(dissenting):
I cannot agree with the majority of this Court that it was prejudicial error for the trial court to have admitted evidence of the lake incident in which Sherri Lynn nearly met her death. I am convinced that such evidence was admissible under the well-recognized exception to the general rule to show motive, intent or common scheme or plan.
The incident at Canyon Lake occurred on November 3, 1963 while the alleged automobile accident, for which defendant was tried for attempt to commit murder, happened on December 13, 1963. The two acts are sufficiently united as to time. There is no dispute that defendant was present at both of the incidents.
The questions presented are whether the evidence substantially established the other crime and if there is a connection between the Canyon Lake incident and the automobile incident. The evidence introduced at the trial taken in the light most favorable to sustaining the jury’s verdict, is as fol*125lows: The defendant was discharged in bankruptcy on March 27, 1963; on December 13, 1963 defendant owed Termplan, Inc. the sum of $2,100, and payment on that loan was delinquent eight days on the date of the accident; defendant owed Sears Roebuck the sum of $791.44, and was delinquent four months on payments; a debt of $1,968.72 owing to General Motors Acceptance Corp. and the account delinquent for two months; a loan of $14,061.97 past due for four months and an action started in court by the First National Bank of Arizona to recover; delinquent account of four months to Montgomery Ward in the sum of $2,030.62; and payments to Arizona Trust Co. on a home loan delinquent for four months. This summary of the financial status infers motive especially in view of the evidence that the accused was still spending money freely at the time of the automobile incident.
The matter of insurance transactions is also important. On October 25, 1963 defendant ordered insurance policies on two children, one being his step-daughter, Sherri Lynn, the same victim in both incidents. Insurance agents testified that the policies were the worst possible type of policy for accumulating savings, the alleged purpose, but were the best the defendant could purchase from a protection viewpoint. After being informed that the double indemnity clause was not in effect until age 5, the defendant raised the face amount of the policies from $7500 to $15,000. The small premium paid by defendant was enough to keep the policies in effect until about December 23, 1963. The insurance agent testified the policies were effective on October 28, 1963.
On December 4, 1963 the defendant purchased two policies of $15,000 on each of the children from another insurance company. The next morning the children had a medical examination as required by the company. Defendant was the first beneficiary in both policies; again the policy was the type yielding the highest death benefit and lowest cash value.
The jury could have reasonably concluded that defendant took out insurance policies on his stepdaughter, which policies were best calculated to produce the highest return to him in event of death; that the policies were least appropriate for savings purposes and most appropriate for securing a high return in event of death; and, because of his training in the insurance field, as mentioned in the majority opinion, he was fully aware of the effect and significance of his acts.
The following paraphrases the evidence concerning the lake incident as admitted at the trial to show a plan or scheme or intent: A witness testified that defendant approached him at a fast rate of speed and asked him if his boat would take them back to the landing faster than defendant’s. The witness stated that it would not and after telling defendant to go for help, proceeded to look for the child. A life jacket floating on the water was sighted by the witness and the young girl was found approximately 100 yards from the life jacket a foot or two under the water. There is no evidence in the record of any strong wind or other natural factor which could account for the separation of the child and life jacket by such a great distance.
The witness testified it was a distance of one-half to three-fourths of a mile from the point where he met defendant to where he found the girl. Thus, there was only a short interval of time from when defendant left the scene of the alleged accident until the witness discovered the victim. Certainly the only reasonable inference from this testimony would be that defendant threw the victim in the water and started away from her, then remembering the life jacket which he had had removed from her, tossed the life jacket into the water. When the life jacket was found the two strings under the neck were not tied.
Furthermore, even it the testimony of defendant were to be believed that he searched for Sherri Lynn for five mintues in the vicinity of the life jacket before *126starting back to the landing, the above is still the most reasonable inference for had someone appeared on the scene during that time, the defendant could rest fairly assured of both an alibi and that the little girl would not have been found in the vicinity of the life jacket; thus, there would have been but a small chance she could be rescued in time to save her life and defendant’s deed would not be undone.
Deputy Sheriff, J. F. Smith, of Mari-copa County, testified that on November 3, 1963, close to 3:30 p. m., he saw the defendant from approximately 35 to 40 yards, and he had to ask what happened after he heard that a girl had fallen in the water. Although there were no obstructions between the parties, the defendant made no attempt to report the incident to the deputy. There was testimony that defendant had to be questioned in order to elicit further information although he allegedly came back for help.
Defendant, in his conversation with Deputy Smith, stated that one of his sons asked him where the girl was and this was the first time he noticed she was missing. Defendant stated to Smith that he did not get into the water, saying “You would have had two of us to save. No use both of us drowning.” In addition, another deputy sheriff testified that the defendant said, “Why should I pull my shoes and socks off and jump in when I can’t swim.”
The ’custodian of the Police Records at the Tucson Police department produced a document that was sworn to by defendant when he applied for a position with the department, which was admitted in evidence. In this application, made under oath, defendant stated his principal hobbies were swimming and skiing, and in answer to the question, "Can you swim?” his answer was, “Yes, expertly, very good.”
I believe that when taken with the testimony as to defendant’s financial condition and the insurance policies on the victim’s life, the evidence of the Canyon Lake incident, though circumstantial, is more than sufficient to meet the test adopted by the majority of this Court; that is, the proof both as to the commission of another crime and its commission by the defendant must be by “substantial evidence”. The majority concedes that the evidence “is fraught with much suspicion” — but, I am of the opinion the evidence raises more than a mere suspicion and that the trial judge correctly exercised his discretion in admitting it. In State v. Waits, 1 Ariz.App. 463, 466, 404 P.2d 729, 732, it was stated:
“Evidence which creates ‘a mere suspicion’ that the accused committed the other acts is not enough and the other offense must be proved with ‘some certainty.’ People v. Edwards (3rd Dist. 1958), 159 Cal.App.2d 208, 323 P.2d 484. But the proof need not be beyond a reasonable doubt. People v. Rickson (4th Dist. 1952), 112 Cal.App.2d 475, 246 P.2d 700.
“Within these two limits, that is, that the evidence must be such as to create more than a suspicion and the requirement that there be proof beyond a reasonable doubt, this court holds there is an area of discretion in the trial court which is not violated in this action.” (Emphasis added.)
In my view, the above is the proper interpretation of the “substantial evidence” test. Such a rule protects both the accused and the public adequately, and places the determination of the quantum of evidence present in each case on the trial court.
Lastly, I wholeheartedly disagree with the statement of the majority that when the evidence of a prior crime is circumstantial, as it is here, such evidence may only be admitted when it is consistent with the theory of guilt of the defendant and is inconsistent with every reasonable hypothesis of his innocence. This position is indefensible on any logical or rational basis. I readily admit that such is the correct rule of law to be applied in the situation wherein circumstantial evidence is relied upon to prove the commission of the very crime the defendant is presently on trial for; however, I believe that rule has no application *127in the instance where evidence of a prior crime is merely offered to show motive, intent or common scheme or plan. In the latter situation, the defendant is not being tried for the alleged prior crime and thus, as the majority opinion states, the commission of it need not be proved “beyond a reasonable doubt” or even by “clear and convincing proof”; it need only be shown by “substantial evidence”. To require, as the majority does, that when the proof of a prior crime is by circumstantial evidence that it be inconsistent with every reasonable hypothesis of the defendant’s innocence, is to demand much more than substantial evidence. In effect, it requires proof “beyond a reasonable doubt” or at the very least “clear and convincing” proof of the prior crime, both of which tests were supposedly discarded by this Court in favor of the substantial evidence test in the majority opinion.
For the above reasons, I would affirm the judgment of the lower court.