'* * * I pause here to express my decided opinion that it is a scandal that an accused person should be put to answer such an array of counts containing, as these do, several distinct charges. Though not illegal, it is hardly fair to put a man upon his trial on such an indictment, for it is almost impossible that he should not be grievously prejudiced as regards each one of the charges by the evidence which is being given up on the others.'

In Pointer v. United States, 151 U.S. 396, 14 S. Ct. 410, 38 L. Ed. 208 (1894), the Supreme Court addressed itself to this problem in the course of holding that a defendant charged in an indictment with four counts involving the murder of two persons on the same day, at the same place, and with the same kind of instrument, was not prejudiced by the joinder, inasmuch as the proof of each crime would have been relevant in a separate trial of the other. The Court, 151 U.S. at pages 403-404, 14 S.Ct. at page 412, 38 L. Ed. 208, said:

' While recognizing as fundamental the principle that the court must not permit the defendant to be embarrassed in his defense by a multiplicity of charges embraced in one indictment * * *, and while conceding that regularly or usually an indictment should not include more than one felony, the authorities concur in holding that a joinder in one indictment, * * * of different felonies, at least of the same class or grade, and subject to the same punishment * * * does not, in every case, by reason alone of such joinder, make it the duty of the court, upon motion of the accused, to compel the prosecutor to elect upon what one of the charges he will go to trial. * * * If it be discovered at any time during a trial that the substantial rights of the accused may be prejudiced by a submission to the same jury of more than one distinct charge of felony among two or more of the same class, the court * * * can compel an election by the prosecutor. * * *'

In McElroy v. United States, 164 U.S. 76, at 79-80, 17 S. Ct. 31, at 32, 41 L. Ed. 355 (1896), the Court said:

'* * * in our opinion, they (the indictments) were not for two or more acts or transactions of the same class of crimes or offenses which might be properly joined, because they were substantive offenses, separate and distinct, complete in themselves and independent of each other, committed at different times and not provable by the same evidence. In cases of felony, the multiplication of distinct charges has been considered so objectionable as tending to confound the accused in his defense, or to prejudice him as to his challenges, in the matter of being held out to be habitually criminal, in the distraction of the attention of the jury, or otherwise, that it is the settled rule in England and in many of our States, to confine the indictment to one distinct offense or restrict the evidence to one transaction. * * * We do not think the statute^5A authorizes the joinder of distinct felonies, not provable by the same evidence and in no sense resulting from the same series of acts.'

Our own court, in Kidwell v. United States, 38 App.D.C. 566, at 570 (1912), said:

'It is doubtful whether separate and distinct felonies, involving different parties, not arising out of the same transaction or dependent upon the same proof, should ever be consolidated. But it should not be permitted where the crimes charged are of such a nature that the jury might regard one as corroborative of the other, when, in fact, no corroboration exists.'

Considering our disposition of the present case, we may put aside the question of whether appellant was embarrassed or confounded in presenting his defenses6 and turn to the question of whether he was prejudiced by the possibility that the jury used the evidence of the one crime to convict of the other or cumulated the evidence to find guilt under both charges.

It is a principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged.7 Since the likelihood that juries will make such an improper inference is high,8 courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose.9 The same dangers appear to exist when two crimes are joined for trial, and the same principles of prophylaxis are applicable.

Evidence of other crimes is admissible when relevant to (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 the one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial.10 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.

If, then, under the rules relating to other crimes, the evidence of each of the crimes on trial would be admissible in a separate trial for the other, the possibility of 'criminal propensity' prejudice would be in no way enlarged by the fact of joinder. When, for example, the two crimes arose out of a continuing transaction or the same set of events, the evidence would be independently admissible in separate trials. Similarly, if the facts surrounding the two or more crimes on trial show that there is a reasonable probability that the same person committed both crimes due to the concurrence of unusual and distinctive facts relating to the manner in which the crimes were committed,11 the evidence of one would be admissible in the trial of the other to prove identity. In such cases the prejudice that might result from the jury's hearing the evidence of the other crime in a joint trial would be no different from that possible in separate trials.12

The federal courts, including our own, have, however, found no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even though such evidence might not have been admissible in separate trials under the rules just discussed.13

This rests upon the assumption that, with a proper charge, the jury can easily keep such evidence separate in their deliberations and, therefore, the danger of the jury's cumulating the evidence is substantially reduced. In the leading case of United States v. Lotsch, 102 F.2d 35 (2d Cir.), cert. denied, 307 U.S. 622, 59 S. Ct. 793, 83 L. Ed. 1500 (1939), Judge Learned Hand said (102 F.2d at p. 36):

'There is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused's guilt, the sum of it will convince them as to all. This possibility violates the doctrine that only direct evidence of the transaction charged will ordinarily be accepted, and that the accused is not to be convicted because of his criminal disposition. Yet in the ordinary affairs of life such a disposition is a convincing factor, and its exclusion is rather because the issue is practically unmanageable than because it is not rationally relevant. When the accused's conduct on several separate occasions can properly be examined in detail, the objection disappears, and the only consideration is whether the trial as a whole may not become too confused for the jury. * * * Here we can see no prejudice from joining the three charges: the evidence as to each was short and simple; there was no reasonable ground for thinking that the jury could not keep separate what was relevant to each. The joinder was therefore proper * * *.'

Judge Hand recognizes the possibility, of course, that the jury may misuse the evidence, no matter how simple and separable; his position is merely that the possibility is somewhat reduced. However, the possibility of the jury's becoming hostile or inferring guilt from belief as to criminal disposition is just as substantial. For this reason great care must be exercised to protect the defendant from this possibility when joinder is tolerated under this theory.14

In summary, then, even where the evidence would not have been admissible in separate trials, if, from the nature of the crimes charged, it appears that the prosecutor might be able to present the evidence in such a manner that the accused is not confounded in his defense and the jury will be able to treat the evidence relevant to each charge separately and distinctly, the trial judge need not order severance or election at the commencement of the trial. If, however, it appears at any later stage in the trial that the defendant will be embarrassed in making his defense or that there is a possibility that the jury will become or has become confused, then, upon proper motion, the trial judge should order severance.

Turning now to the case at hand, a detailed exposition of the facts is necessary. The robbery, committed at a neighborhood store belonging to High's Dairy Products Corp., occurred on July 27, 1962. The sales clerk testified that a Negro male,15 wearing sunglasses,16 entered the store. After a short delay the clerk approached the customer and asked if she could help him. He replied: 'This is a holdup; I want your money, all of it.' When the witness hesitated, he said: 'Get it,' and pulled a gun part of the way out of his pocket. She gave him the money, and he proceeded to leave the store as another customer entered.

The attempted robbery occurred at a different High's neighborhood store on August 13, 1962 (some two and one-half weeks after the robbery). The sales clerk testified as follows: While she was alone in the store a Negro male entered the store dressed in a coat, cap, and sunglasses.17 When she asked to help him, he asked for a bag of peanuts. She asked whether he wanted the five or ten cent size, and he replied 'five.' He then said: 'Give me all the money,' and she replied: 'If you want it, come and get it.' He repeated himself several times, and each time she repeated her statement. Finally he said: 'You are not going to give me that money?' and she replied negatively. At that point a customer entered the store, and appellant left hastily. The clerk testified that she was not threatened in any way. The police apprehended appellant in the vicinity of the store some twenty-five minutes later and returned to the store where the sales clerk identified him as the person who had attempted to rob her.

These facts do not show such a close similarity in the manner of committing the crimes as would make them admissible in separate trials. Viewing the record in its best light, the essential similarity that appears is the nature of the offense, the fact that both offenses were committed against High stores, and the fact that the offender in both instances was a Negro wearing sunglasses. We do not think that these similarities in the manner in which the offenses were committed are sufficient to support a finding of reasonable probability that the two offenses were committed by the same person, from which the jury could be asked to infer that the person was the appellant.18 This conclusion is buttressed by other factors. In the robbery, the assailant, at the first sign of non-compliance, threatened the clerk with a gun. In the attempted robbery, there was no such threat of violence; in fact, the dragon seems to have been a most reluctant one indeed. This circumstance could raise a significant doubt as to whether appellant was involved in both crimes. A fundamental difference between two persons contemplating crimes of this character would be the degree to which each was prepared to use force to achieve his objective. Thus it is that the testimony about the use of the pistol in the one case, and not in the other, takes on enhanced significance. Moreover, neighborhood stores of the High's variety are particularly vulnerable to this kind of crime. They are usually staffed with only one or two female clerks, and are natural targets for both professional and non-professional bandits. These factors render less significant, for these purposes, the fact that both crimes were committed against High's stores, that they occurred on a summer afternoon when no customers were in the store, and that the intruder wore sunglasses. These circumstances all fit into an obvious tactical pattern which would suggest itself to almost anyone disposed to commit a depredation of this sort.

Nor did the two offenses arise out of the same transaction, series of transactions, or continuing state of affairs so that the evidence could have come in under the fourth exception stated above. In short, we cannot find absence of prejudice on the ground that the evidence would have been admissible in separate trials.19

This is not the end of the matter, however. We must still determine whether this case falls within the 'simple and distinct' test as formulated in the Dunaway case, supra Note 14. As pointed out above, the very essence of this rule is that the evidence be such that the jury is unlikely to be confused by it or misuse it. It is not mere conjecture to say that the jury may have been confused in this case. A perusal of the record shows that witnesses' responses at times indicated confusion as to which crime counsel were referring to in their questions; the two crimes were repeatedly referred to as of the same order; and the prosecutor in his summation not unnaturally lumped the two together on occasion in his discussion of the evidence.20 These lapses do not appear to have been purposeful, but lack of improper motivation does not lessen their impact on the jury. If separate crimes are to be tried together-- and we are not to be understood as intimating any conclusion that this can never, as a practical matter, be successfully undertaken-- both court and counsel must recognize that they are assuming a difficult task the performance of which calls for a vigilant precision in speech and action far beyond that required in the ordinary trial. The confusion here was probably the result of the superficial similarity of the two crimes and the way in which they were committed.21 On this record, we cannot say that the jury probably was not confused or probably did not misuse the evidence, as Judge Hand was able to hold in Lotsch.

For these reasons we find that there was prejudice in the joinder and the court below should have granted separate trials. The conviction is reversed and the case is remanded.

It is so ordered.