author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Lawrence LITTLE.
    No. 60090.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    John A. Occhipinti, 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.

Defendant Lawrence Little was charged by bill of information with possession of heroin. La.Rev.Stat. 40:966. He waived trial by jury. After a bench trial he was found guilty and sentenced to imprisonment for ten years. Two assignments of error are urged on this appeal.

Assignment 1

It is contended on behalf of defendant that the heroin and other objects obtained as a result of a search and seizure were improperly admitted in evidence because there was no evidence that defendant ever possessed the prohibited substance. And it was error for the trial judge to deny a directed verdict.

On September 27, 1974 Officer W. Schultz, together with Officers R. Venezia, Brady and Barrere executed a search warrant on a residence at 8604 Spruce Street in the city of New Orleans. The search warrant was obtained as a result of a surveillance of that locality on September 20 and 26. At approximately 3:00 o’clock on September 20 Officer Schultz received information from a confidential, reliable informer who had given him information in the past which resulted in the arrest and conviction of narcotic offenders in New Orleans.

Based upon the informer’s call, a surveillance of the house at 8604 Spruce Street was established. At 4:20 that afternoon Officer Schultz observed the defendant Little seated on the porch steps. After a while another Negro male walked up to the porch, approached Little and handed him money. Little then, without knocking, walked inside while the other man sat on the steps. Shortly thereafter Little reappeared at the door and beckoned to the visitor who met him at the door. Little handed him an object which the visitor placed in his mouth and walked hurriedly away.

About forty-five minutes later another Negro male rode up to the residence on a bicycle and approached Little, who, in the meantime, had returned to his seat on the porch steps. He too handed money to Little. Again Little entered the house, reappeared a short time later and called to the cyclist. When the cyclist met him at the front door Little handed him an object which the cyclist placed in his right sock. He then mounted the bicycle and rode away. Little walked into the house and did not reappear.

At 5:30 another Negro male arrived at the Spruce Street address and knocked on the door. The door was opened and a short conversation took place between the visitor and someone who had opened the door from the inside. Then, about forty-five minutes later, Schultz’s confidential informer knocked at the door, the door was opened by someone inside and a brief conversation ensued. The informer then departed.

Officer R. Venezia also participated in a surveillance of the house on Spruce Street. With information obtained from Officer Schultz and others on September 20, he conducted a surveillance on September 26. Beginning at approximately 12:45 that afternoon Little made several short excursions to and from the house on a bicycle. Each time upon returning he re-entered the house without knocking. When he first left on the bicycle it was parked in an alleyway on the side of the house.

As a result of their investigation the police obtained a search warrant and searched the house on September 27. They found a matchbox containing 21 tinfoil packets of heroin behind a cupboard in the kitchen and an eyedropper and disposable needle in the cupboard. A .22 caliber Rohm revolver, five bullets and $175 in currency were found in a drawer in the bedroom. These objects were seized. Little was arrested thereafter in a neighborhood barroom.

The objects found in the house were introduced as evidence at the trial. During the trial Officer Venezia examined Little’s arms and stated that there were track marks on Little’s left arm, indicating that he had injected into that arm “numerous times.”

Denial of a motion for acquittal in a bench trial is based upon a finding that the evidence is insufficient to sustain a conviction. La.Code Crim.Pro. art. 778. A ruling by the trial judge on such a motion may not be reversed on appeal unless there is no evidence of the crime or an essential element thereof or the denial is a palpable abuse of discretion.

In narcotic prosecutions possession may be actual or constructive. Constructive possession is based upon evidence that the substance was subject to defendant’s dominion or control, even if actual possession was not shown. State v. Marks, 337 So.2d 1177 (La.1977); State v. Mims, 330 So.2d 905 (La.1976); State v. Baker, 338 So.2d 1372 (La.1976); State v. Knight, 298 So.2d 726 (La.1974).

Defendant’s apparent “at home” attitude on different occasions and actions at the house where the narcotics were found; his covert conduct with a number or persons on the front porch indicating narcotic transactions; his short bicycle excursions to and from the house; the presence of “track marks” on his arm; and the confidential informer’s advice to Officer Schultz that defendant had sold heroin to him at the house on Spruce Street together furnish adequate proof that defendant had free access to the house and that he was knowingly trafficking in narcotics from that locality

This assignment is without merit.

Assignment 2

There is no merit to the defense contention that the trial judge committed error in refusing to allow the defendant to traverse the allegations made in the search warrant affidavit and in refusing to compel the State to disclose the identity of its confidential informant.

In order to traverse an affidavit and compel the disclosure of the State’s confidential informer referred to in an affidavit used to obtain a search warrant it is necessary for the defendant to demonstrate a genuine issue to enable the court to regulate the proof, and to allow the State an opportunity to produce the evidence relevant to the issue. State v. Giordano, 284 So.2d 880 (La.1973).

No such showing was made in the instant case. Defendant’s amended motion to suppress relates only that “the warrant is invalid and unlawful in that the affidavit upon which the warrant issued was inaccurate and such inaccuracy was known by affiant.”

No motion or request was made in the trial court to compel the State to disclose the identity of its confidential informer. For this reason the question is not before this Court.

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


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. John E. MILLER.
    No. 60098.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Sam J. D’Amico, D’Amico & Curet, Baton Rouge, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Richard Chaffin, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   DENNIS, Justice.

Defendant was found guilty after trial by jury of theft of property of more than $500 in value. La.R.S. 14:67. Imposition of sentence was suspended. Defendant, was placed on supervisory probation for a period of two years and ordered to pay court costs involved in his prosecution.

On appeal, defendant relies upon five assignments of error. A review of the record and defendant’s assignments reveals no reversible error. Accordingly, defendant’s conviction and sentence are affirmed.

      . A prior conviction and sentence arising out of the same incidents were reversed and the case was remanded for a new trial. State v. Miller, 319 So.2d 339 (La.1975).

      . Defendant filed thirty assignments of error. Twenty-five of these were not briefed or argued and are considered to have been abandoned. The assignments that were briefed present insubstantial questions concerning the sufficiency of the State’s answer to a bill of particulars; the overruling of defendant’s motion to quash upon grounds of prescription; the introduction of a cancelled check drawn upon the account of defendant’s attorney to prove restitution; the district attorney’s reference to “the last hearing” in the presence of the jury; and the assessment of court costs to the defendant.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Henry WASHINGTON.
    No. 60130.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      Edna Sakir Morgan, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Henry Washington was charged by bill of information with aggravated battery upon Sharon Calvin, in violation of R.S. 14:34. The jury returned a verdict of guilty as charged. Defendant was sentenced to ten years at hard labor. Thereafter he was multiple billed under Revised Statute 15:529.1, was found to be a multiple offender, and was sentenced to serve twenty years at hard labor. Defendant Washington relies on four assignments of error for reversal of his conviction and sentence.

On December 10,1975, defendant went to visit Sharon Calvin, whom he had formerly lived with, at the home of her mother. The two went into a back bedroom where an argument ensued. In the course of the argument, Ms. Calvin was shot three times.

ASSIGNMENT OF ERROR NO. 1

Defendant made oral statements, presumably inculpatory, to several police officers. As recited to the jury by two of the officers, the statements were these:

Officer Phillips: “He stated that he had been involved in an argument with his girlfriend. And he had been cut during that argument. He stated, also to me T think I may be wanted for attempt murder.’ ... At Charity Hospital, he made the statement he was cut by his girlfriend, the victim.”
Officer Scott: “We went to Charity Hospital and spoke to Mr. Washington. And while he was somewhat crying, he stated that he was sorry that he had shot the victim, a Mrs. Sharon Calvin.” * * “Well, Your Honor, he was in an emotional state. He was upset. And told us he was sorry that he had shot his one Sharon. He didn’t call her by name. He said he was sorry.” * * * “He said, ‘I’m sorry that I shot her’ ” * * * He was crying at the time. And he stated he was sorry he had shot her.”

Defendant’s contention is that the testimony of Officer Scott over defense objection should not have been allowed.

The state’s answer to motion for bill of particulars, in pertinent part, related that defendant had made oral inculpatory statements. At the hearing on the motion for bill of particulars, the assistant district attorney stated to the court that its afore-stated answer referred to the defendant’s having told a police officer that “I had a fight with my girlfriend.” Thereafter, and prior to trial the state notified defendant as required by Article 768 of the Code of Criminal Procedure of its intended use of oral statements made to Officers Phillips and Stakes (Officer Scott’s partner) on December 10th at the Fifth District Police Station and at Charity Hospital.

Defendant’s argument is that the district attorney’s statement at the hearing on the motion for bill of particulars had alluded only to the defendant’s oral inculpatory statement made to Officer Phillips (concerning which Officer Phillips properly testified at trial). He contends that he was misled into believing that he would only be facing at trial that oral inculpatory statement made to Officer Phillips about the fight with, and cutting by his girlfriend. Defendant contends that the 768 notice did not remove the element of surprise to defendant occasioned by Officer Scott’s testimony at trial because the 768 notice was too general, particularly in light of the district attorney’s statement at the earlier hearing that there was an oral inculpatory statement.

We find no merit in defendant’s argument. To begin with, the 768 notice was substantially sufficient. Unlike the notice in State v. Sneed, 316 So.2d 372 (La.1975), the defendant here was told when, where and to whom the statements were made.

In addition to the oral statements made to Officer Phillips and to which he testified, defendant was aware that the state intended to use oral inculpatory statements made to Officer Stakes. The statement to which Officer Scott testified was actually made in the presence of both Officers Scott and Stakes, and both repeated it on the predicate. It was coincidental then, that Officer Scott testified to the statement at trial, because either officer could have so testified. Moreover, there is no requirement that the defendant be told precisely the substance of these oral inculpatory statements. State v. Alexander, 351 So.2d 505 (La.1977); State v. Sharp, 338 So.2d 654 (La.1976).

Furthermore there was no purposeful deception on the part of the district attorney . in his statement made at the hearing on the motion for bill of particulars. See, State v. Boothe, 310 So.2d 826 (La.1975).

The assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant assigns as error the refusal of the trial judge to grant a new trial. He contends that there was no evidence of an essential element of the offense of aggravated battery, namely, the intent to commit the crime.

An allegation that there was presented no evidence of an essential element of the crime presents a reviewable question of law. State v. Tyler, 342 So.2d 574 (La.1977); State v. Finley, 341 So.2d 381 (La.1976). However, when the record contains some evidence of each element of the offense, the conviction may not be set aside. State v. Anthony, 347 So.2d 483 (La.1977).

In order to successfully withstand a no evidence challenge to an aggravated battery charge, the record must show that the state introduced some evidence from which the jury could have inferred that defendant had a general intent to commit the crime. State v. Brumfield, 329 So.2d 181 (La.1976). We find that this record does contain such evidence.

First, the testimony shows that the victim had been shot three times, a fact which could evidence an intention to harm, in contrast to an accidental shooting. More importantly, however, the testimony of Kim Calvin, defendant’s sister, reflects that the victim screamed, “Oh Henry, please don’t do that.” The fact that the victim protested in this way is some evidence from which a jury could have found that rather than having shot the victim accidentally defendant had the requisite criminal intent. Furthermore, Kim Calvin testified that defendant attempted to fire the gun at her, and actually placed the gun at her head, immediately after shooting the victim. The totality of this evidence easily constitutes some evidence that defendant Washington had the requisite intent to commit the crime of aggravated battery.

ASSIGNMENT OF ERROR NO. 3

Defendant was multiple billed under the Habitual Offender Act, R.S. 15:529.-1. He filed a motion to quash the multiple bill contending the bill of information failed to charge an offense punishable under a valid statute. C.Cr.P. 532. The motion was denied, and defendant was found to be a multiple offender and sentenced to twenty years at hard labor. He now attacks that sentence, contending that R.S. 15:529.1(C) is unconstitutionally vague, ambiguous and overbroad and therefore violates the constitutional guarantee of due process and equal protection of the law.

Article 15:529.1(C) provides in pertinent part that the section shall not be applicable regarding enhanced penalties for multiple convictions in cases where more than five years have elapsed since the expiration of the maximum sentence or sentences of the previous conviction or convictions, and the time of the commission of the felony for which he has currently been convicted. Defendant’s contention that “expiration of the maximum sentence or sentences” is vague, ambiguous and overbroad is without merit in view of the interpretation which this Court has given the statute. In State v. Anderson, 349 So.2d 311, 314 (La.1977) we stated that:

“[A] sentence expires when the prisoner is discharged from state custody and supervision, not when the theoretical date arrives on which the initial sentence would have terminated. Thus, when the convicted person is discharged earlier (as well as later) than the expiration date of the sentence initially sentenced, then the actual maximum sentence is that determined by his date of legal discharge, whether extended through revocation of parole or shortened by law due to “good time” diminution of the initial sentence. It is not until the date of actual discharge that the individual has fully paid his debt to society, insofar as owed because of an offense for which he has been convicted.”

We do, however, construe defendant’s assignment to raise an underlying argument concerning whether or not the multiple bill proof fulfilled these requirements. Although we have been furnished a copy of the transcript on the motion to quash the multiple bill, including a stipulation by the defense and the state concerning the time served prior to release from prison on the two prior convictions (of February 14, 1967 and May 13, 1970), it is still not clear to us exactly when defendant was actually released from incarceration and/or parole on the two-count 1970 conviction. Thus, we cannot determine whether defendant has or has not enjoyed the five-year cleansing period between his discharge from custodial liability for the May, 1970 convictions and the time of the commission of this aggravated battery. Accordingly, we find it necessary to vacate the sentence and remand the case for further proceedings and for reim-position of an appropriate sentence.

ASSIGNMENT OF ERROR NO. 4

Defendant contends on appeal that the state failed to bear its burden to prove the venue of the offense beyond a reasonable doubt. C.Cr.P. 615; State v. Hollingsworth, 292 So.2d 516 (La.1974). This issue was not raised at trial, or after trial on a motion for new trial. Furthermore, no error was assigned complaining of the alleged deficiency in proof of venue. Moreover, a defect in proof of venue is not an error patent on the face of the record. C.Cr.P. art. 920; see State v. Oliveaux, 312 So.2d 337 (La.1975).

Therefore, this assignment presents nothing for our review.

Decree

For the foregoing reasons the conviction of the defendant Henry Washington is affirmed. The sentence imposed is vacated and the case remanded to the district court for further proceedings and the imposition of an appropriate sentence.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.


author: SUMMERS, Justice. DIXON, Justice

text:
    STATE of Louisiana v. Duane L. DICKERSON.
    No. 60143.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      James B. Doyle, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Robert H. Hester, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   SUMMERS, Justice.

By bill of information Duane L. Dickerson was charged with simple burglary of a structure belonging to Chris Alford on North State Street in the city of Baton Rouge. After waiving trial by jury he was convicted and sentenced to imprisonment for nine years. La.Rev.Stat. 14:62.

In the early morning hours of January 20, 1976, police were notified that a burglar alarm in Chris’ Bar in Baton Rouge had been tripped. When they arrived at the scene the officers noticed that a door to a storeroom attached to the back of the building had been broken off of its hinges. A hole had been knocked in a paneled wall in the office adjacent to the storeroom. Defendant was apprehended as he was leaving the storeroom. Nothing was missing from the bar.

Five arguments based upon assignments of error are made in support of this appeal.

Assignment 1

Defendant was arrested on January 20,1976. He appeared for arraignment without counsel on March 25, 1976, waived counsel for the purpose of arraignment, and notified the court of his intention to retain counsel. At this time he waived formal arraignment and pled not guilty, and the case was scheduled for trial on May 5,1976. On that day defendant appeared for trial without counsel again informing the court that he would retain counsel. The trial was reassigned for June 1, 1976.

On June 1, 1976 defendant appeared for trial, represented by counsel. His counsel filed an unsworn motion for continuance on that day alleging that he was first contacted by defendant on May 25, 1976 and he would not have time to prepare for trial or pursue any discovery proceedings. The motion was denied, the defendant waived trial by jury, and the case proceeded to trial.

Granting of a motion for continuance is a matter which lies in the discretion of the trial judge. La.Code Crim.Pro. art. 712. The exercise of that discretion will not be disturbed by this Court in the absence of a showing that the ruling is arbitrary and an abuse of discretion. State v. Hopkins, 351 So.2d 474 (La.1977); State v. Smith, 322 So.2d 197 (La.1975); State v. Brewer, 301 So.2d 630 (La.1974).

This Court has held that although an accused has the right to counsel of his own choosing to defend him on a criminal charge, “this right does not permit arbitrary action which obstructs orderly procedure in courts.” And further, “the right to choose one’s attorney is a right to be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage . . State v. St. Amand, 274 So.2d 179, 189 (La.1973). See also, State v. Stafford, 258 La. 523, 246 So.2d 849 (La.1971).

There was no abuse of discretion in the denial.

Assignment 2

Defendant objects to the admission into evidence of certain inculpatory statements on the ground that notice in accordance with Article 768 of the Code of Criminal Procedure was given to defendant in the absence of counsel.

The minutes of court reflect that on May 5, 1976, the date originally scheduled for trial, defendant was given the 768 notice at a time when he was not represented by counsel. Article 768 requires that if the State intends to introduce a confession or inculpatory statement in evidence, “it shall so advise the defendant in writing” prior to beginning the State’s opening statement, otherwise the statement shall not be admissible in evidence.

In this case there has been a compliance with the literal terms of the article almost one month before trial, and the defense contention is without merit. State v. Taylor, 336 So.2d 855 (La.1976). Moreover, no objection was made to the introduction of the statement at the trial and the question is not properly before the Court. La.Code Crim.Pro. art. 841; State v. Zeno, 322 So.2d 136 (La.1975); State v. Williams, 346 So.2d 181 (La.1977); State v. Schamburge, 344 So.2d 997 (La.1977).

Assignment 3

Relying upon the legal presumption that evidence under the control of a party and not produced by him was not produced because it would not have aided him, the defense asserts the trial judge erred in not according him the benefit of that presumption. La.Rev.Stat. 15:432; State v. Johnson, 249 La. 950, 192 So. 135 (1922).

The issue was presented in the following context: Officer Parsley testified on behalf of the State. On direct examination he said that after defendant was arrested, and while he was in the police vehicle, he was asked what he was doing when he was apprehended. Defendant replied, “Gee, I just needed a drink” or “I just needed some more to drink,” or “I just went inside to get something to drink,” or words to that effect.

As the defense contention is understood, no weight should have been given to this inculpatory statement by the trial judge because Officer Holmes, who was present at the time, testified that Officer Parsley did not ask defendant any questions. Other witnesses, who were present at the time and under the sole control of the State, could have been called by the State to clarify this contradiction in the testimony of the two officers but were not called, according to the defense contention. This failure on the part of the State entitled defendant to the presumption that these witnesses would testify against the State, meaning they would further contradict Parsley’s testimony. As a consequence Officer Parsley’s testimony that defendant admitted he entered the structure should have been discounted.

A careful reading of the testimony of Officers Parsley and Holmes does not support the conclusion that they were contradictory. In fact, their testimony permits a reasonable inference that while Holmes and other officers may have been nearby when defendant made the statement, they may not have been near enough to hear what was said, not that defendant did not make a statement.

Furthermore, the State did call the three officers in addition to Parsley and Holmes who were present at the time to testify on behalf of the State. These witnesses were, therefore, available to the defense also.

There is no merit to this assignment.

Assignments 7, 8 and 9

Evidence at the trial should have created a reasonable doubt of defendant’s guilt and there was no evidence of intent to commit a felony or any theft by the defendant, the defense contends. Therefore, it is asserted, the trial judge erred in denying a directed verdict at the close of the State’s case. These contentions are not supported by the evidence.

Simple burglary is defined as “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein . . . La. Rev.Stat. 14:62.

To support the contention that there was no evidence of intent to commit a felony or theft by defendant when he entered the building, the defense refers to the testimony of the proprietor of the establishment that he did not discover anything disturbed or missing. The trial judge found, however, that the intent to commit a theft of beer was established, apparently relying upon Officer Parsley’s testimony that defendant said he broke into the building to get something to drink. In addition, the evidence is to the effect that defendant had a hacksaw blade and file in his pocket and a pair of socks over his hands when he was apprehended.

Because it is an element of this crime and a question of fact which must be established, and because intent is subjective in character it need not be proven as a fact, it may be inferred from the circumstances of the transaction. La.Rev.Stat. 15:445.

On the record of this case the trial judge could reasonably conclude that defendant intended to commit a theft in the building. Therefore, no error was committed when the motion for a directed verdict was denied.

Assignment 10

The defense contends that the maximum sentence of nine years is excessive in this case. The brief relies upon Section 20 of Article I of the Constitution which declares that “no law shall subject any person to . cruel, excessive, or unusual punishment.”

The defense does not allege, and this record fails to disclose, that the defense objected to the sentence at the time of its imposition. The issue of the excessiveness of the sentence was therefore not raised in the trial court. And when defendant moved for an appeal shortly after sentencing, the trial court was divested of jurisdiction and that of the appellate court attached. La. Code Crim.Pro. art. 916.

On appeal this Court cannot consider an irregularity or error unless it was objected to at the time of its occurrence. La.Code Crim.Pro. art. 841. It is too late therefore to argue the excessiveness of the sentence for the first time in this Court. State v. Williams, 340 So.2d 1382 (La.1977); State v. Anthony, 332 So.2d 214 (La.1976); State v. Williams, 322 So.2d 177 (La.1975).

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

DIXON, J., concurs and assigns reasons.

DIXON, Justice

(concurring).

I concur. Although there is no showing of an intelligent waiver of the Louisiana constitutional right of review of an excessive sentence (Art. 1, § 20, La.Const. of 1974), the record before us does not establish its excessiveness.


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

text:
    STATE of Louisiana v. Raymond TAPP.
    No. 60158.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      Ronald J. Rakosky, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Vincent Paciera, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Raymond Tapp was charged in a two-count indictment with possession of heroin and possession of heroin with intent to distribute, violations of R.S. 40:966(B)(1) and (B)(2). After a bench trial, he was convicted as to both counts and sentenced to ten years on the possession conviction and to a life sentence, suspended, on the second count. Defendant now appeals his convictions on the basis of two assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant argues that the trial judge wrongly denied his supplemental motion to suppress because evidence of the crime was illegally seized from his person through the use of excessive force in violation of his rights under the fourth and fifth amendments.

The facts of the case are not in substantial dispute. Members of the New Orleans police department were executing a search warrant at a house on Lowerline Street in New Orleans, Louisiana. Two persons were found in the house but no heroin was found except a residue on a syringe found in the refrigerator. While the officers were still in the house, defendant Tapp, who was apparently not known on sight by the officers, entered the front door of the house. When he saw the policemen, he quickly put a small tinfoil object coyered with cellophane into his mouth. Because the officers believed he was trying to swallow a packet of heroin, the three officers set upon him and attempted to force the packet out of his mouth. Tapp resisted their efforts and the ensuing fight rolled onto the front porch, down the steps, and into the yard where two other officers joined the fight. One officer held his hands around defendant’s throat in an effort to prevent him from swallowing the evidence. According to the officers,' they pummelled defendant in the face and head with their fists, and called on defendant to “Spit it out!” According to defendant’s uncontradicted testimony one officer eventually held defendant’s nose in an effort to cut off his breathing. The officers estimated that the fight, which one of them described as “one hell of a fight,” lasted fifteen to twenty minutes. Eventually the five officers successfully caused defendant to spit up the packet, which was then apparently lodged near or at the top of his esophagus, and they arrested him for heroin possession. Defendant Tapp and two of the officers were taken to the hospital for treatment of their injuries. The other officers then interviewed two young children (ages 8 and 5) who had arrived at the house with Tapp. The officers questioned Tapp’s children as to where they had been immediately before coming to the house, and they directed the officers to another nearby house. On the basis of the children’s information and the forcible recovery of the five dosage units of heroin from Tapp’s person, the officers gained a search warrant to this second residence. In their search of that house, the officers discovered and seized a large quantity of heroin, and it was this substance which formed the basis of defendant’s arrest and conviction of possession of heroin with intent to distribute.

We assume for our present purposes that the officers reasonably believed that defendant was attempting to swallow contraband, and that they had a reasonable basis on which to arrest him for its possession. That finding does not end the matter, however, for we must still decide whether the force with which the officers garnered the questioned evidence constituted an unreasonable search and seizure under the fourth amendment, and whether the manner of seizure fell short of civilized standards of decency and fair play in derogation of the due process clause of the fifth and fourteenth amendments.

The seminal case articulating the standards for police use of force to extract physical evidence from the body of a non-consenting suspect is Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). In Roehin, police officers, following an anonymous tip, burst into defendant’s apartment. Defendant picked up two capsules from a night stand and swallowed them. The Court described the events in this way: “A struggle ensued, in the course of which the three officers ‘jumped upon him’ and attempted to extract the capsules.” 342 U.S. at 166, 72 S.Ct. at 206. When this effort failed, the officers took Roehin to a hospital where, against his will, his stomach was pumped. The two capsules were vomited up and defendant was convicted of their possession. The high court held, on due process grounds, that the evidence seized should have been excluded at trial:

“[W]e are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents — this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.” 342 U.S. at 172, 72 S.Ct. at 209.

The court compared the forcible extraction of physical evidence to the forcible extraction of a confession and excluded the evidence seized for the same reason that it would exclude involuntary confessions:

“Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community’s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.” 342 U.S. at' 173-74, 72 S.Ct. at 210.

The decision in Rochin, which as indicated earlier was based entirely on due process grounds, can be compared to the same court’s contrary result under the fourth amendment in Schmerber v. California., 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In that case, police arrested defendant at a hospital where he had been taken for treatment after an automobile accident. At police request, medical personnel took a blood sample from the defendant, without his consent and without a warrant. In approving this procedure, the court noted specifically that the officers proceeded in an accepted medical procedure and that the operation was performed in a reasonable manner without trauma or pain. Moreover, the court found an “emergency situation” in the highly evanescent nature of the evidence: “We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. . [Tjhere was no time to seek out a magistrate and secure a warrant.” 384 U.S. at 770-71, 86 S.Ct. at 1836. The court emphasized that:

“we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.” 384 U.S. at 772, 86 S.Ct. at 1836

We find that the forcible seizure of the evidence here is far closer to the facts in Rochin than those in Schmerber. The beating and choking of defendant Tapp is reminiscent of, if not more excessive than, the beating officers gave to defendant Rochin. The prolonged and brutal struggle to cause Tapp to disgorge the packet was excessive under the circumstances and thereby abused common conceptions of decency and civilized conduct. See Huguez v. United States, 406 F.2d 366 (9th Cir. 1968). Although policemen can use reasonable force to attempt to prevent the swallowing of evidence, particularly when a search for evidence is underway pursuant to a warrant, police officers may not constitutionally beat and choke suspects in order to gain that evidence. See People v. Parham, 60 Cal.2d 378, 33 Cal.Rptr. 497, 384 P.2d 1001 (1963); State of Washington v. Williams, 16 Wash.App. 868, 560 P.2d 1160 (1977). In so doing, these officers used unreasonable force to recover the evidence, thus offending the fifth amendment guarantee of due process and causing the evidence so recovered to be inadmissible at defendant’s trial.

The state urges us to adopt a rule it alleges is prevalent in some jurisdictions which would allow the choking of a suspect so as to recover physical evidence. United States v. Harrison, 139 U.S.App.D.C. 266, 432 F.2d 1328 (1970); Espinoza v. United States, 278 F.2d 802 (5th Cir. 1960); State of New Jersey v. Santos, 101 N.J.Super. 98, 243 A.2d 274 (1968). We do not find the legal principles in those cases different from those we here adopt. Those opinions recognize that the application of unreasonable force in the recovery of physical evidence offends due process, but find, on the facts there presented, that the force used was reasonable. In none of those cases was a suspect beaten at all, much less with the intensity of the beating administered to defendant Tapp.

In addition to the due process violation heretofore described, we also find that the search and seizure offended the fourth amendment. Unlike the situation in Schmerber, the extraction of this evidence was not the result of painless, medically approved procedures. Nor was there the need for speed in the gaining of evidence which the Schmerber court found persuasive. We see no evidence in the record (and indeed, the state does not so argue) that this material, if swallowed, would not have traveled through defendant’s body without destruction of the evidence or harm to defendant. See generally, Venner v. State of Maryland, 279 Md. 47, 367 A.2d 949 (1977); People v. Bracamonte, 15 Cal.3d 394, 124 Cal.Rptr. 528, 540 P.2d 624 (1976). We hold that this was not the “minor intrusion into an individual’s body under stringently limited conditions” approved in Schmerber, 384 U.S. at 772, 86 S.Ct. at 1836, but rather a grievous, dangerous, painful and unjustifiable assault upon a human being in an effort to get physical evidence from inside his body. The evidence against him so obtained should not have been admitted at the trial because it was gained in violation of the fourth amendment.

We find therefore that the seizure of the packet of heroin from defendant Tapp’s throat exceeded the constitutional limitations of the fourth amendment requirement that safeguards the right to be free from unreasonable searches and seizures, and of the fifth and fourteenth amendments which assure individuals fair and humane treatment by law enforcement officers. Thus, the packet of heroin extracted from defendant’s person should not have been admitted into evidence against him.

We turn now to the issue of the validity of the search warrant gained for the second residence, a warrant granted partially on the basis of the heroin seized from defendant’s person.

The facts of these various searches bear repeating. Officers had gained a search warrant for defendant Tapp’s residence on Lowerline Street because of an informer’s tip. The application for that warrant gave no indication of any place other than the Lowerline address where defendant Tapp might have hidden his suspected contraband. The search of the Lowerline address was fruitless, except for a heroin residue on a single syringe admittedly not belonging to defendant. See note two. But police did recover five packets of heroin from Tapp’s person in the unconstitutional manner already described. Police also interviewed defendant’s children, ages 8 and 5, who had arrived at the house with Tapp. Although they indicated no criminal activity on Tapp’s part, they did direct the officers to a nearby house from which they had come and indicated that their father owned this house also. The officers then applied for and received a warrant to search this Palmetto Street residence, a search which produced a large quantity of heroin. This warrant is based primarily upon the seizure of heroin from defendant’s person, a seizure we have already found invalid under both the fourth and fifth amendments. The affidavit relies secondarily upon information gleaned from Tapp’s small children that their father maintained another residence, but as previously explained, the children supplied no information relating to criminal activity. Thirdly, the affidavit relates that a reliable and confidential informant had stated that he had been present at the Lowerline Street address when defendant left “in order to procure additional amounts of heroin and exhibited a belief that the stash pad was in close proximity to Tapp’s residence due to the fact that Tapp was absent for only a quarter of an hour before returning with the contraband.” This informer tip offered no indication of the location of the surmised “stash pad,” no personal observation or knowledge of the existence of a second residence, and, of course, no personal or recent observation of contraband at such a place. See State v. Humble, 309 So.2d 138 (La.1975); State v. Paciera, 290 So.2d 681 (La.1974). In summary, then, the warrant was issued on the basis of an unconstitutional seizure, innocent information from two children as to a particular address, and an uncorroborated hunch from an unidentified tipster that he “believed” that defendant Tapp might have a “stash pad” at an unknown location.

This warrant was invalid. In State v. Jenkins, 340 So.2d 157, 174 (La.1976), we held under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1971) that:

“in determining whether information obtained by officers in the conduct of an unlawful search was used to acquire other evidence against an accused, the test to be applied is not whether, but for the illegal search the evidence would not have been obtained, but rather ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ”

We hold that the illegally seized material tainted the warrant which depended on it, and that the independent portions of the warrant (the informant’s hunch and the innocent address) do not offer a showing of probable cause upon which a person’s privacy may be invaded.

For these reasons, we find that the affidavit in support of the search warrant issued for the Palmetto Street address is fatally deficient, and that the trial court therefore erred in denying relator’s motion to suppress based on that deficiency.

Decree

For these reasons, defendant’s convictions and sentences are reversed and the case remanded to the district court.

REVERSED AND REMANDED.

DENNIS, J., concurs and assigns reasons.

SANDERS, C. J., dissents and will assign written reasons.

SUMMERS and MARCUS, JJ., dissent.

DENNIS, Justice,

concurring.

Although all evidence is not “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police, Nardone v. United States, 308 U.S. 388, 60 S.Ct. 266, 84 L.Ed. 307 (1939), when the facts of this case are considered in terms of the factors set forth in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), particularly “the purpose and flagrancy of the official misconduct,” 422 U.S. at 604, 95 S.Ct. at 2262, it is impossible to say that the evidence was come at by means sufficiently distinguishable to be purged of the primary taint.

I respectfully concur.

SANDERS, Chief Justice

(dissenting).

In my opinion, the majority erroneously interprets the struggle between the officers and the defendant as one in which the officers’ only goal was to extract the heroin from the defendant’s mouth. The record clearly indicates that the police action was aimed at both preventing the defendant from effectuating his escape and seizing the contraband. As the police had two objectives, their action must be allocated between these objectives.

When the officers attempted to place the defendant under arrest, he immediately ran, placing the cellophane packet in his mouth. An officer attempted to grab him from the rear, but the defendant resisted. Other officers joined in the struggle. The defendant continued to resist, fighting and kicking the officers. In a stipulation by the State and defense, the officers admitted that they hit the defendant three times before he was subdued.

Louisiana Code of Criminal Procedure Article 220 provides:

“A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.”

Under this codal provision, I believe the officers’ action in using force to effectuate the arrest justified. See Logan v. Swift, La.App., 327 So.2d 168 (1976).

Whether police action in extracting contraband from the defendant’s person is unreasonable, uncivilized, or shocking depends upon the totality of the circumstances. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). As I construe the record, the only police action that may be directly attributed to the seizure of the evidence is the police’s choking the defendant and their order to expel the packet. The issue then becomes: is the choking and the command unreasonable, uncivilized, or shocking. I think not.

In State v. Wood, 262 La. 259, 263 So.2d 28, 32 (1972), this Court upheld a denial of a motion to suppress in a somewhat similar situation. Therein we stated:

“It is common knowledge that narcotic offenders often try to swallow narcotics to defeat the law enforcement process. Law enforcement officers, of course, may adopt reasonable measures to retrieve the contraband. In the present case, the officers used a spoon to remove the particles of marijuana from the defendant’s tongue. Under the circumstances, the action of the officers was neither cruel nor bizarre. As the United States Supreme Court observed in Schmerber v. California, the officers were confronted with an emergency that threatened the destruction of evidence.”

Several courts in other jurisdictions have upheld similar seizures. State v. Young, 15 Wash.App. 581, 550 P.2d 689 (1976) (the officer “placed his hands on his throat, constricting his ability to swallow” and another officer pinched his nose to make the defendant breathe through his mouth and spit out the evidence); United States v. Harrison, 139 U.S.App.D.C. 266, 432 F.2d 1328 (1970) (the officer grabbed the defendant by the throat and made him expel the evidence); State v. Santos, 101 N.J.Super. 98, 243 A.2d 274 (1968) (the officers grabbed the defendant by the throat and tried to pry his mouth open); Espinoza v. United States, 278 F.2d 802 (5th Cir. 1960) (the officers choked the defendant and attempted “to pry open his mouth by placing pressure against his jaw and nose”); State v. O’Shea, 16 N.J. 1, 105 A.2d 833 (1954) (the officers struggled with the defendant and “forced him to disgorge the papers he was attempting to swallow”).

Considering the facts of this case and the cited jurisprudence, I conclude that the record supports the trial court’s ruling that the evidence was reasonably seized. Thus, I would affirm the denial of the motion to suppress.

For the reasons assigned, I respectfully dissent.

      . Defendant’s motion to suppress and second supplemental motion to suppress raise issues regarding the validity of the search warrants utilized in this case. Because of our resolution herein, we do not reach the issue of the first (Lowerline Street) warrant nor the issue raised in defendant’s second assignment of error regarding his efforts to bifurcate the trial.

      . One of the persons in the house later admitted to possession of this syringe, the seizure of which is not now before us.

      . In this regard, the state and defense stipulated “that Officer Coe, in an attempt to stop the defendant from swallowing what he believed to be contraband material, choked the defendant, and as a result of the fight and the choking of the defendant, the defendant spit out the material which was recovered in evidence.”

      . In United States v. Cameron, 538 F.2d 254 (9th Cir. 1976), the court reversed defendant’s conviction finding that the warrantless search of defendant’s rectal cavity which produced a container of heroin violated the fourth amendment. The court stated:
      “a clear indication that the suspect is concealing contraband does not authorize government officials to resort to any and all means at their disposal to retrieve it. . . Any body search, if it is to comport with the reasonableness standard of the fourth amendment, must be conducted with regard for the subject’s privacy and be designated to minimize emotional and physical trauma.
      * * * * * *
      As in the case before us, the suspect usually faces this ordeal without assistance, surrounded by persons who administer the procedure on behalf of the government and thus appear to him to have as their overriding motive the obtaining of evidence to convict, and not his personal well being. In a situation thus laden with the potential for fear and anxiety, a reasonable search will include, beyond the usual procedural requirements, reasonable steps to mitigate the anxiety, discomfort, and humiliation that the suspect may suffer.” 538 F.2d at 258

      . The validity of that warrant is strongly contested, but we do not reach that issue, see note one, and assume for present purposes that the warrant was valid.


author: MARCUS, Justice. TATE, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Earl DUPAR.
    No. 60181.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Dist. Atty., Harry F. Con-nick, Dist. Atty., Nick F. Noriea, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Earl Dupar was charged in the same information with the separate offenses of attempted aggravated rape (La. R.S. 14:27; La. R.S. 14:42) and attempted second degree murder (La. R.S. 14:27; La. R.S. 14:30.1). Defendant was tried for both offenses by the same jury and was found guilty as charged for each offense. After the convictions, but prior to sentencing, the district attorney filed an information accusing defendant of a previous felony conviction under La. R.S. 15:529.1 (Habitual Offender Law). After hearing, the court found defendant to be an habitual offender and sentenced him to serve fifty years at hard labor on each of the offenses, the sentence for attempted second degree murder to run consecutively with that for attempted aggravated rape. The court granted defendant credit toward service of the sentences for time spent in actual custody prior to imposition of the sentences. On appeal, defendant relies on two assignments of error for reversal of his convictions and sentences.

ASSIGNMENT OF ERROR NO.l

Defendant contends the trial court erred in overruling his objection to a question propounded to a state witness on direct examination. On appeal, he argues that the question was irrelevant and asked only to inflame the jury and prejudice defendant.

At trial, the state asked the victim of the alleged offenses to state her occupation. The question was one of several introductory inquiries. She replied that she was a teacher. The state then asked where she taught. Defendant objected to the question without stating any basis therefor. The trial court overruled the objection and allowed the witness to answer the question.

Article 841 of the Code of Criminal Procedure provides that an irregularity or error cannot be availed of after verdict unless defendant has made known to the court his objection and the grounds therefor. It is well settled that defendant must state the basis for his objection when he makes it so that the trial judge has an opportunity to rule on it and prevent or cure an error. An objection stating no basis presents nothing for this court to review. State v. Lewis, 353 So.2d 703 (La.1977); State v. Burnette, 337 So.2d 1096 (La.1976); State v. Sosa, 328 So.2d 889 (La.1976). In any event, we find nothing objectionable in asking a witness to state where she works as introductory information. Moreover, on cross-examination, defendant questioned the witness in detail about the place of her employment as a teacher.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial court erred in allowing the state to cross-examine defendant concerning the details of a prior conviction after defendant had admitted the conviction.

At trial, defendant testified in his own behalf. On direct examination, defendant admitted that he had pled guilty to a prior charge for simple kidnapping. On cross-examination, the state asked defendant if he had admitted having been convicted of simple kidnapping. Defendant replied, “Attempted.” The state then proceeded to impeach defendant’s credibility by referring to a certified copy of the bill of information charging defendant with simple kidnapping. Defendant objected to the subject of inquiry on the ground that defendant had admitted, presumably on direct examination, that he had pled guilty to simple kidnapping. The trial court inspected the certified copy of the bill of information and overruled the objection. The state was then permitted to relate the charge in the certified copy of the bill of information and the minute entry of the plea noted on the reverse side of the information. It showed that defendant had been charged with simple kidnapping and had pled guilty as charged.

La. R.S. 15:495 provides:

Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.

In the instant case, when asked on cross-examination if he had admitted having been previously convicted of simple kidnapping, defendant answered, “Attempted.” This response indicates that he admitted having been convicted only of attempted simple kidnapping and does not constitute a distinct admission of the prior conviction for simple kidnapping. Such failure to distinctly admit the prior conviction entitles the state to adduce evidence of the prior conviction from any other source than defendant. La. R.S. 15:495. Hence, reference to the certified copy of the bill of information charging defendant with simple kidnapping and the minute entry showing his guilty plea was a proper form of impeachment of defendant’s credibility.

But, even assuming arguendo that defendant had distinctly admitted his prior conviction for simple kidnapping, the reference to the certified copy of the bill of information and the minute entry showing his guilty plea therefor would not be error. In State v. Jackson, 307 So.2d 604 (La.1975), this court held that the state, in impeaching the credibility of a defense witness, may not only establish prior convictions of the witness, but also may cross-examine the witness about the details of the prior convictions in order to show the “true nature” of the offenses. The Jackson holding has since been extended to apply to defendants testifying in their own behalf. State v. Elzie, 351 So.2d 1174 (La.1977); State v. Victor, 347 So.2d 205 (La.1977); State v. Jackson, 339 So.2d 730 (La.1976); State v. Williams, 339 So.2d 728 (La.1976); State v. Elam, 312 So.2d 318 (La.1975).

Assignment of Error No. 2 is without merit.

DECREE

For the reasons assigned, the convictions and sentences are affirmed.

TATE, J., concurs and assigns reasons.

CALOGERO, J., concurs.

DENNIS, J., dissents and assigns reasons.

TATE, Justice,

concurring.

I concur only because a majority of this court has not yet overruled State v. Jackson, 307 So.2d 604 (La.1975).

There, contrary to a rule of virtually every other American and English jurisdiction, a majority of this court held that the state, in impeaching the credibility of a witness because of his prior conviction of a crime, La. R.S. 15:495, could likewise cross-examine the witness as to the details of the crime to establish its true nature. In so doing, a three-judge plurality of this court overruled a long line of jurisprudence of this court; see State v. Brent, 248 La. 1072, 184 So.2d 14, 19 (1966) and decisions cited therein, as well as the general national rule applicable in such circumstances, as summarized at McCormick on Evidence (2d ed. 1972) at page 88: “ * * * the more reasonable practice, minimizing prejudice and distraction from the issues, is the generally prevailing one that beyond the name of the crime, the time and place of conviction, and the punishment; further details such as the name of the victim and the aggravating circumstances may not be inquired into.”

As McCormick notes, pages 88-90, the use of prior convictions for impeachment purposes is itself subject to increasing criticism. In the first place, many such convictions have no real relevance to credibility— they just prejudicially indicate that the accused is a bad man. In the second place, the ability to bring prior convictions to the attention of the jury discourages a person accused of crime from taking the stand and testifying as to his version of the circumstances of the crime for which (alone) he is on trial; the jury is thus in many instances deprived of this relevant testimony.

The plurality decision in Jackson has been criticized by the law review commentators as contrary not only to the statutory provision of La. R.S. 15:495 that the witness “can only be questioned as to conviction”, but also to fundamental values of our criminal procedure attempting to insulate an accused from prejudicial reference to other crimes irrelevant to the present offense for which he is on trial. See e. g., Pugh, 36 La.L.Rev. 662-64 (1976).

When most modern criminal-procedure reform proposals envisage limiting impeachment through informing the jury only of the fact of a prior conviction, it is unfortunate that a majority of this court has resurrected ancient practices with regard to prior-conviction impeachment, which were long ago discarded by Louisiana and by most other jurisdictions.

Jackson and its progeny should be overruled. Sooner or later, the excesses permitted by its relaxation of our statutory rule will require its overruling. In the recent past, this court was similarly forced to overrule jurisprudence which laxly, beyond the statutory intent and ordinary notions of fair play, permitted broad admission of other-crime testimony for purposes of proving intent or system. See State v. Prieur, 277 So.2d 134 (La.1973).

Theoretically, convictions are available to impeach the credibility of a witness upon the sole ground that, if once convicted, a felon is less likely to be a truthful man than a person not convicted. Whatever the logic or merit to this belief, any exploration of the details of the conviction bears no reasonable relationship to the credibility of the witness — it can only serve, when the witness is the accused, to create jury prejudice arising from circumstances irrelevant to innocence or guilt of the present charge.

In my opinion, Jackson should be overruled by this decision, as inevitably it will be someday. I concur only because, until a majority of this court similarly concludes, a continued reiteration of my previous dissents serves no useful purpose.

DENNIS, Justice,

dissenting.

I respectfully disagree with the holding in State v. Jackson, 307 So.2d 604 (La.1975), and with the majority opinion in this case which approves of cross-examination of the defendant about his choking the victim in a prior kidnapping offense in connection with impeachment of his testimony. His commission of the prior felony was relevant to his credibility, but the violence associated with the other crime could only serve to inflame the jury.


text:
    STATE of Louisiana v. Lloyd DAVIS.
    No. 60229.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      James M. Buck, Algiers, Kramer & Davis, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Charles J. Yeager, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Defendant Lloyd Davis was charged with the August 16, 1976 aggravated battery upon Milton Dauzat with a knife. La.Rev. Stat. 14:34. In a trial by jury he was found guilty and sentenced to imprisonment at hard labor for five years. Four assignments of error are urged on this appeal.

Assignments 1 and 2

These assignments are considered together because they are interrelated presenting in substance one issue. It is contended that there was no evidence upon which the jury could reach the conclusion that defendant was the aggressor, and, therefore, the State failed to sustain its burden of establishing that the defendant did not inflict injury on the defendant in self-defense. A statement of the facts will resolve both issues.

At one o’clock on the afternoon of August 16, 1976 defendant' Lloyd Davis and Gladden Dupree repaired to the Happy Hollow Bar in Alexandria. While they were drinking beer and shooting pool, a party of “roofers” came into the establishment. This group, included the victim Milton Dau-zat, Kenneth Desoto, Girard Williams, Grant Williams and Florien Dauzat. They worked together as roofers and were related by blood or marriage. Gladden Dupree, Davis’ friend, and Dauzat, the victim, placed a bet on the outcome of a pool game. When Dauzat won the bet an argument ensued. Angry words were exchanged between the two groups and there was some testimony that some of those involved brandished knives at this time.

E. C. Wiley, proprietor of the bar, then intervened and halted the argument between the parties. Whereupon the “roofers”, Dauzat and his friends, left the bar. Davis and his friends then proceeded to follow Dauzat who was then outside. Wiley tried to stop Davis but he was pushed aside. As Davis headed outside he was seen by Sam Brunson, a patron, with an open pocket knife in his hand.

Wiley and Brunson followed a few minutes later. As they reached the parking lot, a state of total confusion reigned there. Men were fighting all over the lot. Brun-son testified that the roofers were armed with shovels, while Davis, and Dupree were armed with knives.

What occurred at this time is not without doubt. Apparently the defense sought to show that the roofers had retreated to their trucks, armed themselves with shovels and then returned to encounter Davis and his friends as they came from the barroom. On the other hand, the prosecution sought to establish that the roofers armed themselves with shovels in an effort to defend against Davis and Dupree who were threatening them with knives.

As a result Davis did cut Dauzat with his knife, contending however that Dauzat swung at him with a shovel, and when he did Davis stabbed him.

Shortly thereafter the roofers climbed in their trucks and left. As they left Brunson said he heard Davis say, “They — well one of them won’t get far ... I stuck a knife in him and pulled it through.” The police then arrived on the scene and arrested Davis and Dupree. Dauzat was transported to the hospital.

From these facts the jury could conclude that Davis was the aggressor as he pursued Dauzat with a knife as the “roofers” departed the barroom. With this finding, the claim of self-defense fails and these assignments of error are without merit.

This Court’s review of a criminal conviction on appeal is limited to questions of law. If there is some evidence upon which the jury could decide the elements of the crime, this court will not inquire into the sufficiency of the evidence.

Assignment S

In his rebuttal the prosecutor argued:

“Now, if you believe — if you believe that Lloyd Davis left that bar with a knife in his hand looking for trouble, and went out and found it, then it’s your duty to convict. It’s just that simple. If you believe he left the bar with a knife in his hand, then you must conclude that he was the aggressor.”

Defense counsel objected that the argument was improper and not supported by the law, and it was necessary to prove much more to warrant a conviction. At this point the trial judge admonished the jury that anything counsel said was argument and that he, the judge, would ultimately charge the jury on the law.

Later in his charge, the trial judge said:

“A person who is an aggressor or brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.”

According to the defense this instruction following the prosecution’s rebuttal argument left the jury in a quandary as to what is meant by an aggressor withdrawing from the conflict. There is no validity to this argument. The instruction is clear and unequivocal and there is nothing in the charge or the record to support the claim that the jury was left in a quandary by virtue of the rebuttal argument of the prosecutor and the judge’s instructions which followed.

Assignment 4

The defense maintains that the prosecutor strode back and forth before the jury with Davis’ knife in his hand thrusting the knife at the jury for emphasis. His closing remarks were punctuated by “stabbing” the knife into a table immediately in front of the jury.

No objection was made by defense counsel to this alleged conduct until the jury retired. Although he stated that his view of the table and of the prosecutor was obstructed to some extent during that portion of the argument, the trial judge did say that he heard some noise at the table about that time.

With a word of caution to prosecutors against excessive histrionics, the following explanation of the prosecutor is considered acceptable:

“Uh — I didn’t stab it into the table. Holding the end of the knife in my hand with my thumb, my forefinger and my second index finger, I dropped the knife onto the table and I would say that it entered the table — it would be hard to estimate, about a sixteenth of an inch. Barely made an indentation into the table. I wouldn’t describe that as a stabbing.”

La.Code Crim.Pro. art. 774; State v. Brumfield, 329 So.2d 181 (La.1976); State v. Chaffin, 324 So.2d 369, cert. denied, 426 U.S. 907, 96 S.Ct. 2228, 48 L.Ed.2d 832. Before a verdict approved by the judge is set aside on the ground of improper argument, this Court must be thoroughly convinced that the jury was influenced by the remarks, and that the remarks contributed to the verdict.

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


author: PER CURIAM.

text:
    STATE of Louisiana v. Clarence BUTLER, Jr.
    No. 60239.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Alvin N. Taylor, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. John KNIGHT.
    No. 60275.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Thomas J. Ford, Jr., Patrick McArdle, 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, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Elmo GILTON and Claude Sims.
    No. 60276.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Henry Julien, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Joseph MILLET.
    No. 60277.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Patrick D. McArdle, 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, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Melvin COOKE.
    No. 60278.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Thomas J. Ford, Jr., 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., Robert L. Simmons, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Michael Lee JAKOB.
    No. 60297.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    G. Emitte Core, Jr., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Lennie F. Perez, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Euril B. DAVIS.
    No. 60301.
    Supreme Court of Louisiana.
    Dec. 27, 1977.

      Leon M. Pliner, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Donald C. Brown, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Leonard Edward JOHNSON.
    No. 60308.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Patrick D. McArdle, 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 S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Douglas MIX.
    No. 60309.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    John M. Lawrence, 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., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Otto ANDERSON.
    No. 60310.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Patrick McArdle, 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., Patrick Fanning, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Melvin BUJOL.
    No. 60358.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Dist. Atty., Harry F. Con-nick, Dist. Atty., Nick F. Noriea, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Preston H. DAIGRE.
    No. 60382.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    J. Daniel Rivette, 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 S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. John L. BREAUX.
    No. 60393.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Bertrand De Blanc, Lafayette, David J. Dennis, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., David F. Hutchins, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Melvin B. THOMAS.
    No. 60403.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Edwin Dunahoe, Thomas & Dunahoe, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Eric R. Harrington, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Walter GREEN.
    No. 60441.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Dist. Atty., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Joe COLLINS.
    No. 60442.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Thomas J. Ford, Jr., 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., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lonnie COOLEY.
    No. 60445.
    Supreme Court of Louisiana.
    Dec. 27, 1977.

      Raymond L. Cannon, Asst. Indigent Defender, Tallulah, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John T. Seale, Dist. Atty., Thomas W. Bishop, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. John A. EFFITT, Jr.
    No. 60475.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Neil Martin Trichel, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. John L. GILLS.
    No. 60476.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Wellborn Jack, Jr., Jack & Jack, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Ronald R. Inderbitzin, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. James Curtis WALKER.
    No. 60506.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Michael S. Wolf, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Richard E. Chaffin, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Kenneth Wayne JACKSON.
    No. 60508.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Alton T. Moran, Director, Vincent Wilkins, Jr., Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Lennie Perez, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Ernest LARSEN, Jr.
    No. 60537.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Clyde D. Merritt, 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, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The assignments of error have been reviewed and found to be without merit. With respect to assignments of error numbers four and five, it is specifically noted that the photographs introduced at trial as S-3, S-4, S-5 and S-6 have been made a part of the record before this Court. However, after having viewed the photographs and considered their possible prejudicial effect on the jury, the Court has concluded that the assignments lack merit.

Defendant’s conviction and sentence are affirmed.


text:
    STATE of Louisiana v. Clarence MARKS.
    No. 60538.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    William J. O’Hara, III, Supervising Atty., Barrie Byrnes, Student Practitioner, Loyola Law School Clinic, 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.
   PER CURIAM.

Affirmed.


author: SUMMERS, Justice

text:
    Nat G. KIEFER v. Judge Ernest N. MORIAL, Joseph V. DiRosa, Board of Supervisors of Elections For the Parish of Orleans, Hon. Paul J. Hardy, Secretary of State and Hon. Edwin Edwards, Governor.
    No. 61010.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Joseph V. DiRosa, Intervenor, applying for writs of certiorari, prohibition and mandamus. 351 So.2d 1216.

Writ denied. The intervenor makes application to this Court for writs from the Court of Appeal judgment handed down on November 8, 1977. This Court denied the application of the plaintiff, Nat G. Kiefer, on November 9, 1977. The present applicant is likewise not entitled to the relief sought. 351 So.2d 1216.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

Louisiana had in effect until February 8, 1977 Section 39 of Title 42 of the Revised Statutes providing that after July 31, 1968, no person serving in or elected or appointed to the office of judge of any court shall be eligible to hold or become a candidate for any national, state or local office in any political party organization, other than a candidate for the office of judge for the same or any other court. The act also provided that a judge wishing to become a candidate could do so provided he resign not less than twenty-four hours prior to qualifying-

The act set forth in clear terms that if any judge in office qualified for any other elective position without resigning his qualifications as a candidate for the office shall ipso facto be null and void.

At that time, prior to February 8, 1977, there existed in full force and effect a Canon of Judicial Ethics, which bound all judges of the State, directing that a judge should resign his office when he became a candidate for a non-judicial office.

Then, by a suit for a declaratory judgment and injunction in the Federal District Court for the Eastern District of Louisiana, Judge Morial sought to have the statute and canon barring his qualifications as a candidate for Mayor of the city of New Orleans declared unconstitutional. The suit resulted in a judgment dated February 8, 1977 declaring both the statute and the canon unconstitutional. Thereafter in August 1977 Judge Morial qualified as a candidate for the office of Mayor.

This was a perilous course as any lawyer or judge would know, for an attack upon the statute and a canon on judicial ethics adopted by an overwhelming majority of the States in the Union could only be definitively settled by an adjudication by the highest court in the land. This could not be accomplished in the limited time remaining before qualification.

Thus, it was no surprise, when the decision of the District Court was appealed to the United States Fifth Circuit Court of Appeal. And it should have been no surprise when on November 3, 1977 the Court of Appeal granted a stay order rendering null the effect of the decision of the United States District Court of February 8, 1977. A District Court decree of such far-reaching import would warrant no less.

The effect of the order of the Court of Appeal was to set aside the judgment of the District Court thereby reinstating the effect of the State statute and the canon of judicial ethics. Faced with these viable impediments to his qualifications, Judge Morial resigned.

In my view, however, the resignation did not have the effect of removing the disqualification Judge Morial then faced. The effect of the stay order was to supersede the judgment of the District Court and hold it in abeyance until further action by the Court of Appeal. The result, then, was to reinvest the statute and canon with validity from their inception. It was too late therefore for Judge Morial to resign in keeping with the mandate of the statute or the canon of judicial ethics which required his resignation prior to qualifying. He was disqualified ipso facto. La.Rev.Stat. 42:33; La.Rev.Stat. 18:358(F); Mendel v. Gennaro, La.App., 154 So.2d 531.

Not being qualified, he is incapable of being legitimately elected to the office of Mayor.

I respectfully dissent.


text:
    STATE of Louisiana ex rel. Troy PRINE v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 60919.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Troy Prine applying for writ of certiorari. Parish of East Carroll.

Denied. See State ex rel. Prine v. Maggio, Warden, La., 351 So.2d 1212.


text:
    J. W. HAWTHORNE and his wife Ruby Taylor v. J. O. SLAYDON et al.
    No. 61129.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: James Andrew Slaydon applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany. 351 So.2d 1231.

Granted. The ruling of the court of appeal on the motion to dismiss the appeal is reversed and the case is remanded to the district court to permit the applicant to perfect the appeal. Davidge v. Magliola, La., 346 So.2d 177.

SUMMERS, J., is of the opinion the writ should be denied for the 1 error assigned by the Court of Appeal. See 351 So.2d 1231.


text:
    STATE of Louisiana v. Terry L. DENMAN.
    No. 61233.
    Supreme Court of Louisiana.
    Dec. 20, 1977.
   In re: Terry L. Denman applying for writs of certiorari, prohibition and mandamus. Parish of Jackson.

Writ denied. The showing is insufficient to warrant the relief prayed for.


text:
    STATE of Louisiana v. Michael J. ROWE and Melvin Rowe.
    No. 61268.
    Supreme Court of Louisiana.
    Dec. 21, 1977.
   In re: State of Louisiana through the District Attorney, Ossie Brown, applying for supervisory writs. Parish of East Baton Rouge.

Application denied; no error of law in the ruling complained of.

SANDERS, C. J., concurs in denial on the ground that there is no abuse of the trial judge’s discretion.

SUMMERS, J., dissents. It was error to categorize the questioned statement of defendant as inculpatory.


text:
    STATE of Louisiana v. Lonnie C. JACOBS.
    No. 61234.
    Supreme Court of Louisiana.
    Dec. 21, 1977.
   In re: Lonnie C. Jacobs, applying for writs of certiorari, prohibition and mandamus. Parish of Jackson.

Writ refused. No showing of abuse of discretion.


author: TATE, J., DIXON, J.,

text:
    STATE of Louisiana v. Renee Y. DAIGLE.
    No. 61225.
    Supreme Court of Louisiana.
    Dec. 22, 1977.
   In re: Renee Y. Daigle applying for writ of certiorari and review. Evangeline Parish.

Writ refused. No error.

TATE, J.,

concurs: La.C.Cr.P. art. 230.1 (1977) requires an accused to be brought before the judge within 72 hours for purposes of appointment of counsel. An accused is entitled to be released forthwith until counsel is secured, if no appointment is made. Here the right to be released is moot, since counsel has been secured. The remedy for violation is exclusion of any statement secured when counsel should have been but was not afforded.

DIXON, J.,

would grant. The legislature has clearly provided that the sanction for the violation of 230.1 of C.Cr.P. is the immediate release of the defendant. This ruling ignores the plain words and clear intent of the statute.

CALOGERO, J., is of the view the writ should be granted. The law is unequivocal.

DENNIS, J., is of the opinion the writ should be granted.


author: DOMENGEAUX, Judge.

text:
    Alton TASSIN et al., Plaintiffs-Appellees v. C. A. RHYNES et al., Defendant-Appellant.
    No. 6335.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 14, 1977.
    On Rehearing Dec. 14, 1977.
    Ben C. Bennett, Jr., Marksville, for defendant-appellant.
    John R. Contois, Marksville, for plaintiffs-appellees.
    Before CULPEPPER, DOMENGEAUX and FORET, JJ.
   DOMENGEAUX, Judge.

MOTION TO DISMISS

The plaintiffs-appellees, Alton Tassin and Roy Normand, move to dismiss the appeal of the defendant-appellant, C. A. Rhynes, on the grounds that the appeal was not timely lodged with this court due to the failure of the appellant to timely post the costs of his appeal as required by LSA-C. C.P. Art. 2126. The motion is opposed.

We dismiss the appeal.

Judgment was read and signed on June 17, 1977, and on June 24, 1977 the defendant moved for and obtained an order for a devolutive appeal. Bond was set at $600.00, and the appeal was made returnable to this court on August 23, 1977. The defendant timely filed his appeal bond on July 5,1977, but failed to pay the costs required by LSA-C.C.P. Art. 2126 until August 26,1977, which was three days after the return day.

On August 23,1977, which was the return day, the clerk of the trial court attempted to obtain an extension of return day from the trial judge. In his application for an extension, which is contained in the record, the clerk stated as his reasons for seeking the extension that the appellant had not as yet paid the costs required by Art. 2126, except the $25.00 filing fee due to the clerk of this court. The trial court refused to sign an order for an extension.

The appellate record was not filed with this court until August 29, 1977.

LSA-C.C.P. Art. 2161 provides that an appeal shall not be dismissed for errors or irregularities unless the errors are due to the fault of the appellant. In this case the appeal was not lodged with this court until 6 days after the return day, and the reason for the late filing was due solely to the fault of the appellant in failing to timely post the costs required under LSA-C.C.P. Art. 2126, and constitutes grounds for the dismissal of his appeal. Louisiana Power and Light v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970).

The appellant argues that he did not pay the costs timely because the clerk did not send to him a correct and itemized statement. While this may be true, the appellant was aware that costs were due, and if he questioned the clerk’s statement for costs it was his duty to contact the clerk’s office and obtain a corrected bill.

As stated by our Supreme Court in Louisiana Power and Light v. Lasseigne, supra, the law does not require, “billing for appellate costs and fees by the clerk, but to the contrary it requires timely tender by the appellant of these costs and fees to the clerk.”

While the clerks have the duty to prepare the appellate record and see that it is timely lodged with the appellate court, they have no duty to do so unless the fees are properly paid.

For the reasons assigned the appeal of the plaintiff-appellant is hereby dismissed.

APPEAL DISMISSED.

ON REHEARING

In our original opinion dismissing appellant’s appeal, we indicated that the Clerk of the District Court presented a request to the District Judge for an extension of the August 23rd return date on August 23rd, and that the judge denied the request. Feeling that our conclusion may not be fully supported by the record, we granted this rehearing.

The record does show that the requested extension is dated August 23, 1977, but it does not show on what date it was presented to the court, or on what date it was denied, facts which we find crucial in view of the recent holding of our Supreme Court in Davidge v. Magnolia, 346 So.2d 177 (1977).

Therefore, in the interest of justice, and under the authority contained in LSA-C. C.P. articles 2082 and 2164, we recall our previous order dismissing the appeal, and we hereby remand this appeal to the trial court for the purpose of having that court conduct a hearing as promptly as the rules of that court allows, to determine (1) on what date was the request for an extension presented to the trial court, and (2) on what date was the extension denied, and for what reason.

For the reasons assigned, we recall our order dismissing the appeal, and the above captioned appeal is hereby remanded to the Twelfth Judicial District Court, Parish of Avoyelles, for the purpose of having that court conduct a hearing in compliance with the order herein contained, after which time the record is to be returned to this court for further consideration.

DISMISSAL OF APPEAL RECALLED AND APPEAL REMANDED.

      . Both parties have filed either affidavits or copies of documents in support of and/or in opposition to the motion for rehearing, and while such evidence may serve to establish a prima facie case for the purpose of remand, it is well settled that the Courts of Appeal may not consider evidence which was not previously introduced in the trial court, Delahoussaye v. Porrier, 232 So.2d 562 (La.App.3rd Cir.1970).


author: LANDRY, Judge.

text:
    T. H. DAVIDGE et al. v. Philip MAGLIOLO.
    No. 11009.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 17, 1978.

      Arthur W. Macy of Macy & Kemp, Aut-ley B. Newton of Newton & Baham, Hammond, for T. H. Davidge, et al., plaintiffs-appellants.
    Henry A. Mentz, Jr. of Mentz & Cashe, Hammond, for Philip Magliolo, defendant-appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

This appeal by plaintiffs, T. H. Davidge and D. D. Davidge (Appellants), on remand from the Supreme Court, 346 So.2d 177 (La.1977), which reversed our dismissal of the appeal as untimely filed, 339 So.2d 418 (La.App. 1st Cir. 1977), is from judgment declaring defendant (Appellee) owner of a certain parcel of land. The judgment appealed was rendered in a possessory action brought by Appellants but which was converted into a petitory action by Appellee’s assertion of ownership. We affirm.

Appellants’ possessory action filed June 30, 1970 alleged their possession of subject property, an unimproved parcel of land, and Appellee’s disturbance thereof by erecting a fence on the land and cutting and burning grass thereon.

Appellee answered the petition on July 23, 1970, denying Appellants’ alleged possession. Appellee also asserted open, continuous, adverse and public possession of the disputed strip since Appellee’s alleged purchase thereof on March 4, 1943. Claiming purchase and ownership by a deed translative of title, Appellee deraigned title to a certain estate which Appellee alleged to be a recognized source of title in Tangi-pahoa Parish. The prayer of Appellee’s answer requests Appellee’s recognition as owner of the land in dispute. On November 19, 1974, prior to trial, Appellee filed a peremptory exception of prescription seeking dismissal of Appellants’ possessory action predicated on Appellee’s alleged possession for more than 10 years.

Trial of the matter was had March 4, 1975, at which time Appellee’s exception of prescription was referred to the merits.In support of his claim of ownership, Appellee produced evidence of his acquisition and unbroken chain of title to his alleged “recognized source of title”. Appellee also offered proof of his open, public, peaceable, continuous, undisturbed possession since his deed acquisition on March 4, 1943.

At the conclusion of the proceedings on March 4, 1975, Appellants requested and were granted a continuance to March 21, 1975, to take the deposition of Appellant D. D. Davidge, who was unable to appear on trial date. On motion of Appellee, trial resumed on October 10, 1975. Appellants did not offer a deposition of D. D. Davidge; neither was Mr. Davidge in court to testify in person. Over Appellants’ objection, Ap-pellee was permitted to introduce evidence of his chain of title, including a patent from the sovereign and a subsequent unbroken line of transfers to Appellee’s “recognized source of title”, thus completing Appellee’s chain of title. The trial court rendered judgment maintaining Appellee’s exception of prescription and declaring Appellee owner of subject property.

Appellants contend the trial court erred in: (1) decreeing Appellee owner pursuant to an exception of prescription; (2) permitting “reopening of the case” by Appellee; and (3) allowing Appellee to expand the pleadings by introducing evidence of title anterior to Appellee’s alleged “recognized source of title”.

We agree with Appellants’ contention that a defendant in a petitory action may not utilize a peremptory exception of prescription as the means of asserting ownership by acquisitive prescription. Montgomery v. Breaux, 297 So.2d 185 (La.1974). Montgomery did, as Appellant notes, restrict the effect of defendant’s exception of prescription to dismissal of plaintiff’s action. The instant case is different from Montgomery. Appellee in this matter has become plaintiff herein by virtue of his conversion of the initial possessory action into a petitory action by asserting ownership of the property in dispute. La.C.C.P. Article 3657. By so doing, Appellee has also judicially confessed Appellants’ possession. Article 3657, above.

As plaintiff in a petitory action, Ap-pellee bears the burden of establishing title. Under the circumstances, Appellee’s exception of prescription to the original possesso-ry action is a matter of no concern. As plaintiff in the petitory action, Appellee must rely on the strength of his own title and must establish such title or suffer dismissal of his action. As plaintiff, Appellee may not assert acquisitive prescription by means of a peremptory exception.

The trial court should not have predicated judgment on Appellee’s exception of prescription. Such procedural error, however, was inconsequential under the circumstances of this case.

Appellee’s answer expressly asserts ownership and sets forth acquisition and' possession sufficient to support a plea of ten years acquisitive prescription pursuant to La.C.C. Article 3479.

The record establishes that upon acquiring the property in 1943, by deed trans-lative of title to several tracts of land, of which subject property forms a part, Appel-lee began residing on the tract of which subject land is a component. Appellee took immediate possession of subject property by repairing a fence thereon, which fence Ap-pellee has maintained continuously since. Appellee leased subject area for a commercial endeavor and gave permission for his lessee to erect signs thereon advertising the lessee’s business. Over the years Appellee has cut the grass on the area in dispute. The record establishes conclusively that Ap-pellee’s possession is sufficient to support his claim of ownership by virtue of 10 years acquisitive prescription.

As noted above, when trial resumed October 10, 1975, the trial court overruled Appellants’ objection to Appellee’s offer of evidence to establish chain of title from Appellee’s alleged “recognized source of title” to the sovereign. The objection was based on the contentions that Appellee had closed his case at the prior hearing and that the evidence offered would enlarge the pleadings. The trial court noted that the case had not been closed, merely continued.

The evidence did not enlarge the pleadings. Appellee asserted ownership and as plaintiff in the petitory action, he bore the burden of proving title. The evidence offered was properly admitted.

Reopening of a case is a matter lying within the sound discretion of the trial court. Clifford v. Recreation and Parks Commission of the Parish of East Baton Rouge, 289 So.2d 373 (La.App. 1st Cir. 1973). Assuming the trial court reopened the case, we find no abuse of his discretion in this regard. Appellants had been granted a continuance to produce additional evidence. Apparently the trial court felt that Appellee had never closed his case and should be afforded opportunity to supplement the chain of title previously offered. It appears the trial court was attempting to afford all litigants equal opportunity to produce whatever evidence they felt was necessary in their behalf. We find such action to be eminently fair and impartial.

The record establishes beyond doubt that Appellee has established title by 10 years acquisitive prescription as well as by unbroken chain originating from the sovereign. While the trial court erroneously predicated its judgment on the exception of prescription, the result is correct because Appellee is clearly entitled to judgment recognizing him as owner on the grounds noted.

The judgment is affirmed at Appellants’ cost.

Affirmed.