Dissenting Opinion
Givan, J.I respectfully dissent from the majority opinion in this case. The majority opinion sets out ample authority for the proposition that this Court will not weigh the evidence on an appeal. I do not think the evidence in this case comes within the rule set out in other cases cited by the majority opinion to the effect that this Court will reverse if there is a total lack of evidence upon which a jury could base a conclusion of guilt.
Evidence in the case discloses that the defendant threatened the prosecuting witness before the trial by saying, “If you identify me, I am going to get out on bond and I am going to kill you.” Similar threats were repeated by the defendant to the prosecuting witness at the trial during a recess. The majority opinion refers to testimony by the prosecuting witness that he was fearful of being sent to prison, if he did not testify for the state. It appears the jury might well have believed that the hesitant nature of the witness’ testimony might well have been motivated by the threats from the defendant rather than any fear of imprisonment by the state. Despite this, the prosecuting witness testified, “I have never been doubtful that he was the one that robbed me.” In addition to this, the evidence discloses that the defendant was arrested by the police officer the same night of the alleged offense wholly upon a description furnished him by the prose*83cuting witness, both as to his physical appearance and the truck in which he was arrested.
The majority opinion places what I consider to be undue weight upon the fact that the prosecuting witness had stated to the police officers that he thought that the truck was a Ford truck, when in fact it turned out to be a Dodge truck. Further that the prosecuting witness referred to the truck at times as a pickup and at other times as a utility truck. An examination of his testimony reveals that he was speaking of the same basic truck design and that his reason for referring to the truck as a utility truck was that it was a pickup truck with compartments with “little doors” on the side. It nevertheless was sufficiently described that the officer was able to make the arrest based upon the description. There is ample evidence from which the jury could find that the prosecuting witness had ample opportunity in a face to face encounter in a lighted room with the defendant to make an adequate identification and that in spite of his demeanor and statements on the witness stand his testimony as to identity was factual.
I would, therefore, follow the cases cited in the majority opinion in holding that this Court will not weigh the evidence on appeal.
Arterburn, J., concurs.
Note. — Reported in 251 N. E. 2d 658.