(dissenting).
I think the court did not err in permitting proof that defendant admited he committed another act of rape upon another girl about a month prior to the act charged in the information *118under circumstances very similar to those shown in the act charged. I concede the general rule to be as stated in the majority opinion, but I think this ease is ruled by a well established exception to the general rule.
The record shows that defendant and his companion, defendant Schneider, met the prosecutrix in a barroom. They bought her some drinks. They persuaded her to get into their automobile on the promise that they would take her to a town where she desired to go to apply for a position as a singer. They took her on-a country road and after defendant’s companion had first raped her and reduced her to an hysterical condition, defendant took over and committed an act of intercourse with her without her consent.
The other act with the other girl was committed under strikingly similar circumstances. It occurred one month earlier. The events that led to that act were these: This defendant, his confederate Schneider, and two other men struck up a conversation with a girl in a barroom. They offered her a ride home. They drove her to an isolated location. Defendant and two of the other men left the car. The one man left in the car raped the girl. After he had done so, one of the others had intercourse with her and then defendant, finding the girl limp in the front seat of the car had intercourse with her and did not know whether she was conscious at the time.
I think the evidence relating to the prior -offense was admissible to show the scheme, design, plan, pattern and course of action of the defendant, and hence comes within an exception to the general rule.
This case is practically the same as that of People v. Sullivan, Cal. App., 225 Pac. (2d) 645, 647, wherein the court said: "The testimony of B. R. concerning the other offense was properly admitted. Appellant’s conduct upon that occasion bore such similarity in significant respects to his conduct in connection with the crime charged herein as to indicate a general plan and that his conduct was directed by design. It was admissible for precisely the same reason that the testimony of *119R. W. concerning the offense herein charged was deemed admissible upon the trial of appellant for the offense concerning which B. R. testified herein, in People v. Sullivan, 96 Cal. App. (2d) 742, 216 Pac. (2d) 558.” Other cases supporting this view are the following: Suber v. State, 176 Ga. 525, 168 S. E. 585; Taylor v. State, 55 Ariz. 13, 97 Pac. (2d) 543; State v. Jenks, 126 Kan. 493, 268 Pac. 850, citing State v. Stitz, 111 Kan. 275, 206 Pac. 910 and State v. Bisagno, 121 Kan. 186, 246 Pac. 1001; People v. Cosby, 137 Cal. App. 332, 31 Pac. (2d) 218; People v. Cassandras, 83 Cal. App. (2d) 272, 188 Pac. (2d) 546; State v. Shtemme, 133 Minn. 184, 158 N. W. 48; State v. Cupit, 189 La. 509, 179 So. 837; Note in 167 A. L. R. 594; 1 Wharton, Criminal Evidence, 11th Ed., sec. 252, p. 298; II Wigmore, Evidence, 3rd Ed., sec. 357, p. 265, where the author points out that such evidence may carry great significance as a specific design or plan of rape and said, ‘ ‘ Courts have shown altogether too much hesitation in receiving such evidence.” And when a defendant is charged with a sex offense the law is more liberal in admitting proof of similar sex offenses than in admitting evidence of similar offenses when a defendant is charged with a non-sexual crime. Commonwealth v. Kline, 361 Pa. 434, 65 A. (2d) 348.
In Bracey v. United States, 79 U. S. App. D. C. 23, 142 F. (2d) 85, 88, the court pointed out that in trials for sexual offenses, evidence is admissible concerning acts of intercourse between the accused and prosecutrix prior to the specific act upon which the defendant was being tried. The court pointed out that the District of Columbia had not decided whether evidence would be admissible that defendant had committed sex offenses upon other victims than the one named in the complaint. The court however said: “Logically the exception would seem to include such other offenses. The emotional predisposition or passion involved in raping one little girl would seem to be the same as that involved in raping another.. Evidence of such a crime committed upon one little girl shows a disposition to commit the same crime upon another, and the *120probability that the emotional predisposition or passion will continue is as great in one case as the other. The better reasoned cases in other jurisdictions also support the admission of such evidence, within the exception to the general rule.”
The court however reserved ruling on the point until it was briefed and argued in another ease, since the testimony in question in that case was admissible on a different theory and'for a different purpose. The court however indicated clearly that both reason and authority support the view that such evidence is admissible.
We have repeatedly held that evidence is admissible to show that defendant has committed other acts of rape of prosecutrix before or after the commission of the act charged. State v. Peres, 27 Mont. 358, 71 Pac. 162; State v. Vinn, 50 Mont. 27, 144 Pac. 773; State v. Harris, 51 Mont. 496, 154 Pac. 198; State v. Keeler, 52 Mont. 205, 156 Pac. 1080, L. R. A. 1916E, 472, Ann. Cas. 1917E, 619.
Likewise it is well settled in this state that evidence of other crimes similar to that charged and committed at about the same time may be shown for the purpose of showing intent, plan, scheme, pattern, or course of action on the part of the accused. State v. Pippi, 59 Mont. 116, 195 Pac. 556; State v. Cesar, 72 Mont. 252, 232 Pac. 1109; State v. Hughes, 76 Mont. 421, 246 Pac. 959; State v. Simanton, 100 Mont. 292, 49 Pac. (2d) 981; State v. Simpson, 109 Mont. 198, 95 Pac. (2d) 761; State v. Knox, 119 Mont. 449, 175 Pac. (2d) 774. In the last cited case former eases were modified so far as they hold that evidence of other offenses is admissible to show intent in a larceny case, but the rule still applies when the evidence of the other offenses shows design, plan or system of operations.
I think the court was right in permitting the evidence complained of to be received. The court, it should be noted, properly restricted the purpose of the evidence by an instruction to the jury..
I disagree also with the majority opinion so far as it leaves the impression that the court did not grant the motion requiring *121the state to elect which of the offenses committed against the prosecuting witness it would rely on for a conviction. The record shows that an election was made sufficient to satisfy counsel then representing defendant, being counsel other than those representing him on the appeal. The record shows the following:
“Mr. Felt: If the court please, while this witness is on the stand — the witness George Schneider, he being one of the co-defendants in this case to be tried for this offense — I think it is proper at this time to require the State to elect which act disclosed by the evidence is the basis for this prosecution.
“Mr. Sande: I think the evidence particularly shows the act being charged with.
“Mr. Collins: There is only one act for each of the defendants. No choice is to be made.
“The Court: As counsel has pointed out, the only one that could possibly be proved with reference to this defendant, he would be charged with.
“Mr. Felt: Well, I do not care to be technical about it, but I want it definitely understood that it is the offense, or the act, committed by John Sauter rather than the act committed by George Schneider.
“The Court: Intent been pleaded!
“Mr. Felt: That has been done. I have looked into that.
“The Court: Well, I—
“Mr. Felt: I do not care to discuss—
“Mr. Collins: There is only one crime, the crime of rape, whichever act it was. We do not have to choose between them. There was only one crime committed, the crime of rape.
‘ ‘ The Court: By this particular defendant!
“Mr. Collins: Yes, this defendant.
“The Court: Very well.
“Mr. Collins: Which would apply to the whole thing.
“The Court: That is what—
“Mr. Felt: That is sufficient.”
*122I think the jury understood what charge the state relied on as did also defendant and his counsel.
In my opinion the judgment should be affirmed.