State v. McBain

*739SCHWAB, C. J.

Upon trial by jury defendant was convicted of rape in the first degree, ORS 163.375. We reverse and remand on the ground that the trial judge permitted submission to the jury of identification evidence based upon an impermissibly suggestive procedure. Simmons v. United States, 390 US 377, 88 S Ct 967, 19 L Ed 2d 1247 (1968); United States v. Wade, 388 US 218, 87 S Ct 1926, 18 L Ed 2d 1149 (1967).1

The only direct identification was made by the prosecuting witness who testified that she had been raped by an unknown assailant in July of 1974, which was some ten months prior to…