The first contention to be dealt with is that the in-court identification should be excluded be *707 cause of prior identification which violated the defendant’s rights under the sixth amendment to the United States Constitution.
As to the identification by the witness Tomascheschi (the wrecker driver), the record shows that a line-up was conducted which included a total of six or seven persons and while the defendant was represented by counsel. It also shows that pictures, including one of the defendant, were shоwn to the witness after indictment and before the above referred to line-up. Under the decisiоn in Kirby v. Illinois,
As to the testimony of Officer Gunlach. Under the Kirby casе, supra, the exhibition of the photographs to this officer prior to any arrest or charges having been made did not violate the confrontation rule laid down in United States v. Wade,
Accordingly, the enumeration of error сomplaining of the refusal to suppress this identification evidence shows no error.
Evidence was admitted over objection that a witness had seen the defendant in court in Tennessee and that a
*708
photograph which was introduced in evidence was taken on a date near that when he saw the defendant in court and correctly represented his appearance at such time. In support of this contention the defendant cites
Nesbit v. State,
The admission in evidence of a "mug shot” of the defendant doеs not inject his character into evidence
(Tanner v. State,
The driver of the wrecker who pulled the automobile from the expressway to the storage lot where it was burned testified that he completed the impound ticket on the automobile after it was burned. He was then asked the serial number of the car and responded by orally giving such informаtion. After the witness had been excused, the defendant made a motion to exclude such testimony as being hearsay.
While counsel for the defendant in his objection stated that the witness read suсh serial number from a paper, this was not shown by the record and although the witness was subjected tо a thorough and sifting cross examination, this matter was not touched upon by such cross examinatiоn. Accordingly, the contention that such testimony was hearsay is not supported by the record.
Hоwever, since the witness testified that he made the impound ticket, such testimony would have been frоm a memorandum made by him and would not have been subject to the objection made.
On re-chаrge to the jury the court instructed the jury with reference to the elements of armed robbery. The con *709 tention made in the sixth enumeration of error is that the trial court did not re-charge that such еlements must be proved beyond a reasonable doubt, and emphasized the recharged рortion of the charge.
There is no contention that the trial court in the original charge, or in the additional charge given in response to a request by the jury after it had begun its deliberations, instructed the jury contrary to law. As was held in
Waldrop v. State,
The verdict was amply supported by the evidence and the trial court did not err in overruling the defendant’s motion for a directed verdict as to motor vehicle theft.
Judgment affirmed.