relevance or probative value except in so far as it may show a tendency or likelihood on the part of the accused to commit the crime. See articles by Professor Stone, 46 Harvard Law Review 954 and 51 Harvard Law Review 988; Sutherland v. United States, 4 Cir., 92 F.2d 305, 308; Simpkins v. United States, 4 Cir., 78 F.2d 594; Breedin v. United States, 4 Cir., 73 F.2d 778; Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 295, 35 L.Ed. 1077.” [Emphasis supplied.]
The similarities in the two offenses in the Lovely case are much greater than the supposed similarities to be found in the instant case. Yet, the conviction was reversed for the reason that mere similarities do not establish a criminal plan or design out of which the crime charged originated.
In the very recent case of Nester v. State, supra, 334 P.2d at page 527, the court, while affirming the conviction on the basis that the evidence was relevant to establish the identity of the defendant stated:
“The criminal attacks against Rachel Cruz and Edna Weldon were not part of the same purpose, scheme or plan, but were two different schemes wholly independent of each other (although the plan or scheme or modus operandi were similar in many respects) and each could have been proven without the evidence of the other.”
In Alford v. State, 223 Ark. 330, 334, 266 S.W.2d 804, 806, the court reversed the conviction for forcible rape where an independent act of rape on another woman was shown, making this statement:
*343“If the accused has committed other crimes, each may he examined separately in a court of law, and punishment may be imposed for those established with the required certainty. In this way alone can we avoid the elements of unfair surprise and undue prejudice that necessarily attend trial by accusation in place of trial upon facts demonstrated beyond a reasonable doubt.”
Before passing from this aspect of the appeal, one further comment should be made. The majority, I believe, further confuse the issues in this case by their statement that:
“The rationale underlying the admissibility of evidence of prior acts of rape is partially for the purpose of showing defendant’s criminal desires and lustful propensity to commit such a crime. * * * ”
It is to be noted that no precedent is cited for this statement and no authority is alluded to, which characterizes forcible rape as a psychosexual aberration akin to fellatio and sodomy. If the evidence of other criminal acts is admissible to show the defendant’s criminal desires, then it must necessarily follow that other criminal acts may never be excluded. This is simply another way of saying that if a defendant has criminal propensities or a lustful disposition, his prior criminal acts may be shown.
I am further in disagreement with the majority in its approval of the prosecutrix’ statement to the officer as being a spontaneous utterance. The testimony of the officer supplied no missing elements. It was merely used as a vehicle for presenting the story of the prosecutrix to the jury twice, once from her own lips and once from the lips of the interrogating officer. As such, the testimony was cumulative and served no necessary purpose.
This state has recognized that the time element is always important in determining whether a statement or declaration should be admitted in evidence as part of the res gestae, but time alone is not controlling. We said in Pickwick Stages Corporation v. Williams, 36 Ariz. 520, 525, 287 P. 440, 442 that spontaneity is of more importance than that it be made at the identical instant of the occurrence or at the same place. We also said that a suspicion of afterthought would prevent the reception of the statement.
The majority states that “While the time is not fixed too definitely it would appear that not more than thirty minutes elapsed between the time she [the prosecutrix] got out of defendant’s car and the arrival of officer Martin.” It appears to me that there was considerably more time involved than that suggested by this statement. The prosecuting witness testified that after the defendant finally agreed to.take her home, *344he was having car trouble and stopped at three different stations for water. Two of these stations were closed, but at the last one there was an attendant. She did not contact the attendant, but as she said,
“ * * * I kept watching him, but every time that he was,' — he was closer to Finley all the time and I thought, well, maybe if I go in the rest room I could leave a note in the rest room * * *. There was no rest room for ladies in there and so I just didn’t know what to do. I just thought, well, if I just get home, and he was taking me home, and I thought once I get home I can call the police and I felt like the police would take care of the situation then.”
It is inconceivable to me that it is possible to say that the prosecutrix’ mind ceased functioning during this interval of time. To the contrary, her own testimony points out that even during the course of the ride home she was thinking about calling the police — what she would do. It affirmatively disclosed that the prosecutrix not only had the opportunity to, but did reflect, not only about the incident but about what she would do in the future regarding the occurrence. Under such circumstances, I cannot believe that her statements contained the necessary element of spontaneity. The witness was plainly talking about the facts and not the facts talking through the witness.
I am also opposed to the statement by the majority of this court to the effect that whether a given statement falls within the res gestae is a determination which must be left to the sound discretion of the trial court. It is of .course true that initially whether a given statement falls within the res gestae is to be determined by the trial court; but in making this determination, some factor must be found which will establish the probability of truthfulness. In this the trial court obviously has no discretion. Where the badges of authenticity are not present, a deferral by this court to the trial court’s discretion involves abdication of the appellate function and bestows unlimited power upon the trial court to admit any and all statements under the magic of the res gestae label. It is my belief that this court should insist that the record demonstrate the factors necessarily present for the admission of the evidence, else the exception devour the entire hearsay rule.
The conviction should be reversed.
BERNSTEIN, J., concurs in this dissent.