[*469] [**754] SPALDING, Justice. The decisive question in this case is whether there was evidence for the jury that the plaintiff was injured by a bus of the defendant that was operated by one of its employees in the course of his employment. If there was, the defendant concedes that the evidence warranted the submission to the jury of the question of the operator's negligence in the management of the bus. The case is here on the plaintiff's exception to the direction of a verdict for the defendant.

These facts could have been found: While the plaintiff at about 1:00 A. M. on February 6, 1941, was driving an automobile on Main Street, Winthrop, in an easterly direction toward Winthrop Highlands, she observed a bus coming toward her which she described as a 'great big, long, wide affair.' The bus, which was [**755] proceeding at about forty miles an hour, 'forced her to turn to the right,' and her automobile collided with a 'parked car.' The plaintiff was coming from Dorchester. The department [***2] of public [*470] utilities had issued a certificate of public convenience or necessity to the defendant for three routes in Winthrop, one of which included Main Street, 1 and this was in effect in February, 1941. 'There was another bus line in operation in Winthrop at that time but not on Main Street.' According to the defendant's time-table, buses were scheduled to leave Winthrop Highlands for Maverick Square via Main Street at 12:10 A. M., 12:45 A. M., 1:15 A. M., and 2:15 A. M. The running time for this trip at that time of night was thirty minutes.

FOOTNOTES

1. The defendant in its brief concedes that this route included the place where the accident occurred.

The direction of a verdict for the defendant was right. The ownership of the bus was a matter of conjecture. While the defendant had the sole franchise for operating a bus line on Main Street, Winthrop, this did not preclude private or chartered buses from using this street; the bus in question could very well have been one operated by someone other than the defendant. It was said in Sargent v. Massachusetts Accident Co., 307 Mass. 246, at page 250, 29 N.E.2d 825, at page 827, that it is 'not enough that mathematically [***3] the chances somewhat favor a proposition to be proved; for example, the fact that colored automobiles made in the current year outnumber black ones would not warrant a finding that an undescribed automobile of the current year is colored and not black, nor would the fact that only a minority of men die of cancer warrant a finding that a particular man did not die of cancer.' The most that can be said of the evidence in the instant case is that perhaps the mathematical chances somewhat favor the proposition that a bus of the defendant caused the accident. This was not enough. A 'proposition is proved by a preponderance of the evidence if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.' Sargent v. Massachusetts Accident Co., 307 Mass. 246, at page 250, 29 N.E.2d 825 at page 827.

In cases where it has been held that a vehicle was sufficiently identified so as to warrant a finding that it was [*471] owned by the defendant, the evidence was considerably stronger than that in the case at bar. See, for example, [***4] Kelly v. Railway Express Agency, Inc., 315 Mass. 301, 52 N.E.2d 411; Gallagher v. R. E. Cunniff, Inc., 314 Mass. 7, 8, 9, 49 N.E.2d 448; Breen v. Dedham Water Co., 241 Mass. 217, 135 N.E. 130; Heywood v. Ogasapian, 224 Mass. 203, 112 N.E. 619; Hopwood v. Pokrass, 219 Mass. 263, 106 N.E. 997.

The evidence in the instant case is no stronger for the plaintiff than that in Atlas v. Silsbury-Gamble Motors Co., 278 Mass. 279, 180 N.E. 127, or in Cochrane v. Great Atlantic & Pacific Tea Co., 281 Mass. 386, 183 N.E. 757, where it was held that a finding that the vehicle in question was owned by the defendant was not warranted.

Exceptions overruled.

CARDOZO, C. J.

On November 10, 1929, shortly after midnight, the defendant in Kings county shot Frank Coppola and killed him without justification or excuse. A crime is admitted. What is doubtful is the degree only.

Four young men, of whom Coppola was one, were at work repairing an automobile in a Brooklyn street. A woman, the defendant's wife, walked by on the opposite side. One of the men spoke to her insultingly, or so at least she understood him. The defendant, who had dropped behind to buy a newspaper, came up

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to find his wife in tears. He was told she had been insulted, though she did not then repeat the words. Enraged, he stepped across the street and upbraided the offenders with words of coarse profanity. He informed them, so the survivors testify, that ‘if they did not get out of there in five minutes, he would come back and bump them all off.’ Rejoining his wife, he walked with her to their apartment house located close at hand. He was heated with liquor which he had been drinking at a dance. Within the apartment he induced her to tell him what the insulting words had been. A youth had asked her to lie with him, and had offered her $2. With rage aroused again, the defendant went back to the scene of the insult and found the four young men still working at the car. In a statement to the police, he said that he had armed himself at the apartment with a .25-caliber automatic pistol. In his testimony at the trial he said that this pistol had been in his pocket all the evening. Words and blows followed, and then a shot. The defendant kicked Coppola in the stomach. There is evidence that Coppola went for him with a wrench. The pistol came from the pocket, and from the pistol a single shot, which did its deadly work. The defendant walked away and at the corner met his wife who had followed him from the home. The two took a taxicab to Manhattan, where they spent the rest of the night at the dwelling of a friend. On the way the defendant threw his pistol into the river. He was arrested on January 7, 1930, about two months following the crime.

At the trial the vital question was the defendant's state of mind at the moment of the homicide. Did he shoot with a deliberate and premeditated design to kill? Was he so inflamed by drink or by anger or by both combined that, though he knew the nature of his act, he was the prey to sudden impulse, the fury of the fleeting moment? People v. Caruso, 246 N. Y. 437, 446, 159 N. E. 390. If he went forth from his apartment with a preconceived design to kill, how is it that he failed to shoot at once? How reconcile such a design with the drawing of the pistol later in the heat and rage of an affray? These and like questions the jurors were to ask themselves and answer before measuring the defendant's guilt. Answers consistent with guilt in its highest grade can reasonably be made. Even so, the line between impulse and deliberation is too narrow and elusive to make the answers wholly clear. The sphygmograph records with graphic certainty the fluctuations of the pulse. There is no instrument yet invented that records with equal certainty the fluctuations of the mind. At least, if such an instrument exists, it was not working at midnight in the Brooklyn street when Coppola and the defendant came together in a chance affray. With only the rough and ready tests supplied by their experience of life, the jurors were to look into the workings of another's mind, and discover its capacities and disabilites, its urges and inhibitions, in moments of intense excitement. Delicate enough and subtle is the inquiry, even in the most favorable conditions, with every warping influence excluded. There must be no blurring of the issues by evidence illegally admitted and carrying with it in its admission an appeal to prejudice and passion.

Evidence charged with that appeal was, we think, admitted here. Not only was it admitted, and this under objection and exception, but the changes were rung upon it by prosecutor and judge. Almost at the opening of the trial the people began the endeavor to load the defendant down with the burden of an evil character. He was to be put before the jury as a man of murderous disposition. To that end they were allowed to prove that at the time of the encounter and at that of his arrest he had in his apartment, kept there in a radio box, three pistols and a tear-gas gun. There was no claim that he had brought these weapons out at the time of the affray, no claim that with any of them he had discharged the fatal shot. He could not have done so, for they were all of different caliber. The end to be served by laying the weapons before the jury was something very different. The end was to bring persuasion that here was a man of vicious and dangerous propensities, who because of those propensities was more likely to kill with deliberate and premeditated design than a man of irreproachable life and amiable manners. Indeed, this is the very ground on which the introduction of the evidence is now explained and defended. The district attorney tells us in his brief that the possession of the weapons characterized the defendant as ‘a desperate type of criminal,’ a ‘person criminally inclined.’ The dissenting opinion, if it puts the argument less bluntly, leaves the substance of the thought unchanged. ‘Defendant was presented to the jury as a man having dangerous weapons in his possession, making a selection therefrom and going forth to put into execution his threats to kill.’ The weapons were not brought by the defendant to the scene of the encounter. They were left in his apartment where they were incapable of harm. In such circumstances, ownership of the weapons, if it has any relevance at all, has relevance only as indicating a general disposition to make use of them thereafter, and a general disposition to make use of them thereafter is without relevance except as indicating

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a ‘desperate type of criminal,’ a criminal affected with a murderous propensity.

We are asked to extenuate the error by calling it an incident; what was proved may have an air of innocence if it is styled the history of the crime. The virus of the ruling is not so easily extracted. Here was no passing reference to something casually brought out in the narrative of the killing, as if an admission had been proved against the defendant that he had picked one weapon out of several. Here in the forefront of the trial, immediately following the statement of the medical examiner, testimony was admitted that weapons, not the instruments of the killing, had been discovered by the police in the apartment of the killer; and the weapons with great display were laid before the jury, marked as exhibits, and thereafter made the subject of animated argument. Room for doubt there is none that in the thought of the jury, as in that of the district attorney, the tendency of the whole performance was to characterize the defendant as a man murderously inclined. The purpose was not disguised. From the opening to the verdict, it was flaunted and avowed.

If a murderous propensity may be proved against a defendant as one of the tokens of his guilt, a rule of criminal evidence, long believed to be of fundamental importance for the protection of the innocent, must be first declared away. Fundamental hitherto has been the rule that character is never an issue in a criminal prosecution unless the defendant chooses to make it one. Wigmore, Evidence, vol. 1, §§ 55, 192. In a very real sense a defendant starts his life afresh when he stands before a jury, a prisoner at the bar. There has been a homicide in a public place. The killer admits the killing, but urges self-defense and sudden impulse. Inflexibly the law has set its face against the endeavor to fasten guilt upon him by proof of character or experience predisposing to an act of crime. Wigmore, Evidence, vol. 1, §§ 57, 192; People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193. The endeavor has been often made, but always it has failed. At times, when the issue has been self-defense, testimony has been admitted as to the murderous propensity of the deceased, the victim of the homicide (People v. Druse, 103 N. Y. 655, 8 N. E. 733; People v. Rodawald, 177 N. Y. 408, 70 N. E. 1; Wigmore, Evidence, vol. 1, § 63, 246), but never of such a propensity on the part of the killer. The principle back of the exclusion is one, not of logic, but of policy. Wigmore, vol. 1, §§ 57, 194; People v. Richardson, 222 N. Y. 103, 109, 110, 118 N. E. 514. There may be cogency in the argument that a quarrelsome defendant is more likely to start a quarrel than one of milder type, a man of dangerous mode of life more likely than a shy recluse. The law is not blind to this, but equally it is not blind to the peril to the innocent if character is accepted as probative of crime. ‘The natural and inevitable tendency of the tribunal-whether judge or jury-is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge.’ Wigmore, Evidence, vol. 1, § 194, and cases cited.

A different question would be here if the pistols had been bought in expectation of this particular encounter. They would then have been admissible as evidence of preparation and design. Wigmore, Evidence, vol. 1, § 238; People v. Scott, 153 N. Y. 40, 46 N. E. 1028. A different question would be here if they were so connected with the crime as to identify the perpetrator, if he had dropped them, for example, at the scene of the affray. People v. Hill, 198 N. Y. 64, 91 N. E. 272. They would then have been admissible as tending to implicate the possessor (if identity was disputed), no matter what the opprobrium attached to his possession. Different, also, would be the question if the defendant had been shown to have gone forth from the apartment with all the weapons on his person. To be armed from head to foot at the very moment of an encounter may be a circumstance worthy to be considered, like acts of preparation generally, as a proof of preconceived design. There can be no such implication from the ownership of weapons which one leaves behind at home.

The endeavor was to generate an atmosphere of professional criminality. It was an endeavor the more unfair in that, apart from the suspicion attaching to the possession of these weapons, there is nothing to mark the defendant as a man of evil life. He was not in crime as a business. He did not shoot as a bandit shoots in the hope of wrongful gain. He was engaged in a decent calling, an optician regularly employed, without criminal record, or criminal associates. If his own testimony be true, he had gathered these weapons together as curios, a collection that interested and amused him. Perhaps his explanation of their ownership is false. There is nothing stronger than mere suspicion to guide us to an answer. Whether the explanation be false or true, he should not have been driven by the people to the necessity of offering it. Brought to answer a specific charge,

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and to defend himself against it, he was placed in a position where he had to defend himself against another, more general and sweeping. He was made to answer to the charge, pervasive and poisonous even if insidious and covert, that he was a man of murderous heart, of criminal disposition.

The argument is made that the evidence, if incompetent when admitted, became competent thereafter when the defendant took the stand. By taking the stand he subjected himself like any other witness to cross-examination designed to shake belief in his veracity by exhibiting his ways of life. People v. Webster, 139 N. Y. 73, 84, 34 N. E. 730; People v. Hinksman, 192 N. Y. 421, 433, 85 N. E. 676. Cross-examination brought out the fact that he had no license for a pistol. That fact disclosed, the prosecution was at liberty to prove the possession of the weapons in an attempt to impeach his credibility, since possession was a felony, all this may be true, but the evidence was not offered or admitted with such an end in view. It was received at a time when there was nothing to show that the defendant was without a license, and without suggestion that any such evidence would be brought into the case thereafter. The jury were not told that the possession of the weapons had significance only in so far as possession without a license had a tendency to cast a shadow on the defendant's character, and so to impair the faith to be given to his word. Cf. Wigmore, Evidence, vol. 2, § 981, et seq.; People v. De Garmo, 179 N. Y. 130, 134, 135, 71 N. E. 736. They were told in effect through the whole course and tenor of the trial that irrespective of any license, the mere possession of the weapons was evidence of a murderous disposition, which, apart from any bearing upon the defendant's credibility as a witness, was evidence of guilt. Here is no case of a mere technical departure from the approved order of proof. If the evidence had been received for the purpose of impeachment merely, the people would have been bound by the answer of the witness as to the time and purpose of the purchase, and would not have been permitted to contradict him. Stokes v. People, 53 N. Y. 164, 176, 13 Am. Rep. 492; People v. De Garmo, supra. Here is a case where evidence offered and received as probative of an essential element of the crime, used for that purpose, and for no other, repeatedly throughout the trial, is now about to be viewed as if accepted at a later stage and accepted for a purpose unmentioned and unthought of. This is not justice in accordance with the forms of law. ‘The practice of calling out evidence for one purpose, apparently innocent, and using it for another, which is illegal, is improper; and, if it is clear and manifest that the avowed object is colorable merely, its admission is error.’ Coleman v. People, 55 N. Y. 81, 88. Even more plainly is it a perversion to call out evidence for an avowed object manifestly illegal, and use it later on appeal as if admitted at another stage in aid of another purpose innocent and lawful.

The judgment of conviction should be reversed, and a new trial ordered.

POUND, J. (dissenting).

The indictment herein accuses defendant of the crime of murder in the first degree committed in Kings county on November 10, 1929, by shooting Frank Coppola with a revolver. That defendant did shoot and kill Coppola is admitted. The jury was justified on the evidence in finding that he did so from a deliberate and premeditated design to effect death. The proofs tend to establish that defendant, aged twenty-four, and his seventeen year old wife, ‘Fluff,’ had attended a dance at a dance hall; that they left for their home at 105 Devoe street about midnight; that defendant dropped behind his wife to buy some newspapers; that she went on a block ahead of him when she arrived at Devoe street; that on the opposite side of the street in the middle of the block four young men, including Coppola, were at work repairing an automobile; that Mrs. Zackowitz was either ‘insulted’ by some remarks of one of them or thought she was; that she upbraided them; that when defendant came up to his wife she told him that she had been ‘insulted,’ and they crossed the street and defendant with much profanity threatened them that ‘if they did not get out of there in five minutes he would come back and bump them all off’; that defendant returned to the scene armed with a .25-caliber automatic pistol; that he kicked Coppola who bent over; that as Coppola got up defendant drew his pistol and fired one shot; that Coppola was struck in the lung and heart and, as a result of the shot, died soon afterwards; that defendant then met his wife on the street and they took a taxi to Manhattan; that defendant was arrested on or about January 7, 1930; that he made a confession in which he sought to defend the act of killing by saying that Coppola threatened him with a monkey wrench and that he did not realize that he had shot him; that he got the gun at his home and went back to ask them to apologize; that he took the gun to protect himself ‘because they were four guys'; that he had been drinking, was a little excited, but not drunk; that he knew what he was doing.

On the trial, defendant and his wife testified.

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Defendant said in substance that he had carried the .25 automatic to the dance and had it with him on the occasion of the first encounter; that he talked with the men; that they denied that they had insulted his wife; that he thought it was not worth quarreling about and left them; that he did not threaten to bump them off; that when they went home his wife in tears and evident distress reluctantly told him that they had made a proposition to her which was understood as an offer of $2 for sexual intercourse; that he went back to demand an apology; that he kicked at Coppola but did not hit him; that Coppola threatened him with a monkey wrench; that he was frightened; that he did not intend to kill Coppola but drew the pistol to frighten him; that the discharge of the gun was an accident; that he was partly intoxicated; that he had no permit to carry a gun.

The court submitted to the jury the various degrees of felonious homicide, and the law as to justifiable and excusable homicide, and instructed them particularly as to the law of killing in self-defense. On the theory that defendant repudiated intoxication as a partial defense, tending to reduce the degree of the crime, the court did not instruct the jury on the question of intoxication. Penal Law (Consol. Laws, c. 40) § 1220. In the circumstances, the judgment should not be reversed on this ground as the defendant did not make the question a serious one. People v. Van Zandt, 224 N. Y. 354, 120 N. E. 725; People v. Koerber, 244 N. Y. 147, 150, 155 N. E. 79. At the conclusion of the charge defendant's counsel said:

‘Mr. Rubenstein: The defendant excepts to the entire charge, and specifies as his ground the manner in which the charge was delivered, the inflection of your Honor's voice, the use of your hands, your eyebrows-the pauses and other mannerisms. No requests.’

Unfortunately, perhaps, we have no record of the judge's manner of delivery. The point is not pressed on the appeal.

The questions of intent and deliberation and premeditation were for the jury. Their verdict is amply sustained by the evidence and the conviction should be affirmed ‘without regard to technical errors or defects which have not prejudiced the substantial rights of the defendants.’ Code Cr. Proc. § 764. ‘But the question of substantial right is not the abstract question of guilt or innocence. A guilty man is entitled to a fair trial. Error is substantial when we can say that it tended to infiuence the verdict.’ People v. Sobieskoda, 235 N. Y. 411, 420, 139 N. E. 558, 561. We must therefore give careful heed to one matter which is brought to our attention on this appeal without regard to the convincing character of the people's evidence.

Nearly two months after the killing of Coppola, the police entered defendant's home in connection with his arrest and found there concealed in a box in the radio three revolvers and a tear-gas bomb, together with a supply of cartridges suitable for use both in the revolvers and the bomb. Defendant had in his confession, which was received without objection, admitted that he had these weapons in his possession at the time of the killing. The .25-caliber automatic was not among them. Defendant says that he threw it away after he shot Coppola. The people, as a part of their principal case, introduced these articles in evidence over defendant's objection and exception. This is the only ruling by which the question of error in law is presented on this appeal. No objection was made to the summation by the district attorney nor to any specific instructions by the court. The possession of these dangerous weapons was a separate crime. Penal Law, § 1897. The broad question is whether it had any connection with the crime charged. The substantial rights of the defendant must be protected. Where the penalty is death, we may grant a new trial if justice requires it, even though no exception was taken in the court below. Code Cr. Proc. § 528.

The people may not prove against a defendant crimes not alleged in the indictment committed on other occasions than the crime charged as aiding the proofs that he is guilty of the crime charged unless such proof tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial. These exceptions are stated generally and not with categorical precision and may not be all-inclusive. People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193; People v. Pettanza, 207 N. Y. 560, 101 N. E. 428; People v. Moran, 246 N. Y. 100, 106, 158 N. E. 35. None of them apply here, nor were the weapons offered under an exception to the general rule. They were offered as a part of the transaction itself. The accused was tried only for the crime charged. The real question is whether the matter relied on has such a connection with the crime charged as to be admissible on any ground. If so, the fact that it constitutes another distinct crime does not render it inadmissible. Com. v. Snell, 189 Mass. 12, 21, 75 N. E. 75, 3 L. R. A. (N. S.) 1019. The rule laid down in the Molineux Case has

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never been applied to prevent the people from proving all the elements of the offense charged, although separate crimes are included in such proof. Thus in this case no question is made as to the separate crime of illegal possession of the weapon with which the killing was done. It was ‘a part of the history of the case’ having a distinct relation to and bearing upon the facts connected with the killing. People v. Governale, 193 N. Y. 581, 86 N. E. 554; People v. Rogers, 192 N. Y. 331, 85 N. E. 135, 15 Ann. Cas. 177; People v. Hill, 198 N. Y. 64, 91 N. E. 272; People v. Rodawald, 177 N. Y. 408, 70 N. E. 1.

As the district attorney argues in his brief, if defendant had been arrested at the time of the killing, and these weapons had been found on his person, the people would not have been barred from proving the fact, and the further fact that they were near by in his apartment should not preclude the proof as bearing on the entire deed of which the act charged forms a part. Defendant was presented to the jury as a man having dangerous weapons in his possession, making a selection therefrom, and going forth to put into execution his threats to kill; not as a man of a dangerous disposition in general, but as one who, having an opportunity to select a weapon to carry out his threats, proceeded to do so.

If the confession was admissible on this point, the weapons themselves were admissible in evidence, If the evidence corroborates the confession and several crimes having ‘an obvious relation to the crime charged in the indictment’ are referred to in the same confession, both the entire confession and the corroborative evidence are admissible. People v. Rogers, supra, page 352 of 192 N. Y., 85 N. E. 135. The relation between the possession of the weapons and the crime charged tended to corroborate the confession as a whole. The sequence of events made the chain incomplete without this important link.

The case would have been quite different if the weapons came into defendant's possession after the killing. The proof would then be of separate crimes unconnected with the killing and its admission reversible error under the Molineux Case, supra.

It is urged that defendant may have been half-drunk, infuriated, frightened, impulsive, and measurably irresponsible; that he should not have been convicted of murder in the first degree; that the proof of possession of the weapons prejudiced the jury against him. If, as we have held, the proof was competent the jury was free to give it such weight as it deserved. On the other hand, if it was incompetent, was the error substantial enough to call for the reversal of his conviction? Defendant presented his side of the case to the jury. He gave his account of the weapons and how he came by them, which was consistent with innocent purpose on his part. Admittedly he did have an argument with Coppola and his fellows, did go home, did return armed, and did quarrel and kill. His answer is that the killing was accidental. How can we say with confidence in the circumstances of this case that the evidence, even if technically objectionable, so tended to influence the jury against him that ‘justice requires a new trial’? Code Cr. Proc. § 528. While it is not inconceivable that the result might have been otherwise without this evidence (People v. Slover, 232 N. Y. 264, 267, 133 N. E. 633), it is unlikely that it turned the minds of the jury from a lesser degree of crime to the disadvantage of accused. In the circumstances of this case, whether he had one weapon or a dozen would not materially change the nature of his offense. The proof merely darkened that which was black enough when painted by his own brush.

The judgment of conviction should be affirmed.

LEHMAN, KELLOGG, and O'BRIEN, JJ., concur with CARDOZO, C. J.

POUND, J., dissents in opinion in which CRANE and HUBBS, JJ., concur.

Judgment reversed, etc.

Error is assigned to the action of the court below, (1) in assuming jurisdiction of the case; (2) in not remitting the indictment to the Circuit Court for trial; (3) in admitting to the jury the reporter's notes of the testimony of two witnesses at the former trial, who had since died; (4) in refusing to permit the defendant to introduce the testimony of two witnesses to impeach the testimony of one of the deceased witnesses, 239*239 upon the ground that the proper foundation had not been laid. We proceed to the consideration of these assignments in their order:

1. The offence was alleged in the indictment to have been committed "within that part of the Indian Territory lying north of the Canadian River and east of Texas and the 100th meridian, not set apart and occupied by the Cherokees, Creeks, and Seminole Indian tribes." By § 2 of the act of January 6, 1883, c. 13, 22 Stat. 400, this territory was expressly "annexed to" and declared "to constitute a part of the United States Judicial District of Kansas." It is true that, by the act of May 2, 1890, c. 182, creating the Territory of Oklahoma, 26 Stat. 81, § 9, jurisdiction over the territory in question was vested in the District Courts of that Territory, but with a reservation that "all actions commenced in such courts," (viz., courts held beyond and outside the limits of the Territory,) "and crimes committed in said Territory and in the Cherokee Outlet, prior to the passage of this act, shall be tried and prosecuted, and proceeded with until finally disposed of, in the courts now having jurisdiction thereof, as if this act had not been passed." As the homicide in question was committed in December, 1889, there can be no question but that it was properly cognizable in the Judicial District of Kansas. Indeed, this point is disposed of by the decision of this court in Caha v. United States, 152 U.S. 211.

2. We are also of opinion that there was no error in not remitting the indictment to the Circuit Court for trial, and in assuming jurisdiction of the entire case. Rev. Stat. § 1039, requiring indictments in capital cases, presented to a District Court, to be remitted to the next session of the Circuit Court for the same district, and there to be tried, has no application to this case, since the subsequent act of January 6, 1883, 22 Stat. 400, to which we have already called attention, vests in the United States District Courts at Wichita and Fort Scott in the District of Kansas "exclusive original jurisdiction of all offences committed within the limits of the Territory hereby annexed to said District of Kansas, against any of the laws of the United States." This act should be read as a qualification 240*240 of sec. 1039, or a repeal pro tanto of the requirement that indictments shall be remitted to the Circuit Court for trial. A District Court could not be said to have "exclusive original jurisdiction" of a case which it was obliged to remit to another court for trial.

3. Upon the trial it was shown by the government that two of its witnesses on the former trial, namely, Thomas Whitman and George Thornton, had since died, whereupon a transcribed copy of the reporter's stenographic notes of their testimony upon such trial, supported by his testimony that it was correct, was admitted to be read in evidence, and constituted the strongest proof against the accused. Both these witnesses were present and were fully examined and cross-examined on the former trial. It is claimed, however, that the constitutional provision that the accused shall "be confronted with the witnesses against him" was infringed, by permitting the testimony of witnesses sworn upon the former trial to be read against him. No question is made that this may not be done in a civil case, but it is insisted that the reasons of convenience and necessity which excuse a departure from the ordinary course of procedure in civil cases cannot override the constitutional provision in question.

The idea that this cannot be done seems to have arisen from a misinterpretation of a ruling in the case of Sir John Fenwick, 13 Howell's State Trials, 537, 579 et seq., which was a proceeding in Parliament in 1696 by bill of attainder upon a charge of high treason. It appeared that Lady Fenwick had spirited away a material witness, who had sworn against one Cook on his trial for the same treason. His testimony having been ruled out, obviously because it was not the case of a deceased witness, nor one where there had been an opportunity for cross-examination on a former trial between the same parties, the case is nevertheless cited by Peake in his work on Evidence (p. 90) as authority for the proposition that the testimony of a deceased witness cannot be used in a criminal prosecution. The rule in England, however, is clearly the other way. Buller's N.P. 242; King v. Jolliffe, 4 T.R. 285, 290; King v. Radbourne, 1 Leach Cr. Law, 457; Rex v. Smith, 241*241 2 Starkie, 208; Buckworth's case, T. Raym. 170. As to the practice in this country, we know of none of the States in which such testimony is now held to be inadmissible. In the cases of Finn v. Commonwealth, 5 Rand. (Va.) 701; Mendum v. Commonwealth, 6 Rand. (Va.) 704; and Brogy v. Commonwealth, 10 Grattan, 722, the witnesses who had testified on the former trial were not dead, but were out of the State, and the testimony was held by the Court of Appeals of Virginia to be inadmissible, though the argument of the court indicated that the result would have been the same if they had been dead. In the case of State v. Atkins, 1 Overton, 229, the former testimony of a witness since deceased was rejected by the Supreme Court of Tennessee, but this case was subsequently overruled in Kendrick v. State, 10 Humphrey, 479, and testimony of a deceased witness taken before a committing magistrate was held to be admissible. See also Johnston v. State, 2 Yerger, 58; Bostick v. State, 3 Humph. 344. The rule in California was formerly against the admission of such testimony; People v. Chung Ah Chue, 57 California, 567; People v. Qurise, 59 California, 343; but it is now admitted under a special provision of the code applicable to absent and deceased witnesses, which is held to be constitutional. People v. Oiler, 66 California, 101. In the case of State v. Campbell, 1 Rich. (S.C.) 124, the testimony of a deceased witness had been taken before a coroner, but in the absence of the accused, and of course it was held to be inadmissible.

Upon the other hand, the authority in favor of the admissibility of such testimony, where the defendant was present either at the examination of the deceased witness before a committing magistrate, or upon a former trial of the same case, is overwhelming. The question was carefully considered in its constitutional aspect by the Supreme Judicial Court of Massachusetts in Commonwealth v. Richards, 18 Pick. 434, in which it was said that "that provision was made to exclude any evidence by deposition, which could be given orally in the presence of the accused, but was not intended to affect the question as to what was or was not competent evidence to be given face to face according to the settled 242*242 rules of the common law." The subject was also treated at great length by Judge Drummond in United States v. Macomb, 5 McLean, 286, and the substance of a deceased witness's testimony given at a preliminary examination held to be admissible. All the cases up to that time were cited in the opinion, and the decision put upon the ground that, the right of cross-examination having once been exercised, it was no hardship upon the defendant to allow the testimony of the deceased witness to be read. From the following list of cases it will be seen that the same doctrine prevails in more than a dozen States. Summons v. State, 5 Ohio St. 325; Brown v. Commonwealth, 73 Penn. St. 321: in both of which cases the question was elaborately considered. State v. McO'Blenis, 24 Missouri, 402; State v. Baker, 24 Missouri, 437; State v. Houser, 26 Missouri, 431 — a most learned discussion of the subject; State v. Able, 65 Missouri, 357; Owens v. State, 63 Mississippi, 450; Barnet v. People, 54 Illinois, 325; United States v. White, 5 Cranch C.C. 457; Robinson v. State, 68 Georgia, 833; State v. Wilson, 24 Kansas, 189; State v. Johnson, 12 Nevada, 121; Roberts v. State, 68 Alabama, 515; State v. Cook, 23 La. Ann. 347; Dunlap v. State, 9 Tex. App. 179; O'Brian v. Commonwealth, 6 Bush, 563; State v. Hooker, 17 Vermont, 658; Crary v. Sprague, 12 Wend. 41; United States v. Wood, 3 Wash. C.C. 440; State v. Valentine, 7 Iredell, (Law,) 225. While the precise question has never arisen in this court, we held in Reynolds v. United States, 98 U.S. 145, that if the witness is absent by the procurement or connivance of the defendant himself, he is in no condition to assert his constitutional immunity.

The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he 243*243 gives his testimony whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.

We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject — such as his ancestors had inherited and defended since the days of Magna Charta. Many of its provisions in the nature of a Bill of Rights are subject to exceptions, recognized long before the adoption of the Constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected. A technical adherence to the letter of a constitutional provision may occasionally be carried farther than is necessary to the just protection of the accused, and farther than the safety of the public will warrant. For instance, there could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations. They are rarely made in the presence of the accused; they are made without any opportunity for examination or cross-examination; nor is the witness brought face to face with the jury; yet from time immemorial they have been treated as competent testimony, and no one would have the hardihood at this day to question 244*244 their admissibility. They are admitted not in conformity with any general rule regarding the admission of testimony, but as an exception to such rules, simply from the necessities of the case, and to prevent a manifest failure of justice. As was said by the Chief Justice when this case was here upon the first writ of error, (146 U.S. 140, 152,) the sense of impending death is presumed to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath. If such declarations are admitted, because made by a person then dead, under circumstances which give his statements the same weight as if made under oath, there is equal if not greater reason for admitting testimony of his statements which were made under oath.

The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination. This, the law says, he shall under no circumstances be deprived of, and many of the very cases which hold testimony such as this to be admissible also hold that not the substance of his testimony only, but the very words of the witness, shall be proven. We do not wish to be understood as expressing an opinion upon this point, but all the authorities hold that a copy of the stenographic report of his entire former testimony, supported by the oath of the stenographer that it is a correct transcript of his notes and of the testimony of the deceased witness, such as was produced in this case, is competent evidence of what he said.

4. Error is also assigned to the action of the court in refusing to permit the defendant to introduce the testimony of two witnesses, James and Violet, to impeach the testimony of Whitman, one of the deceased witnesses, by showing statements made by him contradicting his evidence upon the stand, upon the ground that the proper foundation had not been laid by interrogating Whitman himself as to his having made such contradictory statements.

In this connection the defendant proposed to prove by the witness James that Whitman told him in November, 1892, that he did not see Mattox on the night he did the shooting, 245*245 because it was too dark; that he could not tell who did the shooting; that on the next day he told him that all that he had testified to on the former trial was false, and that he wanted to leave the country; and that if he, witness, would go to see his (Mattox's) friends and get him fifty dollars, he would give him (witness) twenty-five and himself take twenty-five, and leave the country; that he did not want to appear against Mattox because what he had sworn to was not true. He also sought to prove by the witness Violet that in January, 1892, Whitman said emphatically and specifically that his testimony against Mattox was given under threats made to him in the corridors of the court-house in Wichita; that just prior to his being called to the witness stand he was approached by one Stiles, who shook his finger in his face and told him that if he dared to utter one word on the witness stand in favor of defendant Mattox, he (Stiles) would see that he was sent over the road; further declaring that if it had not been for such threats his testimony would not have been given as it was.

Objection was made by the district attorney to the introduction of this testimony upon the ground that Whitman had been examined and cross-examined upon the former trial; that the questions could not be propounded to the witnesses James and Violet for the purpose of impeachment, as the government had lost the opportunity, by the death of the witness Whitman, of putting him upon the stand and contradicting them. The facts were that the statements of Whitman, which the defendant proposed to prove by the witnesses James and Violet, were made after the former trial, so that the proper foundation could not have been laid by asking Whitman whether he had made such statements.

The authorities, except in some of the New England States, are almost unanimous to the effect that, before a witness can be impeached by proof that he has made statements contradicting or differing from the testimony given by him upon the stand, a foundation must be laid by interrogating the witness himself as to whether he has ever made such statements. Justice to the witness himself requires, not only that he should 246*246 be asked whether he had ever made such statements, but his attention should be called to the particular statement proposed to be proven, and he should be asked whether, at such a time and place, he had made that statement to the witness whose testimony is about to be introduced. This method of impeachment was approved by this court in Conrad v. Griffey, 16 How. 38, 46, wherein the rule is stated to be "founded upon common sense, and is essential to protect the character of a witness. His memory is refreshed by the necessary inquiries, which enable him to explain the statements referred to, and show that they were made under a mistake, or that there was no discrepancy between them and his testimony." In this case the deposition of a witness taken in the cause was sought to be impeached by a letter of the witness written before his deposition, and addressed to the plaintiff, with an affidavit annexed by him of the same date. The general rule is also approved in The Charles Morgan, 115 U.S. 69, 77, although in that particular case it was held that proper foundation had been laid for the introduction of the evidence. The principle was also approved in Chicago, Milwaukee &c. Railway v. Artery, 137 U.S. 507.

It is insisted, however, that the rule ceases to apply where the witness has died since his testimony was given, and the contradictory statements were either made subsequent to the giving of his testimony, or, if made before, were not known to counsel at the time he was examined; that if such contradictory statements be not admitted, the party affected by his testimony is practically at the mercy of the witness; that the rule requiring a foundation to be laid is, after all, only a matter of form, and ought not to be enforced where it works a manifest hardship upon the party seeking to impeach the witness. The authorities, however, do not recognize this distinction. It is true that in Wright v. Littler, 3 Burrow, 1244, 1255, the dying confession of a subscribing witness to a deed that he had forged the instrument was admitted by Lord Chief Justice Willes, and afterwards approved by the Queen's Bench, Lord Mansfield delivering the opinion, and that similar evidence was admitted in Aveson v. Kinnaird, 6 247*247 East, 188, 196; but the authority of these cases was seriously shaken by Stobart v. Dryden, 1 M. & W. 615, in which it was held that the defendant could not give evidence of declarations made by a subscribing witness to a deed, who had since died, tending to show that he had forged or fraudulently altered the deed. In this connection it was said by Baron Parke that, "if we had to determine the question of the propriety of admitting the proposed evidence, on the ground of convenience, apart from the consideration of the expediency of abiding by general rules, we should say that at least it was very doubtful whether, generally speaking, it would not cause greater mischief than advantage in the investigation of truth... . If any declarations at any time from the mouth of subscribing witnesses who are dead are to be admitted in evidence, ... the result would be, that the security of solemn instruments would be much impaired. The rights of parties under wills and deeds would be liable to be affected at remote periods, by loose declarations of attesting witnesses, which those parties would have no opportunity of contradicting, or explaining by the evidence of the witnesses themselves. The party impeaching the validity of the instrument would, it is true, have an equivalent for the loss of his power of cross-examination of the living witness; but the party supporting it would have none for the loss of his power of reexamination."

The case of Ayers v. Watson, 132 U.S. 394, 404, differs principally from the one under consideration in the fact that it was a civil instead of a criminal case. It was an action of ejectment, in which the defendant introduced the deposition of one Johnson, taken in 1878 or 1880 — a surveyor who had made a survey of the land in question. His deposition had been twice taken and used upon former trials, but prior to the last trial he had died. Plaintiff, in rebuttal, offered a deposition of the witness taken in 1860 in a suit between other parties, in which his testimony in regard to the matters to which he testified in the deposition offered by defendant varied materially from these latter depositions. The deposition was held to be inadmissible, Mr. Justice Miller observing: 248*248 "While the courts have been somewhat liberal in giving the opposing party an opportunity to present to the witness the matter in which they propose to contradict him, even going so far as to permit him to be recalled and cross-examined on that subject after he has left the stand, it is believed that in no case has any court deliberately held that after the witness's testimony has been taken, committed to writing and used in the court, and by his death he is placed beyond the reach of any power of explanation, then in another trial such contradictory declarations, whether by deposition or otherwise, can be used to impeach his testimony. Least of all would this seem to be admissible in the present case, where three trials had been had before a jury, in each of which the same testimony of the witness Johnson had been introduced and relied on, and in each of which he had been cross-examined, and no reference made to his former deposition nor any attempt to call his attention to it. This principle of the rule of evidence is so well understood that authorities are not necessary to be cited."

The cases in the state courts are by no means numerous, but these courts, so far as they have spoken upon the subject, are unanimous in holding that the fact that the attendance of the witness cannot be procured, or even that the witness himself is dead, does not dispense with the necessity of laying the proper foundation. Thus in Stacy v. Graham, 14 N.Y. 492, 499, counsel, while conceding the rule, relied upon two circumstances to relieve the case from its influence. The first was, that the attendance of the witness could not be procured at the time of the trial; and the second, that the declarations and statements offered to be proved were made after the witness had testified, and were a direct admission that he had sworn falsely. It was held that, if the statements came to the knowledge of counsel afterwards and before the trial, it was his duty to apply for a commission or move a postponement until the evidence could be procured. "The mere absence of the witness," said the court, "has never been considered a reason for allowing his unsworn statements to be proved in order to affect his credibility." The question was 249*249 further elaborately considered in Runyan v. Price, 15 Ohio St. 1, 11, 12, in which one of the subscribing witnesses to a will had died before the trial, and his testimony taken at the probate of the will was read in evidence. The contestants then offered evidence of his declarations respecting the capacity of the alleged testator to make a will at the time the one in question purported to have been made; but these were held, though by a bare majority of the court, to be inadmissible for the purpose of impeaching his testimony.

"It seems to us," said the court, "that to allow the death of the witness to work an exception would be to destroy the principle upon which the rule rests, and deny the protection which it was designed to afford... . In relieving one party of a supposed hardship an equally serious one might be inflicted upon the other... . Without, therefore, the opportunity to the witness of explanation, or, to the party against whom offered, of reëxamination, we are of opinion that the supposed declarations lack the elements of credibility which they should possess before they can be used legitimately to destroy the testimony of the witness." This case was approved in the subsequent case of Wroe v. State, 20 Ohio St. 460, 472, in which the statement of a person alleged to have been murdered as to the manner in which he received the wound, which statement was claimed to be inconsistent with his dying declarations, was ruled out upon the ground that it was neither a part of the res gestæ nor was it a dying declaration. It was held to be incompetent as original evidence or as impeaching testimony. "To admit it would, to some extent, afford a substitute to the defendant for the loss of cross-examination, but it would deprive the deceased and the State of all opportunity for explanation." In Craft v. Commonwealth, 81 Kentucky, 250, it was held that where the testimony of a witness, given upon a former trial, was reproduced, the witness having died, testimony to the effect that the witness, subsequent to the former trial, stated that the evidence given by him on that trial was false, was not competent. The rule is put upon the ground that if the impeaching statements were admitted there would be a strong temptation to the fabrication of testimony, 250*250 by which important and true evidence might be destroyed. So in Hubbard v. Briggs, 31 N.Y. 518, 536, the testimony of a deceased witness given on a former trial of the case was read in evidence. Subsequently the defendant offered to read the deposition of this witness in a chancery suit, for the purpose of contradicting his evidence as read, and impeaching him. The testimony was held to have been properly ruled out, no foundation having been laid for it. The fact that the witness was dead was held not to change the rule. See also Griffith v. State, 37 Arkansas, 324; Unis v. Charlton, 12 Grattan, 484; Kimball v. Davis, 19 Wend. 437.

While the enforcement of the rule, in case of the death of the witness subsequent to his examination, may work an occasional hardship by depriving the party of the opportunity of proving the contradictory statements, a relaxation of the rule in such cases would offer a temptation to perjury, and the fabrication of testimony, which, in criminal cases especially, would be almost irresistible. If it were generally understood that the death of a witness opened the door to the opposite party to prove that he had made statements conflicting with his testimony, the history of criminal trials leads one to believe that witnesses would be forthcoming with painful frequency to make the desired proof. The fact that one party has lost the power of contradicting his adversary's witness is really no greater hardship to him than the fact that his adversary has lost the opportunity of recalling his witness and explaining his testimony would be to him. There is quite as much danger of doing injustice to one party by admitting such testimony as to the other by excluding it. The respective advantages and disadvantages of a relaxation of the rule are so problematical that courts have, with great uniformity, refused to recognize the exception.

There was no error in the action of the court below and its judgment is, therefore,

Affirmed.

MR. JUSTICE SHIRAS dissenting, with whom concurred MR. JUSTICE GRAY and MR. JUSTICE WHITE.

251*251 Clyde Mattox, the plaintiff in error, was tried and convicted of murder in the first degree at September term, 1891, of the District Court of the United States for the District of Kansas. He prosecuted a writ of error to this court, where the judgment of the lower court was reversed, and the case remanded for a new trial. At a subsequent term of the same court a second trial was had, which resulted in a disagreement of the jury; and at December term, 1893, the plaintiff in error was put upon his third trial. He was found guilty, and upon the judgment condemning him to death the present writ of error was taken.

On the last trial of this case the government proved that two of its witnesses on the first trial, Thomas Whitman and George Thornton, had died subsequently thereto, and introduced in evidence, against the objection of the defendant, the notes of their testimony taken down by a stenographer at the prior trial.

The defendant offered to show, by two witnesses, that Whitman, the deceased witness, and whose testimony, preserved in the notes of the stenographer, was necessary to secure a conviction, had, after the former trial, and on two distinct occasions, stated that his testimony at the former trial was given under duress, and was untrue in essential particulars.

The government objected to this evidence, on the ground that the usual foundation had not been laid for the impeachment of the witness by having his attention called to his alleged contradictory statements, and that the death of the witness disabled the government from denying or explaining the statements attributed to him.

The action of the court in sustaining the objection of the government and refusing to admit the impeaching testimony is the only subject of discussion in this opinion.

It is, doubtless, the general rule in the trial of both civil and criminal cases that before testimony can be introduced to discredit a witness by showing that at another time and place he had made statements inconsistent with those made at the trial, he must be asked whether he had made such statements. 252*252 This is to give the witness an opportunity either to deny that he made the statements attributed to him, or to explain by showing that such statements, though made, were reconcilable with his testimony, or, perhaps, to withdraw or modify his testimony in the light of a refreshed recollection.

But this general rule is not a universal one, and does not prevail in some courts of very high authority, and Wharton correctly says that in Maine and Massachusetts this rule is not enforced, and in Pennsylvania it is left to the discretion of the judge trying the case to observe it or not. 11 Whart. Crim. Law, § 819.

In Tucker v. Welsh, 17 Mass. 160, the subject was discussed, and the Supreme Judicial Court of Massachusetts, after referring to The Queen's case, 2 Brod. & Bing. 284, 300, declined to follow the rule there laid down, and held that the credit of a witness who has testified orally or by giving his deposition may be impeached by showing that he has made a different statement out of court, either before or after he has given his testimony, and that it is not necessary that the impeached witness be first inquired of as to such different statement, or that he be present when his credit is to be impeached. We shall take occasion hereafter to advert to an observation made by Chief Justice Parker in the course of the opinion.

The subject was also considered by the Supreme Court of Connecticut in the case of Hedge v. Clapp, 22 Connecticut, 262, and that court declined to accept the rule in The Queen's case, preferring the course followed in Massachusetts. It is clearly shown in this opinion that the rule is not a substantive rule of the law of evidence, but is merely one of practice. "In this State," says Chief Justice Church, "we do not believe there has been a uniformity of usage in conducting the examination of witnesses who have made contradictory statements out of court, since The Queen's case, although, before that time, a contradiction of a witness might be proved without qualification... . We conclude, therefore, that the legal profession here has never considered the law on this subject to be fixed, but has treated the subject rather as a matter of practice in the examination of witnesses, and subject to the 253*253 discretion of the court. We do not very well see how an unyielding rule can be prescribed in conformity with the rule claimed, which shall apply consistently in all cases."

However, it must be conceded that the rule has been approved by this court in several cases cited in the majority opinion.

In Conrad v. Griffey, 16 How. 38, where a letter was written six years before a deposition was taken which the letter was offered to discredit, this court said that it was not probable that, after the lapse of so many years, the letter was in the mind of the witness when his deposition was sworn to, and that the rule requiring the attention of the witness to be called to his prior contradictory statements was a salutary one, and should not be dispensed with in the courts of the United States.

But the question now for consideration is not whether there is such a general rule, but whether it is subject to any exceptions, and particularly whether the facts of the present case do not justify a departure from the rule.

An examination of the authorities will show, as I think, no such current or weight of decision as to preclude this court from dealing with the question as an open one.

The case of Ayres v. Watson, 132 U.S. 394, is referred to in the majority opinion as differing from the present one only in the fact that it was a civil instead of a criminal case. It is indeed true that it was a civil case, a not unimportant difference, but there was another feature in that case which deprives it of all force as a precedent for our guidance in the question we are now considering. The case there was this: In an action of ejectment which went through several trials, the deposition of one Johnson, a surveyor, taken in 1878, was introduced by one of the parties. This deposition had been twice taken, and used upon the former trials, and prior to the last trial the witness had died. At the last trial the opposite party offered in rebuttal a deposition of the witness taken in 1860, in a suit between other parties, and in which were contained statements materially different from those contained in the later depositions. This court held that, as Johnson's deposition had in three trials been introduced and relied on, in each of which he 254*254 had been cross-examined, and no reference was made to his former deposition, nor any attempt to call his attention to it, such prior deposition could not be used after his death to impeach his testimony, and the court said that "this principle of the rule of evidence is so well understood that authorities are not necessary to be cited." It is apparent that, in that case, the opposing party had no less than three opportunities to call the attention of the witness to the existence of his prior deposition, and to cross-examine him upon it. In the present case the contradictory statements sought to be proved were not made till after the prior trials, and therefore there was no opportunity, at any time, for the defendant to call the witness's attention to such statements and to cross-examine upon them. The case of Ayres v. Watson cannot, therefore, be fairly regarded as at all in point.

No other decision of this court is cited, nor any of the Circuit Courts of the United States. The only English cases cited are three, Wright v. Littler, 3 Burrow, 1244, 1255; Aveson v. Kinnaird, 6 East, 188; and Stobart v. Dryden, 1 M. & W. 615; in the two former of which it was held that confessions of a subscribing witness to a deed that he had forged the deed, could be admitted in evidence in a trial after his death, and in the latter that such confession could not be admitted. The reasons given for excluding the testimony seem to have been chiefly based upon the impolicy of permitting the security of solemn instruments to be impaired by loose declarations of attesting witnesses, and, perhaps, partly upon the general grounds of public policy mentioned by Lord Mansfield in Walton v. Shelley, 1 T.R. 296, when he said "it is of consequence to mankind that no person should hang out false colors to deceive them, by first affixing his signature to a paper, and then afterwards giving testimony to invalidate it." It is, therefore, clear that neither this decision, nor the reasons given to support it, furnish any answer to our present inquiry.

Some decisions of state courts are cited, but the most of them seem to have little or no bearing on the exact question we are discussing.

255*255 Stacy v. Graham, 14 N.Y. 492, was a case where the witness, whose testimony it was proposed to contradict by declarations made elsewhere, was not dead, but merely absent from the court-room, and it was said, "the mere absence of the witness has never been considered a reason for allowing his unsworn statements to be proved in order to affect his credibility." This case, therefore, was merely an application of the general rule.

In Runyan v. Price, 15 Ohio St. 1, it was held, by three judges against two, that, in a civil case, the testimony of a deceased witness could not be impeached by giving in evidence declarations alleged to have been made by him out of court differing from those contained in his testimony. Wroe v. State, 20 Ohio St. 460, 472, was a case in which statements made by a deceased person as to the manner in which he received the fatal wound were ruled out because they were neither res gestæ nor dying declarations.

Craft v. Commonwealth, 81 Kentucky, 250, was a case in which the majority opinion in Runyan v. Price was cited and followed, and testimony offered to contradict a deceased witness by his own subsequent declarations, as to which he had not been examined, was excluded.

In Hubbard v. Briggs, 31 N.Y. 536, it was unsuccessfully sought to impeach a witness, who had testified at a former trial of the case in 1863, and afterwards died, by offering his deposition taken twenty years before in a chancery suit between different parties. This was a civil suit, and there had been a stipulation of the parties that the evidence of the witness might be read as he gave it on a former trial. The decision can be sustained on obvious principles apart from the question in hand.

Griffith v. State, 37 Arkansas, 324, 331, was a case where the Supreme Court of Arkansas recognized the general rule that it is not competent to contradict a witness by evidence of declarations made out of court without directing his attention to the subject, but the court said: "The court ruled out the impeachment evidence offered on the trial, because it did not appear from the statement of the deceased witness, made on 256*256 cross-examination, as reduced to writing by the magistrate, that his attention had been directed to the time and place of the antecedent declarations. This may or may not have been so, and though strictly the ruling of the court was right, it might have been safer, in a case involving liberty, to give the accused the benefit of the doubt."

Unis v. Charlton, 12 Grattan, 484, was merely a case illustrating the general rule, and not bearing on our problem. Kimball v. Davis, 19 Wend. 437, was only to the effect that a living witness, whose testimony had been taken on deposition, cannot be contradicted by his subsequent declarations, where he has not been cross-examined in respect to them, but that the only way for a party to avail himself of such declarations is to sue out a second commission. This is obviously merely a recognition of the general rule, and does not touch the present case.

The entire array of cases cited seems to resolve itself into two cases only in which the question was directly considered and decided: Runyan v. Price, 15 Ohio St. 1, a civil case ruled by a divided court, and Craft v. Commonwealth, 81 Kentucky, 250.

In Hedge v. Clapp, 22 Connecticut, 262, heretofore cited, the court said that while the rule laid down in The Queen's case was one to which it would be very well to adhere, yet "it should be subject to such exceptions as a sound discretion may from time to time suggest."

Chief Justice Parker, in Tucker v. Welsh, 17 Mass. 160,167, said: "It has been suggested that, admitting such evidence proper to impeach a witness who is upon the stand, it ought not to be allowed to impeach a deposition, the witness being absent and having no opportunity to deny or explain. The witness who has testified upon the stand hears, it is true, the evidence which tends to impeach him, or he may be called back for that purpose if he be absent: so where the evidence goes to affect the credibility of a deposition, if it be material, the court would give time for the principal witness to appear or for other depositions to be taken relative to the facts which are proved to impeach him. It may sometimes be inconvenient, 257*257 but if justice requires delay it would be given. Suppose a witness who has once testified should afterwards acknowledge the falsity of his statements and then die; the party interested in his testimony might upon another trial prove what he had once said upon the stand under oath; and shall not the other party be permitted to prove that what he said was a falsehood?"

In Fletcher v. Fletcher, 5 La. Ann. 406, the rule in The Queen's case was approved, and testimony to impeach a witness by showing contradictory statements was ruled out because the necessary foundation had not been laid.

But in Fletcher v. Henley, 13 La. Ann. 191, 192, such evidence was admitted where it was shown that a seasonable but fruitless effort had been made to examine the witness as to his alleged contradictory statements by taking out a commission for that purpose, but where the return to the commissioner showed that he could not be found.

This brief review of the authorities suffices to show that this question, in the shape in which it is now presented, has never heretofore been considered or decided by this court, and that there has been no such uniform current of decisions in other courts as to constrain us to follow it.

Finding, then, no decisive rule in the authorities, and coming to regard the question as one of reason, it is at once obvious that we are dealing not with any well-settled doctrine of law, prescribed by statute or by a long course of judicial decisions, but with a mere rule of procedure. Undoubtedly, the credit of witnesses testifying under oath should not be assailed by evidence of their statements made elsewhere, without affording them, if practicable, in justice to them and to the party calling them, an opportunity to deny, explain, or admit; but it must not be overlooked that the primary object of the trial is not to vindicate the truth or consistency of witnesses, but to determine the guilt or innocence of the accused. If the evidence tending to show that the testimony of an essential witness cannot be relied on, because he has made contradictory statements elsewhere and at other times, is valid and admissible, as the authorities all concede, 258*258 why should the right to put in such evidence be destroyed by the incidental fact that the witness, by reason of death, cannot be produced to deny or to admit that he made such statements? Does not the necessity call for a relaxation of the rule in such a case?

The books disclose many instances in which rules of evidence, much more fundamental and time-honored than the one we are treating, have been dispensed with, because of an overruling necessity.

Thus, the rule which excluded parties from being witnesses was departed from when it was deemed essential to the purposes of justice. In Clark v. Spence, 10 Watts, 335, it was said: "A party is not competent to testify in his own cause; but, like every other general rule, this has its exceptions. Necessity, either physical or moral, dispenses with the ordinary rules of evidence. In cases against common carriers, the owner has been admitted, ex necessitate, to testify to the contents and value of boxes that have been opened and rifled," (see other cases cited by Greenleaf, vol. 1, §§ 348, 349,) and that author sums up the cases by stating: "Where the law can have no force but by the evidence of the person in interest, there the rules of the common law, respecting evidence in general, are presumed to be laid aside; or rather, the subordinate are silenced by the most transcendent and universal rule, that in all cases that evidence is good, than which the nature of the subject presumes none better to be obtainable."

In United States v. Murphy, 16 Pet. 203, 210, the owner of property, alleged to have been stolen on board an American vessel, on the high seas, was held to be a competent witness to prove the ownership of the property stolen, the court saying: "The general rule undoubtedly is, in criminal cases as well as in civil cases, that a person interested in the event of the suit or prosecution is not a competent witness. But there are many exceptions which are as old as the rule itself. Thus, it is stated by Lord Chief Baron Gilbert as a clear exception, that where a statute can receive no execution unless a party interested be a witness, there he must be allowed; for the statute 259*259 must not be rendered ineffectual by the impossibility of proof."

But we need not go beyond the very case before us for a striking illustration of the fact that rules of evidence, even when founded in a constitutional provision, may be modified or relaxed when the necessities of a case so require.

The government could not proceed, at the third trial, without producing the testimony of Thomas Whitman and George Thornton. But those witnesses had both died since the prior trials, and the government was driven to rely upon a stenographer's notes of their testimony. It was objected, on behalf of the accused, that the Constitution provides that "in all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him," and it was contended that the word "confront" does not simply secure to the accused the privilege of examining witnesses in his behalf, but is an affirmance of the rule of common law that, in trials by jury, the witness must be present before the jury and the accused, so that he may be confronted — that is, put face to face. But this court, in the opinion of the majority, disposes of this objection by saying: "The primary object of the constitutional provision in question was to prevent depositions on ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards, even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the 260*260 accused, must occasionally give way to considerations of public policy and the necessities of the case."

If, then, the right of the accused to confront the witnesses against him, although formally secured to him by the express terms of the Constitution, and being of that importance and value to him as are recognized by the court, may be dispensed with because of the death of a witness, it would seem justly to follow that neither should that death deprive the accused of his right to put in evidence valid and competent in its nature, to show that the witness was unworthy of belief, or had become convinced, after the trial, that he had been mistaken.

It is argued that to permit evidence of statements made by a witness contradictory of his testimony would be "a strong temptation to the fabrication of evidence, by which important and true evidence might be destroyed." This argument overlooks the fact that if witnesses are introduced to testify to the contradictory statements, those witnesses are liable to indictment for perjury. They testify under the sanction of an oath, and of a liability to punishment for bearing false witness. On the other hand, the witness, the notes of whose testimony are relied on as sufficient to secure a conviction of the accused, is no longer within the reach of human justice.

To conclude: The rule that a witness must be cross-examined as to his contradictory statements before they are given in evidence to impeach his credit, is a rule of convenient and orderly practice, and not a rule of the competency of the evidence.

To press this rule so far as to exclude all proof of contradictory statements made by the witness since the former trial, in a case where the witness is dead, and the party offering the proof cannot, and never could, cross-examine him as to these statements, is to sacrifice substance of proof to orderliness of procedure, and the rights of the living party to consideration for the deceased witness.

According to the rulings of the court below, the death of the witness deprived the accused of the opportunity of cross-examining him as to his conflicting statements, and the loss 261*261 of this opportunity of cross-examination deprived the accused of the right to impeach the witness by independent proof of those statements; and thus, while the death of the witness did not deprive the government of the benefit of his testimony against the accused, it did deprive the latter of the right to prove that the testimony of the witness was untrustworthy. By this ruling the court below rejected evidence of a positive character, testified to by witnesses to be produced and examined before the jury, upon a mere conjecture that a deceased witness might, if alive, reiterate his former testimony. It would seem to be a wiser policy to give the accused the benefit of evidence, competent in its character, than to reject it for the sake of a supposition so doubtful.

The judgment of the court below ought to be reversed, and the cause remanded, with directions to set aside the verdict and award a new trial.

Federal Rule of Evidence 404(b) provides:

"Other crimes, wrongs, or acts. — Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
This case presents the question whether the district court must itself make a preliminary finding that the Government has proved the "other act" by a preponderance of the evidence before it submits the evidence to the jury. We hold that it need not do so.

Petitioner, Guy Rufus Huddleston, was charged with one count of selling stolen goods in interstate commerce, 18 U. S. C. § 2315, and one count of possessing stolen property in interstate commerce, 18 U. S. C. § 659. The two counts related to two portions of a shipment of stolen Memorex videocassette tapes that petitioner was alleged to have possessed and sold, knowing that they were stolen.

The evidence at trial showed that a trailer containing over 32,000 blank Memorex videocassette tapes with a manufacturing cost of $4.53 per tape was stolen from the Overnight Express yard in South Holland, Illinois, sometime between April 11 and 15, 1985. On April 17, 1985, petitioner contacted Karen Curry, the manager of the Magic Rent-to-Own 683*683 in Ypsilanti, Michigan, seeking her assistance in selling a large number of blank Memorex videocassette tapes. After assuring Curry that the tapes were not stolen, he told her he wished to sell them in lots of at least 500 at $2.75 to $3 per tape. Curry subsequently arranged for the sale of a total of 5,000 tapes, which petitioner delivered to the various purchasers — who apparently believed the sales were legitimate.

There was no dispute that the tapes which petitioner sold were stolen; the only material issue at trial was whether petitioner knew they were stolen. The District Court allowed the Government to introduce evidence of "similar acts" under Rule 404(b), concluding that such evidence had "clear relevance as to [petitioner's knowledge]." App. 11. The first piece of similar act evidence offered by the Government was the testimony of Paul Toney, a record store owner. He testified that in February 1985, petitioner offered to sell new 12" black and white televisions for $28 apiece. According to Toney, petitioner indicated that he could obtain several thousand of these televisions. Petitioner and Toney eventually traveled to the Magic Rent-to-Own, where Toney purchased 20 of the televisions. Several days later, Toney purchased 18 more televisions.

The second piece of similar act evidence was the testimony of Robert Nelson, an undercover FBI agent posing as a buyer for an appliance store. Nelson testified that in May 1985, petitioner offered to sell him a large quantity of Amana appliances — 28 refrigerators, 2 ranges, and 40 icemakers. Nelson agreed to pay $8,000 for the appliances. Petitioner was arrested shortly after he arrived at the parking lot where he and Nelson had agreed to transfer the appliances. A truck containing the appliances was stopped a short distance from the parking lot, and Leroy Wesby, who was driving the truck, was also arrested. It was determined that the appliances had a value of approximately $20,000 and were part of a shipment that had been stolen.

684*684 Petitioner testified that the Memorex tapes, the televisions, and the appliances had all been provided by Leroy Wesby, who had represented that all of the merchandise was obtained legitimately. Petitioner stated that he had sold 6,500 Memorex tapes for Wesby on a commission basis. Petitioner maintained that all of the sales for Wesby had been on a commission basis and that he had no knowledge that any of the goods were stolen.

In closing, the prosecution explained that petitioner was not on trial for his dealings with the appliances or the televisions. The District Court instructed the jury that the similar acts evidence was to be used only to establish petitioner's knowledge, and not to prove his character. The jury convicted petitioner on the possession count only.

A divided panel of the United States Court of Appeals for the Sixth Circuit initially reversed the conviction, concluding that because the Government had failed to prove by clear and convincing evidence that the televisions were stolen, the District Court erred in admitting the testimony concerning the televisions. 802 F. 2d 874 (1986).[1] The panel subsequently granted rehearing to address the decision in United States v. Ebens, 800 F. 2d 1422 (CA6 1986), in which a different panel had held: "Courts may admit evidence of prior bad acts if the proof shows by a preponderance of the evidence that the defendant did in fact commit the act." Id., at 1432. On rehearing, the court affirmed the conviction. "Applying the preponderance of the evidence standard adopted in Ebens, we cannot say that the district court abused its discretion in admitting evidence of the similar acts in question here." 811 F. 2d 974, 975 (1987) (per curiam). The court noted that the evidence concerning the televisions was admitted for a proper purpose and that the probative value of this evidence was not outweighed by its potential prejudicial effect.

685*685 We granted certiorari, 484 U. S. 894 (1987), to resolve a conflict among the Courts of Appeals as to whether the trial court must make a preliminary finding before "similar act" and other Rule 404(b) evidence is submitted to the jury.[2] We conclude that such evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act.

Federal Rule of Evidence 404(b) — which applies in both civil and criminal cases — generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor's character, unless that evidence bears upon a relevant issue in the case such as motive, opportunity, or knowledge. Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor's state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct. The actor in the instant case was a criminal defendant, and the act in question was "similar" to the one with which he was charged. Our use of these terms 686*686 is not meant to suggest that our analysis is limited to such circumstances.

Before this Court, petitioner argues that the District Court erred in admitting Toney's testimony as to petitioner's sale of the televisions.[3] The threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character. The Government's theory of relevance was that the televisions were stolen, and proof that petitioner had engaged in a series of sales of stolen merchandise from the same suspicious source would be strong evidence that he was aware that each of these items, including the Memorex tapes, was stolen.[4] As such, the sale of the televisions was a "similar act" only if the televisions were stolen. Petitioner acknowledges that this evidence was admitted for the proper purpose of showing his knowledge that the Memorex tapes were stolen. He asserts, however, that the evidence should not have been admitted because the Government failed to prove to the District Court that the televisions were in fact stolen.

Petitioner argues from the premise that evidence of similar acts has a grave potential for causing improper prejudice. For instance, the jury may choose to punish the defendant for the similar rather than the charged act, or the jury may infer that the defendant is an evil person inclined to violate the law. Because of this danger, petitioner maintains, the jury ought not to be exposed to similar act evidence until the trial court has heard the evidence and made a determination under Federal Rule of Evidence 104(a) that the defendant 687*687 committed the similar act. Rule 104(a) provides that "[p]reliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b)." According to petitioner, the trial court must make this preliminary finding by at least a preponderance of the evidence.[5]

We reject petitioner's position, for it is inconsistent with the structure of the Rules of Evidence and with the plain language of Rule 404(b). Article IV of the Rules of Evidence deals with the relevancy of evidence. Rules 401 and 402 establish the broad principle that relevant evidence — evidence that makes the existence of any fact at issue more or less probable — is admissible unless the Rules provide otherwise. Rule 403 allows the trial judge to exclude relevant evidence if, among other things, "its probative value is substantially outweighed by the danger of unfair prejudice." Rules 404 through 412 address specific types of evidence that have generated problems. Generally, these latter Rules do not flatly prohibit the introduction of such evidence but instead limit the purpose for which it may be introduced. Rule 404(b), for example, protects against the introduction of extrinsic act evidence when that evidence is offered solely to prove character. The text contains no intimation, however, that any preliminary showing is necessary before such evidence may be 688*688 introduced for a proper purpose. If offered for such a proper purpose, the evidence is subject only to general strictures limiting admissibility such as Rules 402 and 403.

Petitioner's reading of Rule 404(b) as mandating a preliminary finding by the trial court that the act in question occurred not only superimposes a level of judicial oversight that is nowhere apparent from the language of that provision, but it is simply inconsistent with the legislative history behind Rule 404(b). The Advisory Committee specifically declined to offer any "mechanical solution" to the admission of evidence under 404(b). Advisory Committee's Notes on Fed. Rule Evid. 404(b), 28 U. S. C. App., p. 691. Rather, the Committee indicated that the trial court should assess such evidence under the usual rules for admissibility: "The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availibility of other means of proof and other factors appropriate for making decisions of this kind under Rule 403." Ibid.; see also S. Rep. No. 93-1277, p. 25 (1974) ("[I]t is anticipated that with respect to permissible uses for such evidence, the trial judge may exclude it only on the basis of those considerations set forth in Rule 403, i. e. prejudice, confusion or waste of time").

Petitioner's suggestion that a preliminary finding is necessary to protect the defendant from the potential for unfair prejudice is also belied by the Reports of the House of Representatives and the Senate. The House made clear that the version of Rule 404(b) which became law was intended to "plac[e] greater emphasis on admissibility than did the final Court version." H. R. Rep. No. 93-650, p. 7 (1973). The Senate echoed this theme: "[T]he use of the discretionary word `may' with respect to the admissibility of evidence of crimes, wrongs, or other acts is not intended to confer any arbitrary discretion on the trial judge." S. Rep. No. 93-1277, supra, at 24. Thus, Congress was not nearly so concerned with the potential prejudicial effect of Rule 404(b) evidence 689*689 as it was with ensuring that restrictions would not be placed on the admission of such evidence.

We conclude that a preliminary finding by the court that the Government has proved the act by a preponderance of the evidence is not called for under Rule 104(a).[6] This is not to say, however, that the Government may parade past the jury a litany of potentially prejudicial similar acts that have been established or connected to the defendant only by unsubstantiated innuendo. Evidence is admissible under Rule 404(b) only if it is relevant. "Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case." Advisory Committee's Notes on Fed. Rule Evid. 401, 28 U. S. C. App., p. 688. In the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor. See United States v. Beechum, 582 F. 2d 898, 912-913 (CA5 1978) (en banc). In the instant case, the evidence that petitioner was selling the televisions was relevant under the Government's theory only if the jury could reasonably find that the televisions were stolen.

Such questions of relevance conditioned on a fact are dealt with under Federal Rule of Evidence 104(b). Beechum, supra, at 912-913; see also E. Imwinkelried, Uncharged Misconduct Evidence § 2.06 (1984). Rule 104(b) provides:

690*690 "When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition."
In determining whether the Government has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact — here, that the televisions were stolen — by a preponderance of the evidence. See 21 C. Wright & K. Graham, Federal Practice and Procedure § 5054, p. 269 (1977). The trial court has traditionally exercised the broadest sort of discretion in controlling the order of proof at trial, and we see nothing in the Rules of Evidence that would change this practice. Often the trial court may decide to allow the proponent to introduce evidence concerning a similar act, and at a later point in the trial assess whether sufficient evidence has been offered to permit the jury to make the requisite finding.[7] If the proponent has failed to meet this minimal standard of proof, the trial court must instruct the jury to disregard the evidence.

We emphasize that in assessing the sufficiency of the evidence under Rule 104(b), the trial court must consider all 691*691 evidence presented to the jury. "[I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts." Bourjaily v. United States, 483 U. S. 171, 179-180 (1987). In assessing whether the evidence was sufficient to support a finding that the televisions were stolen, the court here was required to consider not only the direct evidence on that point — the low price of the televisions, the large quantity offered for sale, and petitioner's inability to produce a bill of sale — but also the evidence concerning petitioner's involvement in the sales of other stolen merchandise obtained from Wesby, such as the Memorex tapes and the Amana appliances. Given this evidence, the jury reasonably could have concluded that the televisions were stolen, and the trial court therefore properly allowed the evidence to go to the jury.

We share petitioner's concern that unduly prejudicial evidence might be introduced under Rule 404(b). See Michelson v. United States, 335 U. S. 469, 475-476 (1948). We think, however, that the protection against such unfair prejudice emanates not from a requirement of a preliminary finding by the trial court, but rather from four other sources: first, from the requirement of Rule 404(b) that the evidence be offered for a proper purpose; second, from the relevancy requirement of Rule 402 — as enforced through Rule 104(b); third, from the assessment the trial court must make under Rule 403 to determine whether the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice,[8] see Advisory Committee's Notes on Fed. Rule Evid. 404(b), 28 U. S. C. App., p. 691; S. Rep. No. 93-1277, at 25; and fourth, from Federal Rule of Evidence 105, which provides that the trial court shall, upon request, instruct the jury that the similar acts evidence is to 692*692 be considered only for the proper purpose for which it was admitted. See United States v. Ingraham, 832 F. 2d 229, 235 (CA1 1987).

Affirmed.

[1] "[T]he government's only support for the assertion that the televisions were stolen was [petitioner's] failure to produce a bill of sale at trial and the fact that the televisions were sold at a low price." 802 F. 2d, at 876, n. 5.

[2] The First, Fourth, Fifth, and Eleventh Circuits allow the admission of similar act evidence if the evidence is sufficient to allow the jury to find that the defendant committed the act. United States v. Ingraham, 832 F. 2d 229, 235 (CA1 1987); United States v. Martin, 773 F. 2d 579, 582 (CA4 1985); United States v. Beechum, 582 F. 2d 898, 914 (CA5 1978) (en banc), cert. denied, 440 U. S. 920 (1979); United States v. Dothard, 666 F. 2d 498, 502 (CA11 1982). Consistent with the Sixth Circuit, the Second Circuit prohibits the introduction of similar act evidence unless the trial court finds by a preponderance of the evidence that the defendant committed the act. United States v. Leonard, 524 F. 2d 1076, 1090-1091 (CA2 1975). The Seventh, Eighth, Ninth, and District of Columbia Circuits require the Government to prove to the court by clear and convincing evidence that the defendant committed the similar act. United States v. Leight, 818 F. 2d 1297, 1302 (CA7), cert. denied, 484 U. S. 958 (1987); United States v. Weber, 818 F. 2d 14 (CA8 1987); United States v. Vaccaro, 816 F. 2d 443, 452 (CA9), cert denied sub nom. Alvis v. United States, 484 U. S. 914 (1987); United States v. Lavelle, 243 U. S. App. D. C. 47, 57, 751 F. 2d 1266, 1276, cert. denied, 474 U. S. 817 (1985).

[3] Petitioner does not dispute that Nelson's testimony concerning the Amana appliances was properly admitted under Rule 404(b).

[4] The Government also argues before this Court that the evidence concerning the televisions is relevant even if the jury could not conclude that the sets were stolen. We have found nothing in the record indicating that this theory was suggested to or relied upon by the courts below, and in light of our ruling, we need not address this alternative theory.

[5] In his brief, petitioner argued that the Government was required to prove to the trial court the commission of the similar act by clear and convincing proof. At oral argument, his counsel conceded that such a position is untenable in light of our decision last Term in Bourjaily v. United States, 483 U. S. 171 (1987), in which we concluded that preliminary factual findings under Rule 104(a) are subject to the preponderance-of-the-evidence standard. Tr. of Oral Arg. 12. Petitioner now asserts that although the Sixth Circuit correctly held that the Government must prove the similar act by preponderant evidence before it is admitted, the court erred in applying that test to these facts. We consider first what preliminary finding, if any, the trial court must make before letting similar acts evidence go to the jury.

[6] Petitioner also suggests that in performing the balancing prescribed by Federal Rule of Evidence 403, the trial court must find that the prejudicial potential of similar acts evidence substantially outweighs its probative value unless the court concludes by a preponderance of the evidence that the defendant committed the similar act. We reject this suggestion because Rule 403 admits of no such gloss and because such a holding would be erroneous for the same reasons that a preliminary finding under Rule 104(a) is inappropriate. We do, however, agree with the Government's concession at oral argument that the strength of the evidence establishing the similar act is one of the factors the court may consider when conducting the Rule 403 balancing. Tr. of Oral Arg. 26.

[7] "When an item of evidence is conditionally relevant, it is often not possible for the offeror to prove the fact upon which relevance is conditioned at the time the evidence is offered. In such cases it is customary to permit him to introduce the evidence and `connect it up' later. Rule 104(b) continues this practice, specifically authorizing the judge to admit the evidence `subject to' proof of the preliminary fact. It is, of course, not the responsibility of the judge sua sponte to insure that the foundation evidence is offered; the objector must move to strike the evidence if at the close of the trial the offeror has failed to satisfy the condition." 21 C. Wright & K. Graham, Federal Practice and Procedure § 5054, pp. 269-270 (1977) (footnotes omitted).

[8] As petitioner's counsel conceded at oral argument, petitioner did not seek review of the Rule 403 balancing performed by the courts below. Tr. of Oral Arg. 14. We therefore do not address that issue.

The defendant appeals from convictions of rape and an unnatural act, and argues two assignments of error: (1) exclusion of evidence of prior sexual intercourse by the victim, and (2) denial of his motion for a mistrial after the prosecutor in his closing argument asserted that there was no evidence to refute the victim's testimony as to what happened when she and the defendant were alone together. We hold that there was no error in excluding evidence of prior sexual acts between the victim and a person other than the defendant. We also hold that in all the circumstances of this case, the prosecutor's closing argument, though improper in view of the defendant's failure to testify in his own defense, did not require a mistrial. We therefore affirm the convictions.

The case for the Commonwealth consisted almost entirely of the testimony of the victim, which we summarize. She was nineteen years old and lived and worked in Billerica. On the evening of Saturday, August 25, 1973, she drove her automobile to a bar in Lowell and had two or three drinks with friends and with a young man whom she met there and who invited her to a family birthday party. She drove him to the party, a few minutes away, arriving about 11:30 to 12 P.M., and found approximately thirty people there. About a half hour later, she felt sick and she and her escort went out and got into the back seat of her car. He passed out, she vomited, and she discovered that her wallet and car keys were missing. She got out of the car and spoke to others who said they would look for the car keys.

At this point the defendant, whom she did not know, suggested that she could lie down in his van, parked nearby, and she did so. She was there for about two hours, during which time several men looked in, and one made sexual advances which she repulsed. Finally, the defendant got into the van and committed the crimes charged. After ten or fifteen minutes the defendant "gave up"; she put her jeans back on; and she went back to her car, leaving her underwear in the van. She rolled up the windows and locked the doors of her car, and a woman came over and 568*568 screamed at her. Others were standing around. Later the defendant came back, said the woman was going to beat her up, and offered to give her "a ride to get out of there." They got into the van, and he drove her to within a quarter of a mile of her home. He gave her the wrong name of the street where the party was, and he falsely said the van was not his. She noted the license number and wrote it down when she arrived home about 5:15 A.M.

About 7 or 7:30 A.M. she called a friend, and he drove her to Lowell to look for her car. The same morning, after searching without success, they went to the Lowell police department. She gave the police the license number of the van and learned the defendant's name. About a week later the police recovered her car, and her wallet was found in a mailbox.

The defendant stipulated that he was at the party with his van, and that he drove the victim home. The escort, six women, and the husband of one of them testified for the defendant. All the witnesses were related to the escort by blood or marriage and all but one testified that they had known the defendant for many years. He did not testify.

In September, 1975, the defendant was convicted of both rape and an unnatural act, and was sentenced to nine to twelve years for rape and to a lesser concurrent sentence for an unnatural act. An appeal to the Appellate Division of the Superior Court resulted in concurrent sentences of three to five years. The defendant appealed pursuant to G.L.c. 278, §§ 33A-33G, and we allowed the parties' joint application for direct appellate review, which focused on the admissibility of evidence of prior sexual acts by a rape victim.

1. Evidence of prior sexual acts. The victim testified on direct examination that she was outside in the back seat of her car with her escort about two hours before the crimes took place. On cross-examination she said that she was talking to him, and that he kissed her and "attempted to make a pass" at her, "and that was it." She denied having sexual intercourse with him, but the judge sustained 569*569 an objection to the question and instructed the jury to disregard it. She denied that she was undressed.

Defense witnesses testified that the victim and her escort were in the back seat of her car, and that he passed out and was carried into the house. They testified that both the victim and her escort were completely undressed, and two of them testified to obscene behavior on her part. Several also testified that she got out of the car wholly or partly undressed and walked down the street. The judge excluded questions whether she and her escort engaged in sexual intercourse.

The defendant accepts our general rule that in a rape case, although evidence of a general reputation for unchastity may be admitted, evidence of instances of prior intercourse of the victim with persons other than the defendant is inadmissible. Commonwealth v. Gardner, 350 Mass. 664, 668 (1966), and cases cited. But he argues that the rule should be limited to cases where it is "justified on the ground that collateral questions relating to those specific events would prolong the trial and divert the attention of the trier of fact from the issues." Commonwealth v. McKay, 363 Mass. 220, 227 (1973). Here, he says, the prior act was close in time and nature to the crimes charged, and it was therefore admissible both to impeach the victim's credibility and to prove her consent.

As to impeachment, the Commonwealth did not introduce any evidence with respect to the victim's sexual intercourse with her escort, and the evidence offered by the defendant on sexual intercourse was not inconsistent with evidence introduced by the Commonwealth. The judge went quite far in permitting cross-examination of the victim as to her relations with her escort, and we see no abuse of discretion in his stopping short of inquiry as to sexual intercourse. As to extrinsic evidence, he properly applied the rule that such evidence on a collateral matter may only be introduced for impeachment purposes in the discretion of the judge. See Commonwealth v. McKay, 363 Mass. 220, 227, n. 4 (1973). Cf. Commonwealth v. Doherty, 353 Mass. 197, 213-214 (1967), cert. denied, 390 U.S. 982 570*570 (1968), overruled on other grounds in Connor v. Commonwealth, 363 Mass. 572 (1973). Contrast Commonwealth v. Franklin, 366 Mass. 284, 288 (1974).

On the issue of consent, we stand by the principle that "the victim's consent to intercourse with one man does not imply her consent in the case of another." Commonwealth v. McKay, supra at 227. At least in the circumstances here, a prior consent close in time and place might negate rather than create such an implication of subsequent consent. We need hardly add that the defendant had no right to appeal to the jury on the basis that by her conduct the victim had forfeited any claim to protection from rape.

The defendant further complains that proof of the victim's "obscene and public actions, short of intercourse, ... strongly and erroneously implied to the jury that no such intercourse did occur," and that subsequent consent to intercourse with the defendant therefore seemed "most improbable." It is at least equally likely that the jury disbelieved the defense testimony, or that they thought, as we do, that prior consent was irrelevant to subsequent consent. In any event, the evidence of "obscene and public actions" was all introduced by the defendant, and he is in no position to complain.

The defendant argues that if our rule excludes the "demonstrably relevant evidence" offered in this case, "merely to protect the dignity of the witness," it denies the defendant his right to a fair trial and violates the United States Constitution. We have said enough to indicate that no relevant evidence was excluded. We do not regard the protection of the dignity of witnesses as illegitimate. See Commonwealth v. Bailey, 370 Mass. 388, 397 (1976). But that is not the purpose of the rule here considered.

2. The prosecutor's closing argument. At least six times during his closing argument, the prosecutor adverted to the fact that the only testimony about what happened in the van came from the victim. Illustrative is the following: "And I submit to you, ladies and gentlemen, very respectfully, that on the evidence and on the testimony of this girl — and there is no evidence to the contrary in this 571*571 case; there isn't a shred of evidence to the contrary. Several witnesses told you everything but what happened between Gouveia and her. Everything but."

The defendant did not object during the argument, but moved for a mistrial when it was completed. The judge said, "I'll clear it up in my charge. I would have cleared it up if you made the objection at that particular time, but I didn't interrupt him because I don't know what your thinking is." The prosecutor said that he was arguing that the defense witnesses did not testify to the material issue in the case, and that he in no way intended to comment on the defendant's failure to testify. The motion was denied, and the judge included in his charge instructions that no inference was to be drawn from the defendant's failure to testify, that the arguments of counsel were not evidence, that he had no responsibility to prove his innocence, and that he had to be proved guilty by proof beyond a reasonable doubt as to each of the essential allegations. No exception was taken to these aspects of the judge's charge.

Whatever the prosecutor's intent, we think his remarks were "reasonably susceptible of being interpreted as a comment on [the defendant's] failure to take the stand which, of course, was improper." Commonwealth v. Domanski, 332 Mass. 66, 69 (1954). In such cases the better practice is for the judge to intervene on his own motion. Indeed, the United States Court of Appeals for the First Circuit has announced that it will rule such comments "prejudicial as matter of law," unless the judge "interrupts the argument, instructs the jury fully on the defendant's constitutional right not to testify and the jury's obligation not to draw unfavorable inferences and, in addition, states to the jury that the U.S. Attorney was guilty of misconduct." United States v. Flannery, 451 F.2d 880, 882 (1st Cir.1971).

Our practice has been less strict, and we are not prepared to follow the Federal example in all its rigidity. We no longer hold, as we did in Commonwealth v. Homer, 235 Mass. 526, 536 (1920), that an objection to closing argument 572*572 necessarily comes too late if made after the argument is finished. But we ordinarily insist on exceptions with respect to any inadequacies in curative instructions. Commonwealth v. Cabot, 241 Mass. 131, 151 (1922). Cf. Commonwealth v. Burnett, ante, 13, 16-17 (1976). Denial of a mistrial and reliance on curative instructions may be proper, in the judge's discretion, even in a case of clearly improper argument by a prosecutor. Commonwealth v. DeChristoforo, 360 Mass. 531, 536-538 (1971). See Donnelly v. DeChristoforo, 416 U.S. 637, 644-645 (1974).

In the present case the judge may have thought that the prosecutor's impropriety was not deliberate. Contrast Commonwealth v. Redmond, 370 Mass. 591, 597 (1976); Commonwealth v. Graziano, 368 Mass. 325, 332 (1975). Defense counsel in his summation had argued that the victim's testimony was preposterous, and the prosecutor's argument emphasized the issue of her credibility. The judge may have thought that defense counsel's failure to object was a tactical decision, based on a belief that the prosecutor's argument was helping the defense. In these circumstances, we find no abuse of discretion in the judge's decision to rely on curative instructions rather than to declare a mistrial.

Judgments affirmed.