(dissenting) — The majority fails to find reversible error in the trial court’s admission of the testimony and exhibits regarding the attempted rape of Sharon Sharp, an eleven-year-old girl. I differ.
I do not think that there can be disagreement on at least three points: (1) That the assault upon Sharon Sharp was unrelated to the crime charged (namely, the murder of Mrs. Ethel Tussing), (2) that evidence of unrelated prior crimes is normally excluded, and (3) that there are a number of well-recognized exceptions to this exclusionary rule.
*609The evidence of the attempted rape of Sharon Sharp was admitted by the trial court (over appellant’s objection) as bearing on both the identity and the intent of the accused, these being two of the exceptions to the rule. The court instructed the jury that the evidence relating to “the possible commission” of this other crime was admitted, for these two purposes and no other.1 The question left unanswered by the majority (at least to my satisfaction) is in what way or ways was the evidence of the assault on Sharon Sharp essential to prove the elements of identity and intent in connection with the charge of the murder? As was said in State v. Dinges, 48 Wn. (2d) 152, 292 P. (2d) 361 (1956):
“ . . . the true test of admissibility is that the evidence of other criminal offenses must be relevant and necessary to prove an essential ingredient of the crime charged.”
In other words, to be admissible, the evidence introduced relating to another crime must not only tend to prove the crime charged, but must also be necessary to prove an essential element thereof.
In the case at bar, the accused was identified by two of the state’s witnesses (besides Sharon Sharp) as having been in the vicinity of the place where the crime charged was committed at about the time of its commission. Furthermore, it goes without saying that Sharon Sharp and her mother could have identified the accused without going into the inflammatory details of the alleged assault — details which consume many pages of the trial record, cited infra. Not only did the trial court admit in evidence all of the testimony introduced pertaining to the assault incident, but also seven exhibits relating thereto, including the blouse *610and pedal pushers worn by the young girl. In addition, the several confessions which appellant gave the police officers during the five days between his arrest and the filing of the murder charge contained numerous references to the assault upon Sharon Sharp.
As to the matter of intent (which is one purpose for admitting the Sharp testimony in this case), the only reference made to it in the majority opinion is that “The testimony relating to the crime against Sharon Sharp established . . . the existence-of his [appellant’s] intention to commit a sexual assault.” I ask, an assault upon whom? By implication, the majority is holding that a sexual assault upon one female (after the murder of another) in some way evidences an intention to sexually assault the female who was allegedly murdered shortly before. Even assuming (for purposes of argument) that an attempt to rape one female is some evidence of an intention to rape another, there still remains a weighing process for the trial court. The question to be answered is, is the probative value of such evidence outweighed by the prejudice which it engenders in the minds of the jurors? In the present case, I think that the materiality is outweighed by the prejudice which was instilled in the minds of the jury.
This weighing process was graphically described in State v. Goebel, 36 Wn. (2d) 367, 218 P. (2d) 300 (1950), as follows:
“ . . . we are of the opinion that this class of evidence, where not essential to the establishment of the state’s case, should not be admitted, even though falling within the generally recognized exceptions to the rule of exclusion, when the trial court is convinced that its effect would be to generate heat instead of diffusing light, or, as is said in one of the law review articles above referred to, where the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it. This is a situation where the policy of protecting a defendant from undue prejudice conflicts with the rule of logical relevance, and a proper determination as to which should prevail rests in the sound discretion of the trial court, and not merely on whether the evidence comes within certain categories which constitute exceptions to the rule of exclusion. ...”
*611The Goebel case again came before this court in 40 Wn. (2d) 18, 240 P. (2d) 251 (1952) and, in a concurring opinion, Judge Hill (the author of the majority opinion in the first Goebel case) pointed out:
“When the prejudicial effect of evidence is obvious, and the relevancy, if any, is so microscopic that it is difficult to determine its existence, it should not be admitted against the defendant in a criminal case. I can, however, concur in the affirmance of the conviction in this case because the trial court, by its instruction, limited the consideration of exhibit 19 [a signed confession of the defendant relating the details of an assault by him upon a woman other than the prosecutrix — a crime not charged in the information] to the rape counts, and on those counts the defendant was acquitted.”
The fact pattern of the case before us should not be confused with the situation where the defendant is on trial for a sex offense and the state introduces evidence of other acts of sexual misconduct with the prosecutrix (rather than another female) even though the other acts constitute separate crimes. As was held in State v. Thorne, 43 Wn. (2d) 47, 260 P. (2d) 331 (1953).
“ . . . Such evidence is admitted for the purpose of showing the lustful inclination of the defendant toward the offended female, which in turn makes it more probable that the defendant committed the offense charged.” (Italics mine.)
In State v. Priest, 132 Wash. 580, 232 Pac. 353 (1925) this court had occasion to consider the question of the admissibility of testimony relating to sexual offenses other than the offense charged. ' The case involved sexual assaults upon three young girls (sisters living in the same home) which took place within a few minutes of one another. The court held:
“ . . . The several assaults were so nearly related and were so far a part of the same transaction as to make it almost impossible to show the one without showing the others, and it would seem that the evidence was within the rule that permits the state to show a separate and distinct offense when the offense is so far related to the offense on trial as to form a part of the same transaction.” *612Furthermore, the court hastened to add that:
“. . . both the prosecuting attorney and the court did all that was possible to keep the separate offenses from the knowledge of the jury.”
As will be illustrated, infra, this was hardly true with respect to the case at bar.
In People v. Gibson, 255 Ill. 302, 99 N. E. 599 (1912), the supreme court of Illinois passed upon the issue and held:
“ . . . [Defendant] was tried for rape upon Ida Ceder-gren. If, as is alleged, he a few minutes later committed a like offense against Nora Porter, it no more formed a part of the transaction with Ida, and was no more an explanation of that act, than if it had been committed in her presence on another occasion. . . . The mere proximity of time within which two offenses may be committed does not necessarily make one a part of the other. Immediateness is not the true test. There must be a causal relation or logical and natural connection between the two acts or they must form parts of but one transaction.” See, also, 167 A. L. R. 565.
To indicate the extent to which the prosecution delved into the attack upon the eleven-year-old girl, the following excerpts from the statement of facts are set out verbatim. On direct examination, Mrs. Lena Sharp (the mother of Sharon) testified:
“Q. And recalling again your attention to the night of June 14th, 1958, will you tell the jury where you were that night? A. I was at home in bed at 2009 I Street. Q. And who was there with you? A. I had just the two babies with me. The other children had been out playing; they was coming home. Q. Now, will you tell the jury what, if anything, occurred that night? A. Well, the children started coming home one at a time and I asked them where Sharon was. They said she’d started home but she hadn’t got there yet, and then I had a friend visiting me and we heard a scream. Mrs. Smith was with me. And I didn’t pay much attention to it, I thought, oh, just children playing. Then my little girl burst in the house. Q. Which little girl was that? A. Sharon. She was staggering and she was mumbling, I couldn’t understand, and then I got out of her she— . . . Q. Did she make a complaint? A. Yes, finally. I had to shake her. I couldn’t understand *613her; she was kind of hysterical. Q. Now, as a result of that complaint, what did you do? A. She said, well, ‘An Indian grabbed me— . . . ’ Q. What, if anything, did you do after you heard her complaint? A. I jumped up and went across the street and called the police. Q. Do you know what time that was? A. No, I couldn’t say exactly the time. Q. And will you describe her clothing? A. She had on aqua pedal pushers and a little striped shirt, or blouse. Q. And will you describe their condition? A. You mean what I was wearing? Q. No, the condition of the clothing, if there was anything unusual. A. I never noticed at the house at all. Q. I will show you what has been marked for identification as Plaintiff’s Exhibit Number 47. Will you— A. (Interposing) That looks like Sharon’s, yes. . . . Q. Now, after you called the police, what, if anything, did you do? A. I came back home and asked her to take me out and show me where this happened. . . . Q. And where did you go when you went out? A. She showed me where he had came up behind her and put his hand over her mouth and drug her across the yard.”
Sharon Sharp, on direct examination, testified:
“Q. And now, Sharon, recalling your attention to Saturday evening of June 14th, 1958, will you tell the jury, please, where you were and what, if anything, occurred? A. Well, I was over at my girl friend’s house, Daryl Lopay, and I started walking home. It was, oh, I don’t know what time it was exactly; it was just about getting dark, and I started walking home, and on the way home just before I started to cross the street, I saw this Indian walking toward the Fountain Drug, and I didn’t think anything about it. And so he kept on walking. When I got past the hedge down by our house, I heard something behind me and I turned around and there was this Indian. It was the same one that was walking down there, and he — I started to run, and when I was toward the driveway, I slipped and he grabbed hold of me. . . . Q. . . . Go ahead and just tell the jury now in your own words what happened? A. Well, he grabbed ahold of me and then he told me if I yelled or said anything that he’d kill me, and— . . . Q. (By Mr. Olson) Now, Sharon, after you fell close to the driveway there and this Indian grabbed you and told you that if you screamed he’d kill you, what, if anything, happened? A. Well, we got up and he had my arm behind me and he took me over behind the hedge between the *614two houses and told me to lay down, and I laid down and then he had his hand over my mouth and he pulled my pedal pushers down. And then about a minute later we heard someone up on the porch, and we got up and he took me over behind the house, and when hp was behind the house, he put me down on the ground again and he had his hand over my mouth and he told me to take a deep breath, and I started to scream, and his hand slipped off my mouth and I kept on screaming, and he got up and ran away and I got up and ran home. And when I was near my house, my mother, my brother and my sister came out and then they wanted to know what happened, and I was screaming and I got up and, I went into the house to where my mother was and I told her what happened. Q. What did you tell your mother, Sharon? A. I told her that the Indian had grabbed me and that he attacked me. I don’t remember what I said, really. . . . Q. And now will you continue and just, if you can now, point out to the jury where it was that he attacked you first, and just go through, show them where you went, what happened? A. I walked across here and then he came from here, I guess. When he was about here — no, about here, I turned around and saw him and I ran across here. There’s a driveway here, and I fell toward there and he took me across here, and in there, and laid me down here. Q. And then what happened? A. Well, then after while, there was a woman there and we got up and we went back here, and there’s some swings here, and he took me down here, and I started screaming. He ran toward that way, toward the Fountain Drug, and I got up and ran home. . . . Q. That’s fine. Now, Sharon, I will show you what has been marked for identification as Plaintiff’s Exhibit Number 47 and ask your whether or not you can tell the jury what these are. A. Those were my pedal pushers. Q. That you were wearing that night? A. Yes. Q. And what about what has been marked for identification as Plaintiff’s Exhibit Number 48? Can you tell the jury what that is? A. That was my blouse that I was wearing. Q. That you were wearing that evening. Now, Sharon, I will ask you whether or not during this struggle, now that you have related, did you have an opportunity to look at the defendant, or I mean at the Indian that attacked you?”
In the course of the prosecutor’s closing argument, frequent and detailed references to the Sharon Sharp incident were made, as follows:
*615“Now, what time did this attack on Sharon Sharp take place? Officer Haickel testified and Plaintiff’s Exhibit 63 shows that the call by Mrs. Sharp, that Sharon had been attacked, was made to the police station at 9:32 p. m. on June 14th. The state has proved by Sharon Sharp that she was attacked just minutes before this call. Sharon testi-tified that she was at her girl friend’s house a block away, that she was unsure exactly what time she left. She said she thought her girl friend had to go in around 9:00 o’clock and she later testified as she went along there that after she went in, why, she stood out there a while and talked to her through her bedroom window. Sharon then testified that she walked the block to the corner of Girard and I and that the attack occurred.
“Now, the actual attack which occurred was really in two stages, if you recall, and it couldn’t have taken more than five minutes. Sharon testified that the defendant had her behind the hedge for a couple of minutes, that he then took her in back of the swings for a few seconds, where he held her and that she freed herself by screaming. She then ran home, which was two or three doors down. Her mother shook her for a minute, hurriedly dressed and dashed across the street to call the police station. From this testimony the state contends that we can prove beyond a reasonable doubt that the attack on Sharon Sharp occurred not more than five or six minutes before the police call. This then would give the defendant ample time to have met and attacked Ethel Tussing sometime shortly after 9:00 and then to have met Sharon Sharp on his way back to town.
“Now, can we be sure that the defendant attacked Sharon Sharp? We contend that the evidence shows beyond a reasonable doubt that the defendant was the attacker and was positively identified as such. . . . He states in his statement in Plaintiff’s Exhibit 34: ‘When I grabbed the little girl, I had the urge to have sexual intercourse with her also.’ Then again in Plaintiff’s Exhibit 31, it goes on to say: T remember grabbing a little red-headed girl and taking her through an opening in a hedge and back alongside the house where I took her pants down and laid her on the ground and tried to have intercourse with her, but was not able to.’ ”
If appellant had been on trial solely for the assault on Sharon Sharp, the state could not have introduced evidence relating thereto in any greater detail than it was *616permitted to do in this case, in which he was being tried on the information charging him with the murder of Mrs. Tussing.
The two purposes for admitting the evidence relating to the assault on Sharon Sharp were stated by the trial court, in its instruction No. 6, to be the establishment of (1) intent, and (2) identity.
Under our decision in the first Goebel case, supra, the trial court was confronted with the problem of deciding whether the protecting of appellant from undue prejudice was outweighed by the logical relevance of the proffered evidence. In my opinion, the trial court in this case abused its discretion in admitting this evidence because its prejudicial effect was devastating and its necessity to prove intent and identity was minimal.
Mrs. Sharp and her daughter could have identified appellant as being in the vicinity of their home (which is about two blocks from where Mrs. Tussing was killed) shortly after nine o’clock p. m. on June 14, 1958. Consequently, the details of the assault on Sharon were unnecessary to establish identity.
As to the element of intent, this evidence had no bearing as tending to show that appellant had a lustful inclination toward Mrs. Tussing. It was entirely immaterial to the crime for which appellant was being tried. No decision of this court has come to my attention (other than the majority opinion in this case) in which it has been held that evidence of sexual attacks on a female other than the prosecutrix is admissible as tending to show a lustful disposition toward the prosecutrix. In other words, intent to assault Mrs. Tussing cannot be inferred from a showing that appellant had a lustful disposition toward an eleven-year-old girl, or that he had a lustful disposition generally.
After reading the record in this case, I am convinced that “the minute peg of relevancy . . . [was] entirely obscured by the dirty linen hung upon it.” Because of the court’s abuse of discretion in admitting the detailed evidence of an independent crime which was neither necessary nor competent to prove the crime charged, I would *617remand the case with directions to grant appellant a new trial.
Weaver and Rosellini, JJ., concur with Donworth, J.
Instruction No. 6. “The Court has allowed testimony and evidence concerning the possible commission of another crime involving a minor child. The Court has permitted this evidence for two purposes and none other. One, the establishment of intent, and two, the establishment of identity.
“You, the Jury, shall not use this testimony and evidence in any other way than specified above and you shall not convict the defendant of the crime charged in this action, merely because you may believe him guilty of some other crime.”