I agree with the majority on all except one of the issues raised, and as to that my disagreement makes no difference in the ultimate result.
The majority refers to the evidence of the Rigas robbery as having been admitted to show plan and intent, and I agree that it was admissible for that purpose. However, as I read the record, at the conclusion of the state's case in chief, the testimony had established that the same parties who had been present at the murder and robbery of Williams, with the addition of Dorothy Day, and under similar circumstances, had taken one Rigas to almost the same place, and *Page 491 Brown and Smith had beaten him and left him there. There was no testimony relative to a robbery, and technically it was the evidence of an assault on Rigas rather than the robbery of Rigas that was admitted to show the plan and intent. This distinction is immaterial, because the applicable rules governing the admission of evidence of a subsequent offense would be the same whether it involved an assault or a robbery.
It does, however, have some bearing on the subsequent course of the trial. Appellant Johnson was the only one of those charged with this crime who presented a defense. He testified, on direct examination, that Williams was pulled out of the car and beaten and robbed, Smith and Brown being the active participants in the beating and robbery. His testimony was that he had permitted the use of his car — he was driving at the time of the murder — for the purpose of taking Williams to a sporting house, and that he had no knowledge that any beating or robbery was proposed by Smith and Brown and did not share in the proceeds of it. On cross-examination, he was asked concerning his purpose in driving Rigas, Smith, Brown, and Dorothy Day to a place very near where Williams had been murdered, which was an entirely proper avenue of cross-examination. His explanation was that he was merely driving Rigas and Dorothy Day to a place where they could have sexual intercourse in his car, for which Dorothy was to receive ten dollars and he was to have two dollars (Smith and Brown apparently were along just for the ride). He did not testify as to the assault or robbery of Rigas, but he did say that he did not get the two dollars, using these words:
"Which she was to give me $2 for taking her out there, for using the car, and after he got out there, who taken the man's money I do not know. I asked her about the $2 and she claimed Willie Smith taken the man's money, and she said that Willie Smith claims she took it, so I don't know. Neither one of them give me any of the money."
In rebuttal, Dorothy Day testified that Johnson received ten dollars from the proceeds of the Rigas robbery and that the rest was divided between Smith, Brown, and herself. *Page 492 This was admissible to show Johnson's intent and his knowledge of the use to which his car was being put. It is, however, as to this testimony that I believe there was an erroneous ruling by the trial court. Counsel for appellant Brown requested that the jury be instructed that this rebuttal testimony of Dorothy Day was not to be considered against his client. That request should have been granted. Brown had interposed no defense, and there could be no reason for any rebuttal testimony so far as he was concerned, and it should have been limited in its application to appellant Johnson. This point was argued at some length before this court, but I find no assignment of error covering it in the brief of appellants.
I am convinced, however, that the court's refusal to grant that request was not prejudicial to Archie Brown. Dorothy Day's testimony in the state's case in chief had already implicated Brown in an assault on Rigas. Appellant Johnson's testimony on cross-examination had added that somebody had taken Rigas' money. Dorothy Day's testimony on rebuttal spelled out the fact of the robbery, of which there was already, to say the least, a strong inference, and the only thing that it added to the picture then before the jury was the fact of Johnson and Brown's participation in the proceeds thereof. While Brown should have been spared the cumulative effect of her testimony, it certainly could have had no material part in the conclusions reached by the jury. The noose had already been placed around Brown's neck by the uncontradicted testimony of both Smith and Johnson as to his attack on Williams.
In the presentation of this appeal, there is no contention that there was not ample evidence to sustain the verdict of guilty against both appellants; but the argument most strongly urged upon us is that, if there had been no evidence of the Rigas assault and robbery, the appellants might not have received the death penalty. That evidence was admissible for the reasons given in the majority opinion, and, if the death penalty should ever be invoked, the evidence in this case clearly warranted it. *Page 493