Bobby L. Johnson was convicted of burglary and sentenced to serve 14 years. He enumerates four errors, two dealing with in-court identifications by two witnesses, one dealing with the impeachment of a state’s witness by the state, and the last concerning allegedly improper argument by the state prosecutor. Held:
1. The first two enumerations refer to the testimony of two witnesses who saw a person at the scene of the burglary whom they identified as the appellant. Both witnesses had been shown a series of photographs shortly after the burglary and neither could make a positive identification of Johnson though each said that a photograph of Johnson seemed to be the most like the burglar. At an earlier trial (resulting in a mistrial), one witness gave slightly different testimony than that at the present trial as to whether he had seen Johnson’s face or not. Both witnesses testified unequivocally however that they based their in-court identification upon their *406 eyewitness observation of the accused at the scene of the burglary and were reasonably certain that he was the man at the scene.
In essence appellant argues that the testimony of the two witnesses had been so severely impeached that their in-court identification should have been suppressed by the trial court. We disagree.
In a case involving an allegedly suggestive showing of photographic representations to a victim or witness, reliability is the linchpin in determining the admissibility of identification testimony.
Burrell v. State,
2. In his third enumeration of error, Johnson complains that the trial court erred in allowing the state *407 to impeach its own witness. At the earlier trial, the appellant’s nephew testified that Johnson had broken into the burglarized trailer and allowed the witness to enter and assist in the burglary. The witness had entered a plea of guilty to his part in the burglary. Prior to the retrial, on the morning trial was to begin, the witness indicated that he was going to recant. After much discussion, the last statement by the witness was that he would "tell the truth.” When called as a witness, the nephew denied that his uncle, the appellant, had been the second person at the burglary and named a second man (whom the witness had originally named when first interrogated by the police). The state was then allowed to claim surprise and cross examine the witness based upon the testimony at the first hearing of the case. Appellant objected then and continues to argue that the state was not surprised and thus not entitled to rely on the doctrine of surprise.
To establish entrapment under Code Ann. § 38-1801, it is not necessary that the witness’ testimony be a complete surprise. The state may be allowed to use prior written testimony, even though the prosecutor was aware that the witness had indicated that he might recant or had given different statements to the defense counsel. It is sufficient that the prosecutor believed that the witness would testify consistently with the earlier testimony.
Ellenburg v. State,
3. In his last enumeration of error, appellant argues that the trial court erred in not reprimanding the prosecutor for commenting on the dress of the defendant and thereby materially prejudiced the rights of the appellant to a fair trial. The comment was to the effect that in spite of 25 degree weather, the appellant was dressed in short sleeves and light clothes. The prosecutor affirmatively stated that he was not contending that such was the apparel of a criminal but was a factor to consider.
While counsel should not be permitted in argument to state facts which are not in evidence, if is permissable to draw deductions from the evidence, and the fact that a deduction may be illogical, unreasonable, or even absurd, is a matter for reply by adverse counsel and not rebuke by
*408
the court.
Owens v. State,
Judgment affirmed.