¶1(concurring).
¶2I concur in the result reached in this case. The trial court allowed the admission of confessions of each of the defendants relating the facts about several other criminal acts which had taken place over a two day period prior to the offenses for which they were on trial. Defendant Mellon had filed a written motion to suppress, specifically requesting that no evidence be introduced relating to other crimes purportedly committed. Motions to suppress by the other defendants were made orally. After an out of jury hearing the trial judge found that the statements of each of the defendants was voluntarily made at a time when the defendants were competent to make the statement. He found that the contents of the statements included events which transpired somewhere between 20 and 30 hours prior to the time that the rape and robbery of the victim in this case took place. That this was one continuing situation and the state was entitled to introduce the entire statement to tie the whole story together. That it was “proper to admit testimony, even though it may show the defendant may have committed or been implicated in some other crime other than that for which he is being tried, if it’s necessary to show identity, guilty knowledge, motives, schemes, or series of crimes. In other words, if it sheds light on the case and the charge that’s on trial, it’s all admissible.” He ruled that these matters should be left in for the jury to weigh.
¶3Where a confession indicates that the accused has been guilty of another offense in addition to that for which he- is being tried that part of the confession relating to the distinct offense is inadmissible if it can be separated from the portion of the confession relating to the charge in issue. Rounds v. State, 171 Tenn. 511, 106 S.W.2d 212; Grove et al. v. State, 211 Tenn. 448, 365 S.W.2d 871.
¶4In addition to the confessions of the individual defendants, the court allowed testimony of three witnesses to be introduced in reference to other robberies for which the defendants were under indictment. He ruled that the testimony of these witnesses should be admitted for the same reasons which the full confessions of the defendants were allowed, that is, that the prior robberies were all part of a series of events which took place.
¶5The identity of the defendants in this case had been accomplished, and was positively fixed in connection with the offense on trial. The evidence relating to their earlier escapades was wholly immaterial and bore no relevance to the offense on trial. Woodruff v. State, 164 Tenn. 530, 51 S.W.2d 843; Warren v. State, 178 Tenn. 157, 156 S.W.2d 416; Harris v. State, 189 Tenn. 635, 227 S.W.2d 8; Mays v. State, 145 Tenn. 118, page 141, 238 S.W. 1096; and Pruitt v. State, 3 Tenn.Cr.App. 256, 460 S.W.2d 385. It was unnecessary to introduce evidence of the other robberies which had very little, if any, logical connection between them and the crime for which these defendants were charged. The evidence of guilt of the unrelated crimes had no tendency to show defendants were the persons who committed the offenses for which they were charged. The magnitude of the sentence imposed in this case by the jury is indicative of the prejudice incurred by defendants through the admission of this evidence. While the sentences are within the limits prescribed by the statutes for the offenses of rape and armed robbery, we cannot speculate on the possibility that the jury was or was not prejudiced by the erroneous admission of this improper evidence. Under the circumstances, the only alternative to the action suggested by my Brother Galbreath, would be to remand the case for a new trial. This is not a tolerable alternative under the overwhelming and positive evidence of the guilt of defendants.