(dissenting).
I respectfully dissent because I believe evidence of the Dubuque incident was admissible under the same rules which admit evidence of the Galesburg incident.
The controlling question is how conclusively the State must prove defendant guilty of another crime before evidence of it becomes admissible under the rule. I do not believe the rule which admits evidence of another overt act should be interpreted to admit only conclusive proof of guilt of such other act. I believe the proof here was ample to render defendant both involved and culpable under the test described by the majority.
Because of its clandestine nature conspiracy may be, and usually must be, inferred by the jury from proof which, taken together, shows various acts to be parts of a scheme. Accordingly the law considerably tempers in conspiracy cases the strictness of the rule which would otherwise exclude evidence of other crimes. State v. Schenk, 236 Iowa 178, 18 N.W.2d 169; State v. Theodore, 260 Iowa 1038, 1043-1045, 150 N.W.2d 612, 615-616; State v. Orozco, 190 N.W.2d 830 (Iowa 1971); 3 Underhill’s Criminal Evidence, Fifth Ed., § 860, pages 1926 — 1929; II Wigmore on Evidence, Third Ed., § 370, page 299. See also 16 Am.Jur.2d, Conspiracy, § 35, page 146; 22A C.J.S. Criminal Law § 691(8), page 815.
An Iowa statute acknowledges the same principle:
“Upon a trial for conspiracy, a defendant cannot be convicted unless one or more overt acts alleged in the indictment are proved, when required by law to constitute the offense, but other overt acts not alleged in the indictment may be given in evidence.” (Emphasis added). Section 782.6, The Code.
*624In recognition of these principles the majority approves the admission of evidence of the Galesburg incident. I think the refusal of the majority to similarly allow admission of evidence of the Dubuque incident is an inconsistent violation of the same principles.
The majority points out the Dubuque incident antedated by four days the overt act which gave rise to this prosecution. But there is nothing about the subsequent act in Waterloo which in any way implies the motive and intent underlying the conspiracy did not arise until that day. Even if it is assumed the conspiracy was formed in the four days following the Dubuque incident the evidence was admissible: “If, prior to the formation of the conspiracy; a defendant participated in the acts or declarations which are being testified to, they are admissible against him to show intent and motive.” 3 Underhill’s Criminal Evidence, Fifth Ed., § 862 at page 1933.
Evidence of overt acts prior to the formation of a conspiracy was admitted in People v. Brown, 26 Ill.2d 308, 186 N.E.2d 321; People v. Reading, 307 Mich. 616, 12 N.W.2d 482, and Commonwealth v. Grosso, 192 Pa. Super. 513, 162 A.2d 421.
The factual resemblance of the three incidents was striking. The same modus oper-andi was employed. A relatively short span of time was involved. The same automobile was used. And two individuals, including this defendant, were involved in all three incidents while a third individual was involved in at least two.
The majority seems satisfied with the State’s showing the Dubuque incident occurred but rejects the evidence on the claim this defendant’s involvement was not sufficiently shown. I disagree. The question should be considered in the light of all three incidents and in light of the fact his involvement in the other two was not seriously questioned. Indeed defendant concedes his involvement in the Galesburg incident.
This case can be distinguished from that of his brother, State v. Johnson, 222 N.W.2d 483 (Iowa 1974). In this case the evidence showed defendant was returned to the scene, according to State testimony, within five minutes of his leaving. He had been stopped driving the automobile in which the identified would-be thief was passenger. The shoelaces obtained in the store were in the same car.
Even if defendant were found not to have aided and abetted the crime a jury might find he was an accessory after the fact. See State v. Kittelson, 164 N.W.2d 157, 165 (Iowa 1969) and § 688.2, The Code.
Since I agree the evidence of the expert witness on the technique of till tapping was properly admitted I would affirm.
MOORE, C. J., and UHLENHOPP and REYNOLDSON, JJ., join this dissent.