Opinion
52233.
SUBMITTED JUNE 8, 1976.
DECIDED JUNE 22, 1976.
Robbery. Fulton Superior Court. Before Judge Etheridge.
Silver, Zevin, Sewell Turner, Murray M. Silver, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Donald J. Stein, Assistant District Attorneys, for appellee.
Defendant was indicted and convicted of robbery by force and intimidation. He was sentenced to serve five years. Defendant appeals. Held:
1. The first complaint is that the in-court identification by the victim was due to the tainted manner in which identification matters at the police station were conducted during a lineup. The victim testified that he had recognized one of his assailants, as he had seen him previously in the neighborhood and recognized him when the robbers fled. The mere fact that he could not accurately describe his assailants to the police because he was attacked from behind in the dark is totally insufficient to show any error in the in-court identification by the victim. Further, the victim clearly and positively identified this defendant when he was seen in a lineup at the police station. Considering the totality of the circumstances there was no substantial likelihood of misidentification. Head v. State, 235 Ga. 677 ( 221 S.E.2d 435); Hunter v. State, 135 Ga. App. 172, 175 (2) ( 217 S.E.2d 172). The trial court did not err in finding that the victim's identification was free of any impermissible suggestions so as not to give rise to a "very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 378 (1), 384 ( 88 SC 967, 19 L.Ed.2d 1247); Daniels v. State, 135 Ga. App. 549, 550 (1) ( 218 S.E.2d 274).
2. There was ample opportunity for the victim to make the identification, and all of the other acts show robbery by force and intimidation. The evidence was sufficient to support the verdict. Only where there is no conflict in the evidence and a verdict of acquittal is demanded as a matter of law should a motion for acquittal be granted. Merino v. State, 230 Ga. 604 (4) ( 198 S.E.2d 311). The evidence here was sufficient for the trial court to find the defendant guilty. Burke v. State, 183 Ga. 726 ( 189 S.E. 516).
Judgment affirmed. Pannell, P. J., and Marshall, J., concur.