¶1concurring in result.
¶2I concur in the results reached by the majority. However, I feel that it is necessary to point out that the identity testimony was not only weak as to the appellant, but was also weak as to the vehicle in which the Appellant was arrested. Both officers testified that they saw a small green station wagon at the scene of the burglary, but neither was able to determine the make, model or tag number of the vehicle or if the vehicle had any distinguishing markings. After determining that a burglary of a vehicle had in fact occurred, they stopped a small green station wagon near the scene of the offense. It is from this vehicle that the Appellant and his son were arrested. Once the arrests were made, the identity of the Appellant became certain but only the circumstantial evidence that he was in a small green station wagon connected him with the offense. I therefore find it necessary to point out that identity testimony refers to both people and inanimant objects. In fact, this is recognized by OUJI-CR 820 when it refers to “likeness or similarity of objects and persons.” (emphasis added). With this addendum, I concur with the ma-jonty in its conclusion that this matter must be reversed and remanded for a new trial with proper instructions.
¶3dissenting.
¶4I must respectfully dissent to the Court’s decision in this case. The facts of this case are distinguishable from the facts presented in Moreau v. State, 530 P.2d 1061 (Okl.Cr.1975), Webb v. State, 746 P.2d 203 (Okl.Cr.1987), and McDoulett v. State, 685 P.2d 978 (Okl.Cr.1984), which the court cites in determining it was reversible error to fail to give a cautionary eye-witness instruction in this case. In each of those cases the defendant committed the crime, fled, and at a later date was apprehended, with the requirement that the eye-witness identify the defendant after a passage of time. In this case identity is not in doubt. The Appellant was the individual in the green station wagon which was stopped by Deputy Hensley. The entire sequence of events testified to by Deputy Hensley occurred during a fifteen to twenty minute period of time. In fact, only two to three minutes of time expired between the time Deputy Hensley saw the green station wagon at the pickup until he turned around and stopped the vehicle which the Appellant was driving. The issue then becomes, is the circumstantial evidence sufficient to convict the Appellant of second degree burglary based upon the observations of the witnesses, the time sequence of events, and the evidence presented at trial? I find that the record supports a finding that the evidence is sufficient and, while a cautionary instruction could have been given by the trial judge, it was not required in this fact situation.