(dissenting).
Defendant reserved the disputed bill of exception, not to the general charge, but to the -trial judge’s refusal of a lengthy special charge on identification requested by defendant.
LSA-R.S. 15 :390 defines the judge’s duty to give requested charges as follows:
“The prosecution and the defense have each the right to present to the court, before the argument has begun, any written charge or charges, and request that the same be given. Except as otherwise provided herein, the judge must give every such requested charge that is wholly correct and wholly pertinent, unless the matter contained in such charge have been already given-, or unless such-charge require qualifi-cation, limitation or explanation.” .(Emphasis mine)
The special charge is not “wholly correct.” As phrased, it would cast serious doubt on the reliability of any eye-witness identification. Although considerable evidence other than eye-witness identification connects defendant with the crime, the special charge concludes:
“If the jury finds that the witness was honestly mistaken in his identification of the defendant, then a reasonable doubt is created as to the guilt of the defendant and he must be- acquitted.”
Since the requested charge was not wholly correct and would have required modification, the trial judge -properly refused to give it. LSA-R.S. 15:390; State v. Clark, 231 La. 807, 93 So.2d 13; State v. Labat, 226 La. 201, 75 So.2d 333.
For the reasons assigned, I respectfully dissent.