I dissent.
I do not agree that the evidence is sufficient to support the judgment of conviction of first degree murder; I also am of the opinion that the evidence concerning defendant’s conduct earlier in the day of the crime could have had no other object, or effect, than to prejudice the defendant in the eyes of the jury.
Even the People do “not stress the argument” that defendant was guilty of premeditated, deliberate and wilful murder, but argue that this was a killing committed in the attempt to *548commit, or the actual perpetration of, rape. There is absolutely no evidence whatsoever in the record to support this latter theory: The victim willingly engaged in making love, and permitting the defendant to make love to her; she went with him voluntarily with the expressed purpose of having sexual intercourse with him—not only that night, but in the future since she intended to live with him and tentative arrangements were made for another patron of the bar to take her and the defendant to her home and pick up her belongings the following Sunday morning.
The testimony concerning the defendant’s and victim’s supposed presence at the trailer when the victim was overheard to say “Don’t do this” or “Oh, don’t do this to me” was expressly stated by the witness to be that the woman did not seem to be in any distress and “wasn’t screaming, anything like that.” The witness testified that he didn’t hear a man’s voice; that for a few seconds he heard something like scraping against tin. Defendant testified that when the victim refused to sleep in the trailer with him that he got up and left her, fully clothed, and walked alone toward the show grounds where he met a coworker who went with him to another bar; that he later returned to the show and woke up the next morning on a merry-go-round without knowing how he got there.
The evidence directly linking defendant with the crime is almost nonexistent: He was identified as the man who was last seen walking to the trailers with the victim. There was no evidence on his clothing except two tears on his pants’ pockets, which were proved to have occurred at an earlier time; and two unidentifiable minute blood spots on the back of one pants’ leg. There were no blood stains on his shoes, no scrapings from under his nails connecting him with the victim; the only prints from his shoes were in the spot where he had been last seen with the woman when she was alive. There was nothing on defendant’s clothing suggesting he had either raped, or killed, the woman. Circumstantial evidence and each link in the chain of circumstantial evidence must prove beyond a reasonable doubt that the defendant committed the crime with which he was charged, and, furthermore, each link of that chain of circumstantial evidence must tie irreconcilable with any other rational conclusion (People v. Hatchett, 63 Cal.App.2d 144 [146 P.2d 469] ; People v. Rayol, 65 Cal.App.2d 462 [150 P.2d 812] ; People v. Koenig, 29 Cal.2d 87 [173 P.2d 1]).
*549In considering the applicable law, it should be noted that a woman’s voice was heard, but that the one hearing the words did not consider that she was in distress; no man’s voice was heard; no violent sounds were heard; no signs were found on defendant’s clothing or hands which would even suggest he had committed the crime. The only evidence linking defendant with the victim is that they had set out together with the avowed purpose of engaging, voluntarily, in sexual intercourse ; that they had been engaged in drinking, and making love, publicly for some time; that they were seen walking together toward the trailers. There was ample evidence in the record that other men and women slept in the trailers, and outside of them.
With respect to the evidence as to defendant’s conduct on the afternoon of the day of the crime, its only purpose could have been to inflame the passion and prejudice of the jury. The general rule is that such evidence is inadmissible. There is an exception to the rule that such evidence is admissible when it is relevant to the issues in the case (People v. Evans, 113 Cal.App.2d 124,126 [247 P.2d 915]). The primary theory on which this case was tried was that defendant killed his victim in the attempt to commit rape, or in the actual commission of rape. The evidence complained of concerned the woman with whom defendant had left the bar earlier in the day. After she and the defendant arrived at her home, where he had expected to have intercourse with her, she refused to let him in the house. He then refused to pay the cab driver and was taken back into town by the police. From this the majority infers that defendant was aroused to the point of rape by force and violence due to the frustration of his sexual desires. Even though I am of the opinion that the evidence was inadmissible for any purpose since it showed only defendant’s desire for sexual intercourse and had nothing whatsoever to do with either rape, or murder, since both women were apparently quite willing to go with defendant, its prejudicial effect upon the jury cannot be discounted. With the first woman’s refusal to comply with defendant’s wishes, he merely left her and refused to pay the taxi fare. There is nothing in this evidence which has any bearing on the issues of intent to commit rape with force and violence, or intent to kill, or a killing committed in the attempt to perpetrate, or the commission of rape. In other words, to support murder of the first degree under the theory that it was committed in the attempt to commit, or the commission of, rape, the evidence *550must show either lack of consent, or the use of force and violence in the commission of the act. When the conduct of the parties here is considered, it is apparent that there was no lack of consent on the part of the victim because she was with the defendant for the purpose of having intercourse with him. This is also true of the other woman who, apparently, later changed her mind. There was, however, no intimation that her change of mind caused any violence, or threat of violence, on defendant’s part. Inasmuch as he was charged with murder of the first degree on the theory that he committed said killing in the attempt to commit rape, or the commission thereof, it is difficult for me to see how the evidence could have been considered admissible on any theory. It is clear, however, that the effect of it was to prove to the jury that the defendant was a “bad” and “immoral” man capable of any crime and since he was the last one to be seen with her, even though she was with him voluntarily and willingly, and even though there was no further evidence linking him with the killing that he must have been the guilty one.
I would reverse the judgment because I do not believe the evidence is sufficient and because I believe that the admission of the evidence of defendant’s conduct earlier that afternoon was prejudicially erroneous.
Traynor, J., concurred.