author: HARRIS, Judge. CATES, Presiding Judge

text:
    William H. QUINN, alias v. STATE.
    8 Div. 797.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    James L. Hunt, Tuscumbia, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of burglary in the first degree and was sentenced to ten years imprisonment in the penitentiary. Attended by counsel at arraignment he pleaded not guilty and not guilty by reason of insanity. Appellant filed a petition to have his mental competency determined. He was sent to the Alabama State Hospital for observation and examination. The hospital staff composed of three psychiatrists certified that after examination it was their opinion, separately, jointly and collectively, that appellant was sane and competent at the time of his admission to Bryce Hospital, and further that he was sane and competent at the time of the commission of the offense for which he was charged. When this report was filed, appellant withdrew his special plea of not guilty by reason of insanity and went to trial on his not guilty plea. After sentence was imposed, appellant gave notice of appeal and was found to be indigent. He was furnished a free transcript and trial counsel was appointed to represent him on appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charge that before the finding of this Indictment William H. Quinn, Alias Boomer Quinn whose name is otherwise unknown to the Grand Jury than as stated, did, in the nighttime, with the intent to steal, break into and enter the inhabited dwelling house of Jimmy Wayne Hines, and Betty Hines, located at 1405 Burroughs Avenue, Muscle Shoals, Alabama, said Jimmy Wayne Hines and Betty Hines being the owners of said dwelling house, and in possession of said dwelling house, and at said time, Carol Dickinson, Brigette Hines, Shawn Hines, Timmy Moore and Keith Moore, were the persons lodged therein, against the peace and dignity of the State of Alabama.”

This is a two-volume record covering approximately 400 pages of the transcript but the only real issue raised by appellant concerns the identification procedures utilized by the investigating officers. We will condense our recital of the facts accordingly. The facts concerning the crime are not in conflict except the guilt vel non of appellant as one of the perpetrators.

At 7 o’clock p. m. on April 12, 1975, Mr. and Mrs. Wayne Hines whose home address was 1405 Burroughs Avenue, Muscle Shoals, Colbert County, Alabama, left their home to go to a country club where Mrs. Hines had a singing engagement with a band that was playing for a function at the club that night. They left their children, Shawn, age nine, and Bridgett, age eight, and two visitors, Timmy and Keith Moore, ages 11 and nine, respectively, at their home in care of a baby-sitter, Carol Dickinson, age 13. Carol lived with her family across the street from the Hines’ home.

Around 8:30 p. m. Carol received the first of three telephone calls. The first two of these calls consisted only of “clicks.” These “clicking” calls coupled with the other children hearing noises outside, prompted Carol to take the children to her home across the street. They returned with Carol’s older brother and a friend who was visiting him. Carol’s brother and his friend checked around the house and yard before leaving. While they were still there, the third telephone call came in and the friend answered it and gave the receiver to Carol. The caller learned in his conversation with Carol that Mr. and Mrs. Hines were not due back for several hours. The caller told Carol that he had some papers for Mr. Hines and wanted to come to the house and leave the papers. Carol agreed.

After Carol’s brother and friend left, Carol went about the normal procedures of preparing the children for bed. Carol had the four children take baths and while so doing she made popcorn for them and they looked at television. At about 9 o’clock the three boys looked out a front window and observed two men, one masked, with guns. They reported this to Carol who was somewhat skeptical of the report and went to check for herself. She observed nothing except the outside light was off and would not come on when she flipped the switch. A few moments before the light was on. Shawn Hines knew what he had seen and suspected the worst and he immediately went to the telephone, dialed “0” and told the operator to send the police. In the meantime there was a knock at the door. Over the protest of one of the boys Carol went to the door and a male voice said, “This is Mr. Hines’ papers.” Carol unlocked and opened the door and a masked man shoved the door and Carol back and entered the house, followed by the unmasked man. Of the five young persons in the house only one observed the unmasked man long enough to identify him. Timmy Moore hid behind the dining room table when the thieves first came in the house and observed the burglar putting on his mask. The burglars tied and gagged the boys and Carol with tape. Bridgett Hines was pulled from her bath and was also tied and gagged.

After tying and gagging the children the burglars began to ransack the house. A gun cabinet was smashed and 15 to 20 guns and rifles were placed near the front door. However, as a result of the quick action of Shawn Hines the police arrived within minutes of the burglary. One officer looked in a window and saw the five children bound and gagged lying on their stomachs on the floor of the living room. The officers made themselves known and ordered the burglars to come out. The thieves left the house by a rear window and escaped, abandoning appellant’s car which was parked in front of the house. Appellant admitted owning the automobile but claimed it was stolen. The alleged theft of the automobile was noticed only after the burglary and was reported stolen only after appellant learned of a police bulletin (APB) on one Spencer Burns in whose name the automobile was registered.

After escaping from the Hines’ home the burglars went to the Shop Rite Store nearby and took a cab to their places of residence.

There were three eyewitnesses to various events surrounding the burglary and the identity of the participants, and the pretrial identification procedures used on each were different.

After the burglary the children were shown a number of photographs including two of appellant, one showing his broken or missing front tooth, the other not showing it. None of the children was able to identify the burglars except Timmy Moore. He immediately identified the photographs of appellant. Carol Dickinson said, “I believe that this might be one,” pointing to one of the other photographs. To this Timmy Moore immediately replied, “No, that’s not the one,” then, pointing to the pictures of appellant, said “This is the man I saw.” The trial court took great pains to insure that no officer or other person made the slightest suggestion that the officers were interested in the children identifying any of the men whose photographs were displayed to the children.

Roy Gamel was the cab driver who drove the burglars from the Shop Rite Store. Appellant rode in the back seat of the cab. This fact, coupled with brain damage sustained by Mr. Gamel while in service and subsequently, made him the worst of the three eyewitnesses. However, the record fails to reflect that Mr. Gamel was subjected to any pretrial police identification procedures involving appellant. He did identify appellant’s accomplice, Eddie Martin, in a lineup, but appellant was not under suspicion at that time. Gamel commented that one Joe Johnson, who was in the lineup, looked like the other man who rode in his cab from the Shop Rite Store.

Joe Johnson testified and the jury was, therefore, able to judge if he in fact looked like appellant. Appellant was arrested and charged with the offense as a result of Johnson’s statement to the police, which he gave after this lineup. Johnson was not involved in any manner with the burglary.

Mrs. Lou Aldridge was employed at the Shop Rite Store where the burglars called the cab after escaping from the police at the Hines residence. Appellant came in the store first and Martin came in immediately thereafter. Appellant was inside the store with Mrs. Aldridge for at least five minutes. He talked to Mrs. Aldridge and purchased a magazine from her. When the cab arrived appellant started out the door and Mrs. Aldridge called him and told him he forgot his magazine and appellant went back in the store and picked up the magazine.

Mrs. Aldridge viewed the same lineup that Mr. Gamel viewed but not at the same time. She identified Martin. Appellant was not in this lineup. Later Mrs. Aldridge viewed the same series of photographs that Timmy Moore had seen and without the slightest hesitation she identified the two pictures of appellant.

Gamel, Mrs. Aldridge and Timmy Moore made positive in-court identifications of appellant.

The trial court asked each officer who displayed the photographs to the State’s witnesses if that officer or any person in his presence and hearing made any suggestion as to which photograph they should identify or not identify and each officer answered, “No, sir.” The Court also asked if any officer or other person made a statement to any State witness that any person depicted in the photographs was or was not a suspect in the case and each answered, “No, sir.”

Appellant filed a pretrial motion to suppress the testimony of Timmy Moore, Ga-mel and Mrs. Aldridge on the ground that their identification of appellant was made from photographs that were unduly suggestive. Much testimony was taken on this motion out of the presence and hearing of the jury. The motion was overruled and denied.

Appellant claimed that at the time of the burglary he, Eddie Martin, Rita Kilo and others were at a nightclub some 20 miles away. His testimony was contradicted by Rita Kilo and Joe Johnson who testified that they were at the nightclub, and that appellant and Martin were not at the club any time that night.

The question of suggestiveness must be decided on the basis of the totality of the circumstances. McCay v. State, 51 Ala.App. 307, 285 So.2d 117; Thomas v. State, Ala.Cr.App., 332 So.2d 168; Frazier v. State, Ala.Cr.App., 331 So.2d 404.

Our review of the circumstances surrounding the apprehension of appellant and the police conduct which led to his identification satisfies us that the claim that appellant was denied due process of law is without merit. There was no “substantial likelihood of irreparable misidentification.” The officers showed these witnesses nine photographs which included two photographs of appellant. On of the photographs of appellant showed a missing tooth and they immediately identified appellant. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.

We have carefully examined the record for errors which injuriously affected the substantial rights of appellant and have found none. Accordingly, the judgment of conviction is affirmed.

AFFIRMED.

HARRIS, TYSON and DeCARLO, JJ., concur.

CATES, P. J., and BOOKOUT, J., concur specially.

CATES, Presiding Judge

(concurring specially):

Here the baby sitter opened the door beguiled by a felonious ruse. To me this way of getting in falls under constructive breaking. See iv Bl. Com. 226(h).

Thus at Common Law “breaking” included fraud to secure entry — though not attempts thereat. Consent to enter got by a trick is no consent at all. State v. Pierce, 14 Utah 2d 177, 380 P.2d 725; State v. Keys, 244 Or. 606, 419 P.2d 943.

Our Code (T. 14, § 85) still requires proof of breaking though modern statutes tend to delete it as an element of burglary. See State v. McKinney, Or.App., 535 P.2d 1392; also Ala.Law Inst. proposed revised Criminal Code §§ 2610-12 with commentary.

BOOKOUT, J., concurs herein.

      . The “structure” was a pay phone booth. Compare Hulbert, 281 Ala. 712, 208 So.2d 92.


source: Caselaw Access Project

author: TYSON, Judge. DeCARLO, Judge

license: Public Domain

text:
    Michael Jon HERRIOTT v. STATE.
    8 Div. 731.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.
    Rehearing Denied March 30, 1976.

      Johnston & Johnston, J. Allen Brinkley, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The three-count indictment charged the appellant with the second degree burglary and grand larceny of Arfor Byrnfield, Inc., doing business as “The Squash Blossom” in Huntsville, Alabama, and with buying, receiving, concealing, or aiding in concealing assorted jewelry, valued at $43,564.45, the personal property of Arfor Byrnfield, Inc. The jury’s verdict found the appellant “guilty as charged,” and the trial court then adjudged the appellant guilty and set sentence at four years imprisonment in the penitentiary, but suspended the sentence and placed appellant on probation for a period of four years..

Prior to the trial, the appellant had filed a motion to suppress the evidence, which was heard by the trial judge and denied. The same objection was raised at trial and overruled.

Detective J. W. King of the Huntsville Police Department testified that on the day after the break-in at the Squash Blossom, he received an anonymous phone call which lead him and two other officers to the apartment of Bob Clancy, located at 2104 Quail Court, Huntsville, Alabama. Finding no one home, the officers decided to wait. At approximately 5:00 p. m., Bob Clancy pulled up on a motorcycle, followed by Cheryl Crawford, and the appellant in the latter’s car. The officers approached them, identified themselves, and were “invited” into the apartment. Once inside, and with everyone gathered in the kitchen area, Detective King explained that he and the other two officers were conducting an investigation for some missing jewelry that had been stolen from the Squash Blossom the night before, and asked Clancy for permission to search his apartment. Clancy unequivocally refused the officer’s request and told them they would need a search warrant. It is true that Clancy subsequently capitulated and signed a consent to search form, but not until Detective King had made it clear that obtaining a search warrant would be a “mere formality,” and that his, Clancy’s, refusal would only serve to postpone the inevitable.

Contrary to Detective King’s assertions, we note that the record offers not even the slightest evidence of probable cause, either for an arrest or a search. Clearly, the anonymous tip which lead the officers to Clancy’s apartment was insufficient in this regard. Brown v. State, 42 Ala.App. 429, 167 So.2d 281. In fact, Detective King seemingly evidenced his knowledge of this fact when he, after receiving the tip, called the warrant magistrate and stated: “We possibly might need a consent to search warrant.” [R. p. 29]

From Detective King’s testimony [R. pp. 29-30]:

“Q. All right, will you please tell the Court what conversation you had with Mr. Clancy with regard to the consent to search?
“A. First of all I asked him would he sign the permission to search the apartment. At first, he didn’t want to agree to it. He said I would need a search warrant.
“Q. Did you make any statements to him in regard to the search warrant?
“A. Yes, I told him I had already talked with a warrant magistrate and I could get a search warrant.
“Q. After you advised him of that, what took place?
“A. I read this form to him and I gave it to him to read himself, and he agreed to fill in the blanks and sign the form.”
Further [R. pp. 32-33]:
“Q. So, when you walked in and said there’s been some jewelry missing from the Squash Blossom and I want to search your apartment without a warrant, he would not let you do it at that point?
“A. At that point we asked him to let us search the apartment.
“Q. So the reason the consent was given, in this case, was because you told them you could go get a search warrant, didn’t you?
“A. I told him I had contacted the Warrant Magistrate and he told me I could get a search warrant.
“Q. Didn’t you tell him you would go get a search warrant and you were going to leave these two police officers there to stay until you got back?
“A. I told them I could go get a search warrant and they would stay outside until I got back.
“Q. And up to that time they would not consent to let you search the premises, would they?
“A. No.”
And again [R. pp. 34-35]:
“Q. Do you have a judgment whether or not you said you could probably get a search warrant or you said I’m going to go get a search warrant and leave my two friends here, standing guard or outside, or whatever?
“A. I believe I probably said I could get a search warrant.
“Q. But you told them you could get the warrant and you were not going to apply for it. Isn’t that correct? Matter-of-fact, didn’t you tell them you would be back in five minutes with a warrant?
“A. No, sir, I didn’t tell them that.
“Q. You told them you would be back with a warrant, didn’t you?
“A. I told them I would be back, yes.
“Q. But you told them, and I’m not arguing with you, but you told them you could get the warrant, is that correct?
“A. Right.
“Q. You didn’t tell them that you believed one may be issued, did you?
“A. No, sir, not that I recall.
“Q. And you didn’t tell them that the decision rested with the Judge or Magistrate, did you?
“A. Not that I recall.
“Q. And you gave them two choices. (1) the search or (2) you would get the warrant, isn’t that correct?
“A. I guess that’s about the way it was.”

I

Warrantless searches are per se unreasonable under the Fourth and Fourteenth Amendments subject to only a few “specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585.

Since the search of Bob Clancy’s apartment was conducted without a search warrant, the State here attempts to justify the officers’ action on the basis of alleged consent.

Mr. Justice Blood worth, in Daniels v. State, 290 Ala. 316, 276 So.2d 441, enumerates the exceptions to the warrant requirement in the following language:

“Notwithstanding the United States Supreme Court’s assertion that its cases on the subject of the extent of a search which may be made without a warrant following a lawful arrest ‘cannot be satisfactory reconciled,’ it now seems to be fairly well established that there are at least six exceptions under which warrant-less searches have been held valid, viz: “(1) In ‘plain view,’ see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971);
“(2) With ‘consent’ voluntarily, intelligently and knowingly given, see Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);
“(3) As ‘incident to a lawful arrest,’ see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959);
“(4) In ‘hot pursuit’ or ‘emergency’ situations, see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947); State v. Sutton, (Mo.1970) 454 S.W.2d 481;
“(5) Where ‘exigent circumstances’ exist coincidental with ‘probable cause’ (as in the case of movables), see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and,
“(6) In ‘stop and frisk’ situations, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).”

In discussing the question of whether or not consent was voluntarily given, the Supreme Court of the United States, in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, stated:

“. . . Rather it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of each case that is evidenced in our prior decisions involving consent searches.”

In evaluating the circumstances surrounding the acquiescence to lawful authority, involved in a consent case, Judge Moy-lan of the Maryland Court of Special Appeals used the following language, in Whitman v. State, 25 Md.App. 428, 336 A.2d 515:

“. . . The lesson articulated by Bumper and Schneckloth in the area of search consents is that the individual subjected to the search may indeed be submitting rather than consenting, even in an atmosphere of relative cordiality because of the presence of psychological forces as potent and effectual in achieving a ‘consent’ as the traditional techniques and familiar instruments of physical ‘persuasion.’ We must, we find, be guided by the holding in Bumper that a consent which is actually simple acquiescence to lawful authority is not voluntary and, when the defendant is in custody, by the concern expressed in Schneckloth that ‘in examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.’
‘‘While each case must rest for decision upon its own facts and the ‘totality of the circumstances,’ an arrest without probable cause followed by custodial prodding for the arrestee’s consent to a search, combined with police representations that the issuance of a warrant will be practically automatic — these are circumstances calculated only to persuade the individual that insistence upon Fourth Amendment guarantees will secure for him merely a delay of the inevitable search rather than the protection against unreasonable search and seizure to which he is constitutionally entitled. . .

Similarly, Mr. Justice Faulkner, speaking for our Supreme Court in Lietz v. State, 291 Ala. 133. 279 So.2d 116, stated:

“Unless we enforce the restrictions of the Fourth Amendment and Article 1, § 5 of the Alabama Constitution on searches and seizures, an old saying will have to be revised. A man’s home will no longer be his ‘castle’, but, his ‘open house’ for everyone with a shred of governmental authority who wants to come inside. This cannot be permitted.”

Mere submission to police authority will not suffice. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; Knox v. State, 42 Ala.App. 578, 172 So.2d 787, cert. den. 277 Ala. 699, 172 So.2d 795.

It is clear from the record that the officers in this case had no probable cause. Further, their entry into the apartment was by any standard questionable, though it be termed an “invitation” from Cheryl Crawford. Once inside the apartment, nothing occurred within the kitchen, nor was there any item within view inside the kitchen which gave the officers probable cause to arrest any of the parties, or to search the apartment in question. Carefully weighing all of these factors, we are of the opinion that the State here failed to establish the necessary voluntariness of the alleged consent. United States v. Boukater, 5 Cir., 409 F.2d 537.

It therefore follows that the appellant’s motion to suppress, as filed in this cause, was due to be granted. The judgment is therefore reversed, and this cause is remanded.

REVERSED AND REMANDED.

CATES, P. J., and HARRIS and ÉOOK-OUT, JJ., concur.

DeCARLO, J., dissents.

DeCARLO, Judge

(dissenting).

The conviction in this case was reversed on the ground that the forty-two thousand dollars worth of stolen jewelry was seized through an unconstitutional search.

One of the reasons that I cannot agree with the court’s reversal is because I believe the searching officer had valid permission to search.

Voluntary consent to search is an established exception to the warrant requirement of the Fourth Amendment. The test for consent is whether it was “voluntary” and “voluntariness” is a question of fact to be determined from all the circumstances. Schneckloth v. Bustamonte, supra.

This court in its majority opinion found that the consent given was the product of coercion implied from the statement that, if consent were not given, the officers would get a search warrant and would secure the premises while the warrant was being obtained. The court said the officers did not have probable cause to arrest or search under the facts of the case since the State failed to establish the required voluntariness.

Voluntariness is a question of fact to be determined by the trial judge upon the totality of circumstances. No single criteria controls. Schneckloth v. Bustamonte, supra; Jones v. State, 49 Ala.App. 438, 272 So.2d 910.

I do not believe that the officer’s statement that he would obtain a search warrant if consent were not given, necessitated a finding that the consent was per se involuntary. Certainly the securing of the premises would have been good police procedure and within the officer’s legal authority. Anything less could have resulted in the disappearance of the contraband.

In the case at bar the appellant was not a resident but a guest. Cheryl Crawford shared the apartment with Robert Clancy, the lessee. He was the one who talked with Officer King and endorsed the consent to search form.

Appellant was present in the room when the “Miranda” warnings and the consent form were read to Clancy. He could have heard Clancy being apprised of the right to require a search warrant and to refuse the consent to search.

At no time did appellant object to the officer’s overtures, but in fact, signed the form as a witness. The meaning of the admonitions should have been clear to all present. Had Clancy not meant that the officer was free to search, surely he would have protested. He had previously demonstrated that he knew of his right to require a search warrant when he had specifically asked whether the officer had a warrant.

At best, the suppression hearing culminated in a swearing match. The main evidence of Clancy’s intention is the consent form. It contains the material circumstance that the consenter had been warned of the rights to be relinquished.

In Bumper, supra, the United States Supreme Court announced the test for a valid consent is a showing by the prosecution that the consent was “free and voluntary.” Further, Bumper, supra, required that vol-untariness be determined from the words used by the person consenting. Thus it seems essential that at the very least we should have the best account of what was said.

Neither Robert Clancy nor Cheryl Crawford testified at the suppression hearing or during the trial. With the exception of the testimony of the officer and appellant, the only evidence of what Clancy said was the consent form.

At no time during the encounter were the occupants in custody or were weapons drawn. It cannot be said that they were overwhelmed by authority in the dead of night; only four officers were involved in the confrontation at 5:30 on that evening.

It was after the jewelry was found that the occupants were arrested and taken to the police station. The appellant was asked to come to the station by Officer King. He was not arrested after the search, but approximately four hours later, when he gave a hand-written statement at the station. Herriott’s arrest was not based upon the information received from the informant.

The claim of lawful authority referred to in Bumper, supra, did not exist here, nor was any assertion made that the police had come to search.

Officer King testified he informed Clancy of his rights from the “Miranda” card and the consent form. It was afterwards that he requested permission to search. (See Transcript pp. 33-35 in their entirety.) When Clancy inquired about a search warrant, King said he could get one and that he had talked with the magistrate earlier.

What the officer said could be interpreted to be a declaration of intent and not a matter-of-fact statement. Telephoning the magistrate could have been construed not as an indication that the obtaining of the search warrant would be a routine matter, but a determination of whether the magistrate would be available that Sunday afternoon.

In the final analysis it was the trial judge who heard the witnesses and passed on their credibility. The testimony of the witnesses comes to us from a cold record. It can make an impression on us altogether different from what it could have made, had we heard and seen the witnesses. The trial judge is in a better position than we are to determine the circumstances surrounding the consent. Jones, supra. Although conflicting evidence was presented on the question of whether the consensual search was voluntary, it was after considering the evidence that the court decided it was.

I would not disturb that finding.

Respectfully, I dissent.

      .
      “Q. Later on that same afternoon, did you receive a tip in regard to this burglary?
      “A. Yes, I did.
      “Q. Was that from an informant?
      “A. Yes.
      “Q. Was it a confidential informant?
      “A. MR. MORRIS: We object to that. It calls for a conclusion.
      “Q. THE COURT: Overruled.
      “A. I don’t know who the name is, so I guess it was confidential.” [R. pp. 62, 63]

      . Detective King’s testimony in this regard was as follows: “Well, I believe that Robert Clancy said to come up and the girl invited us in the apartment.” [R. p. 8]

      . At the pretrial hearing on appellant’s motion to suppress, the trial court, before considering the consent issue, made a threshold determination that appellant did in fact enjoy standing to attack the reasonableness of the search and seizure. This ruling was clearly correct. See Ingram v. State, 45 Ala.App. 108, 226 So.2d 169.


author: HEFLIN, Chief Justice.

text:
    In re Michael Jon HERRIOTT v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1799.
    Supreme Court of Alabama.
    Sept. 17, 1976.
    Willaim J. Baxley, Atty. Gen., Ellis D. Hanan, Asst. Atty. Gen., for the State.
    J. Allen Brinkley, Huntsville, for respondent.
   HEFLIN, Chief Justice.

Petition of The State by its Attorney Gen. for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Herriott v. State, Ala.Cr.App., 337 So.2d 165.

WRIT DENIED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


text:
    Joseph Lee RICHARDS v. STATE.
    6 Div. 946.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    Rehearing Denied June 29, 1976.

      J. Massey Relfe, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent below with appointed counsel, and here with the same economic and trial status, was convicted of roadside robbery pursuant to an indictment therefor. He entered a plea of not guilty: The jury fixed punishment at twelve years imprisonment in the penitentiary. Judgment was entered therefor and this appeal is taken therefrom.

The alleged robbery occurred in the early morning hours of the night at a road-side point in Jefferson County, whereat the victim, Reginald Darty, in response to a signal from the occupants of a motor vehicle in which defendant was riding, stopped to render aid. The evidence tended to show that the three occupants of the immobilized motor vehicle had some car trouble at a night spot a few minutes before, where the victims had come in contact with them and there offered them assistance. At the invitation of one of the occupants he followed them.

When Darty stopped on the roadside to render assistance, appellant-defendant, whom the victim identified in court, severely assaulted and beat him about the head, to the extent he was powerless to resist. Defendant, so Darty testified, was a party to the theft of the money and personal property described in the indictment.

Defendant defended on the ground he was not present and was not a party to the alleged robbery. He contended that he and another relative had a fight that night which accounted for the bruised condition of his hands which were photographed after his arrest a day or two later. Defendant’s mother testified about this alleged fight of her son, the defendant, with her brother in her yard that night. The son and the brother were about the same age. Alcoholic inebriation of the parties was involved.

The State, during the trial, offered two identified photographs of the victim’s battered and bruised head. Defendant’s objection was overruled. We quote the objection:

“Q. We offer both of these as State’s Exhibit 1 and State’s Exhibit 2.
“MR. RICE: Judge, we object to the admission of these. There’s no question about the man being robbed. These pictures serve no purpose except to prejudice the jury.
“THE COURT: overruled.”

The objection was properly overruled. The indictment charges that the described property was taken from the victim against his will “. . .by violence to his person . . .”, etc. A photograph, though gruesome and inflammatory in nature, is admissible if it has a reasonable tendency to prove or disprove some material fact in issue. Violence on the person of the victim was an issue in this case. Hall v. State, 50 Ala.App. 666, 282 So.2d 104 (1973). The ruling of the court was correct.

Appellant’s contention is that he is entitled to a reversal because of the trial court’s repetitive use in its oral charge “of the word ‘guilt’, which invaded ‘the providence (sic) of the jury’ ”, negating the defendant’s presumption of innocence.

The record fails to show any objection or exception by the defendant or his counsel to the alleged repetitive use of the word “guilt”, such use is not here review able in the absence of an objection or exception. It cannot be raised for the first time on appeal. Morgan v. State, 20 Ala.App. 467, 103 So. 76; Allison v. State, 281 Ala. 193, 200 So.2d 653; Loggins v. State, 52 Ala.App. 204, 290 So.2d 665. Ala.Digest, Vol. 7, Criminal Law 1038(1).

Appellant’s asserted errors by the trial court, according to our review, have no merit. We have read the record and conclude that the judgment should be affirmed. It is so ordered.

The foregoing opinion was prepared by Hon. BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    In re Joseph Lee RICHARDS v. STATE. Ex parte Joseph Lee Richards.
    SC 1948.
    Supreme Court of Alabama.
    Sept. 10, 1976.
    J. Massey Relfe, Jr., Birmingham, for petitioner.
   MADDOX, Justice.

Petition of Joseph Lee Richards for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Richards v. State, Ala.Cr.App., 337 So.2d 171.

WRIT DENIED.

HEFLIN, C. J., and JONES, SHORES and BEATTY, JJ., concur.


author: BOWEN W. SIMMONS, Supernumerary Circuit Judge. PER CURIAM.

text:
    Howard D. PATTON v. CITY OF DECATUR.
    8 Div. 526.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 28, 1975.

      Harvey Elrod and Bingham D. Edwards, Decatur, for appellant.
    Coleman, Cauthen & Bibb, Decatur, for appellee.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant was tried in Recorder’s Court of the City of Decatur and convicted of driving while intoxicated in violation of a city ordinance. He appealed to the County Court where a jury again convicted him on the same charge. Fine $100.00. The trial court added sixty days imprisonment in the City of Decatur Jail as additional punishment. He appealed to this court.

The record contains forty-six assignments of error. We will consider those which appellant’s counsel argues.

ASSIGNMENTS 1, 2, 3, and 4:

Assignment 1 is argued. Appellant adopts this argument in support of the other three.

Defendant caused a subpoena duc-es tecum to be issued and served, requiring appellee to produce a photo electric intox-imeter device and supplies at the trial. This subpoena it appears was belatedly filed and served. Just before trial, on motion of the City, the subpoena was quashed and the City relieved of any obligation to comply therewith.

Title 7, Sections 426 and 489, Code of Alabama, Recompiled 1958, mandates the production of books, papers, deeds or documents for use in the trial of a case. A device or supplies therefor are not included. Ex parte Hart, 240 Ala. 642, 200 So. 783; Steverson v. Agee and Company, 14 Ala.App. 448, 70 So. 298.

The device, the subject of the subpoena, as we understand, weighed about twenty-four pounds and had very sophisticated and delicate mechanism and operational features. Maladjustment of the mechanism by movement of the machine would likely follow if moved.

Defendant, in the cross-examination of the prosecution’s witness who had charge of and operated the intoximeter, adduced ample and informative evidence as to the operation of the device and the use of certain supplies. We do not think he suffered any injury by the absence of the device, or that the jury would have been further enlightened by its presence. The ruling of the court on the motion to quash was free of error.

ASSIGNMENT NUMBER 5:

Appellant here complains that the trial court “erred in receiving and admitting into evidence the purported Code of the City of Decatur without prior proof of publication as such item of the Code of the City of Decatur.”

As we view the record, appellant asserts that the introduction of the printed Code of appellee and its admission was error in the absence of proof of publication.

It appears that Title 7, Section 369, Code 1940, is a combination of Sections 1259 and 3989, Code 1903, and that these Sections appear separately in Code 1923, having been combined in Code 1940, Section 360, supra.

The record before us shows that the City of Decatur asked leave of the court to withdraw the Code and substitute a copy in evidence of the particular Section 25-29, here involved, which is the D.W.I. ordinance.

Thereupon defendant objected, “Not on the grounds of the Section being substituted in evidence, our objection is that there is no basis or notice of publication of the Code and that there has been no foundation for it.”

Thus it appears that defendant “acquiesced in (indeed, expressly eschewed objection to) the withdrawal of the Code as a whole and the substitution of a particular Section for it . ” The court had an opportunity to see the Code and pass upon its admissibility pursuant to Title 7, Section 369, Code 1940, supra. We are unwilling, in the state of the record, to hold that the ruling of the Court was erroneous: The record here does not show the Code. The ruling of the court so far as we are informed was free of error.

ASSIGNMENTS 6, 7, 9, 10, 11, 15, 20, 21; 25 and 30:

This assignment (6) asserts that the trial court erred in overruling defendant’s objection to a question asked the witness Sharp, upon direct examination by the solicitor for the City: “What was the result of the test you ran on Mr. Patton?”

It is noted that the witness Sharp conducted the breath test on defendant by use of the Photo Electric Toximeter, to determine thereby the extent of defendant’s intoxication or if he was under the influence of intoxicating beverages while driving his motor vehicle.

Appellant contends that the City failed to prove or that witness Sharp, the operator of the Toximeter, used a device designated by the law enforcement agency, namely the police department of the City. Section (a) Act 699, Vol. II, Special and Regular Sessions, 1969 and 1970, page 1255, provides inter alia, “The law-enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered.” (Blood, breath, or urine).

The witness testified on direct that the Decatur Police Department by which he was employed directed him to use the Photo Electric Intoximeter that he used when testing defendant.

In support of his objection to the question, supra, defendant further asserts that there is no proof that the methods employed by the witness, a veteran police officer of the City had been approved by the State Board of Health.

The witness testified that he had a license, issued by the State Board of Health, to operate the Photo Electric Intox-imeter.

This issuance is authorized by Act 699, Section 2(b) which provides that:

“Chemical analyses of the person’s blood, urine, breath to be considered valid under the provisions of this section shall have been performed according to methods approved by the state board of health and by an individual possessing a valid permit issued by the state board of health for this purpose. The state board of health is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state board of health.”

It appears, supra, that the witness was competent to administer the breath tests on Mr. Patton.

The only methods that the witness was authorized to use under his license were the methods which the State Board of Health approved. This license embraced a rebut-table presumption that the licensee, Officer Sharp, in administering the test to defendant, knew and used methods and techniques approved by the State Board of Health.

ASSIGNMENTS 33, 38, and 39:

Appellant here asserts that the trial court erred in overruling his motion to exclude Officer Sharp’s testimony.

This contention has no merit. The evidence of this witness was quite material to the issues. The motion was correctly overruled.

ASSIGNMENT 42:

Appellant contends that the trial court erred in adjudging him guilty of driving while intoxicated.

This contention is also without merit. The trial court adjudged the defendant guilty pursuant to the jury’s verdict which was supported by competent evidence, both by the arresting officers and the officer who administered the breath test.

ASSIGNMENT 44:

The motion to arrest that judgment was correctly overruled. The record and evidence discloses defendant committed the offense charged, namely, driving while intoxicated.

ASSIGNMENT 46:

Appellant asserts that the trial court erred in ordering and requiring defendant, after notice of appeal with suspension of sentence, to surrender his driver’s license to the clerk of the trial court.

This was a post-judgment order and is not reviewable in this appeal. It was not error, if such was the case, to reverse the judgment or to remand the cause'.

The judgment of the trial court is affirmed.

The foregoing opinion was prepared by Honorable Bowen W. Simmons, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

The judgment below is hereby

Affirmed.

All the Judges concur.

On Rehearing

PER CURIAM.

Our attention has been called to the fact that § 369, T. 7, 1940 Code had been superseded by Rule 44 A.R.Civ.P. which dispenses with the need to prove posting or publication of a municipal ordinance to make it prima facie admissible. This lack of publication is now defensive matter available to the opponent of receiving the ordinance. Sconyers v. Coffee Springs, 230 Ala. 206, 160 So. 554, can no longer be considered controlling.

The trial below took place March 11,1974 and hence the Rules of Civil Procedure were applicable since the change wrought by Rule 44 was adjectival only.

Opinion extended, application overruled.

All the Judges concur.


author: PER CURIAM.

text:
    Howard D. PATTON v. CITY OF DECATUR.
    8 Div. 526.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
   PER CURIAM.

On remand of this cause to this court by the Alabama Supreme Court, where the opinion of this court Ala.Cr.App., 387 So.2d 173, was reviewed by appropriate procedure, the judgment of the trial court is reversed and the cause is remanded on authority of Ex parte Patton (In re Patton v. City of Decatur), Ala., 337 So.2d 321.

REVERSED AND REMANDED.


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

text:
    STATE of Louisiana, Relator, v. Larry McNEAL, Respondent.
    No. 56872.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    On Rehearing Sept. 13, 1976.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Eddie Knoll, Dist. Atty., Jeannette Theriot Knoll, Asst. Dist. Atty., for plaintiff-relator.
    W. Miguel Swanwick, Swanwick & Rivers, Alexandria, for defendant-respondent.
   TATE, Justice.

The issue before us is whether Miranda rights may be intelligently waived by the accused’s reading and signing a printed form, without any oral explanation of them by the interrogating officers to assure the accused’s understanding of them.

The defendant is charged with aggravated battery, La.R.S. 14:34, arising out of an incident when a brick was thrown at and hit a motorcyclist passing on the road. The trial court granted his motion to suppress a written confession made by him after he was arrested and brought to the courthouse.

The trial court held that suppression of the statement was required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). By this decision, the United States Supreme Court held that statements of an accused made under custodial interrogation will be regarded as involuntary and cannot be used against the accuse.d unless he is informed of his right to remain silent and of his right to the assistance of a lawyer. Nevertheless, “The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” Miranda, at 394 U.S. 444, 86 S.Ct. 1612, 16 L.Ed.2d 707.

We granted certiorari, 320 So.2d 909 (1975), because we felt that the trial court was in error in its apparent ruling that an intelligent waiver cannot be made on the basis of reading a written statement of the rights, unless by oral explanation at the time the interrogating officers ascertain the accused’s understanding of them.

We find no error in the trial court’s factual finding that no oral Miranda warnings were given when the arresting officer .picked up the accused at the scene of the offense. Further, if the arresting police officer then asked the accused about his participation in the crime, we do not find from the evidence that the accused made any statement, exculpatory or inculpatory, at that time (nor, apparently, does the State contend that any was made at that time).

When the accused was brought to the courthouse, he was not orally explained his Miranda rights. However, he was handed a sheet which explained them, asked if he could read, then requested to read them, and then asked to check boxes (“Yes” or “No”) whch indicated whether he understood his rights and wished to waive them.

The defendant took about two minutes to read the forms and, at the interrogating officers’ request, checked the appropriate boxes. The defendant checked “Yes” that he understood the rights and “Yes” that he waived them.

The defendant conceded that he signed the form and the confession. He contends, however, that due to his nervous state, he could neither read nor understand his rights, although he did tell the police officers that he read and understood them. (He also denied making any checkmarks on the rights waiver, but we accept as preponderating the testimony of the two officers to the contrary, seemingly corroborated by the similarity of the pen stroke of the checks and the defendant’s signature.)

All witnesses agreed that a deputy’s wife wrote the confession from listening to the interrogation of the defendant, who was too nervous to write it himself. No evidence intimates that any coercion, threats, promises, or violence was used to obtain the confession. At the hearing, the defendant indicated understanding of the contents of the written explanation, but stated he was too nervous to do so at the time it was handed to him to read. He further contradicted both officers’ testimony that he again read his rights, as printed on the form on which the confession was written, prior to signing the statement.

Basically, the defendant’s contention is that because the police officers never told him or explained to him his Miranda rights, due to his nervous state his waiver of these rights was not knowing and intelligent.

We agree that an oral as well as written explanation of the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel may be the most effective means of insuring that the defendant comprehends these rights. Nevertheless, we cannot agree with the trial court’s determination that, in the absence of such oral explanation, the defendant in this case did not intelligently and knowingly waive these rights.

In Miranda, the Supreme Court expressly notes freedom in the procedure to be adopted for the protection of the privilege against self-incrimination as long as it is fully effective. Miranda at 384 U.S. 490, 86 S.Ct. 1636, 16 L.Ed.2d 732.

In the present case, the preponderance of the evidence shows that the defendant knew his rights, intelligently waived them, and voluntarily confessed. Even if defendant was not orally informed of his rights, his present contentions are belied by (1) his signatures on the rights waiver and confession and (2) his admission that he informed the officers that he read and understood his rights, combined with (3) the officers’ testimony that they saw him reading the forms and that he indicated a comprehension of his rights, and- (4) the fact that he can read and write and has a twelfth grade education.

For these reasons, the trial judge erred in suppressing the written confession. We reverse this ruling, overrule the motion to suppress, and remand this case for further proceedings in accordance with law.

Decree

Motion to suppress overruled; case remanded for trial.

DENNIS, J., dissents and assigns reasons.

DENNIS, Justice

(dissenting).

The State was required to prove the vol-untariness of the defendant’s confession beyond a reasonable doubt, not by a mere preponderance of the evidence. The record contains sufficient evidence to support the trial judge’s finding of a reasonable doubt and his suppression of the confession. The record does not reflect, as the majority opinion assumes, that the trial judge’s decision was based solely upon the State’s failure to orally explain to the defendant his constitutional rights.

I respectfully dissent.

ON REHEARING

SANDERS, Chief Justice.

On original hearing, we held that a defendant may intelligently waive his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), by reading and signing a printed form without an oral explanation of those rights by the interrogating officers. We reversed the trial court’s granting of the Motion to Suppress and remanded the case for trial. On defendant’s motion, we granted a rehearing to reconsider our holding and to determine whether the record was adequate to establish an intelligent waiver of Miranda rights. For the reasons set forth below, we adhere to our holding on original hearing.

In Miranda, the United States Supreme Court held that an accused must be advised: of his right to remain silent; that, if an accused gives up the right to remain silent, anything he says may be used against him in a court of law; that the accused has a right to Consult an attorney and to have an attorney present during questioning; and that if an accused desires an attorney and cannot afford one, an attorney will be appointed to represent the accused without charge. The Miranda Court fixed no ironclad procedure for advising an accused of his rights. There is no requirement that the rights be orally explained to a defendant; rather, the requirement is that the defendant understand his rights, and, if he chooses to waive them, that he do so intelligently and voluntarily.

The Court placed a “heavy burden” on the State to prove that a waiver of the rights did, indeed, take place. Whether or not an accused understood his rights and intelligently waived them must be determined on the facts of each case. In Narro v. United States, 370 F.2d 329 (Sth Cir.), cert. denied 387 U.S. 946, 87 S.Ct. 2081, 18 L.Ed.2d 1334 (1967), the Court stated: “[T]he cases in which it is clear that the warnings have been given must be considered on their own facts in order to determine the question of waiver. The courts must do this on an ad hoc basis, since no per se rule has thus far been adopted dealing with this problem.”

Later, in United States v. Springer, 460 F.2d 1344 (7th Cir.), cert. denied 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972), the court held that proof of giving the warnings, showing a signed waiver, and showing defendant’s stated understanding of the warnings combined to raise a presumption of validity and to shift the burden of going forward with the evidence to the accused.

The present defendant, Larry McNeal, is a 23-year-old adult with a twelfth grade education. Admittedly, he can read and write.

We accept the trial judge’s finding that the arresting officer gave the defendant no oral warnings at the scene of the crime. When defendant was brought to the courthouse, however, a law enforcement officer gave him a sheet of paper explaining his rights under Miranda v. Arizona, supra. The officer asked the defendant if he could read. When defendant responded that he could read, he was asked to read the explanation of his rights. The defendant took about two minutes to read the explanation of his rights. After he finished, the officer advised him that if he understood his rights, he could check the boxes to indicate that he desired to waive the rights and to make a statement about the case to the officers. He then checked “Yes” that he understood his rights and “Yes” that he waived them.

The defendant admitted that he signed the forms and the confession. He alleges, however, that due to his nervous condition at the time, he could neither read nor understand the forms, despite the fact that he told the officers at the time that he had read and understood them. Defendant denied making any checkmarks on the rights waiver. However, we accept the testimony of the two officers to the contrary.

All witnesses agree that a deputy’s wife wrote out the confession for the defendant who stated that he was too nervous to write it out himself. There is no evidence that any coercion, promises, violence, or threats were used to induce the confession. At the hearing on the motion to suppress, the defendant indicated that he understood the contents of the written explanation but asserted that at the time of the interrogation he was too nervous to do so. He contradicted the officers’ testimony that he again read his rights printed on the form on which the confession was written prior to signing the statement.

Defendant’s various arguments reduce to the contention that the failure to orally explain his rights is fatal because his nervous state impaired his comprehension of the written word.

While we concede that an oral explanation, reinforcing the written explanation, is desirable even when the defendant can read, we disagree with the trial court’s determination that the absence of such an oral explanation is fatal under the circumstances of the present case.

The test stated in United States v. Springer, supra, and followed by many courts, has been met: (1) the defendant signed the rights form on the waiver and the confession; (2) he informed the officers that he read and understood his rights ; (3) the officers testified that they saw him read the forms and that he indicated that he understood them; and (4) defendant can read and write and has a twelfth grade education.

We conclude that defendant was effectively informed of his rights and intelligently waived them. Hence, the confession is admissible in evidence at the trial.

For the reasons assigned, our original judgment reversing the ruling of the district court and remanding the case for trial is reinstated and made the final judgment of this Court.

DIXON, J., dissents.

DENNIS, J., dissents for the reasons originally assigned.

      . In sustaining the Motion to Suppress, the trial court held:
      “PER CURIAM
      “The Court sustained the Motion to Suppress on the following grounds, to-wit:
      “1. It was the court’s determination that the Trooper, Travis Wiley, did not verbally advise the defendant of his Miranda warnings at the scene of the crime.
      “2. The court was of the opinion that the reading by the defendant himself of his Miranda warnings prior to his giving of a statement to the investigating officer was insufficient.”


author: SANDERS, C. J., DIXON, J., SUMMERS, Justice.

text:
    STATE of Louisiana v. Claude J. BREAUX.
    No. 57882.
    Supreme Court of Louisiana.
    April 19, 1976.
    On Rehearing Sept. 13, 1976.
    Robert N. Clarke, Metairie, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Gretna, Abbott J. Reeves, Director, Research and Appeals, Metairie, for plaintiff-respondent.
   In re: Claude J. Breaux applying .for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ granted. In view of the facts and circumstances of this case, applicant is entitled to relief; it is ordered that applicant’s attorney and his private physician be permitted to attend the Sanity Commission examination scheduled for April 21, 1976.

SANDERS, C. J.,

dissents from granting of writ, being of the opinion that defendant has no right of legal representation at a psychiatric examination.

SUMMERS, J., dissents.

DIXON, J.,

concurs in the order but is of the opinion the case should be brought up. Defendant has a right to have counsel present. C.Cr.P. 511.

MARCUS, J., dissents.

ON REHEARING

SUMMERS, Justice.

A bill of information was filed on March 26, 1976 by the District Attorney of Jefferson Parish charging defendant Claude J. Breaux with three counts of aggravated crime against nature, La.R.S. 14:89.1, alleged to have been committed on January 25, 1976.

Prior to arraignment, on April 7, 1976, defendant’s counsel made written application for the appointment of a sanity commission. The motion alleged there was good reason to believe that defendant did not have the mental capacity to understand the nature of the proceedings against him or to assist counsel in his defense because of defendant’s mental disease. Counsel alleged that his interviews with defendant disclosed that defendant was unable to recall involvement in the offenses charged, and that defendant was then confined in DePaul’s Hospital (for the treatment of the mentally ill) for evaluation and treatment by his physician.

The motion further alleged that because of defendant’s mental disease it was necessary that the trial judge appoint a sanity commission to examine defendant. Further, it was alleged, defendant’s personal physician, a psychiatrist, should be permitted to attend any such examination in order to assist defense counsel in the preparation of his defense. According to the motion, this assistance should include, but should not be limited to, the cross-examination of members of the sanity commission upon their findings, all in accordance with the provisions of Articles 646 and 647 of the Code of Criminal Procedure.

Accordingly, on April 7, 1976, the trial judge appointed a sanity commission consisting of two physicians to examine the present mental condition of defendant and report to the court within thirty days whether defendant had a mental disease or defect as a result of which he presently lacked the capacity to understand the proceedings against him or to assist in his defense. The trial judge declined to order that defendant’s personal physician be permitted to attend his examination by the sanity commission.

A hearing was held the following day at which defense counsel urged in argument for the first time that defendant was entitled to be represented by counsel, in addition to the attendance of defendant’s personal physician, at the examination to be conducted by the sanity commission. These demands were based principally upon the contention that defense counsel was needed to assist defendant at the examination by limiting the scope of the interrogation to the question of his present mental condition. Defendant’s personal physician, according to defense counsel, was also entitled to be present at that time, not necessarily to participate in the examination but to assist counsel. As an alternative, again for the first time in oral argument, defense counsel requested that a recording of the examination be made and a transcript be made available to him.

As a result of the hearing, the trial judge reaffirmed the appointment of the sanity commission and denied, for the second time, the request of counsel to order that defendant’s personal physician be present at the examination by the sanity commission.

The trial judge was of the opinion that Louisiana law did not require a representative of defendant to be present at his examination by the sanity commission. He said the presence of defense representatives at the examination would inhibit the psychiatrists. According to the trial judge, defendant could have an independent examination by a psychiatrist of his choosing, who could be called to testify at the sanity hearing held thereafter. And the members of the sanity commission would be subject to cross-examination at the subsequent hearing to determine defendant’s mental capacity to proceed, at which time the judge would preside and make certain that the evidence was confined within proper and lawful limits.

In addition, the trial judge observed that defense counsel had not filed a written motion to be permitted to attend the interrogation of defendant by the sanity commission. Therefore, the judge decided that question was not properly presented by the pleadings. For the same reason, and because he knew of no law requiring that the interrogation be recorded, the judge denied the request for a taped recording of the interrogation.

Defendant then applied to this Court for certiorari and, without a hearing, the writ was granted. At that time the Court ordered that defendant’s attorney and his private physician be permitted to attend the sanity commission examination. However, a rehearing was granted upon the State’s application, and the case was given a preferential hearing on this Court’s docket. In the meantime, the sanity commission examination and the hearing to determine defendant’s mental condition was stayed, pending resolution of the issues thus presented.

Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant lacks the capacity to understand the proceedings against him or to assist in his defense. La.Code Crim.Pro. art. 641. Determination of the intricate and often baffling issue of mental capacity to proceed is to be made by the trial judge. In order to do so he is required to order a mental examination of the defendant when he has reasonable grounds to doubt defendant’s mental capacity to proceed. Id. art. 643.

The mental examination so ordered is performed by a sanity commission appointed by the court. The commission consists of at least two and not more than three physicians who have free access to the defendant. To facilitate the examination the court is required to subpoena witnesses to attend at the request of the defendant or the commission. Id. art. 644.

The report of the sanity commission is filed with the judge, and copies are furnished to the district attorney and the defendant. Id. art. 645. Either or both of the latter have a right to obtain an independent mental examination by a physician of his choice, id. art. 646; and the issue of defendant’s mental capacity to proceed is determined by the court in a contradictory hearing at which members of the sanity commission may be called as witnesses, subject to cross-examination by the defense, the district attorney and the court. Other evidence pertaining to the defendant’s mental capacity to proceed may be introduced at the hearing by the defense and by the district attorney. Td. art. 647.

While these rules demonstrate that physicians composing the sanity commission are appointed as experts to advise and assist the court in its decision, it is likewise apparent that the defendant and the district attorney also have the right to obtain independent examinations for presentation at the hearing at which the determination is to be made.

It is the contention of the State that the mental examination by the sanity commission is not such a “critical stage” of the proceeding that the presence of counsel is required by law. To allow defense counsel and defendant’s private physician to attend and participate would frustrate and hinder the physicians appointed by the court in the discharge of their duties. Such a proceeding would mean that the district attorney and his expert would have to be allowed to attend to protect the State’s interest. This, in turn, would require that the judge be present to arbitrate the questioning and arguments of counsel which would surely follow. Regrettably, too, the physicians (psychiatrists) would be cast in an adversary role under these circumstances. Such an assembly would constitute an adversary proceeding wholly inconsistent with the scientific atmosphere and person-to-person privacy needed for the examination.

As a consequence the purpose of the examination would not be accomplished, nor would such an unorthodox departure from the usual practice serve the best interest of the defendant or the interest of justice. The psychiatrists appointed here would prefer not to serve under these conditions.

Reports of sanity commissions on a defendant’s present mental condition and the testimony of physicians who compose that body are not relevant to- the trial of the case on its merits where the guilt or innocence of the defendant is at issue. The determination of the defendant’s mental capacity to proceed has almost universally been judicially interpreted to refer exclusively to a defendant’s capacity to understand the proceedings or to participate in his defense.

So the question in such a proceeding is whether defendant will be tried at that time, or, whether, on his motion, assisted by counsel, La.Code Crim.Pro. arts. 646-647, he will be committed to a proper mental institution for custody. This result is implicit in the motion, because raising the issue of present mental capacity to proceed necessarily results in such a commitment if the court finds that defendant lacks the requisite mental capacity to proceed. La.Code Crim.Pro. art. 648. It is also implicit in such a motion that defendant is asking the judge to appoint a sanity commission to advise concerning defendant’s present mental condition. And, should defendant thereafter regain his mental capacity to proceed, the prosecution shall be promptly resumed. Id. art. 649.

A sanity commission examination, therefore, is not a critical stage of the proceedings which dictates the necessity for the assistance of counsel. It is, to the contrary, a scientific examination which must be conducted under controlled circumstances in an atmosphere considered by the examining physicians to be conducive to an inquiry into defendant’s mental condition.

These conditions may vary with different experts and the necessary freedom should be granted to them to proceed as they deem proper, for it is their opinion which is being sought, nothing more. Disruptive or controversial encounters may impair the effectiveness and validity of the examination. The examination, therefore, is not an adversary proceeding at which defendant’s guilt or innocence is at stake. United, States v. Trapnell, 495 F.2d 22 (2d Cir. 1974); United States v. Baird, 414 F.2d 700 (2d Cir. 1969), cert. denied, 396 U.S. 1005, 90 S.Ct. 559, 24 L.Ed.2d 497 (1970); United States v. Albright, 388 F.2d 719 (4th Cir. 1968); McGill v. United States, 121 U.S.App.D.C. 179, 348 F.2d 791 (1965); Timmons v. Peyton, 240 F.Supp. 749 (E.D.Va.1965).

The questions before us are res nova in this Court. However, as the foregoing citations to Federal cases demonstrate, the issue has been before the Federal Courts on numerous occasions. The Fifth Circuit met the issue squarely in United States v. Smith, 436 F.2d 787 (1971), stating categorically that

“ . . .A psychiatric examination is not an adversary proceeding. No in-culpatory statements made to the examiner are admissible. To hold a psychiatric examination of an accused without his counsel present is not error. See United States v. Albright, 4 Cir. 1968, 388 F.2d 719, 726-727; Caster v. United States, 5 Cir. 1963, 319 F.2d 850, cert. denied, 1964, 376 U.S. 953, 84 S.Ct. 972, 11 L.Ed.2d 973.”

Cf. U. S. v. Konigsberg, 336 F.2d 844 (3d Cir. 1964), cert. denied, 379 U.S. 930; 85 S.Ct. 327, 13 L.Ed.2d 342.

More recently the same court again stated its position on the question in United States v. Cohen, 530 F.2d 43 (5th Cir. 1976), in these words:

“Likewise, we reject appellant’s claim of a constitutional right to have an attorney present at the psychiatric examination since that might defeat the purpose of the examination and since the examination is not the kind of critical stage at which assistance of counsel is needed or even useful. There would be no need for counsel to instruct the accused not to answer questions for fear of factual self-incrimination, for -any such matter is subject to suppression; and interference with the examination by counsel on other grounds would be improper.”

In our view the position adopted by the Fifth Circuit is sound, and we agree that the accused has no right to insist on being represented by counsel at a psychiatric examination relating to his present insanity. Furthermore, it is implicit in this accord with the Federal view that no inculpatory statement made to the examiners are admissible where defendant’s guilt or innocence is at issue.

Although no decisions have been called to the Court’s attention involving attendance of the accused’s personal physician at the examination, the same reasoning which denies defense counsel’s attendance applies. It applies especially here, where defense counsel stated in argument that attendance of defendant’s physician was sought, not to cross-examine the appointed physicians, but to assist defense counsel during the examination.

Defendant’s right to a tape recording of the examination should depend entirely upon whether the particular physicians composing the sanity commission consider the recording of the examination to be in keeping with their practice. If they consider it advisable to include a tape recording as part of their report, it would be made available to defendant as part of the report. La.Code Crim.Pro. art. 645.

For the reasons assigned, the order granting the writ herein is revoked and set aside, and the ruling of the trial judge denying defendant’s motion is affirmed.

DIXON, J., dissents.


text:
    PEOPLES FURNITURE AND GIFT v. CARSON HICKS FRIEDRICHS REFRIGERATION, INC.
    No. 58253.
    Supreme Court of Louisiana.
    Sept. 22, 1976.
   In re: Friedrichs Refrigeration, Inc. applying for certiorari, or writ of review, to the Court of Appeal, 333 So.2d 320, Third Circuit, Parish of Natchitoches.

Writ denied. The result is correct.

DIXON, J., dissents from denial.

DENNIS, J., is of the view that the writ should be granted.


text:
    Villere REGGIO et al. v. LOUISIANA GAS SERVICE COMPANY et al.
    No. 58285.
    Supreme Court of Louisiana.
    Sept. 22, 1976.
   In Re: Villere Reggio, et al. applying for certiorari or writ of review to the Court of Appeal, 333 So.2d 395, Fourth Circuit, Parish of Jefferson.

Denied. On the facts found by the Court of Appeal there is no error of law in the judgment complained of.

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


author: DENNIS, Justice.

text:
    Elsie CARTER v. Dr. R. Bruce PHILLIPS.
    No. 57347.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Daniel E. Broussard, Jr., Neblett, Führer & Broussard, Alexandria, for plaintiff-relator.
    LeDoux R. Provosty, Jr., Provosty & Sa-dler, Alexandria, for defendant-respondent.
   DENNIS, Justice.

Plaintiff-relator brought this malpractice suit for damages in the amount of $250,000 against Dr. R. Bruce Phillips and his insurer alleging that during oral surgery he negligently severed her facial nerves. She requested and obtained an order for trial by jury, and in connection therewith furnished a $1,000 cost bond to the clerk of court. Defendants then filed a motion for security for costs as provided by La.R.S. 13:4522. They claimed that a proper defense of the suit would require them to obtain the testimony of expert medical witnesses and assume responsibility for their fees and costs incident to taking their depositions. The amount prayed for in the motion was $900, including fees of $150 each for two doctors from New Orleans, fees of $100 each for three doctors from Alexandria, and the notary and transcription fees of $60 per deposition. Following a hearing at which no testimony or other evidence was offered, the trial court granted the motion and ordered relator to post the bond for costs in the requested sum of $900. The Third Circuit Court of Appeal affirmed. We granted a writ of certiorari to consider whether the court erred in granting the motion without the introduction of evidence by defendants to show the necessity for or the proper amount of the bond for costs.

La.R.S. 13:4522 provides:

“The defendant before pleading in all cases may by motion demand and require the plaintiff or intervenor to give security for the cost in such ease, and on failure to do so within the time fixed by the court such suit or intervention, as the case may be, shall be dismissed without prejudice. This section shall not apply to the Parish of Orleans and to cases brought in forma pauperis, nor to the state or any political subdivision thereof.”

This provision does not relate to the ordinary court costs for which the clerk of court is authorized to demand security. La. R.S. 13:841-43 (and La.R.S. 13:1213-14 in Orleans Parish). Rather, it secures the payment of those expenses incurred by the defendant in defense of the suit which may be taxed as court costs and which the plaintiff may finally be condemned to pay. Among these costs are the items at issue here: the fees of expert witnesses and the costs of taking their depositions, when necessary. Whitson v. American Ice Co., 164 La. 283, 113 So. 849 (1927).

The leading case of Whitson v. American Ice Co., supra, established that the defendant bears the burden under this provision of showing how large a bond is necessary to protect him. However, Whitson did not clarify what sort of “showing” would be required, and this has been the source of some disagreement in the lower courts. See, Romero v. Romero, 232 So.2d 572 (La.App.3d Cir. 1970), and Carter v. Phillips, 325 So.2d 337 (La.App.3d Cir. 1976).

The Romero case suggested that the defendant must support her request for security by introducing evidence at the hearing. Judge Culpepper dissented on the grounds that the defendant’s showing had been made in the pleadings and arguments of counsel. He added:

“I find no authority to support the contention that the word ‘showing’ must be construed in every case to mean that evidence must be introduced.
“I think a ‘showing’ in the present case could be made in several ways. For instance, it could be made by facts alleged in the motion, by supporting affidavits, or by arguments of counsel at the hearing. The nature of the showing required should be left largely to the discretion of the trial judge. We should not limit this discretion by requiring that in every instance evidence must be introduced.” 232 So.2d 572, at 576.

In the instant case, Judge Culpepper’s view prevailed and Romero was overruled “ * * * insofar as it can be construed as holding that in every hearing under LSA-R.S. 13:4522 the defendant must introduce evidence to show both the necessity for and the amount of the security for costs requested.” Carter v. Phillips, 325 So.2d 337, at 338.

We agree that it is within the discretion of the trial judge to determine whether the showing required may be made by the allegations in the motion, supporting affidavits, the arguments of counsel at the hearing, introduction of evidence, or in any other manner which the trial judge deems appropriate. However, we feel that the trial judge abused his discretion here in accepting as a showing the allegations in the motion and perhaps argument of counsel. There is no indication in the record that the trial judge exercised his discretion “with due regard for the actual necessity for a bond and for the interest or motive of the party demanding it.” (Emphasis added). Whitson v. American Ice Co., 113 So. 849, 851. We are not convinced by the bare pleadings that the defendant needed the testimony of five expert witnesses in order to properly defend his suit. Nor is it clear why the defendant must take the depositions of the three doctors from Alexandria rather than subpoenaing them as witnesses at the trial. We do not mean to suggest that the arguments of counsel may never suffice as a showing. However, in this case, the arguments made at the hearing were not transcribed and made part of the record, and we cannot presume on review that they were adequate.

The order of the district court requiring the plaintiff in this case to furnish security for $900 of court costs is annulled, reserving to the defendant the right, on a proper showing, to demand, now or whenever the necessity may arise, security for any court costs which the defendant may actually have to incur or be responsible for in advance of a final judgment condemning either party to pay such costs.

Cost bond annulled; case remanded.


text:
    STATE of Louisiana on relation of Jay CUCCIA v. FRENCH MARKET CORP. et al.
    No. 58303.
    Supreme Court of Louisiana.
    Sept. 22, 1976.
   In re: French Market Corp., City of New Orleans, Cafe Maison, Inc. and Ernest L. Masson applying for certiorari, or writ of review, to the Court of Appeal, 334 So.2d 241, Fourth Circuit, Parish of Orleans.

Writ denied. No error in the result.

DIXON, J., is of the opinion that the court of appeal is in error and the writ should be granted.

CALOGERO, J., dissents from the writ denial.

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


text:
    STATE of Louisiana v. Stephen CARTER and George E. Mealey.
    No. 57901.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Bernard S. Dolbear, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Steven M. ROUNSAVALL.
    No. 57628.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

By bill of information the District Attorney for the. Parish of Orleans charged Steven Rounsavall with robbing Robert Cach-ere of property worth $190, while armed with a pistol. Rounsavall was tried, found guilty as charged, and sentenced to serve seventy-five years at hard labor. One issue is presented on this appeal.

After voir dire examination of prospective jurors, twelve jurors and one alternate were selected and sworn. The jury was empaneled. At that time, and before opening statements by counsel, Edward J. Johnson, who had been selected and sworn as a juror, made known to the trial judge in open court that, although he did not disclose that fact when asked if he was connected with either a military or civilian law enforcement agency, he did, in fact, know a member of the district attorney’s office and, also, at one time he. was a member of the Orleans Parish Levee Board Police Department. He was then interrogated by the trial judge to ascertain whether these relationships would affect his deliberations. Johnson answered they would not.

Upon this disclosure defense counsel moved for a mistrial upon the authority of Article 775(6) of the Code of Criminal Procedure which permits a trial judge to order a mistrial and dismiss the jury when false statements of a juror on voir dire prevent a fair trial.

The trial judge refused to order a mistrial, ruling instead that the juror Johnson be excused and that the alternate juror, Martha S. Ramie, serve in his stead. Defense counsel objected to the ruling, and the case proceeded to trial, resulting in the conviction of defendant.

A serious question may be presented whether the juror Johnson’s failure to make proper disclosure on voir dire would “prevent a fair trial”, inasmuch as his employment as a Levee Board policeman was in the past, and the attorney he knew on the district attorney’s staff was not involved in the case; however, we cannot agree that the trial judge was, by this disclosure of juror Johnson’s past relations, authorized to excuse him from jury service and substitute the alternate juror in his stead.

Alternate jurors are drawn and serve to replace jurors who become unable to perform or who are disqualified from performing their duties prior to the time the jury retires to consider its verdict. La.Code Crim.Pro. art. 789. And, while the court may disqualify a prospective juror from service in a particular case when for any reason doubt exists as to the competency of the prospective juror to serve in the case, ibid. arts. 783, 787, once the trial has begun by the swearing of the first juror selected, ibid. art. 761, and the jurors are accepted and sworn, they may not be removed unless they are “incompetent to serve”, ibid. art. 796.

Once a jury has been selected and sworn the accused has a right to have his fate decided by the particular jurors selected to try him. The phrase “incompetent to serve” embodied in Article 796 refers to death, illness or any other cause which renders a juror unfit or disqualified to perform his duty as prescribed. The right of the accused to have a juror selected by him try the case is a substantial one, the improper deprivation of which is prejudicial. The doctrine of harmless error is, therefore, inapplicable. State v. White, 244 La. 585, 153 So.2d 401 (1963); State v. Willie, 130 La. 454, 58 So. 147 (1912).

This Court has previously declared that under Article 789 the jurors once selected are expected to serve, save in cases of death, illness or other cause which renders the juror unfit or disqualified to perform his duty. See La.Code Crim.Pro. art. 401. After a juror has been accepted for service, discovery of the fact that he has furnished erroneous information, lied or has a fixed opinion which would not yield to the evidence would perhaps be a basis for a prosecution for perjury or grounds for a mistrial, but these disclosures do not permit the judge to excuse a juror already sworn and designate the alternate to serve in his stead. State v. Square, 257 La. 743, 244 So.2d 200, 237 (1971).

For the reasons assigned, the conviction and sentence are reversed and set aside, and a new trial is granted.


text:
    STATE of Louisiana v. Leo James ROBINSON.
    No. 57916.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Charles W. Seaman, Law Offices of Kelly, Seaman & Ware, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lonnie D. DARBY.
    No. 57927.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    James M. Dozier, Jr., Joseph A. Cusima-no, Jr., Farmerville, Baker, Culpepper & Brunson, Jonesboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ragan D. Madden, Dist. Atty., James T. Spencer, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: MARCUS, Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. Lovair McCOY.
    No. 57641.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Charles B. Peatross, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Paul J. Carmouche, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Lovair McCoy was charged by bill of information with aggravated crime against nature, in violation of La.R.S. 14:89.1. After trial by jury, he was found guilty of crime against nature. The district attorney then filed a bill of information charging defendant with being a third felony offender, in violation of La.R.S. 15:529.1. Defendant was found guilty of being a third felony offender and was thereafter sentenced to serve ten years at hard labor. On appeal, he relies upon four assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

The bill of information alleged that defendant forced or threatened a woman to have oral-genital sex with him, and that this act constituted aggravated crime against nature, the offense charged. At trial, the state called the victim of the crime to the stand. She testified on direct examination that before defendant committed the crime charged he had jumped on her and carried her to a drainage ditch, where he made her undress. The state then asked the victim what happened next:

A. Then he knocked me down and he made me take them off.
Q. What happened to the clothes, do you know?
,A. No, sir, I don’t.
Q. OK. After he knocked you down and you took your clothes off, what happened then?
A. Then he raped me.
Q. He raped you?
A. Yes, sir.

At that point defendant moved for a mistrial under Code of Criminal Procedure article 770(2), contending that the witness’ mention of rape was a reference to another crime committed by him as to which evidence is not admissible. He assigns the trial judge’s denial of his motion for a mistrial as error.

Article 770 of the Code of Criminal Procedure provides:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

(Emphasis added.)

The trial judge did not err in denying defendant’s motion for a mistrial. Article 770 mandates a mistrial only where the reference to another crime as to which evidence is not admissible is made by the judge, district attorney, or a court official. In this case, it was the victim, during the course of her testimony, who referred to defendant’s commission of rape.

An additional reason the trial judge correctly denied the motion for a mistrial is that the reference to rape was not a reference to another crime the defendant allegedly committed as to which evidence is not admissible. La.R.S. 15:447 and La.R.S. 15:448 provide:

La.R.S. 15:447.
Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence. (Emphasis added.)
La.R.S. 15:448.
To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.

The victim, continuing with her testimony after the motion for a mistrial was denied, stated that immediately after defendant raped her, he forced her to engage in oral sex with him, the criminal act charged in the bill of information. Clearly, the rape was an immediate concomitant of the criminal act, and formed in conjunction with it one continuous transaction. Hence, evidence of the rape was admissible as part of the res gestae. State v. Curry, 325 So.2d 598 (La.1976); State v. Robinson, 302 So.2d 270 (La.1974); State v. Matthews, 292 So.2d 226 (La.1974); State v. Whitsell, 262 La. 165, 262 So.2d 509 (1972).

This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 2

The bill of information charged that defendant committed the crime charged “on or about April 9, 1975.” Upon resting its case, the state, after noting that the offense may have occurred late at night on the preceding day, moved to amend the bill of information so that the stated date of the crime charged would read “between the hours of 9:00 P.M. on April 8, 1975 through the hours of 2:00 P.M. on April 9, 1975.” Defendant objected to the proposed amendment. The trial judge granted the state’s motion, and defendant assigns his ruling as error.

Article 487 of the Code of Criminal Procedure states that the court may cause an indictment to be amended at any time with respect to a defect of form. Article 468 provides that the date or time of the commission of the offense need not be alleged in the indictment, unless the date or the time is essential to the offense. Hence, if date or time is not essential to the offense, a mistake respecting the date on which the offense occurred is only a defect of form, which may be corrected at any time with leave of court. State v. Sharp, 321 So.2d 331 (La.1975); State v. Hubbard, 279 So.2d 177 (La.1973); State v. Pickett, 261 La. 237, 259 So.2d 307 (1972); State v. Martin, 255 La. 961, 233 So.2d 898 (1970). Since the date on which the aggravated crime against nature occurred is not an essential element of the offense, the trial judge’s allowance of the amendment was proper. Moreover, defendant made no motion for a recess, nor does he make a showing of surprise or prejudice resulting from the amendment.

There is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 3

Defendant alleges that the trial judge erred in overruling his motion to quash the bill of information on the ground that La.R.S. 14:89.1, the statute defining and punishing aggravated crime against nature, is unconstitutionally vague and indefinite. He contends that the statute violates article 1, section 13 of the Louisiana Constitution of 1974, which provides that the accused in a criminal prosecution “shall be informed of the nature and cause of the accusation against him.”

Article 1, section 10 of the Louisiana Constitution of 1921, like article 1, section 13 of the Louisiana Constitution of 1974, requires that the accused “be informed of the nature and cause of the accusation against him.” We have held that La.R.S. 14:89, the statute defining and punishing crime against nature, did not violate that provision of the 1921 constitution. State v. Lindsey, 310 So.2d 89 (La.1975); State v. Bonanno, 245 La. 1117, 163 So.2d 72 (1964). In light of these decisions, we held in State v. Bluain, 315 So.2d 749 (La.1975) that La.R.S. 14:89.1 (aggravated crime against nature) is likewise constitutional. Inasmuch as the corresponding provisions of our present and former constitutions are identical, we today hold that La.R.S. 14:89.1 does not violate our new state constitution.

The trial judge properly denied the motion to quash the bill of information. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4

After the jury returned a verdict of guilty of crime against nature, defendant filed a motion in arrest of judgment on the grounds that: (1) the verdict of guilty of crime against nature was unresponsive to the bill of information charging defendant with aggravated crime against nature; and (2) La.R.S. 14:89, the statute defining and punishing crime against nature, is so vague and indefinite that it violates article 1, section 13 of the Louisiana Constitution of 1974.

Defendant argues that the verdict of guilty of crime against nature was not responsive because both parties to the criminal act can be prosecuted for crime against nature, whereas only one party can be prosecuted for aggravated crime against nature.

That argument is totally without substance. Article 815 of the Code of Criminal Procedure states that in all cases not provided for in article 814 a verdict of guilty of a lesser and included grade of the offense charged is a responsive verdict. A lesser offense is included in the charge of the greater offense if all of the elements of the lesser crime are included in the definition of the greater offense. State v. Stewart, 292 So.2d 677 (La.1974); State v. Poe, 214 La. 606, 38 So.2d 359 (1948); State v. Roberts, 213 La. 559, 35 So.2d 216 (1948). All of the elements of crime against nature are included in aggravated crime against nature, and therefore crime against nature is a lesser included offense and a responsive verdict to a charge of aggravated crime against nature.

We reject the second ground in support of the motion in arrest of judgment, that La.R.S. 14:89 (drime against nature) is unconstitutionally vague and indefinite, for the reasons given in our discussion of Assignment of Error No. 3.

In his brief, defendant, citing Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), also argues that La.R.S. 14:89 is unconstitutional because it offends the constitutionally protected right of privacy if applied to consenting individuals. The United States Supreme Court very recently rejected an identical contention. In Doe v. Commonwealth's Attorney for City of Richmond, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), aff’g 403 F.Supp. 1199 (E.D.Va.1975), the Court affirmed a judgment of a three-judge federal court upholding the constitutionality of a Virginia law punishing crimes against nature committed by consenting persons.

The trial judge did not err in denying the motion in arrest of judgment. This assignment of error is without merit.

DECREE

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

DENNIS, J., concurs.

CALOGERO, J., concurs with reasons.

CALOGERO, Justice

(concurring).

The majority opinion holds that La.R.S. 14:89.1, the statute proscribing aggravated crime against nature, meets constitutional standards, and relies on the recent decisions of this Court in State v. Lindsey, 310 So.2d 89 (La.1975) and State v. Bluain, 315 So.2d 749 (La.1975). I dissented to both of those decisions because I felt that our crime against nature laws failed to meet the standards of the 1921 Constitution in that they did not adequately define for our citizens what sexual conduct is a criminal act in this state. La.Const. art. I, § 10 (1921). For the same reason I feel that the aggravated crime against nature statute at issue here lacks the clarity and definition which is necessary in order to make an act criminal under the standards set out in the 1974 Constitution. La.Const. art. I, § 13 (1974). But because these former decisions reflect the current majority rule in this state, and because the situation here is undistinguishable from those cases, I respectfully concur.

      . The victim testified that the crime charged took place at about 10:30 in the night of April 8, and that defendant kept her under his custody until about 2 o’clock in the morning the following day.

      . Article 814, which lists the responsive verdicts that may be rendered for a number of offenses, does not include the responsive ver-diets that may be rendered for aggravated crime against nature.


text:
    STATE of Louisiana v. Walter FARRELL.
    No. 57902.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Arthur A. Lemann, III, Supervising Atty., Loyola Law School Clinic, New Orleans, Paul A. R. Mason, Student Practitioner, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Timothy Cerniglia, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.