dissenting:
I dissent for the reason that it was prejudicial error in this case to permit the state to offer evidence of defendant’s participation in an earlier, distinct, and separate robbery for the purpose of proving that defendant was robbing or attempting to rob Jones’ Confectionery at the time he shot Mr. Jones. While the majority attempts to justify the admission of this evidence as tending to prove defendant’s “intent,” it seems clear to me that the real and only conceivable purpose of the evidence was to show what happened inside the confectionery. Clearly it could not be offered for this purpose. “Logically, the commission of an independent offense is not proof in itself of the commission of another crime.” State v. McClain, 240 N.C. 171, 173-74, 81 S.E. 2d 364, 365 (1954), quoting Shaffner v. Commonwealth, 72 Pa. 60, 13 Am. R. 649, which was also quoted with approval in People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193 (1904). “A person cannot be convicted of one offense upon proof that he committed another . . . . ” Peo-*663pie v. Molineux, 168 N.Y. 264, 292, 61 N.E. 286, 294, 62 L.R.A. 193, 237 (1904), quoting Coleman v. People, 55 N.Y. 81 (1873). “One who commits a crime may be more likely to commit another; yet, logically, one crime does not . . . tend to prove another unless there is such a relation between them that proof of one tends to prove the other.” State v. Beam, 184 N.C. 730, 734, 115 S.E. 176, 178 (1922). See also State v. Thompson, 290 N.C. 431, 226 S.E. 2d 487 (1976) and State v. Tuggle, 284 N.C. 515, 201 S.E. 2d 884 (1974) where evidence of other crimes was admitted but the Court was careful to note in both cases that what happened was not really at issue. The crucial question in those cases was the identity of the perpetrator.
The real factual question, as a close examination of the evidence will show, is what happened inside Jones’ Confectionery, not defendant’s intent, mens rea, or state of mind. The state contends defendant was robbing or attempting to rob Jones at the time of the shooting. There is, however, no direct evidence of what happened other than defendant’s out-of-court statement offered by the state in which he denied committing or attempting to commit a robbery. His statement was that he took the gun to his brother’s house near North Trade Street apparently for the purpose of leaving it with his brother. Upon finding his brother not at home, he left with the gun. He walked into Jones’ Confectionery for the purpose of buying a pack of cigarettes. After he bought the cigarettes and while he was leaving, the shooting took place which resulted in his being wounded and Jones’ being killed. Other evidence in the case showed that Jones’ stepson was a friend of defendant and that it was customary for defendant to visit the confectionery.
In an effort to discredit this out-of-court statement which it offered and to prove that in fact defendant was committing or attempting to commit an armed robbery, the state offered evidence that five days before defendant robbed another establishment with the same or a similar shotgun. Merely discrediting defendant’s statement would not, of course, establish a robbery or its attempt.
To say that under these circumstances evidence of the prior crime is offered on the question of defendant’s intent, demonstrates misunderstanding of this exception to the general rule of exclusion of evidence of other crimes and extends the exception far beyond anything this Court has heretofore per*664mitted. In each of the cases I have found on the subject, evidence of another criminal offense offered to prove defendant’s criminal intent with regard to the crime being tried was admitted only after proof of an overt act of defendant which, if done with criminal intent, would constitute a crime.
In State v. Long, 280 N.C. 638, 187 S.E. 2d 47 (1972), relied on by the majority, the defendants were charged with attempted armed robbery of one Charles Stewart, a service station attendant. There was plenary evidence of what happened inside the service station. The state’s evidence tended to show that defendants, one of whom was brandishing a pistol, demanded that Stewart open the cash register. Stewart resisted, a tussle ensued, and the defendants ran, their efforts foiled. Defendants testified that they were not trying to rob Stewart but the gun was brandished and the tussle was caused because Stewart would not give them a refund when one of them received no merchandise after putting money in a vending machine. Thus, when defendants rested, the crucial issue in the case was not what happened but what kind of intent accompanied the brandishing of the gun. Was it drawn with the intent to rob or in an effort to obtain a refund to which defendants were entitled?
To resolve this ambiguity, the state in rebuttal offered evidence that on a prior occasion one of the defendants had robbed a Little General Store in the process of which he stole the very pistol used in the crime on trial.
Long presents the classic case of the state’s having proved an ambiguous act — an act which, done with the necessary criminal intent is a crime, but, done without that intent, is not.
All the cases relied on by the majority are similar to Long, and reach similar results. They are, however, materially unlike the case at bar in that in this case there is no proof of any overt act by defendant which could be construed as constituting a robbery or an attempt to rob the confectionery. The facts that defendant entered the store with a shotgun; shot Jones; fled the scene after the shooting; and lied to the officer at the hospital about his true name and address do not constitute such proof. While the majority says the shotgun was “concealed” on the defendant when he entered the store, there is no testimony whatever that it was. The only state’s witness who saw him enter was sitting on her front porch across the street, some distance *665away from the confectionery. She testified simply that she did not see the gun at that time. The state’s evidence also tends to show that Jones shot first. It is, of course, mere speculation, but it is possible that defendant entered the store to buy cigarettes with a gun. Jones, mistakenly believing he was going to be robbed, shot defendant who then returned the fire. The point is, assuming defendant’s statement is disregarded, we don’t know what actually happened inside the store.
Robbery, as the majority correctly notes, requires the taking of personal property of another from his person or in his presence and without his consent. Even an attempted robbery as the majority also notes requires “some overt act calculated and designed to bring about the robbery. . . .” (Emphasis supplied.) Until there is evidence in the case of some overt act which could be construed as constituting a taking or an attempt to take the property of another, the question of defendant’s intent simply does not arise. Though the suspicion aroused may be strong, there is absolutely no evidence that defendant was taking anything or that he was attempting to take anything at the time the shooting occurred.
The effect of the majority’s ruling is far-reaching. It amounts to this: The state, lacking evidence of what actually happened, may bootstrap itself around this deficiency by offering evidence of what defendant did on some other occasion. This, according to the majority, proves defendant’s intent to do on the occasion in question what the state contends he did. This, in turn, somehow proves that he did it. Under the majority’s holding the rule against admitting such evidence is totally abrogated. The state may use it in any case, but particularly in those cases where there is no other evidence as to what happened.
One theory upon which evidence of the 8 February robbery might be admisible to prove the commission or attempted commission of a robbery on 13 February is that evidence of both events tends to prove a scheme, plan, or design on the part of the defendant to rob both establishments. “When the very doing of the act charged is still to be proved, one of the evidential facts receivable is the person’s Design or Plan to do it. This in turn may be evidenced by conduct of sundry sorts as well as by direct assertions of the design.” 2 Wigmore on Evidence § 304 at 202 (3d. ed. 1940). Conduct which constitutes *666another crime is admissible on this theory “when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission.” State v. McClain, supra at 176, 81 S.E. 2d at 367.
When, however, another crime is offered as conduct tending to show defendants plan to do an act which in turn tends to prove that the act was done, there must be more than merely some similarity between the other crime and the. crime sought to be proved. The incidents must be so strikingly alike in detail that evidence of both raises a reasonable inference of the existence of a plan out of which both sprang. “But where the conduct offered [to prove a plan] consists merely in the doing of other similar acts, it is obvious that something more is required than that mere similarity, which suffices for evidencing Intent. . . . The added element then, must be, not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as ca/used by a general plan of which they are the individual manifestations.” 2 Wigmore on Evidence § 304 at 202 (3d. ed. 1940). (Emphasis the author’s.)
The only similarity shown by the evidence between the XL Cleaners’ incident and that at Jones’ Confectionery was that a similar type gun was used in both. This is not enough to permit a reasonable inference that the two incidents sprang from a common plan. The dissimilarities in the two incidents are, really, more striking and tend to negate the existence of such a plan. The XL robber wore a cap hiding his hair and used an alias in robbing an establishment where he was not known and which was apparently frequently manned by two persons. In contrast, defendant máde no attempt to conceal his identity at Jones’ Confectionery. Indeed, he wore trousers with his first name embroidered on them. He was known to Jones and was a friend of Jones’ son. The confectionery was entirely a one-man operation. Because of a lack of evidence as to precisely what happened inside the confectionery there can be no comparison in any detail of defendant’s modus operandi in the two incidents. Compare, e.g., State v. Tuggle, supra.
This evidence then falls far short of tending to show that both the 8 February and the 13 February incidents arose out *667of a common plan devised by defendant to rob both establishments. Rather, when closely examined, it tends to negate such a plan. See People v. Molineux, supra, where evidence of different motives for otherwise similar crimes precluded one from being offered in the trial of the other on the common plan theory Molineux was distinguished on this ground in State v. Smoak, 213 N.C. 79, 195 S.E. 72 (1938).
The difference between the criminal intent, or scienter, exception and the common plan exception to the rule generally excluding other crimes evidence is subtle but important to maintain. Criminal intent or scienter is always one of the essential elements of the crime sought to be proved, or if not technically an element, at least a state of mind without which there can be no crime. The rule as stated by Justice Ervin in State v. McClain, 240 N.C. 171, 175, 81 S.E. 2d 364, 366 (1954) makes this clear:
“2. Where a specific mental intent or state is an essential element of the crime charged, evidence may be offered of such acts or declarations of the accused as tend to establish the requisite mental intent or state, even though the evidence discloses the commission of another offense by the accused. [Citations omitted.]” (Emphasis supplied.)
This criminal intent consequently is always one of the ultimate facts sought to be proved by the state. It is not a fact from which other facts such as overt acts of the defendant may be inferred. Indeed the question of intent does not arise really until some overt act which could constitute the crime is proven. A plan or design to commit a crime, on the other hand, like criminal intent, may exist in the mind of the defendant; but it is not a mental state which is a sine qua non of the crime. It is not an ultimate fact sought to be proved by the state. It is a mere evidentiary fact which, if properly established, may tend to prove the crime.
Neither do I believe the evidence is admissible on the question of identity. Evidence of other crimes offered for this purpose is admissible “[w]here the accused is not definitely identified as the perpetrator of the crime charged and the circumstances tend to show that the crime charged and another offense were committed by the same person . . . . ” State v. McClain, supra, 240 N.C. at 175, 81 S.E. 2d at 367. (Emphasis supplied.) This, of course, is not a case where the accused is *668not definitely identified. There was no real issue regarding defendant’s identity except that raised theoretically by his plea of not guilty. The state’s evidence clearly and unequivocally identified him as the perpetrator of the homicide. Defendant offered no evidence to the contrary. Compare State v. Grace, 287 N.C. 243, 213 S.E. 2d 717 (1975), where the defense was alibi; State v. Tuggle, supra, where defendant expressly denied his participation in the robbery; State v. McClain, 282 N.C. 357, 193 S.E. 2d 108 (1972), where identification of defendant was a key factual issue; and State v. Thompson, supra, 290 N.C. at 441, 226 S.E. 2d at 493, where “[t]he crucial issue in the trial was . . . whether defendant . . . was one of the two men who participated in the crime.” The Iowa Supreme Court has aptly observed in State v. Wright, 191 N.W. 2d 638, 640 (Iowa 1971) :
“There must be some factual issue raised to permit evidence of other crimes under the noted exceptions. If no such issue exists, then the evidence is unnecessary and the exception may not be relied upon. . . . Here the defendant presented no evidence, and the State’s theory posed an uncomplicated factual situation for jury determination. . . . There is no real issue ... to justify the admission of testimony of other crimes, nor can it be seriously argued that the evidence was admissible to prove identity.”
For these reasons I would hold that admitting the evidence in this case of the 8 February robbery was improper, highly prejudicial, and entitles defendant to a new trial.