Turner

Defendant appeals from a judgment of conviction for assault with intent to commit murder.

*325 Tbe prosecuting witness, Dyer, testified that be was assaulted in bis room about midnight by a man who knocked him senseless with a slung-shot, and who, upon his recovering consciousness, presented a pistol and threatened to kill him. He grappled with his assailant, who broke away and fled. He had never seen him before, but two weeks afterward, at the Oakland city jail, recognized the defendant as the man. He further testified upon direct examination that the man’s hat was upon the back of his head, the light shone upon his face, he saw his features distinctly, and so identified him.

Upon cross-examination he was asked as to -the clothing worn by his assailant, and answered that he wore an overcoat like that which was in court and was exhibited to him. He was then asked if, upon the preliminary examination and upon the former trial, he had not positively identified the coat as being the one worn by the man who entered his room. Objection to this line of examination was sustained.

The identification of the defendant by the prosecuting witness was a vital point in the case, and it was…