Opinion
No. L-430.
August 18, 1970.
Appeal from the Court of Record, Escambia County, Kirke M. Beall, J.
Henry Clay Mitchell, Jr., Pensacola, for appellant.
Earl Faircloth, Atty. Gen., Horace A. Knowlton, III, Asst. Atty. Gen., for appellee.
Appellant was convicted of robbing a liquor store in Escambia County. He contends that the trial judge's refusal to give a requested instruction on the question of identification was reversible error. Also it is contended that the prosecutor's remarks to the jury during closing argument were prejudicial and warrant a new trial.
The State contends that the instructions to the jury concerning appellant's alibi defense, together with the general instructions given, adequately cover the question of identification. We agree. We have meticulously examined testimony of the two victims identifying appellant as one of the perpetrators and find that such evidence was clear and unhesitating. It was therefore susceptible of belief by the jury. Appellant's evidence presented in support of his alibi was equally clear and unhesitating. It too was susceptible of belief by the jury. The controverted factual issue thusly presented was resolved by the jury against the appellant. It is apodictic that we cannot substitute our judgment for that of the jury on such factual questions.
We have considered the remaining question relating to the prosecutor's remarks and find that the tenor of the remarks when taken in the context in which they were made, including the retaliatory characteristics of such remarks, does not constitute reversible error. Accordingly, the judgment appealed is
Affirmed.
JOHNSON, C.J., and RAWLS and SPECTOR, JJ., concur.