The opinion
BARHAM, Justice
(dissenting).
The defendant was charged with the aggravated rape of a young woman in New Orleans on October 3, 1967. The district attorney in his opening statement said that he intended to offer evidence to prove that the accused, three or four days before this rape charged, had raped another young woman under similar circumstances in another section of the city. After the court overruled the defendant’s objection, to which Bill of Exception No. 5 was re *975 served, the district attorney described the proof which he would offer. The State later called the young woman who had been raped several days before the offense for which the defendant was on trial. This witness described in detail the occurrence, a forcible rape, and identified the defendant as the offender. The defendant objected to this testimony and reserved Bill of Exception No. 6.
The majority has found no merit in these bills of exception reserved in connection with the proof of a separate offense on an earlier date committed upon another, person, stating: “ * * * In sexual offenses, such as rape, evidence of similar recent acts of the defendant is admissible for corroboration and to show the intent and licentious disposition of defendant. * * * ” (Emphasis here and elsewhere has been supplied.) In support of this conclusion the majority has cited State v. Cupit, 189 La. 509 , 179 So. 837 , and State v. McCollough, 149 La. 1061 , 90 So. 404 .
In the Cupit case the defendant was charged with assault with intent to commit rape of a 14-year-old girl. The trial court not only allowed the prosecutrix to testify what she had been told by a sister in regard to the defendant’s raping the sister many years before, but permitted the sister to testify to that rape, committed upon her by the defendant eight years previously. While I believe that opinion to be unsound, if in fact it were correct it is readily distinguishable for there the defendant was charged with a crime requiring specific intent. (See R.S. 15:445, quoted infra.)
The other case relied on, State v. Mc-Collough, is also unsound but distinguishable from the case at hand. There, where the defendant was charged with carnal knowledge, the court erroneously stated that proof of prior offenses was admissible for the purpose of establishing intent and motive, which were not required of that crime. The distinction is that the prior offenses were other sexual acts with the same girl, the young prosecutrix.
R.S. 15:444 provides: “If a statute has made it a crime to do a particular act, no further proof of intent is required than that accused voluntarily did the act * * R.S. 15:445 states: “In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.” R.S. 15:446 says: “When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a’ system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing • guilty knowledge and intent, but not to *977 prove the offense charged.” This is the statutory law relevant to the issue before the court.
The defendant in the instant case is charged with aggravated rape. Rape is the act of sexual intercourse with a female (other than the wife of the offender) committed without her lawful consent. R.S. 14:41. Aggravated rape is committed when the sexual intercourse is deemed to be without lawful consent because the female resisted to the utmost or is prevented from resisting by threats of immediate great bodily harm. R.S. 14:42. Intent and knozvledge form no part of the crime with which this accused is charged, and therefore the crime falls within R.S. 15:444.
Under our statutes, evidence of extraneous crimes is to be admitted only to show intent and knozvledge, and such evidence must then bear directly and materially upon the issue of guilt or innocence of the defendant for the crime with which he is charged. Obviously our statutory law does not authorize the proof of another crime for the purpose of “corroboration”, or of a prior aggravated rape of another person to show the “licentious disposition of defendant”.
Cases which reflect the general theory of our court in regard to the admissibility of evidence of offenses other than the one charged are State v. Rives, 193 La. 186 , 190 So. 374 ; State v. Brown, 185 La. 1023 , 171 So. 433 ; State v. Bates, 46 La.Ann. 849 , 15 So. 204 ; State v. Johnson, 38 La.Ann. 686 . It is the generally accepted rule not only in Louisiana 1 but in other jurisdictions that proof of other offenses is not admissible in the trial of a defendant. 1 Wharton’s Criminal Evidence § 232 (12th ed. 1955); 2 Marr’s Criminal Jurisprudence § 568 (2nd ed. 1923). In 22A C.J.S. Criminal Law § 683 it is stated at p. 743: “Notwithstanding the existence of these numerous exceptions, the general rule precluding admission of evidence of other offenses should he strictly enforced, in all cases where applicable, because of the prejudicial effect and injustice of such evidence, and should not be departed from except under conditions which clearly justify such a departure. So, these exceptions should be carefully limited, and their number and scope not increased, and, if it is doubtful whether evidence of other offenses falls within any of the exceptions to the rule, it should be excluded.” It is further observed in 22A C.J.S. Criminal Law § 691(37) (d) at p. 891: “In general, evidence, at least where it does not fall within one of the recognized exceptions, is not admissible of similar or other sexual offenses committed by accused on persons other than the prosecutrix, as, for example, other rapes or *979 statutory rapes, assaults or attempts, or indecent liberties. * * * ”
We said in State v. Rives, supra, quoting from Rice on Evidence and Wharton on Criminal Evidence:
" * * * ‘It is a dangerous species of evidence, not only because it requires a defendant to meet and explain other acts than those charged against him and for which he is on trial, but also because it may lead the jury to violate the great principle that a party is not to be convicted of one crime by proof that he is guilty of another.’ * * 'The indictment is all that the defendant is expected to come prepared to answer. Therefore, the introduction of another and extraneous crime is calculated to take the defendant by surprise, and to do him manifest injustice by creating a prejudice agaAhst his general character. * * * It would lead to convictions, upon the particular charge made, by proof of other acts in no way connected with it, and to uniting evidence of several offenses to produce conviction for a single one.’
«* * &
“ * *■ * ‘A man cannot be convicted of crime because he is a bad man generally or has, committed other crimes for which he has not been punished.’ ”
It is readily apparent that the general principle must :be strictly adhered to and the exceptions carefully scrutinized. The general policy 'which supports this strict interpretation is that a man is entitled to notice of the charge he is expected to face, that proof of other offenses is misleading and prejudicial and may even be inflammatory in the jury’s mind. The majority has conceded the prejudicial effect of the introduction of evidence of the prior offense by stating that it would “corroborate” and show the “licentious disposition of defendant”. The “licentious disposition” of this accused cannot be placed before the jury except as an attack upon his good character when it is placed at issue by him, and since this evidence was introduced by the State in chief, the defendant’s character was not at issue. The law does not allow proof of prior or subsequent offenses or even of convictions to be introduced in evidence for the purpose of “corroborating” the proof of the guilt of the defendant of the offense of which he stands accused.
Neither intent nor knowledge is an element of the crime with which the defendant was charged. The evidence of the prior rape had no connection with the offense charged. The only purpose which could have been served in this case by the evidence was to predispose the jury to convict for the offense charged or inflame the jury to return a harsh verdict. It had no bearing upon the guilt or innocence of the defendant of this offense. The presentation of this evidence had the effect of trying the defendant for another charge without notice or indictment and without *981 opportunity to secure witnesses and prepare a defense. It was prejudicial.
We have already overextended the exception to the general rule. Some of our jurisprudence has disregarded the explicit, unambiguous language of R.S. 15:444, 15:-445, and 15:446. That language excepts evidence of other offenses from the general rule of evidence only when “knowledge or intent forms an essential part of the inquiry”. I submit that this is the law, the correct law, the rational law. The majority holding will stretch the already ■overextended jurisprudential exception.
I respectfully dissent.
. For a recent ease in which the general rule is recognized, see State v. Gerald, 250 La. 759 , 199 So.2d 536 .