On Rehearing After our further consideration of this case, in which the accused was indicted for aggravated rape of an eleven year old female on September 12, 1944, and was convicted of the offense of attempted aggravated rape, we have reached the conclusion (contrary to that expressed by us on the original hearing) that the trial court correctly permitted the prosecutrix to testify to defendant's commission of rape upon her on September 4, 1944, eight days prior to the date charged in the indictment.
During the trial defense counsel objected to such testimony on the ground that it was irrelevant and immaterial, insisting that he was not prepared to defend an offense committed on a date other than September 12, 1944. The assertion of unpreparedness was unaccompanied by a motion for a continuance. The judge ruled that the evidence was relevant and admissible to show "the probability or improbability of the prosecuting witness' story, *Page 400 and also for the purpose of corroborating her testimony." And in connection with the ruling he specifically instructed the jury that the "State is obliged to prove its allegations as laid down in the bill of indictment"
It is a general rule that evidence of offenses unrelated to the crime with which the accused is charged will be excluded. To admit such evidence ordinarily would subject the accused to charges against which he is unprepared to offer a defense and thereby greatly prejudice him. But by the great weight of authority (there are a few cases to the contrary) an exception to the rule is recognized in the trial of sexual offenses, including incest, carnal knowledge, adultery, fornication, and rape. Under the exception evidence of previous acts or attempted acts of intercourse by the accused with the prosecutrix, at a time not too far remote, is relevant and admissible for corroborative purposes and to show a lustful disposition, notwithstanding that such acts are, in and of themselves, crimes. Wharton's Criminal Evidence, 11th Ed., Section 356; Underhill's Criminal Evidence, 4th Ed., Section 186; Wigmore on Evidence, 3d Ed., Section 398; Jones, Commentaries on Evidence, 2d Ed., Section 623; 22 C.J.S.Criminal Law, § 691.
That the mentioned exception to the general rule has been often recognized and applied in Louisiana is disclosed by the following observations contained in former decisions of this court. *Page 401
"The state offered to show acts of carnal intercourse by the defendant with his daughter prior to the time alleged in the bill of indictment, and also proved the same intercourse within the time laid in the indictment. Evidence showing prior acts was objected to and a bill taken to its admission.
"The ruling of the court was not erroneous. The prisoner was not sought to be convicted on the prior acts, but proof of the same was admissible as tending to establish commencement and continuance of the intercourse down to the time laid in the indictment. For this purpose the testimony was properly received.
"`Prior acts of incest between the same parties may always be proved.' Underhill on Crim. Ev., § 396. See, also, A. E. Ency. of Law (2d Ed.), vol. 16, p. 139; McLains' Crim. Law, vol. 2, p. 285, § 1124." State v. DeHart, 109 La. 570, 33 So. 605, 608.
"Defendant relies on 3 Rice on Evidence, § 157. This section states the general rule that the commission of one offense is not admissible to prove another. However, that rule has its exceptions, and one of them is that in sexual crimes other acts than the one charged are admissible as corroborative evidence. To quote from the same authority:
"`The general rule undoubtedly is that one crime cannot be proved in order to establish another independent crime, but *Page 402 this rule does not apply to cases where the chief element of the offense consists in illicit intercourse between the sexes. The decisions all agree that the sexes are not within the rule.' 3 Rice on Evidence, § 531, p. 844." State v. Wichers, 149 La. 643,89 So. 883, 884.
"The first bill was reserved to the overruling of an objection to testimony showing acts of carnal knowledge with the prosecuting witness and at times different from the one charged in the bill. The per curiam informs us that the evidence was admitted to corroborate the proof made to sustain the charge in the bill, and to show motive and intent. This ruling was in line with the decisions of this court, as well as the text-books on criminal law and criminal evidence." State v. McCollough,149 La. 1061, 90 So. 404, 405.
"Eleven of said bills relate to the admission of certain evidence. That evidence bore upon the number of times defendant had illicit relations with said L. S., whether they were then engaged to be married, whether the (approximate) date given in the indictment was the first time, how long the relations continued, if and when a child was born to said L. S., whether defendant had knowledge of her pregnancy, whether he had admitted his relations with her, and defendant's letters to her during the continuance of those relations.
"All of which clearly bore upon the intimacy existing between the parties at *Page 403 the time of the alleged offense and upon the surrounding circumstances thereof; and hence was clearly admissible to corroborate the testimony of the prosecuting witness and to impeach the defendant's denial thereof." State v. Ouzts,162 La. 340, 110 So. 497.
"The date of the offense having been fixed as July 8, 1925, the defendant objected to any evidence as to the relations between himself and the prosecuting witness at any other time.
"It is true that, since the offense was charged as of July 8, 1925, the state was bound to show that it occurred on that date, but evidence as to the relations between the defendant and the prosecuting witness on other occasions around and near that date was admissible to corroborate the testimony of the prosecuting witness that the offense had been committed on that date." State v. Fuller, 164 La. 718, 114 So. 606, 608.
"Another complaint of defendant is that the court permitted the prosecuting witness to testify over his objection to acts of sexual intercourse, committed previous to the one charged, which the witness claimed defendant had with her. In a prosecution for the offense of unlawful sexual intercourse, other acts between the same individuals than the one charged are admissible in corroboration of the latter. There is no merit in the objection." State v. Mischiro, 165 La. 705, 115 So. 909,910. *Page 404
"The element of intent is an essential ingredient of the crime of assault with intent to commit rape, and the particular intent with which the assault is made may be shown by proof of any facts or circumstances tending to establish such intent. 52 C. J., Rape, § 85, p. 1058." State v. Cupit, 189 La. 509,179 So. 837, 839.
It is true that in none of the above-cited Louisiana cases was defendant charged with aggravated rape, as here; the offense involved in the majority of them was carnal knowledge with an unmarried female under the age of 18 years. Nevertheless, there appears to be no good reason why the doctrine announced and applied therein is not controlling in the present case.
In an effort to avoid the effect of that doctrine, defense counsel argued orally (he filed no brief in this court either on the original hearing or on this rehearing) that in the completed crime of aggravated rape, with which this accused is charged, an intent, motive, design or system is not a necessary element and therefore the testimony of the prosecutrix as to the previous relations of defendant with her is of no pertinency or importance. We do not understand that the testimony was admitted by the trial judge to prove any of the suggested elements; he permitted its introduction for corroborative purposes and to show probability of the commission of the offense charged. But if it had been ruled admissible as proof of intent or design, its materiality and relevancy in this case *Page 405 would be obvious. A separate but lesser grade of the offense of aggravated rape, and responsive to a charge for that crime, is an attempt to commit aggravated rape. It was for the latter crime, concerning the law of which the judge was obliged to instruct the jury (Article 386 and 387 of the Louisiana Code of Criminal Procedure), that the defendant was convicted. An essential element of that lesser crime is a specific intent to commit the greater (Article 27 of the Louisiana Criminal Code), and for the purpose of showing such intent the evidence in question was admissible.
Cases involving sexual offenses from other jurisdictions in which the above-mentioned exception was recognized, applied, and thoroughly discussed include People v. Gray, 251 Ill. 431,96 N.E. 268; People v. O'Sullivan, 104 N.Y. 481, 10 N.E. 880, 58 Am.Rep. 530; People v. Thompson, 212 N.Y. 249, 106 N.E. 78, L.R.A.1915D, 236, Ann.Cas.1915D, 162; McMichen v. State,62 Ga. App. 50, 7 S.E.2d 749; State v. Carpenter, 124 Iowa 5,98 N.W. 775.
For the reasons assigned the conviction and sentence appealed from are affirmed. The right to apply for a rehearing is reserved to defendant.
O'NIELL, C. J., dissents.
FOURNET, J., dissents and assigns written reasons.
*Page 406 On RehearingKENNON, J., takes no part.