dissenting:
On this appeal by Albert S. Bussey from his conviction of robbery and of three assaults with a dangerous weapon, the question is whether the trial court erred in admitting evidence offered by the government to rebut the alibi defense interposed by Bussey and to identify him as the person who committed the crimes for which he was on trial. The challenged evidence tended to show the commission of another robbery by Bussey in the same vicinity and shortly before the robbery of which he was convicted.1
*1337The charges of which Bussey was convicted grew out of a holdup of the Edison Sewing Machine Company of 2626 Bladensburg Road in Northeast Washington about 4:20 in the afternoon of February 23, 1968. At the trial two of the victims present at the holdup identified Bussey, described his distinctive coat, the weapon he was carrying, and the manner of the execution of the holdup.
Bussey’s one alibi witness, his girl friend, testified that on February 23, 1968 (the day of the holdup) Bussey was with her in Southeast Washington from 12:30 p. m. until a few minutes after 3 p. m. when he left her for twenty-five minutes to get a sandwich and some medicine, and then was with her again until approximately 8:30 that same evening. Bussey’s effort through his girl friend to establish an alibi raised an issue of identity.
Although the government had two witnesses who positively identified Bussey as a participant in the holdup, Bussey’s one alibi witness just as definitely placed him elsewhere at the time the holdup occurred. The alibi witness testified to an intimate acquaintance with Bussey while apparently the two government witnesses who identified Bussey had never laid eyes on him prior to the holdup. Under these circumstances the government offered evidence for the purpose of rebutting the alibi defense and of establishing the identity of Bussey as the person who committed the offenses charged.
The rebuttal evidence in question consisted of testimony and a newspaper clipping. The import of the testimony was that minutes immediately preceding the Edison holdup Bussey had engaged in a holdup of the General Transmission Company located at 2912 Bladensburg Road, Northeast, about two and one-half blocks from the location of the Edison robbery for which he was being tried. The General Transmission robbery took place-at 4 p. m. while the Edison robbery occurred about 4:20 p. m.
In his charge the trial judge instructed the jury as to the limited purpose for which this rebuttal testimony was received. He said:
“Ladies and gentlemen, you have heard evidence in this case and testimony of two witnesses concerning a robbery at the General Transmission Company on Bladensburg Road. You are instructed that evidence has been introduced that the defendant committed an offense similar in nature to the one [for] which he is now on trial. This evidence, that is with respect to General Transmission, was admitted solely for your consideration whether it tends to show the identity of the defendant as the person who committed the offenses at Edison Sales with which he is charged here. You are not required so to consider this evidence of the General Transmission Company robbery. Whether you do so or not is a matter within your exclusive province. You may not consider it as tending to show in any other respect the defendant’s guilt of the offenses of which he is charged here.”
The trial judge at the time of the admission of the rebuttal testimony should have cautioned the jury as to the limited purpose for which it was received. His failure to do so, however, was harmless error, as there was only a short interval between the admission of the rebuttal testimony and the judge’s charge to the jury in which he gave adequate instructions as to the identification purpose for which the rebuttal testimony might be considered.
Concerning the newspaper clipping admitted as rebuttal evidence, a police detective testified for the government in its case in chief that while Bussey was at the Twelfth Precinct after his arrest he was visited by one David Whitted, and was observed trying to transfer a paper to Whitted which Whitted dropped. The detective further testified that he retrieved it. This paper is the newspaper clipping which, subsequent to the alibi defense testimony, was received as *1338rebuttal evidence. The trial judge twice cautioned the jury as to the limited purpose for which the clipping was received, once when it was admitted, and again in his charge. He made clear that it was not admitted for the truth of the statements contained therein. He told the jury that the clipping was received “solely for whatever weight” it might have in their consideration should they believe the detective’s testimony that Bussey had possession of the clipping and was attempting to rid himself of it.
Ordinarily upon the trial of an accused person the government cannot, as part of its proof that the defendant is guilty of a crime charged, include evidence that he has committed another crime or crimes. But this doctrine should not be carried so far as to exclude evidence which has a direct tendency to prove the particular crime or crimes for which a defendant is on trial.
“Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the 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 one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial.” (Emphasis added.) People v. Molineux, 168 N.Y. 264, 343, 61. N.E. 286, 294, 62 L.R.A. 193, 240 (1901). “When the evidence is relevant and important to one of these five issues, it is generally conceded that the prejudicial effect may be outweighed by the probative value.” Drew v. United States, 118 U.S.App.D.C. 11, 16, 331 F.2d 85, 90 (1964).
At a murder trial in this jurisdiction the court admitted testimony to prove that certain of the pistols found near the place where the shooting occurred had been obtained by the defendants in two separate robberies perpetrated by them in Virginia several weeks before the homicide. Eagles v. United States, 58 App.D.C. 122, 124, 25 F.2d 546, 548, cert. denied, 277 U.S. 609, 48 S.Ct. 603, 72 L.Ed. 1013 (1928). Following conviction, the admission of this testimony was assigned as error. On appeal, the court said:
“We think * * * that the testimony was competent to identify the accused as the owners of the pistols at the time of the homicide. The court carefully instructed the jury that the testimony was admitted for that purpose only, and that the fact, if such appeared, that a separate prior crime was involved in the procurement of the pistols by the accused ‘has got absolutely nothing whatever to do with the question of whether they are guilty of this crime that is charged against them here.’ ”
A more recent application was made in United States v. Gay, 133 U.S.App.D.C. 337, 410 F.2d 1036 (1969), of the rule regarding the admissibility of evidence of another crime to prove the specific crime charged, in a prosecution for larceny after trust the trial judge admitted testimony of two government witnesses about their prior dealings with the defendant under circumstances similar to those in which the complainant in the case was allegedly victimized. The United States Court of Appeals held that the testimony in question “was directly illuminative” of the state of mind of the accused “in relation to the conversion” and “fitted well within the established rule, in this jurisdiction as elsewhere, that a trial judge may allow evidence of similar criminal acts to prove intent if the prejudicial effect of admission is ‘outweighed by the probative value’ of the evidence.” 410 F.2d at 1039.
The case at bar is similar to an Ohio robbery case which Judge Stephens in his concurring opinion in Martin v. United States, 75 U.S.App.D.C. 399, 401, 127 F.2d 865, 867 (1942), referred to as having a helpful discussion of the rule as to the competency of evidence of another crime to prove a particular crime for which a defendant is on trial. The Ohio case mentioned by Judge Stephens is Whiteman v. State, 119 Ohio St. 285, *1339164 N.E. 51, 63 A.L.R. 595 (1928). Three indictments had been returned against two defendants, each charging a robbery on a different date in November 1927. The first trial concerned the alleged robbery of November 20th. The defense sought to establish an alibi. After conviction the defendant White-man appealed on the ground that the trial court erred in admitting evidence of the two robberies for which he was not on trial.
Holding that there was no error in the admission of the challenged evidence, the Ohio Supreme Court said in part:
“It was the province of the court to determine whether the testimony was legally relevant; that is to say whether under the circumstances of the case it would be essentially misleading or too remote. Having determined that it was legally relevant, it was for the jury to determine its probative value. While it was primarily a question of identity, that being the only issue, the trial court ruled that evidence tending to show plan, method, or system would be relevant to the question of identity, these defendants having also been identified as the persons who committed the other offenses. The question is one of induction, and the larger the number of consistent facts the more complete the induction. It was for the court to determine that there was some relation between the system followed in the offense charged in the indictment and the systems pursued in the other offenses, and it was for the jury to determine whether there was a sufficiently large number of consistent facts to establish the identity beyond a reasonable doubt.” 164 N.E. 54-55.
In the instant case victims of each of the alleged robberies testified and made positive identification of Bussey as a participant therein. Their testimony regarding the clothing worn and weapons used was in practical agreement. Their testimony revealed the strong similarity in the execution of the two robberies, to wit: initial feigned interest by the robbers in the purchase of a product, followed by a sudden drawing of pistols; placing the pistols at the head of a victim, and then forcing the victims to lie on the floor while the search for money proceeded; ultimately, herding the victims into a backroom to make good their escape — all accompanied by some degree of violence, in the form of kicking, slapping and hitting. The two robberies occurred in businesses located less than 3 blocks apart and within a time interval of 20 minutes. The jury may well have regarded these similarities as sufficient to establish Bussey’s identity beyond a reasonable doubt.
In my opinion the challenged evidence was admissible to identify Bussey as the person who committed the particular offenses for which he was on trial, and to rebut and negative his alibi defense. The probative value of such evidence outweighed its prejudicial effect.
I would affirm.
. Dean Wigmore observes that “the fact that a defendant’s acts of misconduct would be inadmissible as showing his bad character does not in the slightest stand in the way of receiving the same acts in evidence if they are evidential for other purposes.” 1 Wigmore, Evidence, § 215, p. 712 (3rd ed., 1940). “If there is any other material or evidential proposition, for which it [an act of misconduct] is relevant, and if it is offered for that purpose, it is receivable, and its quality as misconduct or crime does not stand in the way.” Id., § 216, p. 713.
Professor Wharton under a heading entitled “Rebuttal of Defenses” states: “When the prosecution seeks to rebut a defense, it may prove facts which tend to show the commission of another crime by the defendant. When an alibi is offered by the accused to show that he could not have committed the crime charged, evidence of another offense may be shown to prove that he was in the vicinity at the time.” 1 Wharton, Criminal Evidence, § 243 at 561 (12th ed. 1955).