UNITED STATES v. SUTHERLAND

No. 27899.

428 F.2d 1152 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Ben Herbert SUTHERLAND, Defendant-Appellant.

United States Court of Appeals, Fifth Circuit.

Rehearing Denied June 4, 1970.


Attorney(s) appearing for the Case

Lewis Tarver, Jr., San Antonio, Tex. (court-appointed), for defendant-appellant.

Seagal V. Wheatley, U. S. Atty., Wayne F. Speck, Reese L. Harrison, Jr., Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

Before THORNBERRY, DYER and CLARK, Circuit Judges.


CLARK, Circuit Judge:

A jury convicted Ben Herbert Sutherland on three counts relating to bank robbery. Because the District Court found that an impermissibly suggestive photographic identification created a substantial likelihood of misidentification, yet allowed the question of an incourt identification to go to the jury, we reverse and remand for a new trial. Other issues raised in this appeal which may arise on retrial are also considered.

I. BACKGROUND...

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