Before PRETTYMAN, BAZELON and BASTIAN, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BASTIAN
Appellant (defendant) was indicted for the crime of rape on one Bowles, and convicted of the crime of assault with intent to commit rape. His defense was consent on the part of the prosecutrix. The principal ground urged for reversal is based on objections to the admission of certain evidence concerning defendant's actions prior to the offense charged in the indictment. This evidence was introduced as part of the Government's case in chief.
The witness Krawczel testified that on the morning of the alleged rape some one who identified himself as Fairbanks rapped at her door; that he first offered to the witness some groceries and clothes, which she refused; that shortly thereafter he rapped on her door again, this time asking for matches; and that the rapping continued "for an awfully long time." The witness testified that the door was not opened at any time, and that he left when she threatened to call the police. There was no evidence that this man was actually the defendant. The witness did not, of course, identify him personally; and, according to her testimony, she did not know actually whether it was defendant's voice. *fn1 Under the circumstances of the case, we believe that this evidence was inadmissible.
The witness Nelson testified that six days before the alleged rape defendant rapped at her door at about two o'clock in the morning and asked for matches. The witness procured matches, opened the door wide enough to hand them to the defendant, and noticed that he was clothed only in shorts, with his private parts exposed. The witness testified that he asked to enter and pushed against the door; but it appears that he made no serious effort to enter, made no attempt to touch, injure or molest the witness, used no obscene language, and made no immoral suggestions to her. The evidence was admitted to show disposition. *fn2
The general rule is that upon the trial of an accused person the prosecution may not introduce evidence of another offense wholly independent of the one charged. However, there are many well established exceptions to this rule, so numerous that it has been said that it is difficult to determine which is the more extensive, the doctrine or the acknowledged exceptions. This Court has admitted evidence of other criminal acts when those acts (1) are so blended or connected with the one on trial that proof of one incidentally involves the other, (2) they explain the circumstances of the offense charged, or (3) they tend logically to prove any element of that offense. *fn3 (There are other exceptions to the general rule not here relevant.)
This Court has recognized another exception to the general rule, in Hodge v. United States. *fn4 There it was held that, in a prosecution for incest, evidence of acts of intercourse between the accused and the prosecutrix prior to the specific act upon which the indictment was based is admissible. The theory of this exception is that the mental disposition of the accused at the time of the act charged is relevant; evidence that at some prior acts between the same parties to also relevant. This relates to evidence of prior acts between the same parties to show a disposition to commit the act charged, the probability being that the emotional predisposition or passion would continue. It has not been decided in the District of Columbia whether this exception to the general rule should include the same or similar offenses committed by the accused upon victims other than the one named in the indictment. This Court, in Bracey v. United States (supra) stated that logically the exception would seem to include such other offenses, although a decision upon this point was withheld awaiting a case properly briefed and argued. In Bracey, the Court stated
"The emotional predisposition or passion involved in raping one little girl would seem to be the same as that involved in raping another. Evidence of such a crime committed upon one little girl shows a disposition to commit the same crime upon another, and the probability that the emotional predisposition or passion will continue is as great in one case as the other. The better reasoned cases in other jurisdictions also support the admission of such evidence, within the exception to the general rule."
We then held the questioned evidence in Bracey properly received, on the grounds, however, that the evidence tended to rebut an issue raised by the defense, i.e., that the complainant and witnesses were engaged in a conspiracy against Bracey, and also that it tended to explain a claim of bias.
In the present case, it seems to us that the story told by the witness Nelson did not cover a same or similar offense. At most, defendant might have been guilty of the offense of indecent exposure or, perhaps, assault by reason of pushing on the door; but it certainly is not evidence of a predisposition to commit the crime of rape, as no attempt whatever was made to molest the witness. This evidence raised a collateral issue which might easily have confused the jury; *fn5 and, in effect, it put in issue the defendant's character when he had not put it in issue.
In Lovely v. United States, 4 Cir., 1948, 169 F.2d 386, it was held error to admit testimony that the accused, who was on trial for rape, had committed rape on another woman several weeks prior to the crime alleged in the indictment. There the Court said:
"The fact, if it was a fact, that he had ravished another woman some weeks before, threw no light whatever on that question. It showed merely that he was a bad man, likely to commit that sort of crime; and this is precisely what the prosecution is not allowed to show in a criminal case." At page 388.
It was then held that to do otherwise would violate the rule that the character of a defendant on trial may not be attacked unless he puts it in issue, or unless such testimony is admitted for impeachment purposes where there has been a record of conviction. The Court pertinently pointed out that the fact that another woman testified that she had been raped by the accused, and that there were certain incidents in common with the rape for which the accused was on trial, had no more tendency to establish a plan or scheme within the meaning of the ...