The opinion
BARHAM, Justice
(dissenting in part and concurring in part).
I concur in the affirmance of the conviction of Jordan W. Anderson, Jr., but I dissent from the affirmance of the conviction of Clyde W. Anderson.
Under the testimony made a part of Bill of Exceptions No. 3 it was shown that on direct examination of the witness James Oliver the State attempted to have him identify the two persons who were charged with having committed the armed robbery. In an effort to get an identification of the defendant Clyde Anderson as one of the robbers, the State asked the witness whether he got a good look at either of them, and this testimony followed:
“A Well, I could see the short one was out to hold the gun on us pretty good.
“Q You saw him?
“A That’s right.
“Q Do you see him in the Courtroom today ?
“A In the Courtroom ? Look something like that brown skin fellow back there.
“Q Back there where?
“A That last one settin’ over there, Look something like him.”
Apparently it was obvious to everyone in the courtroom, since the court had to restore order, that the witness had identified one of the spectators and had not identified as one of the robbers the defendant, who was sitting at the table in front of him and in front of the bench. The State then continued:
“Q Now, I ask you, did you look at some pictures of some people?
“A Yes, sir.
“Q I ask you, did you look at this picture ?”
Over objection of the defense the State was permitted to continue the questioning. After the witness had identified the picture as one he had previously identified or picked out as representing the short man who held a gun on him, the testimony proceeded :
“Q Now, I ask you to look around again and see if you recognize him ? Anywhere in this Court?
*324 “A Well, from the looks of that picture, it looks like that fellow right there. That’s the way that picture looks.”
The witness at this point identified Clyde Anderson as possessing the likeness of the picture shown to him by the State’s attorney.
From the majority opinion, which has so meshed and interwoven the identification testimony regarding both Jordan and Clyde Anderson, it cannot be determined what evidence of identification was directed at each defendant. Jordan Anderson had been identified in a lineup with benefit of counsel by other witnesses who also made valid in-court identifications. However, Oliver’s identification (if it can be so termed) of Clyde Anderson is the only evidence that places Clyde Anderson in the store where the robbery occurred and with a gun in his hand. The only corroborative evidence is testimony of other witnesses who had seen Clyde and Jordan Anderson together in and about a car upon two occasions outside the store building.
Not only was the witness Oliver unable to identify Clyde Anderson in the courtroom, but his testimony establishes his complete inability to identify the party who held the gun on him because the gunman was masked. He admits his inability to identify. The State has been allowed to adduce improper evidence of identification in its attempt to rehabilitate the witness Oliver. I agree with Mr. Justice Dixon’s conclusion that we should not and cannot approve such tactics.
For these reasons I respectfully dissent from the court’s ruling on Bill of Exceptions No. 3, insofar as it was reserved in connection with the identification of Clyde W. Anderson. I am of the opinion that his conviction and sentence should be set aside and the case remanded.