Parker v. State

230 So. 2d 247, 45 Ala. App. 335, 1970 Ala. Crim. App. LEXIS 458

• Court: Court of Criminal Appeals of Alabama
• Decided: January 13, 1970
• Docket: 1 Div. 31
• Status: Published

Opinion

PRICE, Presiding Judge.

This appellant stands convicted for the offense of robbery with a sentence of ten years in the penitentiary.

Appellant’s first trial resulted in a mistrial on account of the illness of a juror. In that trial the court determined illegal a lineup' in which appellant was placed and where he was viewed and identified as a participant in the robbery by some of the witnesses. By stipulation of the parties the testimony taken at the previous trial was made a part of this record.

The evidence for the state tended to show that two men, one of which was the defendant, came into a Delchamps food store, located in Prichard, Mobile County, Alabama on March 25, 1968, and announced, “this is a stick-up.” Both men were armed with pistols. The men took $1369.00 from the cash registers and safe. There were four eye-witnesses to the robbery: Mr. J. B. Ostini, Store Manager, Mr. Beasley, Assistant Store Manager, Mr. Loyd Gilmer, store employee, and Mr. Ralph Green, a route salesman for a local bakery. They identified the defendant in court as one of the robbers. They testified that subsequent to the robbery they were shown pictures and that they also identified the defendant from the pictures. Each witness testified he was not given any suggestions, aid or assistance in selecting defendant’s picture from those shown him.

The testimony of the witnesses clearly shows that their in-court identification of the defendant was not dependent upon their having seen him in the lineup. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; State v. Allen, 251 La. 237, 203 So.2d 705; Grace v. State, 44 Ala.App. 682, 220 So.2d 259.

The judgment is affirmed.

Affirmed.