Opinion
No. A-14769.
February 25, 1970. Rehearing Denied January 13, 1971.
Appeal from the District Court, Oklahoma County, William S. Mayers, J.
Robert E. Walker, Oklahoma City, for plaintiff in error.
G.T. Blankenship, Atty. Gen., Charles L. Owens, Asst. Atty. Gen., for defendant in error.
MEMORANDUM OPINION
Lotis C. Carter, hereinafter referred to as the defendant, was charged by information in the District Court of Oklahoma County with the crime of Armed Robbery. He was tried before a jury, found guilty, and sentenced to five years in the penitentiary, and appeals.
He bases his sole contention of error upon the proposition that there was testimony and reference to a pre-trial lineup identification and defendant contends the prosecuting witness relied upon said pre-trial identification to identify defendant at the time of trial. We cannot agree with defendant's contentions, as the record reveals that the prosecuting witness identified defendant during the trial as the person who, along with another person, robbed her on the date in question, and she testified she did not use the pre-trial lineup as a basis for the identification. We do not feel that the testimony which was injected into the record by the defense counsel comes within the purview of the rationale laid down in Wade v. United States, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.
Even though there was drastic conflict in the testimony, it constituted a question for the jury and there was sufficient evidence, if believed, upon which the jury could base their verdict. The record reflects that the defendant had a fair trial represented by able counsel, and no errors are apparent that would justify reversal or modification.
The judgment and sentence is
Affirmed.
BRETT, P.J., and BUSSEY, J., concur.