Prior to testimony identifying defendant as the robber, defendant objected and moved to suppress identification testimony and testimony of the lineup identification. A voir dire was conducted upon the competency of the testimony.
From competent evidence the trial judge determined that the in-court identification of defendant as the robber stemmed solely from the witnesses’ observation of defendant at the scene of the crime and was not a result of out-of-court confrontation or lineup procedures employed by the sheriff. Defendant’s objections to the in-court identification of defendant were properly overruled.
During the voir dire it was developed that after defendant had been arrested, the three witnesses were brought to the sheriff’s office to view a suspect. The three witnesses were placed in one room, and defendant was brought in alone. He was required to turn around two or three times and then was taken from the room. The witnesses were asked together if he was the one who robbed the store, and the witnesses replied that he was. The trial judge ruled that this lineup procedure was not illegal and permitted in-court testimony of the lineup identifica*134tion. This was error which we cannot say was nonprejudicial beyond a reasonable doubt.
In this case there was no emergency situation requiring an immediate one-man lineup. The defendant had already been arrested for the offense under a showing of adequate probable cause. There was no danger he would depart the jurisdiction of the court. There was no showing that defendant was advised of his right to counsel at the lineup. There was no showing that defendant consented to a lineup or that he was advised that he would be exhibited to witnesses for identification.
The officers should have known better than to conduct such a one-man lineup. The district attorney should have known better than to have tendered evidence of the lineup identification. The trial judge committed error in permitting such testimony. Had the lineup procedure been proper, the in-court identification of defendant was ample to require submission of the case to the jury without necessity for evidence of a lineup identification.
We have not considered the remaining assignments of error because they probably will not arise upon a new trial. This case has been tried twice, but still another trial must be ordered because of the use of incompetent evidence of identification at an illegally conducted lineup.
New trial.
Judges Vaughn and Martin concur.