On Rehearing
PER CURIAM.Counsel for plaintiff in error on rehearing has argued earnestly that his client has convinced him of his innocence of the crime for which he was convicted, and he says that this court overlooked or ignored a case that counsel cited, which; although from another jurisdiction, is decisive of the main issue that he has presented for reversal.
It is argued that where the prosecuting witness was not previously acquainted with the defendant, and where no identifying scars or pronounced and peculiar physical characteristics were noted, that the identification by prosecutrix should be corroborated, and that the court should give to the jury a cautionary instruction covering such character of evidence. The case cited is Commonwealth v. Sharpe, 138 Pa.Super. 156, 10 A.2d 120, 121.
*907We did not go into that case simply for the reason that we considered the facts in that case at variance with the facts in this case in important and vital features. But counsel has argued so earnestly we have reviewed our opinion and the record in light of the argument on rehearing.
In Commonwealth v. Sharpe, supra, the defendant Sharpe was taken into custody on suspicion. The two robbers had worn masks. One witness identified Sharpe as having the general resemblance of one of the robbers. He would not say that defendant was one of the men other than as stated. A second witness refused to identify defendant as one of the robbers. A third witness thought the defendant had the same color of hair and general appearance of one of the masked robbers. The prosecuting witness would not identify defendant as one of the robbers, but it appeared that twice he viewed a line-up of prisoners, and the defendant was in the second lineup and witness said that something clicked and that he was the man he had seen, from the eyes, general build and hair. He said: “Something clicked at that time and I said 'that this is the man as far as I can tell.’ ” But on cross-examination this witness would not say that defendant was the man. There the court inter alia held:
“Where a witness states positively and without qualification that in his opinion defendant is the man who committed the crime, that is sufficient proof of identify.
* * ⅝ ⅜ * *
“No class of testimony is more uncertain and less to be relied on than that as to identify, and where great doubt is cast on it by witnesses themselves, it should be submitted to jury with great caution.
“Where sole issue was that of accused’s identification as robber, and none of witnesses could definitely identify him, but merely testified that he resembled the robber in stature, color of hair and general appearance, failure of trial judge to caution jury as to proper approach to the testimony of identification was reversible error.
“In robbery prosecution, testimony of witnesses which went only to extent of saying that accused had general appearance of robber in stature, color of hair, and similar statements, witnesses refusing to commit themselves further, held insufficient to take case to jury.”
We find no fault with Commonwealth v. Sharpe, supra, but it differs from the within case in that here the prosecuting witness was most positive in her identification and did not budge after rigid cross-examination. Then there is the circumstance that defendant’s alibi came apart in the most convincing way — by record evidence.
If the prosecutrix had not testified positively, then the failure of the trial court to give a cautionary instruction might have required a reversal, for generally speaking, as stated by the Pennsylvania court, “No class of testimony is more uncertain and less to be relied upon than that as to identify, and, where great doubt is cast upon it by the witnesses themselves, there is a double reason for submitting it with great caution.”
Although defendant in the within case has not complained of his sentence being excessive, in reviewing the record and briefs, we note that the man who was on the patio at the rear of the home of prose-cutrix had not knocked on the sliding glass doors. In fact, the curtains were drawn. He made no motion to prosecutrix when she snapped on the light and drew the curtains, but continued to masturbate. He ran and got away when prosecutrix called her husband.
In view of the holdings in Daves v. State, 77 Okl.Cr. 343, 141 P.2d 603, Bunn v. State, 85 Okl.Cr. 367, 190 P.2d 464, and Marshall v. State, Okl.Cr., 316 P.2d 222, it is the opinion of this court that the judgment should be modified from three years to one year in the State Penitentiary; and the judgment as so modified is affirmed.