¶1dissenting.
¶2I must respectfully dissent from the majority in this case. I believe that the majority’s conclusions are in error, both with regard to venue properly lying in *400Lancaster County and concerning the admissibility of the testimony of two female witnesses involving subsequent acts with the defendant Ellis.
¶3There is no question but that the death of Deborah A. Forycki was tragic and that the perpetrator of the horrible crime must be apprehended and convicted. The tragedy of the death, however, should not cause us to ignore basic rules of evidence in criminal cases. It is because of a case exactly like the instant case that we have developed strict rules of evidence which must be followed in a criminal case.
¶4In the instant case, if the evidence establishes anything, it establishes that the appellant was not guilty of manslaughter, as found by the jury. There is simply no evidence, direct or circumstantial, to establish that the appellant killed Ms. Forycki either upon a sudden quarrel or while in the commission of an unlawful act, either of which element is necessary to establish the crime of manslaughter. Neb. Rev. Stat. § 28-305 (Reissue 1979). The verdict was obviously a compromise verdict and displays the difficulty which the jury obviously had in reaching a conclusion and the prejudice which the testimony of the State’s two key witnesses must have created.
¶5I turn first to the matter of venue. As noted by the majority, the trial of a criminal case is to be held in the county in which the crime was committed. Neb. Rev. Stat. § 29-1301 (Reissue 1979). We have, however, by statute, created an exception to the general rule. Neb. Rev. Stat. § 29-1301.01 (Reissue 1979) provides that if a person takes another from one county to another county for the purpose of committing a criminal act, the individual may be tried in the county from which the victim was initially taken. The difficulty with applying that statute to this case, however, is that there is no evidence, either direct or circumstantial, that the accused took the victim from Lancaster County to Cass County. The majority argues that the evidence clearly establishes that the victim did not own an automobile or have any other means of transportation and, *401therefore, the only way in which the victim’s remains could have been found in Cass County is if the accused took her to Cass County. The evidence, however, shows that the accused did not own an automobile. It is true that he had access to an automobile. Yet, there is no evidence in the record that on the day of Ms. Forycki’s disappearance he had in fact exercised that right and had the vehicle in his possession.
¶6But even assuming for the moment that one may infer that the accused took the victim, from Lancaster County to Cass County, there is no evidence, direct or circumstantial, that at the time the trip began there was any plan or intent on the part of Ellis to ultimately commit a criminal act in Cass County, thereby satisfying the exception to § 29-1301.01. The majority assumes that the victim went from Lancaster County to Cass County with the accused against her will. Not even reliance upon circumstantial evidence can produce that result. “ ‘ “[Circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.” ’ ” Bland v. Fox, 172 Neb. 662, 665-66, 111 N.W.2d 537, 540 (1961). Or stated another way, “Circumstantial evidence is that which relates to a series of facts other than the fact in issue, which series of facts has been found, by reason of experience, to be so associated with the fact in issue that, in relation of cause and effect, they lead to a satisfactory conclusion.” (Emphasis supplied.) 29 Am. Jur. 2d Evidence § 4 at 37 (1967). The only “series of facts” which we have in the instant case upon which our conclusion with regard to venue is based is the fact that the remains of Deborah A. Forycki were found in a water tank in Cass County, Nebraska, and there was some hair in a car owned by Ellis’ former wife of the type similar to that of either the victim or the former wife’s young child. Even assuming one may argue from the “series of facts” that the accused took the victim to Cass County in the automobile, one has no “series of facts” upon which a *402jury may reasonably conclude that when the trip began in Lancaster County there was any intent to commit a criminal act in Cass County. We have never heretofore filled gaps in evidence with argument, no matter how logical or persuasive the argument may be.
¶7Furthermore, it would seem that we determine there was venue in Lancaster County after we conclude that the accused committed the crime. Generally, venue being a jurisdiction matter, it must be established without regard to whether the individual accused is guilty. See State v. Laflin, 201 Neb. 824, 272 N.W.2d 376 (1978). I believe we have extended the exceptions of § 29-1301.01 beyond their reasonable limits. Venue was not properly laid in Lancaster County.
¶8The question of venue, however, is not the most serious problem in this case. While in a criminal case all matters are of importance, I believe that the majority’s interpretation of the exceptions to Neb. Rev. Stat. § 27-404(2) (Reissue 1979) is clearly in error and, if permitted to remain the law of this jurisdiction, will have effectively repealed the prohibition created both by statute and case law.
¶9The majority acknowledges that evidence of other crimes, prior or subsequent, is generally inadmissible to prove the character of a person in order to show that he acted in conformity therewith. § 27-404(2). The exceptions are extremely limited. Pursuant to the statute, § 27-404(2), testimony may be offered for the purpose of showing (1) motive, (2) opportunity, (3) intent, (4) preparation, (5) plan, (6) knowledge, (7) identity, or (8) absence of mistake or accident. Taking each of the items listed one at a time, and carefully examining them, will quickly disclose that none of them have application to this case. We turn then to an examination of the various exceptions to determine whether evidence of subsequent criminal acts or crimes was admissible in the instant case.
¶10The legal writers on the subject indicate that the elements of motive, opportunity, and intent are some*403what similar and can be discussed together. Motive has been defined in the law as the “[c]ause or reason that moves the will and induces action. An inducement, or that which leads or tempts the mind to indulge a criminal act.” Black’s Law Dictionary 914 (5th ed. 1979). In criminal law, “motive” is that which leads or tempts the mind to indulge in a criminal act. State v. Knox, 236 Iowa 499, 18 N.W.2d 716 (1945). See, also, Williams v. State, 113 Neb. 606, 204 N.W.64 (1925). Intent, likewise, has been defined as “[d]esign, resolve, or determination with which person acts.” Black’s Law Dictionary 727 (5th ed. 1979). “Intent” in criminal law means a state of mind which willingly consents to an act done, or free will choice, or volition in doing of an act. See State v. McLeod, 131 Mont. 478, 311 P.2d 400 (1957).
¶11In common usage intent and motive are not infrequently regarded as one and the same thing. In law there is a distinction between them. Motive is the moving power which impels to action for a definite result. Intent is' the purpose to use a particular means to effect such result. Motive is that which incites or stimulates a person to do an act, while intent means the intent to commit a crime or perform an act which is criminal in nature. Therefore, before evidence of another crime is admissible in evidence to prove that the act charged was done with a criminal motive or intent, it is necessary that the instant act be proven to have been committed. Evidence of a prior crime is not admissible to prove the commission of a subsequent act, but only to prove the motive or intent with which the subsequent act was committed. Until there is some evidence, direct or circumstantial, that the accused had committed any act, evidence of another crime to prove motive, intent, or opportunity is inadmissible. Logic would seem to make it clear that evidence of present motive, intent, or opportunity would be of no significance until there was some evidence that a present act had been committed by the accused.
¶12In the instant case, the State was unable to offer any *404evidence that the accused committed any particular act which resulted in Ms. Forycki’s death. The motive which the prosecution sought to establish was that the accused sought sexual gratification from the victim and when it was refused, killed her. The State sought to base that conclusion on evidence that the defendant had sought sexual gratification from two others on subsequent occasions. The difficulty with the argument is that there is no evidence that the victim was sexually assaulted before she was killed. The prosecution also sought to establish intent by showing that the accused had on other occasions intentionally assaulted other women. Again, there is simply no evidence of any sexual assault in the present case. Such a conclusion is sheer speculation.
¶13Attempting to establish the commission of a present act by showing the motive and intent involved in other subsequent acts is far beyond any permissible limits heretofore permitted. This is best illustrated by this court’s decision in State v. Franklin, 194 Neb. 630, 234 N.W.2d 610 (1975), wherein we held that evidence of similar acts with third persons was not admissible. We said in State v. Franklin, supra at 642-43, 234 N.W.2d at 617: “It is the usual rule that in a criminal prosecution evidence of crimes committed by the accused, other than that with which he is charged, is not admissible. State v. Brown, 190 Neb. 96, 206 N.W.2d 331. An exception to the above rule is that evidence of similar offenses is admissible where an element of the crime charged is motive, a particular criminal intent, or guilty knowledge. State v. Ray, 191 Neb. 702, 217 N.W.2d 176; State v. Young, 190 Neb. 325, 208 N.W.2d 267; State v. Rich, 183 Neb. 128, 158 N.W.2d 533.” Before we can address either nature or intent to commit an act, we must first establish the commission of the act. The evidence in this case fails in that regard.
¶14Further, in State v. Franklin, supra at 643, 234 N.W. 2d at 618, we said: “Evidence of similar crimes with third persons is not admissible. Henry v. State, 136 Neb. *405454, 286 N.W. 338; Nickolizack v. State, 75 Neb. 27, 105 N.W. 895.” (Emphasis supplied.) Based upon our decision in Franklin, evidence of a prior crime with a third person would be inadmissible to establish motive, intent, or opportunity in the instant case. That being the case, how can the commission of a subsequent crime with a third person be admissible? The evidence introduced by the State was not admissible for the purpose of establishing motive, intent, or opportunity.
¶15We turn then to “preparation and plan,” which may be viewed together. Professor Wigmore, in his now famous work on evidence, discusses plan or design as follows: “Design or plan, however ... is not a part of the issue, an element of the criminal fact charged, but is the preceding mental condition which evidentially points forward to the doing of the act designed or planned.” 2 Wigmore on Evidence § 300 at 238 (1979). “Evidence showing a plan establishes a definite prior design, plan, or scheme which includes the doing of the act charged. As Wigmore states, there must be ‘such a concurrence of common features that the various acts are materially to be explained as caused by a general plan of which they are the individual manifestations.’” (Emphasis supplied.) State v. Spraggin, 77 Wis. 2d 89, 99, 252 N.W.2d 94, 98-99 (1977). In other words, plan or design refers to a time prior to the commission of the act. To introduce evidence of subsequent acts in order to establish the fact that one had a plan or design prior in time appears to defy reason and logic. The fact that it may be shown that the accused assaulted an individual at a subsequent time does not logically establish that he had a plan to commit some other prior illegal act. In the instant case, the problem is even more compounded because here there is no evidence of what act was in fact committed and, therefore, no basis upon which we can determine a plan or design for committing the act. We are here attempting to prove the commission of an act by establishing the existence of a subsequent plan to commit a subsequent act. The evi*406dence of the subsequent acts could not have been introduced to prove “preparation or plan.”
¶16We turn then to the next item, “knowledge.” Whether one argues that the introduction of testimony of the subsequent acts was for the purpose of showing Ellis’ knowledge that the instant act committed was criminal or for the purpose of showing that he knew of the location of the water wagon, it was improper. There is no rational basis from which it may be argued that the fact that he knew something in 1976 means that he knew it in 1974. The use of circumstantial evidence is dependent upon the ability of one to reach a logical inference from the circumstances. The evidence of a subsequent act must be disregarded where, as here, it is introduced for the purpose of establishing the knowledge of the commission of a prior crime. There is simply no basis in reason or logic to maintain that the fact one knew something subsequent to the commission of an act proves he knew it prior to the commission of an act.
¶17Even if we accept the State’s argument that the purpose of the testimony of the subsequent act at Elmwood was simply to prove that the accused knew of the location of the area where the body was found, the testimony concerning what subsequently took place at the location with a third person was clearly improper and prejudicial. If admissible at all, the witness could have easily testified that she and the accused were at the location, thereby establishing the accused’s knowledge of the location, without further testimony concerning what took place. While I do not believe that evidence of subsequent knowledge is admissible to prove prior knowledge, if it is permitted, it must be permitted in an extremely limited manner and for a limited purpose. In the instant case, that limitation was grossly exceeded, to the prejudice of the accused.
¶18Moreover, the few cases that have discussed this matter of knowledge lead one to the conclusion that the introduction of another criminal act, whether prior or subsequent, may be allowed only for the purpose of *407establishing the accused’s knowledge that the act being committed was a crime, and for no other purpose. See 2 Wigmore on Evidence § 300 (1979). The testimony-concerning subsequent acts with the two other women was inadmissible to prove “knowledge” in this case. This then leaves us with the matter of “identity.”
¶19Before evidence of another crime may be introduced for purposes of identity, the device used must be so unusual and distinctive as to be like a signature. McCormick on Evidence § 190 at 449 (2d ed. 1972). The majority in this case has concluded that the victim met her death by violent means. I am willing to accept that conclusion. Yet, as noted by the majority, all of the witnesses called for the purpose of establishing the cause of death were unable to testify as to the exact cause. We do not, to this day, know whether the victim died by strangulation following a sexual assault, by stabbing, by poisoning, or by shooting. The most we know is that she met her death by violent means. We have therefore concluded that any evidence of any subsequent violent act may be introduced in evidence to establish the identity of a prior act. Such a conclusion far exceeds any permissible limits existing as an exception to the rule that evidence of other crimes may not be introduced in evidence.
¶20A very clear example of this is found in the case of People v. Guerrero, 16 Cal. 3d 719, 548 P.2d 366, 129 Cal. Rptr. 166 (1976), wherein the California Supreme Court was asked to review a judgment of conviction of first degree murder. Evidence of an uncharged rape occurring on an earlier occasion and involving a different victim was admitted in evidence. In permitting the evidence of the earlier crime to be admitted the trial court pointed to a number of asserted similarities between the rape and the charged murder, including the fact that each offense involved the use of a maroon Pontiac Le Mans automobile, with defendant driving; the victims were approximately the same age; on both occasions defendant initially had other males with him in *408the car; in each offense defendant drove around the city, stopping at the same parking lot; in each case the parties made stops to buy beer and wine and each time defendant drove while drinking; each offense involved “sexually oriented activity”; both times the defendant took or attempted to take the girl home alone; and on both occasions the court can infer from the evidence that defendant used a wrench.
¶21In rejecting the introduction of that testimony, however, the California Supreme Court said: “However, ‘It has frequently been recognized . . . that because of the sound reasons behind the general rule of exclusion, the relevancy of evidence of other crimes, and therefore its admissibility, must be examined with care. [Citation.] The evidence should be received with “extreme caution,” and if its connection with the crime charged is not clearly perceived, the doubt should be resolved in favor of the accused. [Citations.]’” Id. at 724, 548 P.2d at 368-69.
¶22Going further, the California Supreme Court said: “On the issue of identity the evidence of the Lopez crime is not only cumulative, it is also irrelevant. Few of the asserted similarities between the Lopez and Santana offenses aid in placing defendant at the scene of the alleged murder. ... If the victim had been attacked in a distinctive manner that was identical to a previous crime defendant had committed, then the evidence of the other crime might have probative value. But the only claimed connection that has any logical relevance is evidence of ‘sexual activity’ in both cases and the possible use of a wrench. Even if both facts were established — which, as will be discussed, is highly dubious — it could not reasonably be claimed that the two offenses were committed in a particularly distinct manner that tends to inculpate defendant.” Id. at 725, 548 P.2d at 369.
¶23Several Nebraska decisions would indicate that on careful analysis we would, likewise, adopt the California rationale. In State v. Irwin, 191 Neb. 169, 214 *409N.W.2d 595 (1974), we held that testimony concerning Irwin’s previous trouble, even as background material, was erroneously admitted in evidence, saying at 189, 214 N.W.2d at 607: “The so-called background material was clearly irrelevant and immaterial and the rulings of the court on objections to the testimony were erroneous. The quoted information could only be designed to influence the verdict and the persistence of the witness in pursuing his course seemed designed to that end.”
¶24In State v. Casados, 188 Neb. 91, 94-95, 195 N.W.2d 210, 213 (1972), we said: “As a general rule, evidence of other crimes than that with which the accused is charged is not admissible in a criminal prosecution. Evidence of other crimes, similar to that charged, is relevant and admissible when it tends to prove a particular criminal intent which is necessary to constitute the crime charged. See State v. Easter, 174 Neb. 412, 118 N.W.2d 515.
¶25“In many instances, courts have limited such evidence to proof of prior similar acts. Other courts have extended it to include similar acts occurring after the particular crime charged, provided there was at least one former act. In any event, proof of another distinct substantive crime is not admissible in a criminal prosecution unless there is some legal connection between the two upon which it can be said that one tends to establish the other or some essential fact in issue.
¶26“‘Peculiarly applicable to criminal cases is the rule which prohibits the introduction of evidence of other wholly independent offenses as the basis for an inference that the defendant is guilty of the offense for which he is being tried. … One basic reason for the rule is that such evidence is apt to be given too much weight, rather than too little, by the jury, thus resulting in the conviction of a defendant because he is a bad man and not because of his specific guilt of the offense with which he is charged.’ 1 Jones on Evidence (5th Ed.), § 162, p. 290. See, also, 2 Wigmore on Evidence (3rd Ed.), § 302, p. 200.” (Emphasis supplied.)
¶27*410The majority has cited the case of The State v. King, 111 Kan. 140, 206 P. 883 (1922), as authority for the proposition that other offenses need not be prior in time. However, in the Kingcase, there was both a prior murder as well as a subsequent murder. Moreover, in King, the evidence was such that one could determine the similarity in the cause of death in all three cases. That is not so in the case at bar. Because we do not know what happened to Ms. Forycki, we are unable to show any legal connection between the charged act and the subsequent acts upon which it can be said that one tends to establish the other or some essential fact in issue.
¶28The admonition of the Casadosdecision is most applicable in the case at bar. The characteristics of the other offense and the charged offense must, indeed, be similar in detail and not merely in the fact that it was a like crime.
¶29In State v. Bly, 215 Kan. 168, 174, 523 P.2d 397, 403 (1974), the Kansas Supreme Court repeated the generally recognized rule concerning the admissibility of other crimes by saying: “ ‘The rule against the admissibility of evidence of other similar but independent offenses should always be strictly enforced ....”’ Moreover, the Kansas Supreme Court specially found that evidence of other crimes should be excluded if its only purpose is to show the defendant’s disposition, inclination, attitude, tendency, or propensity to commit crime. See, also, Hertz v. State, 160 Neb. 640, 71 N.W.2d 113 (1955); City of St. Paul v. Greene, 238 Minn. 202, 56 N.W.2d 423 (1952).
¶30The mere fact that one may conclude that the victim met her death by violence is not sufficient to establish the requisite similarity between the manner in which she met her death and the subsequent acts committed by the accused. As a matter of fact, the evidence in the instant case, if it tends to prove anything, disproves that conclusion. The evidence of both subsequent incidents discloses that the accused retreated when the vie*411tim screamed and objected. In each subsequent instance, there was no injury committed to the individuals. To therefore suggest that, because there is evidence that on two subsequent occasions the accused retreated when rejected, we may conclude that there is a similarity with the commission of a murder is far beyond the exception to § 27-404(2).
¶31The legal authors have further indicated that in addition to examining all of the items to determine relevancy, there must be a further examination made to determine whether, even if relevant and admissible, the evidence may not work great prejudice. In Nebraska we have, likewise, concerned ourselves with that fact by adopting Neb. Rev. Stat. § 27-403 (Reissue 1979), wherein it is said: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
¶32McCormick on Evidence § 190 at 452-54 (2d ed. 1972) observes: “There is an important consideration in the practice as to the admission of evidence of other crimes which is little discussed in the opinions. This is the question of rule versus discretion. Most of the opinions ignore the problem and proceed on the assumption that the decision turns solely upon the ascertainment and application of a rule. If the situation fits one of the classes wherein the evidence has been recognized as having independent relevancy, then the evidence is received, otherwise not. This mechanical way of handling these questions has the advantage of calling on the judge for a minimum of personal judgment. But problems of lessening the dangers of prejudice without too much sacrifice of relevant evidence can seldom if ever be satisfactorily solved by mechanical rules. And so here there is danger that if the judges, trial and appellate, content themselves with merely determining whether the particular evidence of other crimes *412does or does not fit in one of the approved classes, they may lose sight of the underlying policy of protecting the accused against unfair prejudice. The policy may evaporate through the interstices of the classification.
¶33“Accordingly, some of the wiser opinions (especially recent ones) recognize that the problem is not merely one of pigeonholing, but one of balancing, on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.
¶34“Such a balancing calls for a large measure of individual judgment about the relative gravity of imponderables. Accordingly, some opinions stress the element of discretion. It should be recognized, however, that this is not a discretion to depart from the principle that evidence of other crimes, having no substantial relevancy except to ground the inference that accused is a bad man and hence probably committed this crime, must be excluded. The leeway of discretion lies rather in the opposite direction, empowering the judge to exclude the other-crimes evidence, even when it has substantial independent relevancy, if in his judgment its probative value for this purpose is outweighed by the danger that it will stir such passion in the jury as to sweep them beyond a rational consideration of guilt or innocence of the crime on trial. Discretion implies not only leeway but responsibility. A decision clearly wrong on this question of balancing probative value against danger of prejudice will be corrected on appeal as an abuse of discretion.”
¶35In the instant case, the introduction of subsequent acts was both inadmissible as not being an exception to *413§ 27-404(2) and for the further reason that it was clearly prejudicial — not that it was harmful. As noted by the majority, evidence harmful to the defendant may be introduced. However, in the instant case, the evidence of subsequent acts was legally prejudicial to the rights of the accused to obtain a fair trial. The prejudice is evidenced by the verdict of the jury. As noted at the outset of this dissent, if the accused was guilty of anything, it was not manslaughter. The conclusion reached by the jury obviously was a compromise based in part upon evidence that the accused was a “bad man” who had committed other subsequent acts which should not be approved.
¶36If the evidence of the two subsequent acts is omitted from the State’s case, as it should have been, there was simply insufficient evidence upon which the case could have been submitted to the jury. Its verdict in the case would have been based upon absolute and sheer speculation. Believing as I do that the evidence of the two subsequent crimes should not have been permitted, I would reverse and dismiss.