Aрpellants, Van Akins, Sam Akins and Bennie Akins, were charged with murder in the first degree, found guilty after trial and sentenced to life imprisonment. They appeal to this Court, urging that it was error for the court below to admit evidence of crimes distinct and independent from those with which they were charged.
*265 On Sunday evening, Octоber 29th, 1961, the appellants and two juveniles named Draper and Finnerson rode with appellants in an automobile owned and driven by Bennie Akins to a tаvern at Hamilton’s Corner near Chandler, Arizona. The automobile was backed up to the tavern where after a few minutes at about 6:30 P.M. a male Mexican came out of the tavern. The Mexican was then robbed in this manner: Sam Akins held a gun and Van Akins and Finnerson searched the victim and took from his person a gold watch and $1.50. The three then returned to the car and all drove around for about thirty minutes returning to Hamilton’s Corner where again Bennie Akins backed the car against the tavern. Shortly two Indians drove up and as they were about to enter the tavern were called over to the car. Sam then threatened the Indians with the pistol while Bennie Akins, Van Akins and Finnerson searched them. However, nothing was found of value so the five drove to what is known аs the Southside Tavern also near Chandler.
Again, the car was backed up near the tavern while appellants waited in the car until a Mexican, Tony Zambrano Aguilar, came out. In this instance Bennie Akins acted as a lookout. Van Akins ran up to the victim, threw him to the ground and held him down while Sam searсhed him, taking 50 cents and a chapstick. Van Akins violently kicked the victim five or six times causing six broken ribs and a ruptured spleen from which injuries the victim died a few hоurs later.
On this evidence the jury returned a verdict of guilty of murder in the first degree and the three named appellants were sentenced to life imprisonment. The two juveniles, Draper and Finnerson, were not prosecuted as adults.
Appellants here assign three grounds for error all directed at the admission of testimony relating to the two incidents at Hamilton’s Corner prior to the robbery near the Southside Tavern.
Evidence tending to show the commission of another crime entirely distinct and independent from that for which the accused is on trial is generally neither relevant nor admissible. We have rеpeatedly stated, however, the well recognized exception that evidence of other crimes is competent to prove thе specific crime charged when it tends to establish motive, intent, the absence of mistake or accident, identity, a scheme or plan cоmmon to the commission of two or more crimes so related to each other that proof of one tends to establish the other. State v. Little,
It is urged by appellants that the alleged crimes of robbery committed at Hamilton’s Corner are separate and distinct acts inadmissible under the exception *266 to the general rule because they have no tendency to establish facts pertinent to the proof of the crime charged, murder in the first degree. We agree with the appellants’ argument that due to the prejudicial nature of the proof of other offenses, the evidence should not be admitted simply on a showing that some parts of the offenses at Hamilton’s Corner have similarities to that near the Southside Tаvern unless the similarities are such that there can be inferred from them an essential element necessary to sustain the conviction of murder.
Murder is thе unlawful killing of a human being with malice aforethought, A.R.S. § 13-451. In the first degree it may be committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary or mayhem. A.R.S. § 13-452. When a homicide is committed for the purpose of robbery, premeditation is not an element, the robbery being the legal equivalent of premeditation, State v. Serna,
In the instant case the victim of the Southside Tavern robbery died within a. few hours after the perpetration of the offense. Upon it being established that appellants werе parties to the assault, it became necessary and vital for the state to prove both motive for the assault and the intent, that is, that the motivе was robbery and that the robbery was intended. Plainly, both motive and intent may be inferred from the prior criminal acts at Hamilton’s Corner and the court below correctly so instructed the jury.
The trial court also instructed the jury in substance that the evidence of other criminal offenses was received for whatever value, it might have, if any, tending to show that there existed in the minds of the defendants a plan, scheme, system or desigjn into which fitted the commission of thе offense near the Southside Tavern. It is appellants’ principal argument that the evidence of the asserted offenses at Hamilton’s Cornеr does not support an inference of a plan to commit robberies in that it does not go so far as to establish a plan, the consummation of which included the robbery out of which arose the homicide. Concededly, the mere fact of the commission of other robberies would not prove a robbery in thе incident in which appellants were charged.
Similarities between the offenses at Hamilton’s Corner and that near the South-side Tavern must be in those imрortant aspects where normally there could be expected to be found differences. Evidence is not admissible except as it may
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shоw a tendency or likelihood of a plan common to all offenses to commit the crime. Lovely v. United States, 4 Cir.,
In the instant case a plan tо commit the crimes of robbery can be inferred from the facts that two other offenses, a robbery and an attempted robbery, were committеd in close proximity, both in time and in place; that the procedure used was the accosting of the victims, all patrons of taverns, either intoxicated or likely to be so and thus by reason of intoxication to be relatively incapable of present resistance or future identificatiоn; that the victims were in a class, Mexicans or Indians, who would be unlikely to complain or if complaining would not be given serious consideration; that thе acts were perpetrated in a similar manner by backing the automobile close to taverns, and there waiting for likely subjects. The jury could reаsonably infer a preconceived plan to commit acts of robbery which included the incident out of which appellants were prosеcuted.
It is not necessary that the evidence establish the crimes were perpetrated in an
absolutely
identical manner. Vigil v. State,
In Roulston v. State, (Okl.Cr.)
Judgment affirmed.