concurring in result.
I am of the opinion that we have gone astray in recent decisions wherein the State has been permitted to introduce evidence of other crimes or misdeeds by the accused upon the basis that such evidence was relevant to the identity of the perpetrator of the crime charged. There are very good reasons why substantial relevance should be required before permitting the introduction of such evidence. The general rule excluding such evidence, its purpose and its exceptions were articulated as follows by Justice Arterburn in Loveless v. State, (1960) 240 Ind. 534, 166 N.E.2d 864:
“The general rule is that one crime cannot be proved in order to establish another distinct crime even though they be of the same kind. Such evidence is highly prejudicial. Moreover, a defendant is entitled to be informed specifically of the crimes charged and not come to trial in the dark and uninformed as to the nature of the evidence to be presented *1222against him. 1 Ewbank’s Indiana Criminal Law, Symmes Ed., § 384, p. 236; Hergenrother v. State (1939), 215 Ind. 89, 18 N.E.2d 784; Sylvester v. State (1933), 205 Ind. 628, 187 N.E. 669; Fehlman v. State (1928), 199 Ind. 746, 161 N.E. 8. There are certain exceptions to this general rule. Among these are cases where a crime has certain peculiar characteristics connected with its commission so that it very reasonably identifies the person involved in the commission, as where, for example, a particular type of break-in is involved, or a particular tool used that is identifiable in each case, or where the person involved wears a particular identifying piece of clothing or headgear. Smith v. State (1939), 215 Ind. 629, 21 N.E.2d 709; Crickmore v. State, (1938), 213 Ind. 586, 12 N.E.2d 266; Zimmerman v. State (1921), 190 Ind. 537, 130 N.E. 235.” 240 Ind. at 539, 166 N.E.2d 864.
In years past, such evidence has been admitted because there was something unique about the prior crime which also appeared in the crime for which the accused was on trial. More recently, it appears that we have lost sight of such factor and have permitted the evidence to be brought in merely upon a showing that the two crimes embodied similarities. We have lost sight of the importance of the aspect of uniqueness in making our determination of relevance. For example, I would not consider it significant if a bandit exited from the scene of both crimes in a white Ford automobile. I would have a different attitude if the vehicle utilized in both events were a pink Rolls-Royce. Although there is something to be said for the weight of greater numbers, I am of the opinion that we should not permit volume to be substituted for quality, when determining the relevance of such evidence.
In the case before us, I do not agree that the similarities in the two robberies rendered the testimony of Witness McDowell admissible for identification purposes. I agree that there were several similarities in the two crimes, but I do not agree that these similarities alone render it probable that the two crimes were committed by the same person or persons.
The similarities cited, for the most part, are merely characteristic of armed robberies of business establishments. There is nothing unique about a business establishment robber first posing as a customer, nor in his selecting, for the evil deed, a time when customers are unlikely to be present.
Had the robbers, in both incidents, ordered Tacos or Pizzas, I would be impressed; but I see nothing significant about ordering seafood in a seafood restaurant.
Should a robber take pains to assure that the victim can identify him, I would say that it was a unique circumstance. However, it is ordinary and, to me, of no significance when a robber takes pains to avoid his victim’s obtaining a view of him. It also seems, today, that many robbers have no concern with whether or not their victims see them. Hence, I give no weight to the robber’s having placed a gun at the back of the victim’s head, as opposed to approaching him from the front. Neither do I regard it as significant that the robber commandeered money from the safe.
We are left with the nearness in time of the two events and the type of business establishment victimized as the significant factors tending to show that the two crimes were committed by the same person. In my opinion they are insufficient for that purpose.
Assuming that the evidence was admissible for identification purposes, however, it is immaterial whether it was necessary or merely cumulative. The majority opinion appears to suggest that the trial court may have been justified in admitting questionable evidence because the other identification testimony was weak. I believe this to be a better reason for excluding the evidence.
I, nevertheless, am of the opinion that the other evidence of the defendant’s guilt was so substantial as to render the error harmless, and I vote to affirm the judgment.