guilt of an extraneous crime tends logically to prove against him some particular element of the crime for which he is being tried, such guilt may be shown. But it must not be supposed that the defendant's propensity to commit crime, or even to commit crimes of the same sort as that charged, can be put in evidence to prove his guilt of the particular offense; for, however reasonable would be the deduction that, when a pocket is picked in a group of persons, of whom only one is addicted to picking pockets, he is the offender, his singularity in this respect could not, under our legal theory, figure as proof of his guilt. There must appear, between the extraneous crime offered in evidence and the crime of which the defendant is accused, some other real connection, beyond the allegation that they have both sprung from the same vicious disposition."

In Pierson v. People, 79 N. Y. 424, 35 Am. Rep. 524, the prisoner was charged with murdering one Withey who was a married man. The prisoner was also a married man. Evidence had been given of intimate relations, though not necessarily criminal, between the prisoner and Withey's wife, before the death of the deceased. After the murder the prisoner took the widow and her sister to the house of a friend in the evening and came away with the widow late that night alone. A few days after the murder the prisoner disappeared from the neighborhood. It was then proved by a witness from Michigan, who was a clergyman, that the prisoner and the widow of Withey appeared before him and were married, and the prisoner declared on oath before him that he knew of no legal obstacle to his marriage with the woman and thereupon he married them. This evidence was objected to on the ground that it had no direct or material bearing upon the main question in the case, and that it simply tended to prejudice the prisoner by proving him guilty of another and separate felony. The evidence as to the murder was circumstantial, and this court held that the evidence in controversy was proper for the purpose of proving a motive for the murder. In that case the evidence showed a direct and logical connection between the murder of the deceased and its perpetration by the prisoner. It showed that the prisoner had a passion for the possession of the wife of the deceased, and that for the purpose of obtaining possession of her person he did commit the crimes of perjury and bigamy, and to accomplish this possession of the woman, the tak

ing off of the woman's husband was an obvious necessity. The motive of the prisoner was the desire for the woman, and the strength of that desire, in other words the strength of the motive which impelled the murder was shown in this way.

In the case of People v. Wood, 3 Park. Crim. Rep. 681, evidence had been given of separate and distinct felonies committed by the prisoner for the purpose of showing motive on his part in the killing of the deceased. The learned court held that the evidence was admissible because it tended to show with other evidence that the felonies were parts of a single transaction, influenced by a single motive and designed to accomplish a single object; that they were all connected by unity of plot and design, and, if proved, would tend to show the motive which actuated the prisoner in taking the life of the person stated in the indictment. In that case the evidence tended to show that each felonious act was a necessary one for the purpose of carrying out the main object which then existed in the mind of the prisoner, and that all of them formed but one transaction and were connected together as parts of one whole.

The case of Stout v. People, 4 Park. Crim. Rep. 132, contains the same general principles. There, evidence was admitted to the effect that the prisoner was seen in bed with the wife of the man he was charged with murdering, although such wife was also the prisoner's sister, and it was admitted as furnishing a motive for the prisoner to get the husband out of the way. Com. v. Tuckerman, 10 Gray, 173, was a case of embezzlement and evidence of other embezzlements from the same party during a series of years and contained in a statement made by the prisoner, was admitted.

Com. v. McCarthy, 119 Mass. 354, was an indictment for arson. To prove the intent of the prisoner evidence was received that on two prior occasions the prisoner had set fire to a shed ten feet distant from the building destroyed and connected therewith by a flight of stairs. This had a direct tendency to prove that the firing was not accidental but intentional and felonious.

Com. v. Bradford, 126 Mass. 42, was an indictment for arson, and the same class of evidence was received and for the same purpose.

Com. v. Merriam, 14 Pick. 518, 25 Am. Dec. 420, was an indictment for adultery. Evidence of improper familiarity between

the defendant and the same woman, shortly before the act in question was admitted. The evidence was admitted on the ground that intimacy and these acts of familiarity with the same woman had a tendency to establish the fact of the adultery charged in the indictment. Evidence tending to show previous acts of indecent familiarity would have a tendency to prove, in the case of the same woman, of course, a breaking down of all the safeguards of self respect and modesty and hence a gradual separation of the woman to lend herself to the commission of the crime.

The case of People v. O'Sullivan, 104 N. Y. 481, 58 Am. Rep. 530, the court simply held that upon the trial of the defendant for the crime of rape, it was competent to prove that he had attempted to commit the same crime upon the same woman a short time prior thereto. It was put upon the ground that upon the trial of a person for a particular crime it is always competent to show upon the question of his guilt that he had made an attempt at some prior time, not too remote, to commit the same offense. It was said further that it would be incompetent to prove that the defendant had committed or attempted to commit a rape upon any other woman. And it was stated that upon the trial of a prisoner for murder, it is competent to show that he had made previous attempts or threats to kill his victim, and hence, upon the same principle, it was held that when charged with rape it was competent to show that the defendant had previonsly declared his intention to commit the offense or made an unsuccessful attempt to do so.

In the case of Com. v. Abbott, 130 Mass. 472, upon an indictment for murder, proof was offered on the part of the prisoner of former ill feeling of the husband of the deceased toward the deceased. It was rejected as too remote and disconnected with the crime charged. Particularly as there was evidence of the parties living together on good terms, long subsequent to the time of this alleged ill feeling.

In Com. v. Jackson, 132 Mass. 16, the prisoner was indicted for selling property by false representations under the Massachusetts statute. Evidence of sales of other property of a like nature to other persons under representations proved false was admitted for the purpose of showing the intent with which the representations in question were made. The supreme court of Massachusetts held that the evidence was inadmissible, and that

for the error of its admission a new trial should be granted. The case is cited only for the purpose of quoting the opinion of the court upon the danger of this kind of evidence.

Devens, J., writing the opinion, said that, "the other statements made by the defendant at other times as to the other animals which he sold, might have been false, while those made in the case for which he was tried were not. The transactions formed no part of a single scheme or plan any more than the various robberies of a thief. They were entered upon as from time to time he might succeed in entrapping credulous or unwary persons. Even if they were transactions of the same general character, they differed in all their details, and the defendant was compelled to defend himself against three distinct charges in addition to the one for which alone he was indicted. Evidence of the commission of other crimes by a defendant may deeply prejudice him from the jury, while it does not legally bear upon his case. It certainly would not be competent in order to show the intent with which one entered a house or took an article of personal property to prove that he had committed a burglary or larceny at another time."

§ 155. Evidence of Another Crime if Pertinent to the Issue is Admissible.-Although evidence offered in support of an indictment for felony be proof of another felony, that circumstance does not render it inadmissible. If the evidence offered tends to prove material fact, it is admissible, although it may also tend to prove the commission of another distinct and separate offense. Mason v. State, 42 Ala. 532; Rex v. Kirkwood, 1 Lewin, C. C. 103; Com. v. Stearns, 10 Met. 256; Reg. v. Aston, 2 Russell, Crimes (4th ed.) 841; 3 Russell, Crimes, 286; Reg. v. Weeks, Leigh & C. 18, 21.

"The principle is, that all the evidence admitted must be pertinent to the point in issue; but if it be pertinent to this point, and tends to prove the crime alleged, it is not to to be rejected, though it also tends to prove the commission of other crimes, or to establish collateral facts." Com. v. Choate, 105 Mass. 451, 458. In Reg. v. Lewis, 6 Car. & P. 161, Lord Denman "could not conceive how the relevancy of the fact to the charge could be affected by its being the subject of another charge." Evidence of other crimes than the one charged is so frequently received on indictments for forgery and counterfeiting,

and uttering forged or counterfeit papers or coins, that those classes of cases are sometimes erroneously spoken of as exceptions to the general rule of evidence. They are not exceptions. Evidence is received in all cases when it is relevant (unless it is rejected, on some ground of fact, by an exercise of judicial discretion) without reference to the question whether the facts proved are criminal or not. Its competency consists, not in the innocent character of the act which it tends to prove, but in the relevancy of that act to the issue. Evidence of other crimes is more frequently received in cases of forgery and counterfeiting than in other cases, not because those cases are exceptional in law, but because, in fact, such evidence is more frequently available in those than in other cases to prove a material fact. It is admitted to prove the guilty knowledge, the motive, or the intent, not because there is any exception or special rule of law applicable to proof of the defendant's knowledge, motive, or intent, but because his knowledge, motive, or intent is a material fact to be proved, like any other material fact, by relevant evidence. Archb. Crim. Pl. (4th ed.) 486. See State v. Lapage, 57 N. H. 245.

Competent evidence for the purpose of showing the existence of a motive for the commission of the offense charged, is none the less so because it is also proved the commission of another crime. Pierson v. People, 79 N. Y. 424; Pontius v. People, 82 N. Y.

339.

§ 156. Rule as to Misdemenanors.-In Michigan, Indiana, Wyoming, and perhaps in other jurisdictions, it has been, in effect, held that in misdemeanors the prosecution on a trial under an indictment so drawn that it might cover a number of different offenses of the same nature, after examining the first witness as to one offense on a day certain, must confine it proof to that particular offense, and that the admission of evidence tending to prove other offenses is improper. Fields v. Wyoming, 1 Wyo. 78; People v. Clark, 33 Mich. 112; Richard son v. State, 63 Ind. 192. In Missouri, however, a different rule has prevailed for half a century. In Storrs v. State, 3 Mo. 10, where several distinct violations of the "act to license retailers of vinous and spirituous liquors," approved February 4, 1825, were charged in a single count of the indictment, it was decided that distinct felonies of the same character and degree, though committed at different times, may be charged in the same count in