(concurring). I vote to reverse for the reason that a serious error was made by the court in instructing the jury in answer to a question with reference to identification.
The court answered a question in the affirmative which should have been answered in the negative. Upon that answer the jury evidently determined the guilt of the defendant.
The matter under consideration was the identification by Zimmer of a photograph of Sullivan, the man accused of the shooting. There was no proof in the record that the wounded man identified the photograph as that of Sullivan, the defendant. There was no evidence from which that might be deduced. This was a very important subject and one upon which the jury was entitled to an instruction that there was no evidence that the wounded man had identified the photograph of the defendant.
It was clearly indicated by the jurors that the answer was important and would probably determine in their minds the guilt or innocence of the defendant.
Finch, P. J., concurs.
Judgment reversed and a new trial ordered.