Montgomery v. State , 154 Ga. App. 311 ( 1980 )

154 Ga. App. 311 (1980) 268 S.E.2d 723

MONTGOMERY
v.
THE STATE.

59549.

Court of Appeals of Georgia.

Submitted March 5, 1980. Decided April 10, 1980.

Carlton Vines, for appellant.

William M. Campbell, District Attorney, James A. Meaney, III, Assistant District Attorney, for appellee.

DEEN, Chief Judge.

The only enumeration of error directed against this armed robbery conviction is that the trial court erred "in allowing photo-copies of pictures to be placed in evidence and in not suppressing all identification based on the photographs." Appellant cites Code § 38-203 (the best evidence rule) and Cox v. State, 93 Ga. App. 533 (92 SE2d 260) (1956), holding that photostatic copies are ordinarily secondary evidence. What he ignores is that, while such copies may be secondary evidence of the original, they were here primary evidence of the fact to be proved; that is, that two witnesses to the robbery were shown a "line-up" composed of photocopies of photographs of the defendant and other persons, from which each identified the defendant as the person seen committing the hold-up. These photocopies are attached to the record on appeal, and, as to all pictures, they are clear enough to be easily recognizable. From this set of pictures the jury, as well as this court, could easily satisfy themselves that the likeness of the defendant along with that of others composed a fair test of the witness' ability to identify the defendant. The objection was without merit.

Judgment affirmed. Birdsong and Sognier, JJ., concur.