author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Freddie MARTIN.
    No. 57124.
    Supreme Court of Louisiana.
    March 29, 1976.

      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. Connick, Dist. Atty., Louise C. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Appellant Freddie Martin was arrested on February 14, 1972 in connection with an alleged aggravated rape. On March 2, 1972 the Orleans Parish Grand Jury indicted appellant for aggravated rape, a capital offense. See State v. Hunter, 306 So.2d 710 (La.1975); State v. Flood, 263 La. 700, 269 So.2d 212 (1972); State v. Holmes, 263 La. 685, 269 So.2d 207 (1972).

Appellant pled not guilty to the charge, the case was fixed for trial and on April 23, 1973 the jury selection process began. At approximately one o’clock that afternoon the jury had been selected but not sworn. At that time the trial judge advised the jury that because of a grave personal emergency he could not proceed with the case that day. He instructed the members of the jury that, because they had not been sworn, they could be permitted to go to their respective homes. They were instructed to return at ten o’clock the next morning. At the same time, the trial judge admonished the members of the jury not to read newpaper accounts, or view television, pertaining to the facts of the case. The jurors were further admonished not to discuss the case with anyone and to put the case out of their minds until the next morning at ten o’clock. They were then excused to return to their respective homes. No objection was entered at that time by the State or the defense.

When court reconvened the next morning the jury was sworn. The members of the jury were then asked by the judge if they had read any newspaper accounts or viewed any television programs pertaining to the facts of the case. He also asked if anyone had communicated with any of the jurors with reference to the case. To all of these interrogatories the members of the jury answered in the negative. Again no objection was made. The trial proceeded and defendant was found guilty without capital punishment.

On this appeal the defense urges four assignments of error. Finding the fourth assignment of error meritorious, we preter-mit consideration of others urged by the defense.

In assignment of error IV it is contended that the trial court erred in failing to swear the jury immediately and in failing to sequester the jury as required by law.

Article 788 of the Code of Criminal Procedure prescribed that “When a prospective juror is accepted by the state and the defendant, he shall be sworn immediately as a juror.” This was not done in the instant case. As the recited facts disclose, the jurors were not sworn until at least 21 hours after their acceptance.

The requirement that jurors be sworn immediately is an innovation in the Code of Criminal Procedure implemented in 1966. There was not, prior thereto, any statutory requirement that jurors be sworn immediately after acceptance. Although no comment to Article 788 sheds light upon the reason for this requirement, it is certain that it is clearly expressed. We can agree that it establishes a better practice. A juror should be made aware of the solemnity of his responsibility at the time of his acceptance. To defer the oath is to defer this awareness and perhaps encourage activity which is incompatible with a juror’s duties.

In addition, the defense contends that a fatal error was committed when the trial judge permitted the jurors to return to their respective homes and remain separated for approximately 21 hours.

Article 791 of the Code of Criminal Procedure provides:

“A jury is sequestered by being kept together in charge of an officer of the court so as to be secluded from outside communication.
“In capital cases, after each juror is sworn he shall be sequestered.
“In non capital cases, the jury shall be sequestered after the court’s charge, and may be sequestered at any time on order of the court.”

Permitting jurors in this capital case to return to their respective homes for approximately 21 hours is a violation of sequestration as defined in Article 791. Although no objection was made to this noncompliance, this Court has held that matters involving impaneling of the jury are properly considered as part of the proceedings as contemplated in Article 920(2) of the Code of Criminal Procedure which this Court must notice on its own motion. State v. Hunter, 306 So.2d 710 (La.1975); State v. Luquette, 275 So.2d 396 (La. 1975).

In keeping with this holding, we have also decided that it is not necessary to complain of injury resulting from separation of the jury. And the strong presumption of misconduct on the part of jurors arising from separation has repeatedly been recognized, making proof of misconduct or prejudice unnecessary. State v. Hunter and State v. Luquette, supra.

The State points to State v. Smith, 322 So.2d 197 (La.1975), to support the proposition that where circumstances are such as to reasonably overcome the presumption of prejudice, and where it affirmatively appears that no prejudice to the accused can have resulted, the presumption may be rebutted. That case, however, involved a totally distinguishable set of facts. In State v. Smith, before the selection of the jury was completed, Juror Blackman was accepted, sworn, and sequestered. However, when court recessed for the evening meal Juror Blackman separated from the others for five minutes when he went to his home a few blocks from the courthouse. As soon as he was missed he was found at his home a few blocks from the courthouse having just arrived. He spoke to no one on the street and had barely greeted his relatives and family when he was returned to the courthouse.

While we were willing in that case to hold that the presumption of misconduct and prejudice could be rebutted, this Court will not extend that ruling to this case where the entire jury was separated for 21 hours.

The fact that the jurors were not sworn at the time of the separation does not alter the result — they were required by statute to be sworn, and they should have been. The failure to immediately swear the jurors only compounds the error. Thus, the combination of these two factors requires that the conviction and sentence be set aside.

For the reasons assigned the conviction is reversed, the sentence is set aside and the case is remanded for a new trial.

SANDERS, C. J., dissents.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    Gilbert SANCHEZ v. Elayn HUNT, Director, Department of Corrections.
    No. 57104.
    Supreme Court of Louisiana.
    March 29, 1976.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles L. Pa-tin, Jr., Staff Atty., for defendant-relator.
    Roland T. Huson, III, Office of Public Defender, Baton Rouge, for plaintiff-respondent.
   MARCUS, Justice.

Gilbert Sanchez, an inmate at the Louisiana State Penitentiary at Angola, filed a petition for a writ of habeas corpus in district court in which he asked the court to order his transfer from maximum to medium security status at the prison. The district court granted the writ. We granted the application of the Department of Corrections for certiorari. 323 So.2d 139 (La.1975).

On December 6, 1973, Gilbert Sanchez was placed in administrative lockdown in connection with an investigation into his possible involvement in the stabbing death of another inmate, Jerry Hazel. On the following day, Sanchez was taken before the prison Disciplinary Board and, pursuant to the findings at the hearing, was ordered to remain in extended “lockdown” status pending completion of the prison’s investigation of the Hazel slaying. The board reaffirmed its action at a rehearing held in May. Sanchez appealed the board’s order to the Director of Corrections, who upheld it on May 31, 1974.

Meanwhile, the West Feliciana Parish Sheriff’s Office had open an investigation into Jerry Hazel’s murder. Sanchez was a suspect in this investigation. On February 3, 1975, the grand jury of that parish returned a no true bill against Sanchez; the sheriff’s office, however, has continued its investigation, and Sanchez remains the primary suspect.

At further hearings conducted on February 3, March 4, and June 3, 1975, the Disciplinary Board decided- to maintain Sanchez’ status in maximum security. This decision was based in part on evidence showing that he had engaged in a pattern of violence and self-mutilation, and in part on evidence of his involvement in Hazel’s murder.

In October, 1974, Sanchez filed the instant petition for habeas corpus in the district court. Following an evidentiary hearing, the district court, on September 2, 1975, ordered the Department of Corrections to remove Sanchez from lockdown and to restore him to his previous status of medium security.

Prison officials must be accorded latitude in the administration of prison affairs. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). It is settled that except in extreme cases the courts will not interfere with the conduct of a prison, with its regulations and their enforcement, or with its discipline. Douglas v. Sigler, 386 F.2d 684 (8th Cir. 1967). A reviewing court must not disturb an order of the agency charged with the administration of a prison unless, in such an extreme case, its order is clearly arbitrary or capricious.

The legislature has delegated to the director of corrections broad authority to classify and discipline inmates within the jurisdiction of the department in order to maintain order and safety within Louisiana’s prison system. La.R.S. 15:828; La. R.S. 15:829.

At the evidentiary hearing on Sanchez’ petition for habeas corpus conducted by the district court on February 21, 1975, Major Herbert Byargeon, correctional officer at Angola and the person who presented Sanchez’ case to the Disciplinary Board, testified with regard to Sanchez’ record at the prison. He stated that he had information from confidential informants that the prisoner was involved in the stabbing death of Jerry Hazel, and that Warden Butler, then Associate Warden of Security, possessed additional information that connected Sanchez to the stabbing of another inmate, Samuel Harvey. Major Byargeon then read a report on Sanchez’ institutional record at Angola that Warden Butler had compiled. The report stated that Sanchez was serving a sentence for his conviction of armed robbery, in which the victim was cut severely about the hands and • arms. Previously, he had twice escaped from the Louisiana Training Institute in Monroe, and the Orleans Parish authorities had also filed a detainer on him 'for escape.

The report also stated that the inmate had committed five infractions of Angola’s disciplinary rules. Two of these were for possession of contraband, the first for possession of a knife and the second for possession of a file (a potential weapon). A third infraction was for self-mutilation; Major Byargeon testified that on one occasion Sanchez had deliberately cut himself. Warden Butler’s report ended with the observation that Sanchez’ record clearly shows that he should be kept in lock-down. This information had been presented to the Disciplinary Board. William Kerr, chairman of the Disciplinary Board, also testified. He verified that the board considered the evidence produced by Major Byargeon in making its determination not to return Sanchez to the general prison population.

We conclude that there has been no showing that the Disciplinary Board acted arbitrarily or capriciously in ordering that Sanchez be placed and continued in maximum security (segregated from the general prison population). On the contrary, there was evidence indicating that the inmate was physically dangerous to himself or other prisoners. In the absence of a clear showing that the Disciplinary Board acted arbitrarily or capriciously, the district court erred in setting aside its order.

DECREE

For the reasons assigned, the judgment of the district court, which overturned the order of the Disciplinary Board, is reversed; and the writ of habeas corpus is hereby denied.

DIXON, J., concurs in the result.

      . Maximum security, or lockdown, is not solitary confinement, but is rather the placing of the inmate in a private cell apart from the general prison population. Under prison regulations, an inmate may be placed in administrative lockdown if he is suspected of having violated a prison rule until he is given a hearing before the Disciplinary Board. After such a hearing, the Disciplinary Board may rule that an inmate should be placed in extended lockdown for his own protection or for the protection of others. Thereafter, the Board conducts hearings at ninety-day intervals to determine whether the inmate should remain in lockdown. The Disciplinary Board conducted the necessary hearings in the instant case, and no contention is made that Sanchez was not afforded procedural due process.


text:
    STATE of Louisiana v. Eddie Charles GRIFFIN.
    No. 57098.
    Supreme Court of Louisiana.
    March 29, 1976.

      Timothy R. Higgins, Office of the Public Defender, Amite, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yokum, Dist. Atty., Joseph H. Simpson, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

In February of 1975 Harmon Chapman was shot in the eye, allegedly during the course of an armed robbery which occurred when Chapman’s car was stopped on a highway near Areola, Louisiana. A fingerprint was lifted from the window of Chapman’s car and matched with a known print of Eddie Charles Griffin. Griffin was arrested and identified by Chapman in a lineup at the jail. He was then charged with armed robbery in violation of Article 64 of the Criminal Code. At the trial Chapman made an in-court identification of Griffin as the man who forced his way into Chapman’s automobile and robbed and shot him.

The theory of the defense was that the robbery was not committed by Griffin and that the fingerprint was on the window because on that day Griffin talked with Chapman when Chapman solicited him to engage in homosexual activity. Despite the testimony of numerous alibi and corroborating witnesses, Griffin was convicted and committed to the Department of Corrections for 99 years.

On this appeal the defendant relies upon two assignments of error. The first assignment arises because the appellant objected to the testimony of the District Attorney’s secretary, Zelda Adams, who was called to establish a chain of possession of the photographs of the lineup. She had not been sequestered and was present when some of the other witnesses testified. Appellant contends that undue prejudice resulted when the non-sequestered witness was called by the State.

Article 764 of the Code of Criminal Procedure provides for the sequestration of witnesses, and it grants the judge the discretion to modify the sequestration order in the interest of justice. In State v. Fallon, 290 So.2d 273 (La.1974), this Court stated the purpose of sequestering witnesses to be “to prevent their being influenced by testimony of prior witnesses and to strengthen the role of cross-examination in developing the facts.” Wide latitude is accorded the trial judge in such matters, and as Article 764 sets forth, “The court may modify its order [of sequestration] in the interest of justice.” State v. Rouse, 256 La. 275, 236 So.2d 211 (1970).

Zelda Adam’s testimony was used merely to prove a continuous chain of possession to establish custody of the evidence, and the admission of her testimony does not violate the purpose of sequestration. Her testimony simply concerned when she obtained possession of the photographs, was uncontroverted and could not have prejudiced the jury against the defendant. No such prejudice is shown.

The second assignment of error arises as a result of defense objection to questioning of Alvin Daniels.

Alvin Daniels was called as a witness by the defense. He testified on direct examination that the victim of the robbery was known to him to be a homosexual. This testimony was elicited in support of the defense theory that Griffin’s fingerprints were on the victim’s car because Griffin had been called to the car by the victim at a time when the victim solicited him to engage in homosexual activity. The principal defense was alibi, and Daniel’s testimony did not bear directly upon that fact; it only tended to explain the presence of defendant’s fingerprints on Chapman’s car.

On cross-examination the State elicited from Daniels the fact that he slept upstairs in the Tangipahoa Parish Jail the previous night, to which defense counsel objected after the question had been answered. The theory of this objection as set forth in the defense brief is that Section 495 of Title 15 of the Revised Statutes was violated. By the terms of that enactment “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.”

An inference may reasonably be drawn from the fact that Daniels slept in jail the previous night that he was then under detention as a result of an arrest, just as an inference could be drawn by the jury that he was there because of a conviction. As a result of an inference that he was there for an arrest, the further inference may be drawn that the credibility of Daniel’s testimony concerning the victim’s homosexual propensities was impaired. Thus it may logically be reasoned that a technical violation of Section 495 occurred. But this does not require a conclusion that this conviction by a unanimous verdict should be set aside.

After examination of the entire record, as Article 921 of the Code of Criminal Procedure requires, we are unable to conclude that “the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.” La. Code Crim.P. art. 921.

This technical violation of a statutory right is not substantial when the entire record of these proceeding’s is considered. The credibility of Daniels on the facts to which he testified could not reasonably have a substantial adverse effect upon the defense. Three other defense witnesses testified to the same facts, making Daniel’s testimony cumulative.

In addition to the belated defense objection after the question had been answered, the basis for the objection was not stated at the time it was made, although defense counsel did ask to argue the question. Just as a highly technical application of Article 841 would deny the defense the right to assert this assignment of error, State v. Kelly, 262 La. 143, 262 So.2d 501 (1972), a highly technical application of Section 495 would result in a reversal of this conviction. The spirit of our Code does not support either approach. La.Code Crim.P. art. 2. Therefore, in neither instance is technicality to prevail; we have considered the defense contention, and the conviction is not reversed.

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

CALOGERO, J., concurs.

DIXON, J., dissents.


author: TATE, Justice. MARCUS, Justice

text:
    STATE of Louisiana, Relator, v. William BREAUX, Respondent.
    No. 56625.
    Supreme Court of Louisiana.
    March 29, 1976.

      Frank J. Gremillion, Greco, Thompson & Gremillion, Baton Rouge, for respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., John W. Sinquefield, James E. Boren, Asst. Dist. Attys., for relator.
   TATE, Justice.

The trial court sustained a motion to suppress marijuana seized from the defendant’s person pursuant to a warrantless search. On application of the State, we granted certiorari to review this ruling. 319 So.2d 439 (1975).

The accused is charged with a second offense possession of marijuana. La.R.S. 40:966(C). The defendant contends that the marijuana was obtained by an unconstitutional search and seizure. The State, on the other hand, def.ends the legality of the search as incident to a lawful arrest.

Facts

The uncontradicted evidence shows:

The defendant was driving alone on an interstate highway just after midnight. He was stopped by a policeman (first officer). After alighting from his own car, the accused walked back and met the policeman at the front of the police car and handed him his license. The officer informed him that he was speeding 65 mph, i. e., in excess of the 55 mph speed limit.

The first officer wrote a traffic ticket (summons) and radioed for confirmation of the ownership of the vehicle. While he and the accused were standing by the police vehicle awaiting this routine check, a second officer drove up and parked in front of the defendant’s car.

The second officer had not seen the defendant driving in excess of the speed limits, nor (so far as the record shows) did he know why the first officer had stopped him. Nevertheless, without even communicating with the defendant or the first officer, the second officer opened the defendant’s automobile, searched it, and found a beer can on the floor. (We note once again that the only unlawful conduct was non-erratic driving slightly in excess of the speed limits on an interstate highway and that this second officer did not himself know of this.)

The second officer then walked over to where the first officer and the defendant were standing awaiting radio confirmation of the ownership of the latter’s vehicle. The first officer had by then written out a ticket (summons) for a speeding violation.

After asking the accused how many beers he had drunk (one), the second officer then put his hand on the right hand pocket of the blue jean pants worn by the defendant. The policeman squeezed it, felt something soft, and put his hand in and dragged out a small cellophane bag containing two marijuana cigarettes.

The defendant was then placed under custodial arrest for possession of marijuana and brought down to the police station and booked for the drug offense. (He was not charged with the traffic offense.)

Issue

The narrow issue before us is whether a temporary detention of a person for purposes of issuing a summons for a traffic offense justifies, without more reason, a full search of his person.

We hold, as did the trial court, that, in such circumstances, the search of the detained party’s person is unreasonable and that the product of this unconstitutional search by a governmental officer cannot be used in evidence against that party. We thus reject the State’s claim that such a search should be regarded as justified as incident to a lawful arrest.

Applicable Legal Principles

Article 1, Section 5, of the Louisiana Constitution of 1974 provides; “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches . . Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.”

The constitutional provision was designed to protect the traditional American right to freedom of individuals from unwarranted invasion of their privacy by officers of government. It incorporates the traditional American concept that searches should ordinarily only be conducted pursuant to warrants supported by sworn sufficient probable cause and that, except in limited and exigent circumstances, war-rantless searches are prohibited.

The State correctly urges that one of these exceptions to the warrant-requirement is a search incident to a lawful arrest. See, e. g., State v. King, 322 So.2d 205 (La.1975); State v. Thomas, 310 So.2d 517 (La.1975), and State v. Warren, 283 So.2d 740 (La.1973). Essentially, as these cases note, the justification for the war-rantless search of a person arrested for a crime is based upon the exigent necessity of removing any weapons and of preserving any evidence within the immediate reach of the arrested person. Cf. also federal decisions, such as United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973).

The State contends that here the person was “arrested” simply because he was lawfully detained.

The State relies with considerable confidence upon the definition of arrest set forth by La.C.Cr.P. art. 201: “arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.”

Thus, where a person is detained with the purpose of taking him into custody, an arrest occurs, even if the police officer does not formally so inform the ar-restee. State v. Warren, 283 So.2d 710 (La. 1973).

On the other hand, it is not every authorized detention by a police officer that justifies a full search of the person of the detainee. A governmental officer may have authority to question a witness, for example, without thereby acquiring the right to search his person. In our stop and frisk statute, for another instance, the legislature has specifically recognized the limited right of search of the person even of one whom the officer may reasonably suspect has committed a crime. La.C.Cr.P. art. 215.1 (1968).

A search incident to a lawful arrest is a limited exception to the constitutional prohibition of warrantless searches. The underlying exigent reasons permitting this search—the protection of the arresting officer and the prevention of destruction of incriminating evidence in connection with the offense for which arrested—ordinarily do not apply to the detention of a non-dangerous motorist in order for the officer to issue a summons for his prior traffic conduct. A Louisiana motorist does not, by entering his vehicle, lose at the whim of a traffic policeman his constitution’s protection of his person against unreasonable searches.

We find no authority in prior judicial decision, American history, or legal reason to support the State’s position that a lawful governmental detention, without more, can constitutionally serve as authority for a full search (without any other cause) of the detainee’s person.

In short, not every authorized detention may constitute an “arrest” which justifies incident to it a search of the person. The arrests contemplated which do justify a search of the person incident to it are full-custody arrests reasonably and lawfully made with the purpose of booking the person, La.C.Cr.P. art. 228, for the offense charged. Historically, only such an arrest has been the basis of a constitutionally authorized search as incident to it. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467,38 L.Ed.2d 456 (1973).

Here, no custodial arrest had occurred. Instead, the only police officer who had probable cause to make an arrest, had already determined instead to issue a summons (ticket) for the traffic offense, La. C.Cr.P. art. 208, as was within his authority, La.C.Cr.P. art. 211.

This being so, no such custodial arrest had occurred which justified a search as incident to it, the only reason here advanced to justify the search. Nor is any other justification shown for the second officer’s search, such as a reasonable suspicion that the detainee had a weapon (the patdown revealed only something soft, like a handkerchief or a plastic bag). See La.C. Cr.P. art. 215.1 (quoted in footnote 1).

As we interpret them, the United States Supreme Court decisions interpreting the federal constitution’s Fourth Amendment reach the same conclusion, with regard to the precise issue before us, as do we in now interpreting Louisiana’s similar but more express constitutional provision. They recognize the difference between a search of the person incident to a full-custody arrest, United States v. Robinson and Gustafson v. Florida, cited above, and the limited occasion for and extent of a search in connection with a detention less than a full-custody arrest, Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Conclusion

For the reasons assigned, we affirm the district court’s finding that the search of the motorist detained merely for issuance of a summons was unreasonable; we therefore affirm the district court’s judgment, which sustained the motion to suppress the evidence seized as being the product of an unconstitutional search.

AFFIRMED.

MARCUS, J., concurs and assigns reasons.

SANDERS, C. J., concurs in the result.

SUMMERS, J., dissents.

MARCUS, Justice

(concurring).

Where a law enforcement officer has probable cause to believe that a person has committed a crime, he may place that person under arrest. Incident to such lawful arrest, the officer may lawfully conduct a full search of the arrestee and of the area within his immediate control for weapons and for evidence of a crime. Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L. Ed.2d 456 (1973); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The first policeman in the instant case, having witnessed defendant commit a traffic offense, had probable cause to arrest him. Had he done so, a search of his person would have been lawful, and the admission in evidence of the marijuana thereby seized would have offended neither the fourth amendment nor article 1, section 5 of the Louisiana Constitution of 1974.

The first policeman, however, chose not to place defendant under arrest. Instead, he stopped the vehicle and commenced issuing defendant a summons in lieu of placing him under arrest. This initial stop of defendant’s vehicle was clearly proper, since only reasonable suspicion (a standard lower than the “probable cause” needed for arrest) is required for a lawful stop and temporary detention for questioning. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); La.Code Crim.P. art. 215.-1(A), added by La.Acts 1968, No. 305, § 1. After stopping the person, an officer, if he 'reasonably suspects that he is in danger of life or limb, may search the person’s outer clothing for a dangerous weapon or for any other thing the possession of which may constitute a crime. La.Code Crim.P. art. 215.1(B). See Adams v. Williams, supra; Terry v. Ohio, supra. Accordingly, had defendant’s pockets been “frisked” because of the officers’ fear for their safety, the search would have been lawful. Neither officer, however, testified at the hearing on the motion to suppress. Hence, the state made no showing that defendant was searched because of a reasonable suspicion that the officers were in danger. In the absence of such a showing, the search of his person was unlawful and the evidence thereby seized was properly suppressed. I therefore concur.

      . La.C.Cr.P. art. 215.1 provides:
      “A. A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.
      “B. When a law enforcement officer has stopped a person for questioning pursuant to this Article, and reasonably suspects that he is in danger of life or limb, he may search the outer clothing of such person for a dangerous weapon or for any other thing the possession of which may constitute a crime.
      “C. If the law enforcement officer finds a dangerous weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.” (Italics ours.)

      . La.C.Cr.P. art. 208 provides :
      “A summons is an order in writing, issued and signed by a magistrate or a peace officer in the name of the state, stating the offense charged and the name of the alleged offender, and commanding him to appear before the court designated in the summons at the time and place stated in the summons.”

      . La.C.Cr.P. art. 211 provides :
      “When it is lawful for a peace officer to arrest a person without a warrant for a misdemeanor, he may give a written summons instead of making an arrest, if he has reasonable ground to believe that the person will appear upon a summons. In any case in which a summons has been issued, a warrant of arrest may later be issued in its place.”

      . Here, the detaining officer had specifically informed the detainee that a summons would be issued. We expressly do not hold, however, that an arbitrary or non-customary decision of an officer to arrest a person instead of to issue a summons for a misdemeanor will justify as reasonable any search incident to it. Cf., Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 416-17 (1974).

      . In the context of the issues before them, these decisions simply held that a full-custody arrest justifies a search of the person arrested without, in addition, any requirement that there be probable cause to believe that the person is armed or has evidence in his possession which he may destroy. See also Note, 39 Albany L.Rev. 895, 896-900 (1975).


text:
    STATE of Louisiana v. David BROWN, Jr. and Russell Eugene Wyman.
    No. 57204.
    Supreme Court of Louisiana.
    March 29, 1976.

      Lyall G. Shiell, Jr., New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

This trial, conviction and sentence occurred in January, 1973, as a result of a bill of information filed in November, 1972, charging David Brown and Russell Eugene Wyman with armed robbery. Upon conviction each defendant was sentenced to serve thirty years at hard labor in the custody of the Department of Corrections. Both appealed and rely on three bills of exception to set the sentences aside and reverse the convictions.

BILL 1

Appellant David Brown, having taken the stand, testified on direct examination as follows:

“Q. At the time you were arrested, what were you doing in the way of working or anything ?
A. Well, I was attending school — sheet metal work — at New Orleans Vocational on Louisa Avenue.
Q. Were you drawing compensation while you were going to school ?
A. Yes, C.A.P.T. give me $50 a week, and Uncle Sam give me $278 a month and benefits.
Q. You’re a veteran ?
A. Yes, I am.
Q. How long did you serve in the Army ?
A. Three years and six months.
Q. Did you serve overseas.
A. Yes, I did.
BY MR. SCIAMBRA: (Assistant District Attorney) Objection. This is all irrelevant.
BY THE COURT:
Maintained.”

Defense counsel made no objection to the court’s ruling and continued questioning Brown on his schooling and employment. Despite the failure to object, the defense submitted a bill of exception in which he sets forth that during the course of the trial defense counsel attempted to question the witness as to his military record to establish his credibility and a prosecution objection to this line of questioning was sustained.

As the trial occurred in 1973, it was then governed by Article 841 of the Code of Criminal Procedure before its amendment by Act 297 of 1974. As then in effect the Article provided:

“An irregularity or error in the proceedings cannot be availed of after verdict unless it is objected to at the time of its occurrence and a bill of exceptions is reserved to the adverse ruling of the court on such objection. Failure to reserve a bill of exceptions at the time of an adverse ruling of the court operates as a waiver of the objection and as an acquiescence in the irregularity or ruling.
This bill has no merit.

BILL 2

This bill complains that during the prosecution’s cross-examination of defense witness Harold Woods, the prosecutor advised the witness of the testimony of a previous defense witness, to which defense counsel obj ected and was overruled.

The questions and answers involved are:

“Q. If I were to tell you that both Tero and Jock testified that you weren’t there after 7:30, what would you say ?
A. I’d say that was wrong.”

The state argued at the trial that the object of the question was to impeach the defense witness.

Defense counsel argues, on the other hand, that at the beginning of the trial he moved for a sequestration of the witnesses and this type cross-examination violated the rule of sequestration and served only to falsely intimidate the witness.

The trial judge was of the opinion that the question fell within the latitude allowed for cross-examination. He expressed the further opinion in his per curiam that the question did no violence to the rule of sequestration because the witness on the stand had no opportunity to collaborate with the other witnesses, who had testified previously, and concoct a false story. Rather, the judge was of the opinion that the jury had the benefit of the witness’s reaction and could better judge his credibility.

The ruling was correct. This bill has no merit.

BILL 3

In a defense motion for a new trial it is alleged: “The court erred in instructing the jury on the statute relative to a presumption of evidence not introduced, said instruction not being appropriate with the facts brought out at the trial.”

The defense brief sets forth that this bill was taken during the court’s instructions to the jury. However, the transcript here does not contain the judge’s instructions to the jury and they are not attached to the bill of exceptions as required by Article 844 of the Code of Criminal Procedure prior to its amendment by Act 207 of 1974.

Although the defense does not cite the statute referred to in the motion for a new trial, and the State has not argued this bill in brief, it is apparent the defense is referring to that clause in Section 432 of Title IS of the Revised Statutes which provides that a legal presumption exists “that evidence under the control of a party and not produced by him was not produced because it would not have aided him.”

A complete transcript of the testimony is in the record but the defense does not point out how this instruction resulted in error, other than to make the conclusory allegation that the instruction was not “appropriate within the facts brought out at trial.”

This bill is without merit.

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

DIXON, J., concurs.


text:
    William J. LEMOINE v. BUNKIE GENERAL HOSPITAL et al.
    No. 57743.
    Supreme Court of Louisiana.
    April 9, 1976.
   In re: William J. Lemoine applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Avoyel-les. 326 So.2d 618.

Writ denied. On the facts found, the result is correct.

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


author: DIXON, Justice.

text:
    STATE of Louisiana v. John H. THOMAS.
    No. 57230.
    Supreme Court of Louisiana.
    March 29, 1976.

      Walter C. Dumas, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Richard E. Chaffin, James E. Boren, Asst. Dist. Attys., for plaintiff-appellee.
   DIXON, Justice.

The defendant, John H. Thomas, was charged by bill of information dated February 19, 1974 with the crime of possession of heroin, in violation of R.S. 40:966(C). He was convicted in a jury trial on August 21, 1974 and subsequently sentenced to four years imprisonment without benefit of probation or suspension of sentence. On appeal defendant relies on five assignments of errors.

Assignments of Errors Nos. 1 and 8

The defendant filed a motion to suppress certain evidence seized from his residence pursuant to a search warrant. To the trial judge’s denial of the motion to suppress the evidence, defendant assigns these errors.

The defendant first contends that the search warrant in this case does not contain probable cause for its issuance because it does not properly describe the place to be searched. Secondly, the defendant asserts that the search was conducted in an unreasonable manner.

Article 162 of the Code of Criminal Procedure states:

“A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.
“A search warrant shall particularly describe the person or place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search or seizure.”

The affidavit must recite facts establishing to the satisfaction of the judge that probable cause exists for the issuance of the search warrant. State v. Paciera, 290 So.2d 681 (La. 1974). The factual information which is the foundation for the determination of probable cause must be contained in the affidavit. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Mere suspicion or belief is not sufficient to establish probable cause. State v. Wells, 253 La. 923, 221 So.2d 50 (1969).

With these principles in mind, the recitals of the affidavit which served as the basis of the application for the search warrant and its subsequent issuance must be examined. The affidavit states:

“That probable cause does exist for the issuance of a search warrant authorizing the search of a residence occupied by-Johnny Thomas located at 922 East Polk Street, Baton Rouge, Louisiana, where a quantity of controlled dangerous substances, to wit: heroin is (are) believed to be secreted or concealed, and such probable cause is based upon the following: Affiant informs the Court that on this date a reliable and confidential informant who has been working under the direct supervision of affiant for the past six (6) months and whose information has led to the arrest of at least ten (10) persons contacted affiant and advised affiant that on or about January 2, 1974, he, being said informant had entered the above residence and observed a quantity of heroin to be present inside the above residence. Affiant further informs the Court that the above mentioned reliable and confidential informant has seen Johnny Thomas, alias “Little Johnny’’, sell small packages of white powder preported (sic) to be heroin. Said informant having observed these sales during the past one (1) month.”

The defendant’s argument that the affidavit fails to state sufficient facts to satisfy the probable cause requirement because it does not properly describe the place to be searched is without merit. The affidavit describes the place to be searched as “a residence occupied by Johnny Thomas located at 922 East Polk Street, Baton Rouge, Louisiana.” This residence, at this address, is in fact the residence of the defendant. The fact that the affidavit identifies the defendant as Johnny Thomas, while his proper name is John H. Thomas, IV, is of no moment; there is no sacramental requirement that the defendant be identified by his full and correct name.

Defendant further contends, even if the warrant is sufficient, the search itself was conducted in an unreasonable manner. We cannot agree.

The entry to the defendant’s residence was a “no knock” entry. The officer who conducted the search testified that there was no knock or summons given at the time the door was forcibly opened. Instead, he testified, he kicked the door just above the latch and knocked it open, and then shouted that he was from the sheriff’s office and had a warrant.

C.Cr.P. 164 provides:

“In order to execute a search warrant a peace officer may use such means and force as are authorized for arrest by Title V.”
C.Cr.P. 224 provides:
“In order to make an arrest, a peace officer, who has announced his authority and purpose, may break open an outer or inner door or window of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, where the person to be arrested is or is reasonably believed to be, if he is refused or otherwise obstructed from admittance. The peace officer need not announce his authority and purpose when to do so would imperil the arrest.”

The officer justified his “no knock” entry on two grounds: (1) he was prepared to seize heroin, which can quickly and easily be destroyed and (2) he had information from a confidential informant that each time the informant had spoken with the defendant the defendant had been armed with a .357 magnum Luger pistol.

All the circumstances must be examined to determine if the force used in execution of the warrant was unreasonable. State v. Thorson, 302 So.2d 578 (La.1974). In State v. Christiana, 249 La. 247, 186 So.2d 580 (1966), cert. den. 385 U.S. 835, 87 S.Ct.: 77, 17 L.Ed.2d 68 (1966), this court held that an officer need not announce his intended entry if he reasonably believes that doing so would place him in a position of great peril. See C.Cr.P. 224, comment (f).

In the instant case, the officer had a reasonable belief that the defendant, if present inside the residence, would be armed, and that the evidence sought could quickly and easily be disposed of. These circumstances might have imperiled the arrest if the entry had not been unannounced and forcible. See Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

These assignments have no merit.

Assignments of Errors Nos. 2, 4 and 5

During the course of the trial, the defendant objected to testimony concerning (1) the apparatus used by heroin addicts; (2) the identification by an officer of puncture marks on the defendant’s arm; and (3) that the defendant might be armed when the search was to be executed. The defendant contends that this testimony was irrelevant and prejudicial. We cannot agree.

[9,10] Guilty knowledge is an essential element of the crime of possession of a narcotic drug. State v. Smith, 257 La. 896, 244 So.2d 824 (1971). The State must show not only that the accused possessed the substance identified as a narcotic drug, but also it must show by direct or circumstantial evidence that the accused knew the substance he possessed was a narcotic drug. State v. Smith, supra.

In the instant case, evidence of track marks and narcotic paraphernalia were admissible because such evidence tends to show that the defendant had knowledge of the use of heroin, and that the accused knew the substance he possessed was heroin, essential elements of the proof required for conviction. See State v. Smith, supra; State v. Kreller, 255 La. 982, 233 So.2d 906 (1970).

Finally, the defendant’s contention that the officer’s testimony that defendant was expected to be armed was irrelevant and constitutes reversible error is without merit. That fact was relevant to explain the manner in which the warrant was executed. Although the trial judge overruled the objection, he admonished the jury at the time the testimony was elicited that the defendant was on trial only for possession of heroin and not for any other offense.

These assignments are without merit.

Accordingly, the conviction and sentence are affirmed.

      . The defendant presented seven assignments of errors to the trial court. However, Assignments of Errors Nos. 3, 6 and 7 were neither briefed nor argued, and are therefore deemed abandoned. State v. Carlisle, 315 So.2d 675 (La.1975).

      . Assignment of Error No. 8 was not presented to the trial judge as required by O. Cr.P. 844 and hence is not properly before us. State v. Smith, 316 So.2d 739 (La.1975).


author: TATE, Justice.

text:
    STATE of Louisiana ex rel. Robert J. MILLER, Relator, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent. STATE of Louisiana, Appellee, v. Robert J. MILLER, Appellant.
    Nos. 56598, 57099.
    Supreme Court of Louisiana.
    March 29, 1976.

      Wilson R. Ramshur, Willis & Ramshur, St. Francisville, for plaintiff-relator in No. S6S98 and for defendant-appellant in No. 57099.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., Cynthia Picou Bran-ton, Asst. Dist. Atty., for plaintiff-appellee in No. 57099 and for defendant-respondent in No. 56598.
   TATE, Justice.

The defendant, an inmate at the state penitentiary, was charged with simple escape as defined by La.R.S. 14:110.2 (as enacted by Act 174 of 1969), which penalizes the intentional departure of a person while imprisoned at the penitentiary from the custody of any officer or employee of the institution. The jury returned a verdict of “Guilty of Attempted Escape.” Accordingly, as authorized by the attempt statute, La.R.S. 14:27, subd. D(3), the district court sentenced the defendant to five years at hard labor, that being one-half of the maximum penalty provided for violation of the intended crime (i. e., the ten years provided for escape from the penitentiary, La.R.S. 14:110.2 (1969).)

On defendant’s appeal, he relies upon two assignments of error made to the trial court.

Additionally, we granted supervisory writs, 318 So.2d 45 (La.1975), in order to consider at the time of the appeal contentions made that the trial of the accused offended due process requirements of a fair trial and that the statute under which he was convicted is unconstitutional.

The Appeal

The two assignments argued are based upon the jury’s verdict, “Guilty of Attempted Escape.” Since the charge was escape from the penitentiary, La.R.S. 14:110.2, the defendant argues that “attempted escape” would be responsive to La.R.S. 14:110 (1970), simple escape, a different offense (with the lesser maximum penalty of five years).

So construing the verdict, the defendant first argues that it is a nullity, since not responsive to the crime charged. The defendant essentially contends that the verdict is verbally deficient in that it did not specify that the jury found him guilty of attempted simple escape from the penitentiary.

In that regard, however, “There shall be no formal requirement as to the language of the verdict except that it shall clearly convey the intention of the jury.” La.C.Cr.P. art. 810. In determining the intent of the jury, if ambiguous, reference may be had to the pleadings, the evidence, the admissions of the parties, the instructions, or the forms of the verdict submitted. State v. Broadnax, 216 La. 1003, 45 So.2d 604 (1950).

Here, the bill of information specifically charged the defendant with simple escape from the penitentiary, La.R.S. 14:110.2. In instructing the jury, the trial judge informed the jury that the defendant was accused of violating this specific statute, which he read to the jury, including its penalty.

The trial judge also instructed the jury that it could find one of the following verdicts: guilty, guilty of attempted escape from Louisiana State penitentiary, not guilty. The list of responsive verdicts furnished the jury included only these three possible verdicts.

Under these circumstances, the jury’s verdict of “Guilty of Attempted Escape” could have been intended only to mean guilty of attempted violation of the only statute involved in the indictment or the judge’s charge, namely, escape from the Louisiana State penitentiary (La.R.S. 14:-110.2).

The verdict was thus responsive to the charge, and the sentence imposed was thus within the statutory limits allowable for the violation held proved by the verdict.

Alternatively, the defendant contends that the verdict proved the defendant guilty of attempted violation, La.R.S. 14:27, of La.R.S. 14:110 (1970). (For this violation, the maximum sentence was two and one-half years at hard labor; so therefore, the five year sentence imposed exceeds the statutory maximum.)

The basis for this alternative argument is that 110.2 (1969) was repealed by 110 (1970). We rejected this contention in State v. Coney, 258 La. 369, 246 So.2d 793 (1971). We are unwilling to overrule that decision.

We find no merit in the assignments of error urged on the appeal.

Habeas Corpus Relief

Subsequent to his conviction, the defendant filed a petition under La.C.Cr.P. art. 362 by which he contended (1) that the statute under which he was convicted is unconstitutional and (2) that his trial did not meet due-process requirements of. a fair trial. An evidentiary hearing was held on these issues.

In ordering that an appeal be granted him, we also ordered that these other contentions of his writ be consolidated with the appeal for hearing in this court. 318 So.2d 45 (La. 1975).

(1) The alleged unconstitutionality of La.RS. 14:110.2 (1969):

We have previously rejected most of the contentions made by the defendant. See: State v. Pebworth, 260 La. 647, 257 So.2d 136 (1972); State v. Coney, 258 La. 369, 246 So.2d 793 (1971). Additional to the contentions there rejected, however, the defendant also contends that La.R.S. 14:110.2 (1969) is a “local” or a “special” law and for that reason invalidly enacted under the state constitutional provision in effect at the time of its enactment.

A “local” law is one that operates only in a particular locality without the possibility of extending its coverage to other areas should the requisite criteria of its statutory classification exist there. A statute is “special” if it affects only a certain number of persons within a class and not all persons possessing the characteristics of the class. See: Teacher’s Retirement System of Louisiana v. Vial, 317 So.2d 179 (La.1975); Comment, General and Special Laws in Louisiana, 16 La.L.Rev. 768 (1956).

Under these criteria, the statute is neither a local nor a special law.

The statute is not a local law. It affects the state penitentiary, wherever situated. Also (see statute, footnote 1), it affects those imprisoned at the penitentiary if they escape from any place where lawfully detained, whether at the penitentiary or not.

The statute is not a special law. It affects all persons equally within what in Pebworth we found to be a reasonable classification. There, we held that there was a reasonable basis to classify inmates imprisoned at the state penitentiary for purposes of a penal statute punishing their escape after imprisonment.

As held by Pebworth, the classification was neither arbitrary nor unreasonable, and it operated equally upon all persons within it. Therefore, we held, the statute did not violate the constitutional prohibitions at issue in Pebworth. For somewhat similar reasons, neither does it offend the constitutional prohibition against local and special laws.

(2) Due-Process Fair-trial Issues

The due-process fair-trial issues urged by the defendant’s post-conviction writ are two-fold: (a) the jury venire from which the present jury was drawn was prejudi-cially tainted by its exposure to an earlier trial of the defendant for another offense; and (b) the jury which tried the accused was unfairly prejudiced by his being shackled and in handcuffs during his trial before us.

(a) Jury venire

On the afternoon of January 20, 1972, the defendant was tried and convicted for two entirely different escape charges: (a) Docket No. 899S-A, involving an escape of January 8, 1969, of which the defendant was found guilty by the jury at 3:00 p. m., after twelve minutes’ deliberation; and the present case, Docket No. 9926-A, in which the jury returned a verdict of attempted escape at 5:17 p. m., after fifteen minutes’ deliberation.

In the evidentiary hearing on the post-conviction hearing, the defendant produced proof, before the trial court terminated the evidence on the issue, that all members of a venire remain at the courthouse during the entire day, unless excused, for all the trials held that day. The defendant thus raises an extremely serious issue by his allegation that he was deprived of an impartial jury, in that members of the venire from which his jury was chosen allegedly sat through his first trial and conviction before being chosen to serve in a trial of him for an entirely different offense within minutes of his first conviction.

Nevertheless, without approving the practice which involves such great risk of prejudice, we are unable to say that the present defendant’s second trial was so tainted as alleged. Examination • of the transcript of the first trial, Docket No. 52425 of this court, indicates that the prospective jurors not selected for the first trial had been sequestered outside the courtroom. Tr. 21. The trial judge also instructed the jurors who served at the first trial not to mention their verdict to those prospective jurors waiting elsewhere, for the reason that the defendant was going to be tried for another offense.

The voir dire examination of the jurors at the present trial likewise indicates that the- examining attorney first ascertained that none of the prospective jurors knew or had ever seen the defendant. (When one stated that he had seen him in the courtroom shortly before, the trial court immediately excused him, without permitting any further inquiry into the circumstances.)

Under this showing, we do not believe that the defendant’s conviction should be set aside upon post-conviction attack. The defendant did not meet his heavy burden of proving the unfairness of the first trial by reason of circumstances to which he did not object at the time they occurred. The potential unfairness of the procedures used is not cause to annul the conviction, in view of the showing that the jury venire for the second trial was insulated from attendance at the first trial and from knowing that the accused was the defendant in it.

(b) Handcuffing and shackling of the defendant

The minutes of the first trial show that the defendant was handcuffed and shackled during it. At the evidentiary hearing on the post-conviction attack upon the second conviction, the defendant testified that he was similarly handcuffed and shackled during the second trial. No objection was made during the trial, however, to this shackling.

Ordinarily, a defendant before our courts should not be shackled or handcuffed or garbed in any manner destructive of the presumption of his innocence and of the dignity and impartiality of judicial proceedings. Illinois v. Allen, 397 U. S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); State v. Smith, 322 So.2d 197 (La.1975); State v. Tennant, 262 La. 941, 265 So.2d 230 (1972): see also State v. Brewer, 301 So.2d 630 (La. 1974). However, as these decisions note, exceptional situations may require, within the reasonable discretion of the trial court, the restraint of the prisoner for reasons of courtroom security or order or, see State v. Daniel, 297 So.2d 417 (La. 1974), where the prisoner’s past conduct reasonably justifies apprehension that he may attempt to escape.

Even if the occurrence is objected to at the time of trial, for it to be reversible error on appeal, the record must clearly show that it was prejudicial to the rights of the accused, State v. Clark, 325 So.2d 802 (La. 1976), and not an abuse of the trial court’s reasonable discretion in the matter, State v. Tennant, 262 La. 941, 265 So.2d 230 (1972).

However, when the issue is raised for the first time after conviction, the mere fact that the defendant was handcuffed in the presence of the jury does not afford a ground for relief; ' it must additionally be shown to have seriously affected the fairness of the trial. Gregory v. United States, 365 F.2d 203 (CA 8, 1966). It must be shown that the trial judge abused his discretion to the point where a fair trial was not possible under the circumstances. McCloskey v. Boslow, 349 F. 2d 19 (CA 4, 1965); Odell v. Hudspeth, 189 F.2d 300 (CA 10, 1951).

The defendant did not meet this heavy burden. First of all, in a post-conviction proceeding, the mere showing that the accused was handcuffed in the presence of the jury does not justify a conclusion that this circumstance was so prejudicial that the accused was denied a fair trial, where he did not object to the occurrence at the time of the trial. Additionally, the trial court’s discretion is not here shown to have been abused, based as it was on the accused’s past escape record and also on the relatively little prejudice to result before a jury trying him on a charge which involved his conduct at the penitentiary, which necessarily involved their knowing him to be a penitentiary inmate.

Decree

For the reasons assigned, therefore, we affirm the defendant’s conviction and sentence, and we dismiss his claim for post-conviction relief.

CONVICTION AND SENTENCE AFFIRMED; POST-CONVICTION PETITION DISMISSED.

      . La.R.S. 14:110.2 (1969) provided:
      “Notwithstanding the provisions of any other law to the contrary, including the provisions of R.S. 14:110, simple escape from the Louisiana State Penitentiary is the intentional departure of a person while imprisoned at said penitentiary, and under circumstances wherein human life is not endangered, from the custody of any official, officer or employee of said penitentiary or any other law enforcement officer of the state of Louisiana or a political subdivision thereof or from any place where such person is lawfully detained.
      “Whoever commits the crime of simple escape from the Louisiana State Penitentiary shall be imprisoned at hard labor for not less than five years nor more than ten years, provided that such sentence shall not run concurrently with any other sentence.”

      . Art. 4, § 4 of the Louisiana Constitution of 1921 provides, inter alia:

      “The Legislature shall not pass any local or special law on the following specified subjects :
      *****
      “Concerning any civil or criminal actions.
      * * * if

      . On appeal, the conviction and ten-year sentence were reversed because the defendant was not tried within two years of institution of the prosecution, as required by La.C.Cr.P. art. 578. State v. Miller, 263 La. 138, 267 So.2d 550 (1972) .


author: MARCUS, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Sam H. JAMES and Doris Reed Enloe Finch.
    No. 57180.
    Supreme Court of Louisiana.
    March 29, 1976.
    William J. Guste, Jr., Atty. Gen., Walter L. Smith, Jr., L. J. Hymel, Jr., Asst. Attys. Gen., R. Neal Wilkinson, Staff Atty; Os-sie Brown, Dist. Atty., Edwin O. Ware, Special Prosecutor, Alexandria, for plaintiff-appellant.
    Robert L. Kleinpeter, Baton Rouge and Gerard F. Thomas, Jr., Natchitoches, Kleinpeter & Nevils, New Orleans, for defendant-appellee, Sam H. James.
    Stacey Moak, Cicero & Moak, Baton Rouge, for defendant-appellee, Doris Reed Enloe Finch.
   MARCUS, Justice.

Sam H. James, Sheriff of Natchitoches Parish, and Doris Reed Enloe Finch were indicted by the East Baton Rouge Parish Grand Jury for simple escape in violation of La.R.S. 14:110. Additionally, Sam H. James was indicted by the East Baton Rouge Parish Grand Jury for malfeasance in office in violation of La.R.S. 14:134. Both defendants moved to quash the indictments and alleged, inter alia, that East Baton Rough Parish was not a parish of proper venue for the trial of the offenses charged. The trial judge granted defendants’ motions to quash on the ground of improper venue. The state has appealed from this adverse ruling pursuant to La. Code Crim.P. art. 912(B) (1) (1966).

I.

Although the issue has not been briefed or raised by either of the parties, we note, ex proprio motu, that this court is without jurisdiction to entertain the state’s appeal. Article V, section 5(D)—(E) of the 1974 constitution, which is applicable in this case, confers upon the supreme court appellate jurisdiction in the following criminal cases:

(D) Appellate Jurisdiction. In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional; (2) the defendant has been convicted of a felony or fine exceeding five hundred dollars or imprisonment exceeding six months actually has been imposed.
(E) Other Criminal Cases; Review. In all criminal cases not provided in Paragraph (D) (2) of this Section, a defendant has a right of appeal or review, as provided by law.

(Emphasis added.) Article V, section 5(D)(2) provides that a case is appealable to the supreme court only where the defendant has been convicted of a felony or a fine exceeding five hundred dollars or imprisonment exceeding six months actually has been imposed. Article V, section 5(E) authorizes the legislature to grant a right of appeal in other criminal cases, but only to the defendant. The clear and unambiguous language of these provisions compels us to conclude that the state has no right under the present constitution to invoke the criminal appellate jurisdiction of the supreme court prior to defendant’s conviction of a felony or the actual imposition of a fine exceeding five hundred dollars or imprisonment exceeding six months, except in criminal cases in which a law or ordinance has been declared unconstitutional. La.Const. art. V, sec. 5(D)(1) (1974).

In contrast, the 1921 constitution vested the supreme court with appellate jurisdiction in the following criminal cases:

Appellate jurisdiction; criminal. The appellate jurisdiction of the Supreme Court shall also extend to criminal cases on questions of law alone, whenever the penalty of death, or imprisonment at hard, labor may be imposed; or where a fine exceeding three hundred dollars or imprisonment exceeding six months has been actually imposed.

La.Const. art. 7, § 10(7) (1921) (emphasis added).

Under the 1921 constitution, which extended our appellate jurisdiction to criminal cases where the death penalty or imprisonment at hard labor (i. e., a felony, La.R.S. 14:2(4); La.Code Crim.P. art. 933(3)) may be imposed, we held that the state, as well as the accused, had the right to appeal from a prejudicial judgment or ruling by the trial court that finally disposed of the case. State v. Shushan, 204 La. 672, 16 So.2d 227 (1943) (upholding the state’s right to appeal a nolle prosequi entered by the trial court on a plea of prescription). See also La.Code Crim.Parts.. 540, 541 (1928). Article 912(B) of the 1966 Code of Criminal Procedure, in delineating the state’s right to appeal adverse judgments or rulings (other than verdicts of acquittal), was intended to codify the existing jurisprudence. La.Code Crim.P. art. 912, Official Revision Comment (b) (1966). We have stated,, however, that article 912(B) is applicable only where the supreme court was conferred with appellate jurisdiction by the constitution. State v. Murphy, 254 La. 873, 227 So.2d 915 (1969).

Under the 1974 constitution, this court is no longer vested with criminal appellate jurisdiction before such time as defendant has been convicted of a felony or a fine exceeding five hundred dollars or imprisonment exceeding six months has actually been imposed, except in criminal cases in which a law or ordinance has been declared unconstitutional. Hence, article 912(B) is no longer applicable insofar as it permits the state to appeal pre-conviction final adverse judgments or rulings. To that extent, article 912(B) is in conflict with the present constitution, and ceased as of its effective date. La.Const. art. XIV, sec. 18(B) (1974).

II.

Where the state desires review of a final pre-conviction adverse judgment or ruling in a criminal case, application to this court for a writ of review under our supervisory jurisdiction is now the proper procedure for it to follow. Because this case is the first to have considered the validity of article 912(B) under the 1974 constitution, we shall treat the state’s appeal as an application for a writ of review.

The state alleges that the trial judge erred in quashing the indictments on the ground that East Baton Rouge Parish is not a parish of proper venue for trial of the offenses charged.

Every person charged with a crime is entitled to a trial in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law. La.Const. art. I, sec. 16 (1974). See also La.Code Crim.P. art. 611 (1966). Improper venue may be raised by motion to quash, and even if the issue of venue has been passed upon by the judge prior to trial, the state on the trial shall have the burden of proving proper venue beyond a reasonable doubt. La.Code Crim.P. art. 615 (1966).

The facts in this case show that defendant Sam H. James, Sheriff of Natchitoches Parish, flew to East Baton Rouge Parish in July, 1974 for the purpose of obtaining from Elayn Hunt, Director of the Louisiana Department of Corrections, an order that would permit the release of defendant Doris Finch, an inmate serving a five-year sentence for manslaughter at the Louisiana Correctional Institute for Women at St. Gabriel in Iberville Parish. The order was secured after a meeting with Mrs. Hunt at her office that lasted approximately forty-five minutes. Deputy Sheriff Asher Van-denburg of Natchitoches Parish and Stacey Moak, Doris Finch’s attorney, were also present at this meeting. According to Mrs. Hunt’s testimony at the hearing on the motions to quash the indictments, Sheriff James told her during their discussion that he desired Doris Finch be released from custody at St. Gabriel in order that she might visit with her dying father in Natchi-toches Parish. Mrs. Hunt testified that Sheriff James said at the meeting that Doris Finch would be in his custody during the time she was on release and that he would be responsible for her. They also discussed the possibility of using defendant Finch’s clerical skills in a program at the Natchitoches Parish jail. Mrs. Hunt testified that no conditions were attached to the prisoner’s release. Sheriff James and Deputy Sheriff Vandenburg also testified at the hearing on the motions to quash and recounted a similar version of the matters discussed in Mrs. Hunt’s office. According to the testimony of both Mrs. Hunt and Sheriff James, it is not uncommon practice to allow the temporary release of an inmate under a sheriff’s supervision. La.R.S. 15:833.

After securing the order permitting Doris Finch’s release, Sheriff James, accompanied by Deputy Sheriff Vandenburg and Mr. Moak, proceeded to St. Gabriel in Ib-erville Parish, where defendant Finch was discharged under his custody. They then returned to Natchitoches Parish, where defendant Finch visited her ill father. She was brought back to St. Gabriel in March, 1975. During the period of her release, she made a trip to East Baton Rouge Parish to enroll her daughter in a school there. At the hearing there was also testimony to the effect that she may have spent some time in Ascension Parish. Sheriff James testified, however, that he kept in contact with defendant Finch during her absence from Natchitoches Parish.

It is the state’s contention that Sheriff James failed to maintain adequate supervision of Doris Finch while she was released from prison. Averring in its brief that a “conspiracy” in Natchitoches Parish had taken place to secure defendant Finch’s release by unlawful means, the state alleges that Sheriff James never intended to supervise the inmate and that he misrepresented his intentions to Mrs. Hunt at their meeting. According to the state, Doris Finch’s release from the prison constituted an escape, Sheriff James was a principal in that crime, and Sheriff James’ failure to maintain adequate supervision of the inmate also constituted the crime of malfeasance’ in office. Because the release of Doris Finch would not have been possible but for the order of release that Sheriff James obtained in East Baton Rouge Parish from Mrs. Hunt, the state contends that their meeting constitutes an element of both crimes, and that venue is therefore proper in East Baton Rouge Parish.

The state’s contention is without merit. No evidence was adduced at trial to show that Doris Finch had conspired with Sheriff James before her release in Iberville Parish to procure the order from Mrs. Hunt by unlawful means. Further, the state presented no evidence to show that Sheriff James did not intend to keep Doris Finch under his supervision at the time he secured the order for her release in East Baton Rouge Parish. Nor can such an intent be reasonably inferred from the subsequent facts. We therefore find no evidence to show that any acts constituting an element of the crimes of escape and malfeasance in office were committed in East Baton Rouge Parish.

We conclude from the evidence presented at the hearing that the state failed to satisfy its burden of proving that an element of the crime of simple escape (with which both defendants are charged) or malfeasance in office (with which only Sheriff James is charged) was committed in East Baton Rouge Parish. Hence, the trial judge did not err in quashing the indictments on the ground that East Baton Rouge Parish was not a parish of proper venue for the trial of the offenses charged.

DECREE

For the reasons assigned, the appeal is dismissed, and the application for a writ of review is denied.

SANDERS, C. J., concurs in the result only for the reasons assigned by TATE, J.

SUMMERS, J., although I agree with the ruling on appellate jurisdiction, I concur.

TATE, J., concurs in result and assigns reasons.

DENNIS, J., concurs in the result only for the reasons assigned by TATE, J.

TATE, Justice,

(concurring in result only)

The majority has declared unconstitutional La.C.Cr.P. art. 912(B), which gives the state the right to appeal from certain rulings dismissing a prosecution. It has done so, although no pleading alleges the invalidity of this statute and although the defendants themselves do not question its constitutionality.

The effect of this ruling is not only to deprive the state of review as of right of rulings which dismiss prosecutions before trial. Its practical consequence is also to deprive the state of any opportunity to contest by application for rehearing an initial denial by this court of the state’s application for discretionary review, since applications for rehearing as to the denial of applications for writs may not be considered. Rule IX, Section 6, Rules of Supreme Court (1973).

The basis for the majority’s holding are the provisions of the Louisiana Constitution of 1974 providing for appellate juris-, diction of this court, which specifies such appeals or review of right only for a defendant. Art. V, Sections (D), (E).

In the first place, the change in language from the 1921 constitution’s provision did not intend any change, nor was it actually intended to deprive the state of any right of review it had under the 1921 constitution. See Louisiana Constitutional Convention of 1973, Verbatim Transcripts, August 15, 1973, Volume 9, pp. 83-84.

More important, however, the mandatory provision of a constitutional right for a defendant to appeal, does not exclude the legislative power to provide a remedy by which the state may appeal dismissal of prosecutions preliminary to a trial on the merits.

The pertinent enacting language of Section 5(D) is that a felony “case shall be appealable to the supreme court if [etc.] * * *Similarly, Section 5(E) provides that, in all other criminal cases, “a defendant has a right of appeal or review”. The language does not exclude the legislature’s power to provide for review of other criminal rulings than those that these constitutional provisions mandatorily specify must have a right of appellate review.

No intent can be found from these provisions, mandatorily requiring appellate review when sought by defendants, to prohibit the legislature from affording appellate review when sought by the state of pre-trial rulings dismissing a prosecution. The provisions do not, for instance, provide that the exclusive appellate jurisdiction of this court shall consist of the mandatory appellate review thereby provided.

Contrast the provisions, for example, with Article 5, Section 16, which provides that a district court “shall have exclusive original jurisdiction of felony cases”, thus preventing the legislature from placing such jurisdiction in another court. In short, unlike in the last-cited section, no language in the constitutional provisions relied upon by the majority prohibits the legislature from providing for criminal appellate jurisdiction as to other types of criminal rulings than those therein specified.

My brethren of the majority, I fear, are falling into the same attitude of restrictive judicial interpretation as of the 1921 constitution, which thereby necessitated frequent amendments in order to permit the legislature to meet current needs not specifically provided for by that lengthy previous charter. We overlook that the 1974 constitution was intended to provide only a basic structure of government and only basic limitations upon the power of the legislature to act for the people of the present and the future.

As stated by Professor W. Lee Har-grave of the Louisiana State University Law School, and a leading figure in the drafting of the 1974 Constitution, see 36 La.L.Rev. 533 (1975):

“Though Louisiana courts have accepted and applied the principle that a state legislature possesses plenary power to do anything not prohibited by the constitution even absent a grant of power, the fact that the 1921 constitution contained so many grants of power, often grants coupled with explicit or implicit limitations, resulted in the general principle being applied less often than it might otherwise have been. The 1974 constitution, deliberately short, intentionally concise, and knowingly avoiding grants of power, will require application of the principle more often. The convention used the principle as its basic starting point; and a narrow construction of legislative power under the document would thwart its purpose of giving more flexibility to the legislature'.”

This leading constitutional scholar also notes that General Guideline No. 1 of the convention’s Manual on Style and Drafting, 1 Official Journal of the Proceedings of the Constitutional Convention of 1973, 769 (1973), provided as a basic principle of the drafting of the constitution: “The general rule of state constitutional interpretation is: The provisions of a state constitution are limitations on the power of the people exercised through the legislature; what is not prohibited by the constitution is permitted. Therefore, the legislature is empowered to enact any law not prohibited by the constitution; it is unnecessary to specify, for example: The legislature has the power to enact laws providing for punishment for crime. In the absence of constitutional prohibition, the legislature has that power.”

Thus, in Hainkel v. Henry, 313 So.2d 577, 579 (La.1975), citing long-established precedents of this state, we held: “ * * * in the absence of a particular constitutional provision that limits the power of the legislature to act in the respects assailed, a legislative action cannot be invalidated as contrary to the state’s constitution.”

While the 1974 constitution provides for mandatory review by aggrieved defendants, it does not prohibit the legislature from affording the state equivalent review where a prosecution is dismissed before trial. The majority is in error in finding a constitutional prohibition against the legislature so doing.

I respectfully dissent from this court’s shackling the power of the legislature to provide this traditional remedy of review for the state, in the absence of any express constitutional prohibition and in the complete absence of any constitutional intent to deprive the legislature of the power to do so. I do concur, however, insofar as the majority, on review, finds no error in the trial court’s dismissal of these prosecutions because of the improper venue for tjlem_ ,

      . Article 912(B) of the Code of Criminal Procedure provides:
      B. The state cannot appeal from a verdict of acquittal. Adverse judgments or rulings from which the state may appeal include, but are not limited to, judgments or rulings on:
      (1) A motion to quash an indictment or any count thereof;
      (2) A plea of time limitation;
      (3) A plea of double jeopardy;
      (4) A motion in arrest of judgment;
      (5) A motion to change the venue;
      (6) A motion to recuse; and
      (7) Repealed.

      . The instant prosecution was begun by indictments filed on May 8, 1975.

      . In Murphy we dismissed the state’s appeal from the quashing of an indictment charging malfeasance in office, a misdemeanor. Thus, under the 1921 constitution, the state in the instant case would have had no right to appeal from the quashing of the indictment charging Sheriff James with malfeasance in office.

      . The verbatim transcripts of the 1973 constitutional convention proceedings indicate that the delegates, in approving the change in language from the corresponding provision in the 1921 constitution, did not discuss the effect that this change would have on the state’s then-existing right to appeal adverse judgments or rulings. 9 Transcript of the 1973 Constitutional Convention, 30th Day, at 83 — 84.

      .La.Const. art. V, sec. 5(A) (1974).


text:
    Moise S. STEEG, Jr., d/b/a Orleans Title Agency, et al., Plaintiffs-Respondents, v. LAWYERS TITLE INSURANCE CORPORATION and Lawyers Title of Louisiana, Inc., Defendants-Relators.
    No. 57344.
    Supreme Court of Louisiana.
    March 29, 1976.

      Gordon A. Pugh, F. Charles McMains, Jr., Breazeale, Sachse- &■ Wilson, Baton Rouge, for defendants-applicants.
    Phillip A. Wittmann, Clinton W. Shinn, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans; for plaintiffs-respondents.
   TATE, Justice.

The agents of several title insurers sue to enjoin the defendant competitor, a title insurer and its agent, from furnishing title insurance at a lower and allegedly illegal rate.

The trial court sustained exceptions and dismissed the suit upon several grounds, the most important of which (prematurity) involves the plaintiffs’ alleged failure to exhaust administrative remedies.

Granting certiorari, the court of appeal reversed. 323 So.2d 236 (La.App. 4th Cir. 1975). The court concluded that, because of -the inadequacy of any administrative remedy, the plaintiffs were entitled to secure a judicial determination of the legality or not of their competitor’s lower rates, without first resorting to administrative relief.

We granted certiorari, 325 So.2d 275 (1975), because of the urgent need in the present litigation to settle this- issue, as well as in order to- clarify the procedure by which:the issue may be raised.

(1)

The defense-that the plaintiff is not entitled to judicial relief because he has not exhausted his administrative remedies, may be raised to the merits, either by the exception pleading no -cause of action, La.C. Civ.P. art. 927(4) (if such defense -is affirmatively shown by the petition without resort to objected-to evidence, La.C.Civ.P. art. 931), or by answer so pleading it. See O’Meara v. Union Oil Co., 212 La. 745, 33 So.2d 506 (1947).

The defense may also be raised, as it was here, by the dilatory exception pleading prematurity, La.C.Civ.P; art. 926 (1), which is determined on the basis of the showing made at the in-limine trial of the exception, including evidence introduced at the trial thereof. La.C.Civ.P. arts. 929, 930. The functions of the exception permit raising the issue that the judicial cause of action has not come into existence because some prerequisite condition has not been fulfilled. 1 McMahon, Louisiana Practice 341-49 (1-939).

-When (as here) the issue is raised by the exception pleading prematurity, the defendant pleading the exception has the initial burden of showing that an administrative remedy is available, by reason of which the judicial action is premature. Upon such showing, the burden then shifts to the plaintiff to show or prove that the present- is one of the exceptional situations where the plaintiff is entitled to judicial relief because any administrative remedy is irreparably - inadequate. See O’Meara v. Union Oil Co., 212 La. 745, 33 So.2d 506, 510 (1947).

(2)

In the instant case, the court of' appeal opinion recognized that, despite the failure to exhaust administrative remedies, judicial proceedings may sometimes be used when irreparable injury might otherwise result, The court held that irreparable injury may here result from a competitor’s use of illegal rates, since no administrative remedies cited to it were applicable or adequate.

The central substantive issue is whether the defendant title insurer is bound (as are the plaintiffs) by the rates filed by the title insurance rating bureau. La.R.S. 22:-1406 C. The defendant insurer contends that, instead, it may charge the lower rates filed by it with the administrative agency, La.R.S. 22:1407, which rates allegedly became valid and authorized by law after the expiration of fifteen days, La.R.S. 22:1407 D.

The court of appeal overruled the exception pleading prematurity and held that, in the present circumstances, a judicial remedy might be necessary to prevent irreparable injury to the plaintiffs, to be determined at the trial on the merits. In doing so, our brethren of the court of appeal essentially held that the insurance code did not provide an administrative remedy to one aggrieved by an illegal rate colorably contended to be valid by operation of law.

Our intermediate brethren held that therefore no remedy for the present complaint is provided by La.R.S. 22:1408 D:

“Any person or organization aggrieved with respect to any filing which is in effect may make written application to the division for a hearing thereon * * (Italics ours.) (The statute further provides for expeditious hearing within thirty days of receipt of the application.)

The effect of the interpretation given is to permit the administrative remedy provided by the quoted section to be available only with regard to filings of rates which are validly “in effect”, but to deprive the administrative agency of authority to determine complaints with regard to rate filings which are alleged to be invalid or illegal and therefore not “in effect”.

We deem a more realistic and practical interpretation of this statute to be that it affords an administrative remedy to any person aggrieved by rates charged by virtue of the colorable effectiveness of a filing. That is, the statute provides a remedy for one adversely affected by a filing “in effect”, in the common everyday sense of a filing that is in fact the basis of rates which are actually being charged.

By our interpretation, the statutory provision affords an administrative remedy to any person aggrieved by a filing with adverse practical effects, whether or not the rating is technically valid or not. To hold otherwise, is to permit an administrative remedy only to ■ one aggrieved by a valid filing and to deprive an aggrieved person of an administrative remedy by which to test the validity of a filing which affects him adversely.

The interpretation adopted by us provides an administrative remedy to anyone adversely affected by the practical effects of a rate-filing. It avoids a bifurcation of remedy, as either administrative or instead judicial, depending upon whether the complaint is based upon the adverse effects caused by a valid filing or instead based upon the adverse effects caused by an invalid filing. Our interpretation, we believe, is in better accord with the general legislative intent of entrusting to an administrative agency initial determinations with regard to regulation of insurance rate-making and to disposition of disputes in connection therewith.

(3)

Thus, an administrative remedy is here provided by which the plaintiffs may contest the validity of the rate filed, an attack primarily based on the administrative procedures by which the defendant contends the filing became legally effective. On the basis of the contentions made and the evidence (documentary) received at the trial of the exception pleading prematurity, the administrative procedure is not shown to be inadequate.

Under these circumstances, we are unwilling to hold that a judicial claim for injunctive relief is necessarily available to enjoin an administrative action or rate alleged to be invalid or illegal. As we held in O’Meara v. Union Oil Co., 212 La. 745, 33 So.2d 506 (1947), disputes as to matters within the administrative regulation and expertise should ordinarily first be addressed for determination to the administrative tribunals legislatively intended to decide them, rather than to the courts. See also Davis, Administrative Law Treatise, Section 20.01 (1958), including 1970 supplement.

In view of the adequacy under present circumstances of the administrative relief available, we do not find it necessary to discuss or distinguish holdings such as in West v. Town of Winnsboro, 252 La. 605, 211 So.2d 665 (1968), which may support an interpretation that, when a plaintiff is threatened with irreparable loss, a requirement that administrative remedies be exhausted does not necessarily apply.

Decree

For the reasons assigned, therefore, we set aside the judgment of the court of appeal, and we affirm the judgment of the district court insofar as it dismissed the plaintiffs’ suit upon sustaining the exception pleading prematurity. All costs of these proceedings are taxed against the plaintiffs-respondents.

COURT OF APPEAL JUDGMENT SET ASIDE AND PLAINTIFFS’ SUIT DISMISSED.

      . We are unable to agree with the suggestion that this procedure is not adequate because no judicial remedy is provided for an administrative refusal to afford the expeditious hearing mandated by the statute. See La.C.Civ.P. arts. 3861-63.

      . See Webster’s Third New International Dictionary Unabridged, verbo “effect”, p. 724: in “effect” means, in “reality”, in “fact”.


text:
    STATE of Louisiana v. Ronald SIMS.
    No. 57215.
    Supreme Court of Louisiana.
    March 29, 1976.

      Alvin J. Bordelon, Jr., Douglas, Favre & Bordelon, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Ronald Sims was charged by bill of information with attempted armed robbery of Ethel Brandy on December 4, 1974, while armed with a dangerous weapon, to-wit: a pistol. La.R.S. 14:27; La.R.S. 14:64. After trial by jury, defendant was found guilty as charged and was subsequently sentenced to serve thirty years at hard labor. On appeal, defendant relies on two assignments of error for reversal of his conviction and sentence. Both assignments of error relate to pretrial discovery.

FACTS

Mr. and Mrs. Matthew Brandy, Sr. operate a grocery store at 3449 Magnolia Street in the City of New Orleans. Between 5:30 and 5:45 p. m. on December 4, 1974, a man, later identified by them as Ronald Sims, entered the store. After asking Mrs. Brandy the price of a bush comb, Sims placed a gun at her forehead and said: “This is it.” When Mr. Brandy observed this, he grabbed the robber by the shoulders, spun him around, and a scuffle ensued during which four shots were fired at Brandy (three of which hit Brandy in the area of his chest), and Brandy (who had taken a gun he kept behind the counter) fired three shots at Sims, hitting him once.

Sims escaped but left a trail of blood to a location around the next corner where it appeared that he entered a vehicle. The police received a call at approximately seven that evening that a victim of a shooting was in the emergency room of Charity Hospital. Police officers found Ronald Sims there undergoing treatment for a bullet wound of the abdomen. They questioned his mother and girl friend, Virginia Washington, both of whom had accompanied Sims to the hospital. One of the officers saw the outline of a gun under the clothing of Virginia and removed it from her person. Through an investigation, they learned that a stolen vehicle (1963 green Chevrolet) was parked at the corner of Bienville and North Derbigny Streets. Inside the vehicle, they found a pool of blood on the floor, and blood on the car seat and also on a cap. The type of blood found in the car matched that of Sims. Fingerprints were lifted from the vehicle and identified by an expert as belonging to Sims.

Sims took the stand in his own defense and testified that he entered the store on the day in question and inquired of Mrs. Brandy as to the price of a bush comb. When he reached into his pocket to get his wallet, Mrs. Brandy saw the gun which he had in his waistband and started to scream. It was at this time that Mr. Brandy spun him around and shot him. He claims that it was only after he was fired upon by Mr. Brandy that he fired back.

ASSIGNMENT OF ERROR NO. 1

In a motion for a bill of particulars, defendant requested, inter alia-, the following information:

10.What, if any, dangerous weapons and/or instrumentalities were recovered from the person of defendant after he was apprehended for the offense charged ?

The state refused to furnish this particular, claiming that the defense was not entitled to this information. The trial judge upheld the refusal of the state. Defendant argues that the failure of the state to furnish this information prevented him from intelligently filing a motion to suppress the gun used in the armed robbery on the ground of an unconstitutional search and seizure.

The trial judge correctly ruled that the state was not required to answer this question. Initially, the gun was not taken from defendant. Thus, it is doubtful whether defendant has the requisite standing to move for a suppression of the gun seized from Virginia Washington at Charity Hospital. See Brown v. United States, 411 U. S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). In any event, the state is not required to disclose the physical evidence it intends to use to prove the crime charged except in certain limited exceptions not present here. State v. Collins, 308 So.2d 263 (La,1975). Hence, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant asserts that he sought certain general information concerning the shooting which took place at Brandy’s food store in Nos. 10 through 16 of his motion for a bill of particulars. The state’s refusal to furnish this information was sustained by the trial judge. In brief to this court, defendant contends that he then moved for production of “all weapons and rounds, spent and unspent, in possession of the State in order that defendant might have an opportunity to obtain his own ballistics expert to examine and make findings on these objects.” He asserts that the motion was denied. Defendant argues that production of the weapons was essential to his defense as the case turned on the jury’s finding “as to who was the real aggressor.” Therefore, the court’s denial of his motion for production constitutes a denial of due process of law.

First, nowhere in the particulars requested does defendant seek production of “weapons and rounds, spent and unspent” for examination by his ballistics expert. The information sought is not subject to pretrial discovery as the state is not required to disclose the evidence it intends to use to prove its case. State v. Thomas, 306 So.2d 696 (La.1975); State v. Kado, 300 So.2d 461 (La.1974) ; State v. Hollingsworth, 292 So.2d 516 (La.1974); State v. Frezal, 278 So.2d 64 (La.1973).

Secondly, the record contains no written motion for inspection by a ballistics expert. According to the minutes of court, defendant “made an oral motion to produce a ballistics expert for the defense” which was denied by the court. This appears to be a request for the state to furnish a ballistics expert for the defense. We have previously denied such requests where there was an inadequate showing of special circumstances which would require the furnishing of an independent expert at the state’s expense. State v. Medlock, 297 So.2d 190 (La.1974); State v. Glass, 283 So.2d 696 (La.1973); State v. Bourne, 283 So.2d 233 (La.1973). Likewise, the appointment of a ballistics expert is not relevant to the central issue “as to who was the real aggressor.” The opinion testimony of a ballistics expert would not, under the present circumstances, have had any probative value in this case. State v. Howard, 325 So.2d 812 (La.1976); State v. Collins, 308 So.2d 263 (La.1975); State v. Walker, 296 So.2d 285 (La.1974). Hence, we do not find that the trial court abused its discretion in this matter. This assignment of error is without merit.

DECREE

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

      . The requested particulars in Nos. 10 through 16 are as follows. (No. 10 has been previously considered under Assignment of Error No. 1.)
      10. What, if any, dangerous weapons and/or instrumentalities were recovered from tlie person of defendant after he was apprehended for the offense charged?
      11. What, if any, mask or disguise was used by defendant in allegedly committing the offense charged?
      12. Is it alleged that anyone was shot or injured by defendant in allegedly committing the offense charged and, if so, please state his or her name and address?
      13. If your answer to particular 12 is in the affirmative, was there any ballistic test run on any bullet or slug that purportedly entered the body of the person named in your answer to particular 12?
      14. If your answer to particular 13 is affirmative, please summarize the results and/or findings of that ballistics test detailing the time and place said test was made and giving the name(s) and address (es) of the person (s) conducting it.
      15. Has defendant been exposed to any line-up since the time of his arrest?
      16. Was defendant shot by any person during his alleged commission of the offense charged, and, if so, please state:
      a) The name and address of said person,
      b) the type and caliber of weapon he used,
      c) the number of times he shot defendant and wounded him,
      d) the number of times he shot defendant and missed him.