Page:Alford v. State.pdf/11

Rh State, 154 Ark. 67, 242 S. W. 380, and Smith v. State, 205 Ark. 1075, 172 S. W. 2d 249. Therefore, I am convinced we should do here as we did in the cited cases; and this should be our direction, as quoted from Webb v. State, supra:

"The sentence of death will be set aside, and the sentence reduced to imprisonment for life in the State Penitentiary at hard labor, unless the Attorney General elects, within two weeks, to have the judgment reversed and the cause remanded for a new trial."

But I most earnestly dissent from all that part of the majority opinion which holds that the Trial Court committed error in admitting evidence of Alford's attempt to rape Mrs. Austin. Such evidence was entirely competent under the Instruction given by the Trial Court, as hereinafter quoted.

The majority opinion correctly states that the prosecution in any criminal case cannot prove the commission of the crime in question by the proof of the commission of other offenses of a similar nature; but such was not attempted to be done in the case at bar. That the evidence of the attack on Mrs. Austin was not admitted for such purpose is clearly shown by the Instruction which the Trial Court gave to the Jury, and which reads:

"The Court has admitted testimony of another offense similar to the one charged in the information. You will not be permitted to convict the defendant upon such testimony. Evidence of another similar offense, if you believe another has been proven, is admitted solely for the purpose of showing design, particular intention, knowledge, good or bad faith, and you should consider such evidence for this purpose and for this purpose alone. The defendant is not on trial for any offense except the alleged offense against Mrs. Morman and the defendant