Muller v. State , 46 Ala. App. 44 ( 1970 )

ALMON, Judge.

Appellant was convicted of the crime against nature. Tit. 14, § 106, Code of Alabama, 1940. His punishment was fixed at ten years in the penitentiary.

The evidence shows that the prosecutrix, a fifteen year old girl, left her home in Mobile about 9:30 A.M. to attend Mass. While walking to church, she approached a red Corvair automobile with a man sitting inside. The man got out of the car, grabbed her, put a pistol to her head, and forced her into the car. He drove away and later forced her at gun point to commit an act of fellatio. She was then permitted to get out of the car and he drove away.

Several days later she identified appellant from a line-up as the one who had accosted her. This line-up took place in July of 1966.

During the trial, defense counsel objected to each mention of the line-up identification.

The requirement of presence of counsel in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, does not apply to line-ups prior to June 12, 1967. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

Affirmed.