Ratcliff v. State , 49 Ala. App. 77 ( 1972 )

268 So. 2d 858 (1972)

Robert RATCLIFF
v.
STATE.

1 Div. 194.

Court of Criminal Appeals of Alabama.

August 15, 1972. Rehearing Denied September 12, 1972.

M. A. Marsal, Emmett R. Cox, Mobile, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

ALMON, Judge.

Appellant was convicted of carnal knowledge of a girl under twelve years of age and his punishment was fixed at thirty years in the penitentiary.

The incident occurred at the home of the victim during the night of August 11, 1970. She gave a description of her assailant to the police which led to the apprehension of appellant. A line-up was conducted that same night which resulted in the appellant's being identified as the guilty party.

Appellant's sole contention on appeal was that he was not accorded the right to counsel at the time of the line-up as required by United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178. Since this case was submitted, the United States Supreme Court has on June 7, 1972, rendered a decision in Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411, which is dispositive of the issues in this cause.

Therefore, on the authority of Kirby, supra, the judgment appealed from is due to be and is hereby

Affirmed.

CATES, P. J., and TYSON and HARRIS, JJ., concur.