Opinion
No. 43641.
February 28, 1966.
Appeal from the Circuit Court, Warren County, Ben Guider, J.
R. Jess Brown, Jackson, Melvin L. Wulf, New York City, Wm. G. Kopit, Scarsdale, N.Y., Paul Chevigny, New York City, for appellant.
Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
This case was reversed and remanded for reasons set out in an opinion of this Court delivered on February 7, 1966, 182 So.2d 591.
The appellant has now suggested that the Court erred in remanding the case for a new trial, and should have given judgment here discharging him. The suggestion of error is based upon a statement in the opinion that the trial court erred in admitting, in rebuttal, testimony by the victim identifying appellant by his voice. It is argued that we held this testimony to be incompetent and that without it the evidence against appellant is wholly circumstantial, and insufficient to exclude every reasonable hypothesis except that of guilt.
Appellant is in error in his construction of the Court's opinion with respect to the testimony offered. It was not decided that this testimony was incompetent, but only that testimony identifying appellant as the attacker was part of the prosecution's case in chief and that it was error to permit it to be introduced in rebuttal.
The suggestion of error is overruled.
Suggestion of error overruled.
All Justices concur.