(dissenting): I find myself unable to concur in the decision of the majority in this case. The evidence admitted where the witnesses testified as to the photographs of defendant and their having told people about identifying them was incompetent and hearsay and its admission was error. The turning point in this trial was identification. It will not do to say in such a case that to permit state’s witnesses to bolster up their testimony by incompetent evidence in such a manner was not prejudicial.
I think in view of the fact that the name of the alibi witness was given the county attorney in the morning and the sheriff of her county was there so that the county attorney could have inquired about her, the trial court should have permitted her name to be endorsed on the alibi plea and should have permitted her to testify. The alibi plea statute was not intended as a technical means of keeping pertinent facts away from a jury.
I realize that no charge of misconduct of the trial court was made in the motion for a new trial. However, there were so many irregularities in this record on the part of the trial court that in my opinion the whole course of conduct amounts to a denial of a fair trial to defendant. It is doubtful if the cause of the administration of justice is furthered by appellate courts noting erroneous rulings of a trial court and passing them by with the remark that they did not prejudice the rights of the defendant.
Allen, J., joins in this dissent. Wedell, J., joins in paragraph one of the dissenting opinion.