Page:Alford v. State.pdf/6

Rh have often found it convenient to catalogue examples of competent testimony as exceptions to the general rule of inadmissibility. The only disadvantage in this approach is the possibility that incompetent evidence may be admitted under the guise of an exception or that competent proof may be ruled out for want of an exception that seems to fit the case. Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv. L. Rev. 988.

The State contends that evidence of recent similar offenses is admissible in criminal cases. While that broad statement has appeared in a few opinions, it must on each occasion be read in context. Taken as a whole, our decisions do not support the view that the sole test of competency is the recency of the other offense, and the similarity of its nature. Indeed, if that test were applied woodenly in each case the result would be to deprive the accused of much of the protection that the rule is intended to afford.

Superficially similar to the case at bar are those decisions holding that in trials for incest or carnal abuse the State may show other acts of intercourse between the same parties. Adams v. State, 78 Ark. 16, 92 S. W. 1123; Williams v. State, 156 Ark. 205, 246 S. W. 503. But obviously such testimony is directly relevant to the question at issue. As stated in the Williams case, such prior acts of intercourse show "the relation and intimacy of the parties, their disposition and antecedent conduct toward each other," and for that reason the evidence aids the jury in determining whether the offense was committed on the particular occasion charged in the indictment.

Again, where the charge involves unnatural sexual acts proof of prior similar offenses has been received. Hummel v. State, 210 Ark. 471, 196 S. W. 2d 594; Roach v. State, 222 Ark. 738, 262 S. W. 2d 647. Such evidence shows not that the accused is a criminal but that he has "a depraved sexual instinct," to quote Judge Parker's phrase in Lovely v. United States, 4th Cir., 169 F. 2d 386.

Perhaps the most frequent resort to evidence of recent similar offenses occurs in the cases involving guilty