AFFIRMED.
McALLISTER, J.
The defendant appeals from his conviction of armed assault and robbery and the resulting sentence of imprisonment for seven years in the Oregon State Correctional Institution.
Defendant challenges the sufficiency of the evidence to support his conviction and also contends that his Fourteenth Amendment right to due process was denied by the picture identification and lineup procedures used by the police, which, according to defendant, tainted the in-court identification testimony by eyewitnesses.
A cab driver picked up two men at a Portland tavern who directed him to drive to a dark street in the Ardenwald District where they asked him to stop. While still seated in the back seat the two passengers robbed the cab driver, who was still seated in the front seat, by holding against the back of his neck an object which they told him was a razor blade. At the same time the driver felt a sharp point in his back. The driver was told to look straight ahead and to hand back his wallet, which he did. He did not see the razor blade or the "sharp point," which he felt in his back. Later he was tied up with his own belt and the cord from his cab mike and at that time saw one of the men cut the mike cord with a "big long-bladed knife."
The sufficiency of the evidence is challenged because there is no evidence that defendant was armed with a knife or that a knife was used in the robbery. All persons concerned in the commission of a felony are principals, ORS 161.220, and it was not necessary to prove that defendant himself used the knife. There was sufficient proof that a knife was used by one of the two men.
The other assignments of error are couched in sweeping terms embracing all the lineup and picture identification procedures used by the police. Since these alleged errors were not raised in the court below, we decline to consider them on appeal.
The judgment is affirmed.
ON PETITION FOR REHEARING
Defendant was convicted of armed assault and robbery. The Circuit Court, Clackamas County, rendered judgment, and the defendant appealed. The Supreme Court, 452 P.2d 754, affirmed the judgment. The defendant filed a petition for rehearing. The Supreme Court, McAllister, J., held that decisions of United States Supreme Court requiring presence of counsel of defendant at lineup identification would not be applied retroactively by Oregon Supreme Court.
Petition for rehearing denied.
McALLISTER, J.
4. In a petition for rehearing defendant urges that we apply retroactively the rules announced in United States v. Wade, 388 U.S. 218, 87 S Ct 1926, 18 L ed 2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S Ct 1951, 18 L ed 2d 1178 (1967). This we decline to do.
We applied Escobedo v. Illinois, 378 U.S. 478, 84 S Ct 1758, 12 L ed 2d 977 (1964), retroactively in accordance with the formula established in Linkletter v. Walker, 381 U.S. 618, 85 S Ct 1731, 14 L ed 2d 601 (1965) (see State v. Clifton, 240 Or. 378, 401 P.2d 697 (1965) and Guse v. Gladden, 243 Or. 406, 414 P.2d 317 (1966)). We have not changed the rule with regard to the retroactivity of Escobedo.
We have applied Miranda v. Arizona, 384 U.S. 436, 86 S Ct 1602, 16 L ed 2d 694, 10 ALR3d 974 (1966) retroactively in accordance with the formula laid down in Johnson v. New Jersey, 384 U.S. 719, 86 S Ct 1772, 16 L ed 2d 882 (1966). See State v. Dills; Stice, 244 Or. 188, 416 P.2d 651 (1966), and State v. Allen, 248 Or. 376, 434 P.2d 740 (1967).
With regard to United States v. Wade and Gilbert v. California and related cases, we adopt the rule of prospective application as stated in Stovall v. Denno, 388 U.S. 293, 87 S Ct 1967, 18 L ed 2d 1199, 1205 (1967).
We find nothing in the evidence in this case with regard to the picture identification and line-up procedures to suggest a denial of due process. Simmons v. United States, 390 U.S. 377, 88 S Ct 967, 19 L ed 2d 1247 (1968). The retroactive application of United States v. Wade would not change the result in this case. The petition for rehearing is denied.