(concurring).
Section 13 of Act No. 987, 1969 Acts of Alabama, p. 1744, (See 1958 Recompiled Code of Alabama,t Title 13, Section 111(13),. pocket part) provides that where one of the judges of the Courts of Appeal is disqualified, and the two remaining judges are divided as to the decision of a case, such fact must be certified to the Chief Justice of the Supreme Court, and he shall appoint a justice of the Supreme Court to sit with the individual members to consider and decide the case.
Judge Annie Lola Price, Presiding Judge of the Court of Criminal Appeals, certified to the Chief Justice that in the case of Hillard Dawson v. State, 8 Div. 69, pending in the Court of Criminal Appeals, one of the judges of the Court of Criminal Appeals (Judge Almon) was disqualified from sitting in the case, and the remaining two judges were divided as to a decision of the case.
It was requested that the Chief Justice appoint a justice of this court to sit with the divided members to consider and decide the case.
Pursuant to such certification and request, the Chief Justice on 31 August 1971, appointed the writer to sit with the divided members of the Court of Criminal Appeals to consider and decide the above mentioned case.
Apparently the division between the two judges of the Court of Criminal Appeals relates to two points, (1) whether the in court identification of the appellant by Stokes as one of the robbers was constitutionally erroneous, and (2) whether the absence of objections to the questions eliciting the in court identification by Stokes-constituted a waiver of objection to such; testimony since the court had previously denied appellant’s pre-trial motion to suppress any evidence of identification of appellant by Stokes that might be offered during the trial.
In her original opinion Judge Price has fully and fairly set out the facts relating to Stokes’ observation of the appellant at the jail as developed at the pre-trial hearing on the motion.
It is the contention of counsel for the appellant that error necessitating a reversal of this judgment resulted from the in court identification in view of the fact that Dawson was without counsel when he was observed by Stokes. In support of this contention counsel relies upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.
These cases are to the effect that an in. court identification of an accused by a victim is inadmissible where there has been á preceding police line-up identification, unless the prosecution is able to establish by clear and convincing evidence that the in court identification was not the fruit of a suspect pre-trial identification, but was in *298fact based upon the victim’s observation of the suspect other than the line-up identification.
I would emphasize that Stokes’ opportunity to know Dawson and McCary was substantial. Not only did he observe the two robbers at the well, but also during the rather lengthy course of the robbery. Additionally, he had known the two men in prior years. From virtually the inception of the investigation Stokes identified Dawson and McCary to Sheriff Rutherford, to State Investigator Hancock, and the then District Attorney William .Burney. This identification was both by description of his assailants, and by name.
From the evidence submitted during the pre-trial hearing on the motion, no rational basis can be found tending to show that Stokes was influenced by any improper suggestion by the investigating officers as to the identification of Dawson and McCary. There was no unfair focussing of Stokes’ attention on Dawson and McCary as the persons believed by the investigators to be the persons guilty of the robbery. Any focussing of attention on Dawson and McCary was in truth by Stokes to the officers. There simply was no suspect pretrial identification growing out of any action by the investigating officers. This being so, the court properly denied appellant’s motion to suppress the evidence relative to Stokes’ identification of Dawson.
The facts shown upon the hearing on the pre-trial motion removes this case from the influence of Wade, and Gilbert, supra.
No need arises to consider whether the court’s action in denying the pre-trial motion to suppress the evidence of Stokes going to the identification of Dawson obviated the need to interpose an objection to such testimony when offered during the jury phase of the trial. Even had an objection been interposed, the court properly should have overruled the same.
I concur in the opinion and conclusions reached by Judge PRICE in her affirmance of this judgment.