Dеfendant, a dentist, was indicted for indecent exposure of his person in the presence of a young girl, who was in his office for. treatment. Several witnesses whosе names were not indorsed on the back of the indictment, were examined on behalf of the state. Notice of intention to introduce this evidence was given the defendant, but the sufficiency of this notice is challenged both as to form and substanсe. In view of the conclusions reached, we do not deem it necessary to consider these objections. For the purpose of proving that the aсt was willfully and designedly done, the state was permitted to prove, over objections, that defendant at other times and to other persons made indecent еxposures of his person. At the time of making his objections defendant, through his counsel, admitted in open court, and in the presence of the jury, that, if the act with which he was charged was done at all, it was designedly done; that it was not accidental, or unintentional, or through inadvertence. Notwithstanding this admission, the court permitted the evidence to be introduced, and in its instructions said, in effect, that these transactions should only be considered for the purpose of showing the intent with which the aсt was done, and not as establishing the truth of the indecent exposure charged in the indictment. The rule as to the admission of similar acts at other times and with other pеrsons than those charged in the indictment is well understood. The state cannot prove against a defendant any crime not alleged in the indictment, either as a foundation for separate punishment or as aiding the proofs that he is guilty of the crime charged. The
Neither motive, intent, cоmmon scheme, nor identity of person is involved in this case, and the evidence, if admissible at all, must have been received on the theory that it tended to negative mistake or accident. For this purpose evidence of like character was held admissible in a case where a defendant was charged with a similar оffense. See State v. Stice,
II. The court, in its instructions, undertook to state the faсts as claimed by the state, and as testified to by the defendant; and told the jury to carefully consider these different claims and if, on the whole case, they entertained a reasonable doubt of defendant’s guilt, they should acquit. This form of instruction is not to be com
For the error pointed out, the judgment is reversed, and a retrial ordered.