author: SUMMERS, Justice. TATE, Justice, TATE, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Larry HERBERT.
    No. 58726.
    Supreme Court of Louisiana.
    April 11, 1977.
    On Rehearing Oct. 10, 1977.
    Rehearing Denied Nov. 11, 1977.

      William Noland, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Diana M. Shields and Larry Herbert were charged by the Orleans Parish Grand Jury with the December 12, 1975 violation of Section 966 of Title 40 of the Revised Statutes in that they did willfully and unlawfully have in their possession with intent to distribute a controlled dangerous substance, heroin. The charge against Diana M. Shields was nolle prossed on April 14, 1976, and on that same day Larry Herbert was tried by a jury and found guilty as charged. He was sentenced “to serve life at hard labor in the custody of the Director of the Department of Corrections.” '

I.

Defendant asserts that the trial judge erred in not granting a continuance when the State moved to sever Diana. Shields from the case and nolle prossed the charge against her on the day the case was set for trial. The State then announced that a separate bill of information would be filed against Shields for attempted possession of heroin with intent to distribute. When the trial judge granted the motion to sever, counsel for Herbert objected that the action of the State would affect his planning and preparation for trial.

When the State’s attorney announced that he had informed defense counsel two weeks prior to the date of trial that this action would be taken, defense counsel countered that he had been informed that Shields would be allowed to plead, not that the State would move to sever her from the case and file a new bill of information against her.

That action, according to Herbert’s counsel, would affect his presentation of evidence, and he accordingly moved for a continuance, which the trial judge denied. The trial judge was of the opinion that the nolle prosequi of the Shields charge and the motion for severance were no surprise to defense counsel since he knew approximately two weeks prior to trial that Shields would either be severed or be allowed by the District Attorney to plead to a lesser included charge. He was further of the opinion that Herbert’s counsel could in no manner show where he or his client would be prejudiced.

A number of arguments advanced by defense counsel here in brief based upon facts which form no part of the record are not considered.

The essence of the defense contention on this record is surprise and, according to the trial judge and the State’s attorney, there is no basis for a claim of surprise. If defense counsel was advised two weeks prior to trial that Shields would be allowed to plead, as the defense contends, the consequence of such a plea would be to withdraw Shields from the case, in any event, and the defense planning and presentation of evidence should have taken that effect of a plea into account.

No acceptable showing of prejudice was made on behalf of the defense, and there is no abuse of the discretion vested in the trial judge in such cases. La.Code Crim.Pro. arts. 707, 712.

II.

In a motion to suppress, counsel for Herbert alleged that his constitutional rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 5, of the Louisiana Constitution have been violated in that evidence to be used against him at the trial, namely a quantity of heroin, was not seized in compliance with the United States and Louisiana Constitutions.

At a hearing held on the motion to suppress on April 14,1976 Officer David Peral-ta of the Tactical Patrol Section of the New Orleans Police Department testified for the State. About three o’clock in the afternoon of a clear day on December 12, 1975, he said, he was riding with Officer Jenkins who was driving a marked patrol car. They were in uniform and cruising in an area of the Sixth District when they noticed a large number of “self-admitted” narcotic addicts in the area of Washington Avenue and South Robertson Street. In the courtyard of the housing project at that location a Negro male dressed in blue was observed as he walked toward another Negro male wearing a large white, knit hat. As these men met, a small object was handed to the man wearing the white knit hat and they parted.

Officers Peralta and Jenkins decided to investigate this activity and headed the patrol car in the direction taken by the man dressed in blue. After driving around the neighborhood for a while they finally pulled into a driveway in the 2800 block of South Robertson Street. As they were pulling into the driveway, they observed a Negro male, wearing a white knit hat, later identified as Larry Herbert, and a Negro woman, later identified as Diana Shields, between two buildings in the rear of 2800 South Robertson about thirty-five feet away. It was then about 3:27 in the afternoon.

As the officers neared Herbert and Shields, Herbert was observed handing a small box to Shields. When they were ten to fifteen feet from them Herbert looked over his shoulder, noticed the police car and hurriedly handed Shields the small box. Herbert and Shields ran in opposite directions as the officers drew abreast of them, while Officer Peralta got out of the police car and went after Shields. He noticed she was trying to place a matchbox in the waistband of her slacks as he approached her. Seeing this he advised her that she was under arrest for possession of narcotics. He then seized the matchbox, opened it and found that it contained a number of tinfoil packets. Upon opening one of the tinfoil packets, it was found to contain a brownish powder which Officer Peralta believed to be heroin.

During this encounter with Shields, Officer Jenkins pursued Herbert as he fled toward one of the project buildings. He overtook Herbert and returned with him to where Officer Peralta held Shields. When Peralta told Jenkins that he had placed Shields under arrest and had seized a matchbox of heroin from her waistband, Jenkins also arrested Herbert.

The Fourth Amendment protects an individual’s reasonable expectations of privacy in his person and property from unreasonable invasions of those interests by the Government. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). That which is knowingly exposed to the public is not protected. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973).

With the possible exception of the case in which private premises must be entered to make an arrest, there is presently no constitutional requirement that an arrest warrant be obtained. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). A warrant-less arrest is reasonable under the Fourth Amendment where the arresting officer has probable cause to believe that the defendant is committing or has committed a felony or expected misdemeanor. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

Thus a valid arrest may occur when the circumstances known to a reasonable, prudent police officer by personal observation amount to a felony or misdemeanor committed, or attempted in his presence or view. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948).

Although a police officer may not arrest upon mere suspicion, Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), or for “investigation”, Bennett v. United States, 70 App.D.C. 76, 104 F.2d 209 (1939), he has a duty to approach, Lee v. United States, 95 U.S.App.D.C. 156, 221 F.2d 29 (1974), confront and interrogate (which may include the power to temporarily detain). It is the most useful, most efficient, and most effective method of investigation. Often it develops probable cause, Keiningham v. United States, 113 U.S.App.D.C. 295, 307 F.2d 632 (1962).

The validity of the subsequent search and seizure turns on the question of when the arrest occurred. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); Henry v. United States, supra. In order for there to be an arrest it is not necessary that there be an application of actual force or manual touching of the body, or physical restraint visible to the eye, or a formal declaration of arrest. It is sufficient if the person arrested understands that he is in the power of the one arresting, and submits in consequence thereto. Kelley v. United States, 111 U.S.App.D.C. 396, 298 F.2d 310 (1961).

Furthermore, deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime they are proper factors to be considered in the decision to make an arrest. Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

Upon effecting a lawful arrest and when the accused is in police custody, the officer may search the accused’s property, the possession of which is a crime, such as heroin. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1974). And under the plain view doctrine, an officer may also seize items which come into view incident to an arrest, where the officer is lawfully present, the discovery is inadvertent, and the object is incriminating. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

Based upon these principles and a realistic appraisal of the facts known to Officers Peralta and Jenkins, probable cause existed to arrest and search Shields and to arrest Herbert for possession of heroin.

In the setting of this project, where a number of “self-admitted” narcotic addicts were present at the time, two Negro males made a furtive exchange of a small object and promptly parted. Within minutes thereafter one of these men was seen to hand a small box to a woman in a furtive manner. And when they observed the uniformed policemen approach in a marked car they fled in opposite directions. The woman was then seen to be secreting a matchbox in the waistband of her slacks. ' She was arrested and the matchbox, which the officers believed probably contained narcotics, was seized.

The experience of these officers, the presence of known addicts at the scene of the first encounter; the use of matchboxes to disguise the transfer of narcotics, a modiis operandi with which they were undoubtedly familiar, State v. Roach, 338 So.2d 621 (1976); State v. Saia, 302 So.2d 869 (1974), cert. denied, 420 U.S. 1008, 95 S.Ct. 1454, 43 L.Ed.2d 767 (1975), the furtive conduct of the participants, the effort to flee the scene when the police were noticed approaching, and the secreting of the matchbox in her waistband by Shields, all gave eloquent evidence of the surreptitious and clandestine distribution of narcotics at that time and place.

There was probable cause for Officer Peralta to seize the narcotics from Shields, it having just been transferred to her by Herbert.

There is no merit, therefore, to the defense contention that the trial judge erred in failing to suppress the heroin.

For the reasons assigned, the conviction and sentence are affirmed.

TATE, J., dissents and assigns written reasons.

DIXON, J., concurs.

CALOGERO and DENNIS, JJ., dissent.

TATE, Justice,

dissenting.

I respectfully dissent. In my opinion, the motion to suppress the heroin seized should be granted: The heroin was seized incidental to an illegal arrest, made without probable cause.

The issue, as I see it, is whether the police may arrest and search any individual because of conduct which in itself is not unlawful, simply because he is in a neighborhood frequented by drug addicts.

In the present instance, Ms. Shields was arrested. Prior to her arrest, the defendant Herbert was observed by the officers to hand her a matchbox. Previously, the officers had noticed Herbert receiving a small object from another individual. None of the three individuals was known to the officers.

The conduct itself, it seems to me, might bear watching by the police; but it does not constitute cause for arrest. Individuals living in America are not subject to arrest because otherwise lawful and innocuous actions might also be consistent with criminal activity. The circumstance that other individuals in the area were narcotics addicts, not shown to be connected with these three, does not in my opinion convert this otherwise lawful conduct (however suspicious) into probable cause for arrest. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 947 (1968).

It is true, as the majority notes, that furtive actions and flight at the approach of law officers may be proper factors in the decision to make an arrest — if “coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime,” as the majority likewise, notes, quoting from Peters v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 1904 (1968).

Here, however, the officers had no specific knowledge relating the three individuals to any crime committed — only a strong suspicion that, in the light of the narcotics activity in the neighborhood, these three unknown individuals might somehow be involved in transferring narcotics from one to the other.

For these reasons, in my opinion, the officers did not have probable cause to arrest and search Ms. Shields. The matchbox they seized from her person was therefore unconstitutionally seized in violation of the federal and state constitutions. See State v. Saia, 302 So.2d 869 (La.1974).

Further, although perhaps the officers had sufficient observation to justify reasonable suspicion for a valid investigatory stop, La.C.Cr.P. art. 215.1, the investigatory stop so authorized does not purport to constitute probable cause for an arrest or for a search of the person (nor could it, without offending provisions of the state and federal constitutions. These guarantee individuals living under their protection against arrests without probable cause, and against arbitrary searches of their person except (under present circumstances) incidental to a lawful arrest).

Therefore, fully respecting the majority’s fair appreciation of the facts and its common sensical approach, I must nevertheless dissent: However justified their suspicions may turn out, governmental agents may not arrest and search individuals simply because they suspect they might be involved in criminal activity, without violating our constitutional guarantees against arbitrary arrests and searches of the person by the agents of government.

ON REHEARING

TATE, Justice.

The defendant was convicted of possession of heroin with intent to distribute it, La.R.S. 40:966, and sentenced to life imprisonment at hard labor. We granted the defendant’s application for rehearing as to our initial affirmance, because we entertained doubt as to the trial court’s denial of a motion to suppress the heroin introduced into evidence.

The heroin was seized following the arrest of a Ms. Shields, allegedly a co-conspirator with the accused in the offense. The trial court held that the seizure was lawful, since the warrantless arrest preceding it was based upon probable cause. Upon rehearing, we conclude that this ruling was erroneous and that the heroin is inadmissible.

With regard to the seizure, the central issue is whether the arrest of the co-conspirator was lawful. If so, the seizure pursuant to her previous custodial arrest is also lawful. If not, the seizure of property from her person violated the guarantee of our state constitution against unreasonable searches, seizures, or invasions of privacy of individuals. La.Const. of 1974, I, Section 5.

I.

The arresting officers’ testimony show the following uncontradicted account of the circumstances of Ms. Shields’ arrest:

Several minutes previously, the two policemen had observed two then-unknown males exchange “something” in their hands and walk off from one another. The officers decided to investigate further. They drove around in the neighborhood attempting to locate the two men, still unknown to them.

Finally, they observed that the present defendant “began to hand something to” Ms. Shields, as they drove their marked patrol car into the driveway of the housing project towards the couple then some thirty-five feet distant. When the patrol car came within ten to fifteen feet of the subjects, the defendant Herbert looked over his shoulder and observed the police car, hurriedly handed Ms. Shields an object and walked away into a nearby house.

Meanwhile, Ms. Shields looked toward the policemen “and then began to somewhat run away from us.” The arresting officer noticed that she was trying to place a matchbox in the waistband of her slacks.

The police officer advised Ms. Shields that she was under arrest for possession of narcotics. He then seized the matchbox which, when opened, was found to contain packets of a brown substance later found to be heroin.

According to the officers’ testimony, the chief reason they suspected a narcotics offense was that “while we were patrolling, just prior to our arrest of Larry Herbert and Diana Shields, we noticed a large number of self-admitted narcotics addicts in the area of Washington and South Robertson.” The state also argues that probable cause to arrest arose from the spontaneous manifestation of guilt, when the defendant Herbert and Ms. Shields, upon seeing the officers, commenced to leave the scene hurriedly.

II.

A warrantless arrest, no less than an arrest pursuant to a validly issued warrant, must be based on probable cause. State v. Ranker, 343 So.2d 189 (La.1977); State v. Jackson, 337 So.2d 508 (La.1976); State v. Scott, 320 So.2d 538 (La.1975); State v. Terracina, 309 So.2d 271 (La.1975); State v. Odom, 292 So.2d 189 (La.1974). Probable cause exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Marks, 337 So.2d 1177 (La.1976); State v. Randolph, 337 So.2d 498 (La.1976); State v. Gilmore, 323 So.2d 459 (La.1975); State v. Wood, 262 La. 259, 263 So.2d 28 (1972).

While the officer need not have sufficient proof to convict, mere suspicion is not enough to justify an arrest. State v. Ranker, cited above; State v. Randolph, cited above. Further the circumstances upon which the arresting officer acts must show that criminal conduct is more probable than non-criminal activity: Equivocal conduct does not afford probable cause for arrest, where the possibility of criminal conduct is no greater than the possibility of innocent behavior. State v. Thomas and Talbert, 349 So.2d 270 (La.1977).

“Mere suspicious activity, without any relationship to law violation, is not sufficient basis for police interference with the freedom of an individual.” State v. Truss, 317 So.2d 177, 179 (La.1975).

III.

Applying these principles to the instant case, no probable cause was manifested to the officers to arrest Ms. Shields for a narcotics violation.

The exchange in public of matchboxes between unknown persons does not by itself indicate any criminal offense. State v. Thomas and Talbert, 349 So.2d 270 (La.1977). Nor does any surmise surmounting mere suspicion attach to the circumstance that two unknown persons, otherwise free of criminal connection, consort in an area frequented by narcotics addicts. Sibron v. New York, 392 U.S. 40, 62, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917.

Accordingly, we note, as we did in suppressing evidence seized as the result of an illegal arrest in State v. Kinneman, 337 So.2d 441, 444 (1976): “These ‘facts’ cannot be said to furnish probable cause for an arrest or search. They do' not connect defendants with criminal activity. They are at least as consistent with innocent activity as with guilt.”

The state contends, however, that probable cause to arrest ripened when the accused hurriedly handed the object to Ms. Shields and walked away from the scene, after noting the officers’ approach, and when Ms. Shields turned as if to run.

Furtive actions and flight at the approach of law officers may indeed be proper factors in the decision to make an arrest — if “coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime.” Peters v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 1904 (1968). Here, however, the officers had no specific knowledge relating the three observed individuals to any crime committed — only a strong suspicion that, in the light of the narcotics activity in the neighborhood, these three unknown individuals might somehow be involved in transferring narcotics from one to the other.

The arresting officer cannot create probable cause for an arrest simply on the basis of a citizen’s flight from an arrest otherwise illegal because without probable cause:

As we stated in State v. Saia, 302 So.2d 869, 873 (La.1974): “The police cannot approach citizens under circumstances that make it seem that some form of detention is imminent unless they have probable cause to arrest the individual or reasonable grounds to detain him . . . . Police officers cannot actively create ‘street encounters’ unless they have knowledge of suspicious facts and circumstances sufficient to allow them to infringe on the suspect’s right to be free from governmental interference.”

We conclude, therefore, that the arrest of Ms. Shields was illegal. Consequently, the heroin seized pursuant to it should have been suppressed as seized in violation of our constitutional guarantees.

The officers fully arrested Ms. Shields for the commission of a crime; they did not merely detain her for questioning. Thus, we do not reach the issue of whether the officers’ observation sufficiently justified reasonable suspicion for a valid investigatory stop. La.C.Cr.P. art. 215.1. See State v. Cook, 332 So.2d 760 (La.1976); but see also State v. Smith, 347 So.2d 1127 (La.1977). Nevertheless, the investigatory stop so authorized does not purport to constitute probable cause for an arrest or for a search of the person; nor could it, without violating the constitutional principles previously enunciated, which prohibit governmental agents from unreasonable searches or seizures or invasions of privacy of individuals living under the protection of our state and federal constitutions.

Decree

For the reasons set forth, the defendant’s motion to suppress is sustained, and district court’s ruling to the contrary is reversed, as is the conviction and sentence of the accused. The case is remanded to the district court for a new trial in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., dissents.

SUMMERS, J., dissents and adheres to the original opinion.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

The majority on rehearing holds that the search conducted in the instant case was unlawfully conducted and finds that La. Const, art. 1, § 5 extends to third persons a new and expanded right of standing to contest the use against them, at a trial on the merits, of evidence obtained in violation of the fourth amendment rights of another, citing State v. Culotta, 343 So.2d 977 (La.1977).

In Culotta, this court found the search at issue lawfully made pursuant to a valid warrant. In State v. Roach, 338 So.2d 621 (La.1976), this court found the defendant lacked standing to contest a search made of another person applying the Louisiana Constitution of 1921 and the jurisprudence thereunder. Hence, any opinions expressed in these decisions regarding the meaning of La.Const. art. 1, § 5 (1974) constitutes mere dicta.

It is well settled that the language of a constitutional provision is to be applied according to the most usual signification in which the words are generally understood. State v. Bradford, 242 La. 1095, 141 So.2d 378 (1962). Where a constitutional provision is plain and unambiguous, construction is excluded and no search for purpose and intent can be initiated. State v. Clark, 186 La. 655, 173 So. 137 (1937). This is particularly true with respect to the interpretation of a constitution, since it is presumed that the language of a constitution is selected with the utmost discretion. Western Union Telegraph Co. v. Railroad Commission, 120 La. 758, 45 So. 598 (1908).

La.Const. art. 1, § 5 (1974) provides as follows:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court. (Emphasis added.)

On its face, this constitutional provision grants a broad substantive right to every person to be free from unreasonable governmental interference. I consider that the last sentence of the provision only confirms that any person whose rights, as set forth in the first part of this section, are violated has standing to urge the illegality of such conduct in an appropriate court. Moreover, the provision grants the right of a person to “be secure in his person, property, communications, houses, papers and effects . . .” (Emphasis added.) Hence, the language of the provision granting a person standing to challenge a search “conducted in violation of this Section” clearly refers to searches of his person, property, etc., not searches affecting third persons’ rights.

This interpretation of art. 1, § 5 is supported by the customary and usual meaning of the language in which it is written and is consonant with the federal conception of fourth amendment rights and the exclusionary rule fashioned to protect them in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1963). Also, it is in accordance with the United States Supreme Court decision in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). Conversely, I feel that the interpretation of the majority reads into the provision substantive rights not plainly set forth therein. Moreover, it is not in conformity with recent expressions of the United States Supreme Court demonstrating a studied reluctance to expand the scope and application of the exclusionary rule in the absence of clear proof that such extensions would have a significant effect on deterring illegal police conduct. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976).

In any event, I consider the search conducted in the instant case was lawful for reasons assigned in the original opinion. Accordingly, I respectfully dissent from the majority opinion on rehearing.

      . As provided by that constitutional section, the present defendant, as a person adversely affected by such unconstitutional seizure, has standing to complain of its illegality. State v. Culotta, 343 So.2d 977 (La.1977).

      . The decision states, for example: “The inference that persons who talk to narcotics addicts are engaged in criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon individual personal security.”


source: Caselaw Access Project

author:
DIXON, Justice.
      SANDERS, Chief Justice CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Donald D. ARNOLD.
    No. 59196.
    Supreme Court of Louisiana.
    June 20, 1977.
    On Rehearing Oct. 10, 1977.

      Tilden H. Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Robert L. Simmons, Asst. Dist. Attys., Metairie, for plaintiff-appellee.
   DIXON, Justice.

The defendant Donald D. Arnold was charged by bill of information with the crime of “pandering,” a violation of R.S. 14:84(4). A jury of six found defendant guilty as charged. The State then filed a bill of information, pursuant to R.S. 15:529.-1, charging defendant as a multiple offender. Arnold was found to be a third offender and was sentenced to a term of ten years. The defendant urges three arguments (in four assignments of error) for reversal of his conviction and sentence. Since we find merit in the final assignment, we pretermit discussion of the other assigned errors.

The facts surrounding this prosecution are as follows. On June 4,1975 at approximately 2:30 a. m., three officers of the New Orleans Police Department were on duty in plain-clothes in the French Quarter in New Orleans. While in the 500 block of Bourbon Street, one of the officers was approached by Donald Arnold who asked him if he was looking for a date. The officer replied that he was and the two men walked up Bourbon Street for approximately two blocks. The defendant stated that he did not see any of his girls at the end of the street so the two men walked back down Bourbon Street and over to Royal. Arnold and the officer went into a bar on Royal Street and the officer sat down while the defendant went to speak to another man. The defendant and the officer then left the bar and as they were crossing Royal Street they encountered a female who spoke with them briefly. After entering another bar, the defendant went back outside, spoke to the same female, and then told the officer that the date would cost $60.00; $50.00 for the female and $10.00 for his services in setting up the date. The officer then handed Arnold a marked $50.00 bill and a marked $10.00 bill. The officer and the female exited the bar and began walking up Royal Street. As he was walking away the officer motioned to his two partners (who had been observing his activity from a distance) that he had paid the defendant in the bar. Donald Arnold was then seized by the officers who recovered the two marked bills from his person.

After the defendant had been convicted, but prior to sentencing, he filed a motion for a new trial supported by the following allegations:

“1. The verdict is contrary to the law and the evidence in that the State failed to prove all elements of the crime charged and the evidence was insufficient to show or prove the guilt of the accused beyond a reasonable doubt.
“2. The State merely proved the crime of soliciting for prostitution (a misdemeanor) and did not prove the defendant guilty of pandering.”

The trial judge denied the defendant’s motion for a new trial and the defendant assigns as error that ruling of the trial judge.

Initially we note that when error is assigned to the refusal of the trial judge to grant a motion for a new trial which was based on the contention that “the verdict is contrary to the law and the evidence,” nothing is presented to this court for review. C.Cr.P. 858; State v. Finley, 341 So.2d 381 (La.1976); State v. Jack, 332 So.2d 464 (La.1976). The scope of this court’s appellate jurisdiction does not extend to questions of fact, and the sufficiency of the evidence is a question of fact. La.Const. art. 5 § 5(C); State v. Gordon, 336 So.2d 793 (La.1976).

However, where error is assigned to the trial judge’s denial of a motion for a new trial which alleges that there is no evidence of the crime charged or of an essential element thereof, a reviewable question of law is presented. E. g., State v. Finley, supra; State v. Woods, 327 So.2d 405 (La.1976). The defendant here specifically alleges “the State failed to prove all the elements” of pandering and, instead, only proved the crime of soliciting for prostitutes (R.S. 14:83). By that allegation the defendant has properly preserved this issue for review. Cf. State v. Jackson, 344 So.2d 961 (La.1977). However, we are confined to consideration of the question of whether there was any evidence of each essential element of the crime of pandering.

Pandering, as applicable to the facts of this case, is defined as follows:

“Pandering is the intentional:
“(4) Receiving or accepting by a male, as support or maintenance, anything of value which is known to be from the earnings of any female engaged in prostitution;
“. . .” (R.S. 14:84(4)).

The crime of soliciting for prostitutes is defined as follows:

“Soliciting for prostitutes is the soliciting, inviting, inducing, directing, or transporting a person to any place with the intention of promoting prostitution.” R.S. 14:83.

The Reporter’s Comments to R.S. 14:86 describe the types of activities that these two statutes were designed to proscribe: “Pandering:

“This section [R.S. 14:84] groups together several of the more serious offenses in this field, and a much more severe penalty is here suggested. These are the organizational aspects of the offense, by which the females are first lured, and then detained, in prostitution.” “Soliciting for prostitutes:
“This section [R.S. 14:88] is intended to cover some of the indispensable activities in connection with prostitution: ‘street-walking,’ the maintenance of a system of ‘runners,’ and the employment of cab drivers.”

See also Comment, Art. 86, La.Criminal Code of 1940 (Dart’s Code of Criminal Law and Procedure, Art. 740-86).

These comments and the language of the statutes reveal that the law prohibiting pandering (a relative felony) is designed to deal with the more serious activities of placing women in the practice of prostitution and receiving support and maintenance from prostitutes. By contrast, the crime of soliciting for prostitutes prohibits soliciting of males with the intention of promoting prostitution.

In order to have a valid conviction under R.S. 14:84(4) (pandering), the State must prove the following elements of the crime: (1) the intention (2) receiving and accepting by a male (3) as support or maintenance (4) anything of value (5) which is known to be from the earnings of any female engaged in prostitution. The State offered evidence that Donald Arnold, a male, did receive something of value for his services in setting up the “date.” In addition, there was at least some evidence offered that the “date” was a prostitute.

However, there is no evidence in the record that the money obtained by the defendant was received as “support or maintenance.” While the terms “support” and “maintenance” are not specifically defined in the Criminal Code, this court has upheld the constitutionality of R.S. 14:84(4) in the face of the contention that the statute is unconstitutionally vague for want of definitions of the terms “support” and “maintenance.” In State v. Bourg, 248 La. 844, 864, 182 So.2d 510, 517 (1966), this court held:

“Bill of Exceptions No. 8 was reserved to the court’s ruling denying a motion in arrest of judgment. In the motion it is declared that R.S. 14:84(4) is unconstitutionally vague and indefinite in that it does not define the meaning of the expression ‘support and maintenance.’
“The words ‘support and maintenance’ as used in the statute are synonymous and have a definite meaning which persons of ordinary intelligence may easily understand. We find this bill to be without merit. State v. Wiener, 245 La. 889, 161 So.2d 755 (1964) and cases cited there.”

In the case before us now, the State offered no evidence that the money Arnold was to receive for his services in setting up the date ($10.00) was to be used to support and maintain him. The fact that the defendant accepted money for his services, without more, does not constitute “some evidence” that the money was received as support or maintenance. Evidence that defendant had no other source of income except from pandering, or that he solicited often enough to raise an inference that his support and maintenance came from the practice of pandering, would have been sufficient. The receiving of anything of value and the use as support or maintenance are two separate elements of the crime of pandering. The object of the redactors of the Criminal Code was to eliminate duplication, not perpetuate it. Pandering is a different and more serious crime than soliciting for prostitution.

Since we find the record devoid of any evidence of an essential element of the crime charged, the conviction and sentence of the defendant are reversed and the case is remanded to the district court for further proceedings not inconsistent with the views expressed herein.

MARCUS and DENNIS, JJ., dissent.

SANDERS, C. J., dissents with written reasons.

SANDERS, Chief Justice

(dissenting).

In my opinion, there is some evidence of all the essential elements of pandering. The receipt of the money under the circumstances shown, together with defendant’s admission that the alleged prostitutes are “my girls,” is some evidence of the offense charged. This Court, of course, does not weigh the sufficiency of the evidence. That is a matter for the jury.

For the reasons assigned, I respectfully dissent.

ON REHEARING

CALOGERO, Justice.

On our original hearing of this ease, we reversed defendant Arnold’s conviction because we determined that the state had failed to prove that element of the crime of pandering which requires that the male’s receipt and acceptance of something of value be “as support or maintenance.” Defendant Arnold had contended successfully that a single proven incident of receiving sixty dollars (ten dollars of which he had told the undercover policeman was for him) in exchange for arranging a prostitution “date,” without proof of the purpose to which defendant put the money, without proof that this type of endeavor constituted defendant’s sole, principal or occasional means of support, and without proof that defendant had regularly engaged in this practice, was no proof at all of his having derived “support or maintenance” from the earnings of a prostitute. In adopting defendant’s position, we stated that:

“The fact that the defendant accepted money for his services, without more, does not constitute ‘some evidence’ that the money was received as support or maintenance. Evidence that defendant had no other source of income except from pandering, or that he solicited often enough to raise an inference that his support and maintenance came from the practice of pandering, would have been sufficient.”

We granted rehearing in the case because we were impressed with the state’s application in which our attention was directed to the following purported summation of state law in this area:

“Under a statute making it an offense to derive support or maintenance in whole or part from the earnings of a prostitute, it has been held immaterial whether the accused be rich or have a legitimate income from other sources; he need only receive some of the money the prostitute has earned in pursuing her occupation. And it has been held not necessary that the accused actually use the money received from a prostitute for his support and maintenance.” 63 Am.Jur.2d 375.

We have restudied the case, looking with particular care at the above proposition and the case which the state principally relies upon, People v. Coronado, 90 Cal.App.2d 762, 203 P.2d 862 (1949). We are of the view that our initial decision was correct.

Other states which have similar pandering statutes proscribing deriving support or maintenance from the earnings of a prostitute do not always require that the state trace the money received to its expenditure as support or maintenance. Many cases from other jurisdictions do, of course, deal with cases in which the state did indeed establish that the money received went toward particular items of support. See, for example, People v. Coronado, supra (part of money used for oil and gas for defendant’s car); People v. Navarro, 60 Cal.App. 180, 212 P. 403 (1922) (money was partly used to pay defendant’s room rent and board); People v. Simpson, 79 CaLApp. 555, 250 P. 403 (1926) (portion of proceeds from defendant’s legitimate massage parlor business actually came from earnings of attendants for their work as prostitutes). And courts have reversed convictions on the basis that there was no evidence to show that defendant was dependent to any degree upon the money furnished by a prostitute. State v. Ka- nakaris, 54 Mont. 180, 169 P. 42 (1917). The emphasis in these other jurisdictions is not placed on tracing the actual expenditure of a particular prostitution fee in a defendant’s support, but on general proof that the defendant did knowingly live off of the earnings of prostitutes (or of a prostitute). Trozzo v. People, 51 Colo. 323, 117 P. 150 (1911); People v. Simpson, supra; State v. Kanakaris, supra; 74 A.L.R. 307, 337. These opinions from other jurisdictions make it clear that the accepted, rule is that such statutes as ours which generally make criminal the receipt of a prostitute’s earnings by a male as his support or maintenance do require proof that he was receiving that money as support, although they do not require tracing the actual cash given to its expenditure in rent, meals, gas, etc.

Moreover, the general pattern of the criminal code sections relating to the subject of prostitution convinces us that the legislature did not intend by the language of R.S. 14:84(4) to make it a felony simply for a male to receive anything of value which is known to be from the earnings of a prostitute. In the first place, had the legislature meant to proscribe that conduct in this statute, they would not have added “as support or maintenance.” Also, the legislature has classed many of the offenses con-, nected with the practice of prostitution as misdemeanors. Thus, prostitution, R.S. 14:82, soliciting for prostitutes, R.S. 14:83, and letting premises for prostitution, R.S. 14:85, have been made misdemeanors rather than felonies. Certain offenses, which the legislature apparently deemed more serious, were classed as felonies: for example, enticing a woman into prostitution, R.S. 14:84(1), detaining a female in a place of prostitution by force, R.S. 14:84(3), and enticing minors into prostitution, R.S. 14:86. The pandering statute at issue here, R.S. 14:84(4), classifies living off the earnings of a prostitute as a felony, unlike the apparently less serious offense of solicitation for prostitution, which is a misdemeanor. We believe that this statutory pattern evidences, as we stated on original hearing, that pandering is a different and more serious crime than soliciting for prostitution, and that the most important difference is that the male must have received the money with the intention of using it as his support or maintenance. It is this element which makes the panderer liable for up to five years in the penitentiary while the solicitor can receive no heavier a penalty than a one hundred dollar fine and six months imprisonment.

In the record before us there is no evidence that defendant Arnold repeatedly (or even twice) arranged prostitution dates and received money therefor, no evidence as to whether he had ever in the past been (or currently was being) supported in whole or part by the earnings of prostitutes, no evidence that he lived with the woman with whom he set up this date or with any other prostitute, etc. There is record evidence that he received ten dollars from a single transaction in the negotiation for which defendant stated that he would try to find one of “his girls.” While various inferences might be taken from defendant’s reference to “his girls,” we cannot conclude that this reference, or admission, is any evidence at all that defendant Arnold received the ten dollars (or sixty dollars) in question for his support or maintenance.

The words “as support or maintenance” in R.S. 14:84(4) require the state, at a minimum, to introduce some evidence which establishes, or from which it can be inferred, that the defendant received the earnings of a prostitute with the intention of using them as support or maintenance. Proof that defendant on one occasion received money without any evidence of his purpose in accepting the money, his past similar acts in accepting such money, or any other evidence which would go toward proving that defendant intended to receive and use the money in question to support himself does not constitute “some evidence” that the money was received as support or maintenance.

Finding no evidence of an essential element of the crime charged, we reinstate our judgment on original hearing.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent.

      . The crime of pandering, proscribed by Louisiana Revised Statute 14:84(4) is “the intentional . . . [Receiving or accepting by a male, as support or maintenance, anything of value which is known to be from the earnings of any female engaged in prostitution . . . .”

      . The police undercover agent testified that defendant Arnold approached him on the street and the following ensued:
      “The subject said, ‘Hello.’ I said, ‘Hello,’ back. And at that point, he asked me if I was looking for a date. I replied I was. He asked me to walk up Bourbon Street to look for one of his girls. At that point, we started walking up Bourbon Street in the 500 block and walked to the 700 block. At which time, he said he didn’t see any of his girls at this end of Bourbon Street, let’s go to the other end. And we walked to the 200 block and walked up to Iberville, and he said he didn’t see any of his girls. He said he didn’t see any of his girls, they must be on Royal Street.”


author: DIXON, Justice.

text:
    STATE of Louisiana v. Ferris GRAY.
    No. 59176.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Rehearing Denied Nov. 11, 1977.

      Allen J. Tillery, A. Scott Tillery, Arabi, Gary J. Dragon, Chalmette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leander H. Perez, Jr., Dist. Atty., Gilbert V. Andry, III, Asst. Dist. Atty., for plaintiff-appellee.

      . The legislature has enacted a criminal discovery law in 1977 by Act 515.

   DIXON, Justice.

Defendant was convicted of aggravated rape on May 23,1974 and subsequently sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. He took an appeal on June 24,1974; the record was filed here January 19, 1977. Defendant relies on twenty-one arguments on assignments of error for reversal of his conviction.

On December 4, 1972 a nine year old girl attended a Girl Scout meeting at the St. Robert Bellarmine School in Arabi, Louisiana. Between 5:15 and 5:30 p. m. she left the meeting and got on her bike to ride to her home, some four or five blocks away. As she was leaving the school a man stopped her, ordered her off the bike, placed his hand over her mouth and forced her to walk to the rear of the schoolyard. There he raped her and then ran off. The girl then went home, told her parents what happened, and described her attacker. After riding around the neighborhood in search of the man with her father, the victim was taken to a police station where she described the man’s physical characteristics, clothing and jewelry. The defendant was picked up soon thereafter.

Assignment of Error No. 1

Defendant contends that the trial court erred in denying a motion for a bill of particulars requesting the State to inform him of the “manner and means” by which the offense was committed and setting forth what subsection of R.S. 14:42 under which the State intended to prosecute.

Article 1, § 10 of the Louisiana Constitution of 1921, applicable at the time of the trial, granted the accused the right to “. . .be informed of the nature and cause of the accusation against him.” C.Cr.P. 484 provided the procedural device, a motion for a bill of particulars, by which an accused may obtain that information. However, it is well settled that the device may not be used to discover the State’s evidence or the details of the State’s case. State v. Walker, 344 So.2d 990 (La.1977); State v. May, 339 So.2d 764 (La.1976); State v. Jenkins, 338 So.2d 276 (La.1976).

In the instant case, the defendant was informed by the grand jury indictment and the bill of information returned by the district attorney of the crime charged, the identity of the victim, and the place and time of the offense. In addition, at the hearing on the motion the assistant district attorney stated that the girl was under the age of twelve at the time of the rape and that he intended to prove that ground, if not others. At trial, this proved to be the exclusive basis of the prosecution inasmuch as no evidence of threats or resistance was introduced, nor was there any evidence that the defendant used a dangerous weapon.

In view of the fact that the defendant was aware of the only ground actually urged by the prosecution, any error in refusing to grant the motion does not constitute reversible error. C.Cr.P. 921; State v. Mason, 305 So.2d 523 (La.1974).

Assignment of Error No. 2

Defendant contends that it was error for the trial court to refuse to suppress the evidence obtained in a police lineup and voice identification.

Several hours after the offense, the victim identified the defendant in a line-up with two other persons. Testimony at the motion to suppress hearing indicated that the two persons in the line-up with the defendant were approximately the same age as the defendant; that one was slightly taller and of lighter complexion than the defendant and that the other had long, dark hair. A second line-up was held three days later in which Jule Defourneaux, the caretaker of a church near the scene of the crime, identified the defendant as the man he saw in the church at approximately 5:20 to 5:30 p. m. the day of the offense. The same persons were used in the line-up and all were dressed identically.

The constitutionality of the identification depends on whether it was so unduly suggestive and conducive to mistaken identification as to deny the defendant due process of law. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); State v. Jackson, 337 So.2d 508 (La.1976); State v. Rudolph, 332 So.2d 806 (La.1976). It is not required that there be strict identity of characteristics among the members of a line-up, but rather only a sufficient resemblance to reasonably test the identification. State v. Anthony, 347 So.2d 483 (La.1977); State v. McSpaddin, 341 So.2d 868 (La.1977); State v. Hargrove, 330 So.2d 895 (La.1976).

While we do not have the benefit of photographs of the persons in the line-up, it does not appear from their description in the record that they did not possess sufficient resemblance to the defendant to test the identification.

The assignment is without merit.

Assignments of Error Nos. 3, 4, 6, 8, 24 and 34

Defendant raises issues of pre-trial discovery, inspection and independent examination of evidence through these assignments.

Assignment No. 3 deals with whether the defendant had a right to access to the results of scientific tests made upon the clothing of the defendant. With certain limited exceptions, there was no pre-trial discovery in criminal cases at the time of this trial. State v. Hodges, La., 349 So.2d 250 (decided June 20, 1977); State v. Jones, 332 So.2d 466 (La.1976); State v. Collins, 308 So.2d 263 (La.1975). The test results here requested do not fall within one of the exceptions, therefore the assignment is without merit.

Assignment No. 6 presents the question of whether the defendant had a right to discover the names and addresses of the witnesses who appeared before the grand jury. C.Cr.P. 434(A) provides:

“Members of the grand jury, all other persons present at a grand jury meeting, and all persons having confidential access to information concerning grand jury proceedings, shall keep secret the testimony of witnesses and all other matters occurring at, or directly connected with, a meeting of the grand jury. However, after the indictment, such persons may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney, or the court, and may testify concerning them. Such persons may disclose testimony given before the grand jury, at any time when permitted by the court, to show that a witness committed perjury in his testimony before the grand jury. A witness may discuss his testimony given before the grand jury with counsel for a person under investigation or indicted, with the attorney general or the district attorney, or with the court.”

The statute gave no “right of discovery” to defendant for the names of grand jury witnesses.

There is no merit in this assignment.

Defendant assigns as error in Assignments 4, 8 and 24 the denial of a motion for independent examination of the clothing taken from the victim and defendant soon after the crime. At trial, the State introduced those items and, through expert testimony, established that the victim’s clothing was stained with blood and semen and that the defendant’s pants and shirt showed a semen residue. The State’s expert further testified that because of the mixing of the stains, he was unable to determine whether the semen found on the victim’s clothing matched the defendant’s secretion grouping.

Defendant argues that the denial of an independent examination forced him to accept the State’s witness’ conclusion that no secretion grouping could be done on the stains while his experts might be able to successfully determine the grouping and thus possibly exculpate the defendant.

Defendant’s argument is not frivolous. While pre-trial discovery in Louisiana was generally severely limited, those limitations may not be allowed to infringe upon the defendant’s constitutional rights to due process of law or to offend principles of' fundamental fairness. In State v. Woodruff, 281 So.2d 95 (La.1973), we held that the refusal of the trial court to order production of a gun for purposes of identification when that identification was crucial to the claim of self-defense constituted a denial of due process.

The Fifth Circuit Court of Appeals, in Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975), granted habeas corpus to a defendant whose conviction had been previously affirmed by this court, State v. Barnard, 287 So.2d 770 (La.1973), where the defendant was denied an opportunity to conduct an independent ballistics test on the weapon allegedly used in the offense charged. That court stated:

“. . . Fundamental fairness is violated when a criminal defendant on trial for his liberty is denied the opportunity to have an expert of his choosing, bound by appropriate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion.” 514 F.2d at 746.

See also State v. Roberts, 331 So.2d 11 (La.1976).

In the present case the defendant should have been granted the opportunity to examine and test the clothing in evidence. Had defendant’s experts been allowed to test the semen stains on the victim’s clothing, it is possible that they may have discovered that they did not match the defendant’s secretion or blood groupings — a finding of crucial importance to the defense.

The error in refusing the motion, however, does not constitute reversible error. Although the trial judge denied the examination before and during the trial and also denied a motion for new trial based on those grounds, in ruling on the motion he indicated that a proper foundation had not been laid, presumably meaning there was no evidence in the record showing that an examination of the garments would result in exculpatory evidence. This part of the ruling begged the question, because defendant had been denied access to the garments, unless the trial judge meant that there was no evidence of a scientific nature in the record to demonstrate the possibility that certain tests and examinations might eliminate defendant as the producer of sperm on the victim’s clothes.

Nevertheless, in spite of his past rulings, the trial judge clearly invited “examination and testimony of those garments which are now public property by anyone for the defense in order to lay the proper foundation for the presentment of the appeal.” The trial judge must have had in mind the provisions of C.Cr.P. 851(3) and 854, allowing a motion for new trial on grounds of newly discovered evidence within a year after verdict. No such motion was filed by the defense. We can only conclude that a conscious decision was made to rely on the error in the record rather than the evidence which might have been discovered. In such circumstances we can only conclude that the error was harmless.

Assignment No. 34 involves the trial court’s denial of defendant’s motion for a subpoena duces tecum to Sheriff John F. Rowley to produce certain police records in his possession. We cannot determine from the record before us what defendant sought, nor how he was prejudiced by the denial of the material sought. There is no merit in this assignment.

Assignment of Error No. 5

Defendant urges as error the trial court denial of his motion for separate trials of guilt and sanity. C.Cr.P. 651 provides in part that “the defenses available under a combined plea of ‘not guilty and not guilty by reason of insanity’ shall be tried together.” Defendant has not shown that application of this legislatively mandated procedure resulted in a denial of any constitutional or statutory rights. (The defense argument is that it is difficult to impress the jury when defendant says, in effect, “I didn’t do it, and if I did, it was because I was insane.”

The assignment is without merit.

Assignment of Error No. 7

Defendant assigns as error the trial court’s refusal to quash the indictment on grounds that the grand jury venire was improperly constituted in that it did not represent a fair cross-section of the community. Testimony from the hearing on the motion indicates that the venire was selected by a random drawing from the parish list of registered voters and from a list of persons having water meters. Defendant contends that “individuals who reside in rental property and individuals who reside with their parents or relatives” are specifically excluded from the venire by the use of the water service lists.

Defendant’s argument is without merit because it fails to consider the effect of the second venire source—parish voter registration. Persons not considered because they did not have water service in their names may very well have been included in the voter registration lists. The defendant failed to demonstrate the systematic exclusion of a particular group from the venire and therefore the assignment is without merit. See State v. Daigle, 344 So.2d 1380 (La.1977); State v. Taylor, 347 So.2d 172 (La.1977); State v. Jones, 332 So.2d 461 (La.1976).

Assignments of Error Nos. 10, 12, 13, 14 and 15

Defendant through these assignments asserts as error the trial judge’s refusal to excuse the following jurors for cause. Each of these jurors was excused by defendant’s peremptory challenge and thus did not serve on the jury, but defendant is nevertheless allowed to raise the issue on appeal since he later exhausted his peremptory challenges. State v. Ballard, 337 So.2d 481 (La.1976).

Prospective juror Edwin Hahn was challenged by the defendant because he was acquainted with the prosecuting and defense attorneys and was in business with a relative of the prosecuting attorney. Walter J. Guillot was challenged because he was a social friend of the prosecuting attorney and Gary Nicosa was challenged because he was the nephew of a St. Bernard Parish deputy sheriff.

A trial judge is granted much discretion in determining the composition of the jury. The mere existence of personal acquaintances between a prospective juror and the trial participants does not, without more, demonstrate a lack of fitness to serve as a juror. In the present case all three of the prospective jurors stated on voir dire that the relationship involved would not prevent their impartial service on the jury. We cannot say that the failure to excuse these jurors was an abuse of the trial judge’s discretion. C.Cr.P. 797(3); State v. Dupuy, 319 So.2d 294 (La.1975); State v. Blanton, 312 So.2d 329 (La.1975); State v. James, 305 So.2d 514 (La.1974).

Prospective juror John R. Graf, Sr. was challenged because of the following opinion expressed on voir dire:

“MR. GRAF:
Well, if the child was that young, I don’t think I could give a fair verdict on it.”

Further questioning clarified Mr. Graf’s statement:

“THE COURT:
The only thing I want to find out from you is just because the State made a charge against this man, you don’t consider him to be guilty, do you?
A No, not yet.”

and

“EXAMINATION BY MR. LIVAUDAIS:
Q And Mr. Graf, if you are selected as a juror, would you make your decision in this case solely and exclusively from the facts as they come from the sworn witnesses who take the stand in this case?
A Yes, sir.”

The trial court’s refusal to excuse for cause was not an abuse of discretion when, after further questioning, the court was satisfied that the juror could serve impartially.

The defendant’s challenge to prospective juror George Vallee was based on the following testimony on voir dire:

“Q Well, the fact that you have heard the young girl — a Girl Scout was raped, does that give you any preconceived notion she was actually raped? Have you reached a conclusion from that that she was actually raped?
A No. I said if it happened the one that did it ought to get the death penalty. That is all.”

The defendant contends that this opinion as to the severity of the crime indicated that Mr. Vallee could not serve free of prejudice. Again, no abuse of discretion is demonstrated when on further examination Mr. Vallee indicated that he had no preconceived opinion as to the guilt of the defendant or to the actual occurrence of a rape.

These assignments are without merit.

Assignment of Error No. 11

Defendant argues under this assignment that the trial court erred in refusing to allow questions on voir dire concerning attitudes and opinions of mental institutions and psychiatrists. The following occurred on voir dire:

“Q Are you prejudiced or influenced one way or the other against psychiatrists or mental institutions?
MR. LIVAUDAIS:
Your Honor, I object to that.
THE COURT:
Sustain the objection.
THE COURT:
Mr. Tonry, we can’t ask whether or not any man in here has any opinion what a mental institution is or not is. Mr. Ton-ry, it is not relevant to this case.”

C.Cr.P. 786 provides that the determination of the scope of voir dire examination is within the sound discretion of the trial court. An examination of the record reveals that the trial court granted the defendant wide latitude in the scope of questions asked on voir dire. The disallowed question on which this assignment was based was directed more toward the juror’s opinion as to the effectiveness of psychiatrists and mental institutions as opposed to his ability to evaluate and apportion proper weight to the testimony. No abuse of discretion is shown, and the assignment is without merit.

Assignment of Error No. 16

During the voir dire examination of one of the prospective jurors, the following occurred:

“Q The fact that you heard something about this case, do you have any preconceived notion, now, that you could not put aside?
A I have one reservation of the girl that she made a positive identification.”

The defendant immediately objected to the answer and moved for a mistrial. This assignment is predicated upon the trial court’s denial of that motion.

The statement made by the prospective juror does not fall within the grounds for a mandatory mistrial provided by C.Cr.P. 770. C.Cr.P. 771 provides that certain circumstances may be handled, upon motion of the defendant or State, by admonition. While the trial court did not admonish the jury in the present case, no admonishment was requested by the defendant upon denial of his motion for mistrial.

The failure to grant a mistrial or to admonish the jury does not constitute reversible error in the present case because it is not clear that other prospective jurors heard the remark, as indicated by the inability of the judge and prosecuting attorney to hear the response; we cannot conclude from the record that there was any prejudice to the defendant from this responsive answer to a defense question.

The assignment is without merit.

Assignments of Error Nos. 17 and 25

Defendant contends that the trial court erred in overruling objections based on a violation of the witness sequestration order.

C.Cr.P. 764 provides:

“Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.”

In the present case the trial court allowed the mother of the nine year old victim to be seated in the courtroom during her daughter’s testimony. Later, the court allowed the testimony of the mother into evidence over defendant’s objection.

The purpose of sequestering witnesses is to insure that the witnesses will testify from their own knowledge of the events and to prevent the testimony of others from influencing their testimony. State v. Griffin, 329 So.2d 693 (La.1976); State v. Fallon, 290 So.2d 273 (La.1974). The trial judge is vested with the discretion to modify the order of sequestration when such modification serves the interests of justice. C.Cr.P. 764; State v. Sneed, 328 So.2d 126 (La.1976). The record in the present case does not indicate an abuse of that discretion. The presence of the mother during the victim’s testimony certainly provided needed reassurance to the young girl. Further, the brief testimony of the mother neither contradicted nor supported the testimony of her daughter in that it dealt only with the mother’s physical actions after learning of the violation of her daughter.

These assignments are without merit.

Assignment of Error No. 18

Defendant contends that the trial court committed reversible error in allowing, over defense objection, the victim to walk over to the defense table to point out the defendant. Defendant argues that this act was “theatrical and emotional” and denied defendant his right to a fair trial as provided by Art. 1, § 9 of the Louisiana Constitution of 1921.

The assignment clearly does not reflect reversible error, if it reflects error at all. The courtroom in which the trial was held was rather large and the distance between the witness stand and defense table was substantial. The procedure employed for the in-court identification was designed to minimize the possibility of a mistake in identification by the young witness. While verbal explanation is preferred when sufficient (State v. Williams, 346 So.2d 181 (La.1977)), we cannot say that the courtroom demonstration employed in this case was so prejudicial as to require reversal.

The assignment is without merit.

Assignment of Error No. 19

Defendant contends the trial court erred in overruling the objection to the following testimony on the basis that it was not properly within the scope of redirect examination:

“Q I have one more question. You told Mr. Tonry that it was when the man was on top of you and you were on your stomach that you saw his watch and ring.
A Yes, sir.
Q All right. Now, was his watch and his ring both on the same hand, or were they on different hands?”

R.S. 15:281 provides that redirect examination is to be limited to the subject matter covered on cross-examination and to the explanation of that subject matter, but that the application of the rule is within the discretion of the trial court.

Initially it should be noted that it is not clear that the question objected to did not in fact deal with a subject brought up on cross-examination and thus properly within the scope of redirect. On cross-examination the following occurred:

“Q And when he turned you over, your head was looking sidewards, was it not?
A Yes, sir. That is when I saw his watch and ring.”

Even assuming that the court erred in allowing the question, the error was not a character requiring reversal of the conviction. C.Cr.P. 921.

The assignment is without merit.

Assignment of Error No. 26

Defendant argues that the trial court erred in denying his motion for directed verdict. The trial of this case took place in May of 1974, prior to the amendment of C.Cr.P. 778 which eliminated the applicability of directed verdict in jury trials.

Under the jurisprudence dealing with C.Cr.P. 778 prior to its amendment, a motion for directed verdict was properly sustained only when the State failed to produce any evidence in proof of an essential element of the offense. State v. Credeur, 328 So.2d 59 (La.1976); State v. Douglas, 278 So.2d 485 (La.1973). Defendant claims that the prosecution failed to demonstrate sexual penetration, an essential element of the crime of aggravated rape. The record does not support defendant’s contention. Sexual penetration was proved directly through the testimony of the victim and indirectly through the testimony of the examining physician. We are unable to say that, as a matter of law, the prosecution produced no evidence on the element of penetration.

The assignment is without merit.

Assignment of Error No. 20

Defendant contends that the trial court erred in admitting into evidence certain allegedly inflammatory and prejudicial photographs taken of the victim during a physical examination made after the rape.

In the instant case the photographs taken are of the nine year old victim’s lower anatomy. They-were introduced as corroborative evidence depicting numerous insect bites on the victim’s legs and thighs, the swelling and redness of the labia majora and labia minora, the discoloration of the hymen and the small laceration below the vagina, extending to the rectum. The photographs also showed the accumulation of soil and grass particles found on the victim’s pelvic perineum. While oral testimony indicated the presence of these conditions, it cannot be disputed that the photographs were highly probative in demonstrating the location and extent of the injuries described. In addition, the issue of sexual penetration was hotly contested at trial and the photographs were probative in that respect. In sum, the probative value of these photographs outweighed their potential prejudicial effect on the jury and thus were properly admitted into evidence.

The assignment is without merit.

Assignment of Error No. 21

Through this assignment defendant challenges the ruling of the trial court allowing the parish coroner, Dr. Roy M. Daigrepont, to testify in connection with slide samples taken from the victim’s vagina. Defendant contends that the coroner is incompetent to testify as an expert of the matter.

R.S. 15:466 provides:

“The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.”

The trial judge has wide discretion in qualifying expert witnesses and his ruling will not be disturbed absent manifest error. State v. Hill, 332 So.2d 475 (La.1976); State v. Traylor, 311 So.2d 847 (La.1975); State v. Grove, 306 So.2d 308 (La.1975).

' The record reflects that the witness had been a physician for a number of years and had been coroner for approximately six months prior to his examination of the victim. The testimony objected to by the defendant dealt only with a simple slide examination designed to indicate the presence of spermatozoa. Further, the testimony proved favorable to the defendant in that the test showed no spermatozoa present.

The defendant has failed to show an abuse of the trial court’s discretion.

The assignment is without merit.

Assignment of Error No. 21

Defendant contends that the trial court erred in permitting the coroner to testify as an expert on the matter of defendant’s mental capacity and condition at the time of the alleged rape.

The assignment is without merit. As noted under Assignment No. 21, the trial court is granted wide discretion in determining the qualifications of expert witnesses. There is no abuse of discretion demonstrated when, as here, the witness is a licensed physician and, in addition, serves as parish coroner. C.Cr.P. 644 inferentially recognizes the expertise of ordinary physicians in mental examinations by making the only requirement for serving on a sanity' commission three years experience as a practicing physician.

Assignment of Error No. 28

Defendant contends the trial court erred in allowing the coroner to testify as to the mental condition of the defendant on the day of the crime. Defendant asserts this ruling was error because the order for the examination stated that it was to determine defendant’s capacity to understand and assist in the proceedings, not to determine his condition at the time of the crime.

While the order specifically required only an examination of present mental capacity, the coroner testified that he conducted sufficient testing to reach a conclusion as to the defendant’s mental capacity at the time of the offense. No error is shown in the permitting of a qualified expert to testify as to the conclusions he reached through personal examination. The assignment is without merit.

Assignment of Error No. 29

During defendant’s cross-examination of the coroner, the following transpired:

“Q And that would convince you he was sane?
A No. I continued to question Mr. Gray, and I would like to add, that Mr. Gray volunteered—if I may—
THE COURT:
Don’t say anything he said, now, Doctor, in regard to the commission of any alleged offense, please.”

Defendant thereafter moved for a mistrial on grounds that the statement was prejudicial by connoting that the defendant made a confession or admission to the coroner. The trial court denied the motion and the defendant assigned that ruling as error.

Defendant’s contention is without merit because it may not be reasonably inferred from the statement that the defendant confessed. Such a strained interpretation of the statement does not warrant a reversal of the conviction.

The assignment is without merit.

Assignment of Error No. 30

During the State’s closing argument, the prosecuting attorney made the following remarks:

“ . . . You may ask yourself is this too harsh a sentence and I can only answer that question this way: It’s your decision to make as to whether or not we are going to put the animals in the cages to keep them away from doing harm to us and our families or are we going to have to put cages around our houses to keep the animals from coming in.”

Defendant assigns as error the trial court’s failure to grant a motion for mistrial on the basis of these allegedly prejudicial remarks.

In State v. Vernon, 251 La. 1099, 208 So.2d 690 (1968) and State v. McGregor, 257 La. 956, 244 So.2d 846 (1971), we refused to reverse convictions when the district attorney referred to the defendant as an animal, in part because the evidence supported that characterization. Certain morally reprehensible conduct, such as that at issue in the present case, defies characterization as civilized behavior and may more faithfully be described as that of an animal. While in some cases a similar statement by the State may require reversal, we cannot say that in this case the remark was so unfairly prejudicial as to require such a drastic remedy. See State v. Williams, supra; State v. Lee, 340 So.2d 180 (La.1976).

The assignment is without merit.

Assignment of Error No. 31

Assigned as error is the trial court’s refusal to give five special jury charges submitted by the defendant.

C.Cr.P. 807 provides:

“The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”

Defense Special Charge No. 1 stated: “By ‘preponderance of the evidence’ is meant that something is more likely than not or more probable than not.” The charge actually given, while not defining “preponderance of the evidence” like the defendant requested, adequately explained the relative burdens of proof of the State and a defendant who pleads not guilty by reason of insanity. Because the requested charge was thus included in the general charge, the judge did not err in refusing defendant’s request.

Special Charge No. 2 read: “Therefore if you believe, after hearing all of the evidence, it is more likely than not defendant could not tell the difference between right and wrong at the time of the commission of the alleged crime then you must return a verdict of not guilty by reason of insanity.” The trial court included a similar statement in the general charge to the jury and thus was not required to give defendant’s charge.

Special Charge No. 3 stated: “If you find that the defendant committed a crime because of an irresistible impulse then the defendant has proved his insanity while committing a crime and you must therefore return a verdict of not guilty by reason of insanity.” Because this charge would not constitute a proper statement of the law without substantial explanation, it was not error for the trial court to refuse to so charge the jury.

Special Charge No. 4 states: “An attempted rape may fail because the perpetrator did not have sexual intercourse with the victim.” Special Charge No. 5 states: “Therefore, if you believe beyond a reasonable doubt that the defendant did attempt to rape _ but failed to have sexual intercourse with her then a verdict of guilty of attempted aggravated rape must be returned.” (Victim’s name removed by this court). Again, this charge could not have been correctly given without additional explanation, because the essential element of rape is penetration, not sexual intercourse. In addition, the elements of the crime were adequately described in the court’s general charge. Therefore, the trial court did not err in failing to give the requested charge.

The assignment is without merit.

Assignment of Error No. 32

Defendant contends that the trial court committed reversible error in providing the jury with the following list of responsive verdicts before their deliberation:

“Guilty
Guilty without capital punishment
Guilty without capital punishment, or benefit of parole, probation, or suspension or sentence
Guilty of attempted aggravated rape
Guilty of simple rape
Not guilty
Not guilty by reason of insanity.”

Defendant argues that the inclusion of the sentencing information in the third responsive verdict was prejudicial because it permitted the jury to select a verdict based on the penalty. At the time of the trial the mere fact that the jury was informed of the penalty for a crime charged was not ground for reversible error. State v. Blackwell, 298 So.2d 798 (La.1974) and the cases cited therein. There is no merit in defendant’s contention that he was prejudiced by the inclusion of this charge.

Assignment of Error No. 33

Defendant assigns as error the trial court’s denial of a motion for new trial based on the following grounds:

“(1) The verdict was contrary to the law and evidence
(2) Expert testimony at trial showed that defendant was insane at the time of the rape
(3) Denial of the motion for an independent examination of the evidence.”

C.Cr.P. 851, at the time of this trial, provided:

“The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence;
(2) A bill of exceptions reserved during the proceedings shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.” Defendant does not argue a basis for new

trial under C.Cr.P. 851(3) or (4).

An assignment of error based on the refusal of the trial court to grant a new trial on grounds that the verdict was contrary to the law and evidence presents nothing for appellate review. State v. Bartley, 329 So.2d 431 (La.1976); State v. Williams, 310 So.2d 513 (La.1975).

Because we have found no prejudicial error in the assignments reserved during the trial, defendant has failed to demonstrate grounds under C.Cr.P. 851(2); nor does it appear that the ends of justice would be better served by granting a new trial.

The assignment is without merit.

For the foregoing reasons, the conviction and sentence of the defendant are affirmed.