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MORRIS v. STATE2/8/1971
robbers, had the option of (1) taking him before a magistrate where upon a showing of probable cause he would be bound over to the grand jury, or (2) filing an information directly in circuit court. The prosecution elected to do the latter
and appellant now complains that it deprived him of any pretrial discovery. Without conceding that the argument otherwise has merit, we point out that appellant is not in a position to complain because the prosecution furnished him with the names of all witnesses and permitted his counsel to inspect all statements in the prosecutor's file, including the statements of appellant.
Appellant also moved to strike all of the testimony of witness Epps as to how he identified appellant from State's Exhibit No. 1. The record shows that one key to appellant's identity was a go-tee. At trial appellant had shaved off the goatee and when Epps was testifying appellant was not in the court room. Thus it became necessary for the State to connect up the evidence concerning the goatee which it did by State's Exhibit No. 1, a photograph of appellant taken on October 8, 1969. The evidence shows that a deputy sheriff at one time showed Epps some thirty photographs from which Epps picked State's Exhibit No. 1 as being a picture of one of his assailants. The same procedure reoccurred later when the deputy prosecuting attorney handed Epps some thirty photographs from which Epps again selected appellant. After State's Exhibit No. 1 had been introduced appellant was brought into the court room and Epps again and in unmistakable terms identified appellant as one of the robbers. On cross-examination counsel for appellant moved for production of the other pictures shown to Epps which the court overruled after the court learned that the officers no longer had all the pictures used. The court room identification of appellant by Epps without the aid of the picture is so convincing that, like the court in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), we are unable to say that the trial court abused its discretion in overruling the motion to produce the other pictures. But also, like the court in the Simmons case, we admonish officers everywhere that the better practice would be to make and keep a list of the photographs used in such situations.
Affirmed.
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