text:
    Harston Joe ENGLAND v. STATE.
    8 Div. 796.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.

      Starnes, Smith & Wilkes, Guntersville, for appellant.
    William J. Baxley, Atty. Gen., and Jack Curtis, Asst. Atty. Gen., for the State, for appellee.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant was indicted for robbery, plead not guilty on arraignment in the presence of his attorney, tried before a jury, and convicted with punishment fixed at ten years imprisonment. Judgment was rendered accordingly, and this appeal followed. Employed counsel represented defendant at nisi prius, and the same employed counsel represents him here.

The victim of the robbery, Robin Wood-ham, testified that on the night of February 1, 1975, between 7:00 and 7:30 P.M., while she was on duty with a Kentucky Fried Chicken unit, a man entered the building where she was employed, wearing a hose or stocking mask and a helmet. He brandished a shot gun. Responding to his demand, she emptied the cash register of money, placed it in a Kentucky Fried Chicken paper bag. Responding further to the robber’s demand, she then got a deposit bag of money from under the register and gave both bags to him. The witness viewed a man who was brought to the courtroom and identified him as the robber. The man was Howard Duncan, who testified as a witness for the State and implicated appellant-defendant as a person who waited outside in a “get-away” motor vehicle. Duncan testified that he and appellant-defendant went back to Duncan’s home, from where they left to commit the robbery, and counted and divided the money in the bathroom of Duncan’s home.

Sue Duncan, wife of the accomplice, Howard Duncan, testified about the association of her husband and defendant during the early part of the day; that her husband and defendant returned to her home about 8:30 P.M., on the evening of February 1, 1975, the day of the alleged robbery, and that her two sisters were at the house at that time. She testified the two men ate supper then went outside, after which she heard a commotion in the bathroom, at which time and place she saw her husband and appellant-defendant in the bathroom counting paper money, and she saw a Kentucky Fried Chicken bag on the floor of the bathroom. She further testified that the two men stayed in the bathroom approximately forty-five minutes; that appellant was first to leave the bathroom and that he immediately left their home.

Another witness, Joyce Westmoreland, sister of Mrs. Duncan, testified she was present at the home of her sister and that Duncan and defendant were in the bathroom for about twenty minutes. This testimony jibed with that of Mrs. Duncan, but she did not testify that she saw them in the bathroom counting the money.

There was considerable testimony which corroborated that of the accomplice, Howard Duncan, but suffice it to say that Mrs. Duncan’s testimony and that of her sister was sufficient, along with other testimony, for the jury to draw an inference therefrom connecting defendant with the robbery. The testimony is rather lengthy and further recitals therefrom would unduly burden this opinion.

Defendant took the stand and denied any participation in the robbery. Evidence was offered that tended to establish an alibi, as well as his good character. The evidence was conflicting and presented a factual issue for the jury. The jury resolved these conflicts against the defendant with a verdict of guilty.

I

Appellant seeks a reversal of the judgment on the ground that the verdict is contrary to the great weight and preponderance of the evidence presented by the State in the trial of the cause.

It is true that the jury based its verdict solely on circumstantial evidence as set forth in the transcript as appellant points out. It is said in Creel v. State, 53 Ala.App. 504, 301 So.2d 267 (1974), as follows:

“ . . . Circumstantial evidence is entitled to the same weight that direct evidence is entitled to provided it points to the guilt of the accused. In cases where the state relies to a great extent on circumstantial evidence for a conviction very wide latitude is allowed in making proof. Cline v. State, 25 Ala.App. 433, 148 So. 172; Willis v. State, 37 Ala.App. 185, 66 So.2d 753; Sumeral v. State, 39 Ala.App. 638, 106 So.2d 270.”

We also said in Smith v. State, 53 Ala.App. 27, 296 So.2d 925 (1974), as follows:

“The law is that a verdict of conviction should not be set aside on the ground of the insufficiency of the evidence to sustain it, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust. We are not so convinced. Bridges v. State, 284 Ala. 412, 225 So.2d 821; Jones v. State, 40 Ala.App. 419, 114 So.2d 575.”

We do not think there is any merit in appellant’s contentions, supra.

II

Myrtle Duncan, mother of the accomplice, Howard Duncan, the star witness for appellee, caused some disturbance in the courtroom in the presence of the jury when she asserted, partially audible, that some of the things being said by defendant’s counsel about her son were lies. She was emotional and rose from her seat at which time her remarks were called to the attention of the trial judge. The mother’s utterances were made while defense counsel was telling the jury that her son, Howard Duncan, was “one of the biggest outlaws that ever came out of North Alabama.”

The trial judge, it appears in evidence on the motion, acted promptly. He ordered that the mother be removed from the courtroom. Two deputy sheriffs executed the order.

The evidence of an attorney for defendant, when the motion was heard, reveals that the trial court “admonished” the jury relative to the utterances, but he did not remember the judge’s words. This witness also testified that the court overruled defendant’s motion for a mistrial.

The transcript shows on p. 337, during the argument, the following:

“MR. WILKES: We move for a mistrial.
“THE COURT: Ladies and gentlemen, disregard anything you might have seen or heard and completely eliminate it from your mind, from your decision in this case. As a matter of fact, hold it against anything you might have heard. Lean over backwards to disregard it. Don’t let it effect you in any way whatsoever. Overrule your motion for a mistrial.”

The trial court overruled the motion for a new trial.

It appears to us that the mother’s emotional utterances occurred when defense counsel was accusing her son of being the most noted outlaw in north Alabama. The jury heard her son’s admissions as to his criminal record and convictions. In view of these admissions, the jury was able to appraise the truth vel non of the accusation of defendant’s attorney, free of any emotional reply of the mother. The admonishment of the court was sufficient to eradicate any effect that the utterances might have occasioned. Scott v. State, 47 Ala.App. 509, 257 So.2d 369.

Denial of a mistrial and the court’s action in overruling the motion for a new trial were both free of error.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: HARRIS, Judge.

license: Public Domain

text:
    Adam JONES, Jr. v. STATE.
    4 Div. 342.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    Edward M. Price, Jr., Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Blumenfeld, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of burglary in the second degree and sentenced to a term of four years in the penitentiary. At arraignment, with his counsel present, he pleaded not guilty. After sentence was imposed, he gave notice of appeal. He was found to be indigent and a free transcript was furnished him. Trial counsel was appointed to represent appellant on appeal.

Mrs. Maude Hicks testified that on November 21, 1974, she and her son, Edgar M. Hicks, were living in her house at 133 East North Street in Dothan, Houston County, Alabama. On the afternoon of that date she and her son left home between 2:30 and 3:00 p. m. and returned home around 4:00 p. m. that same afternoon. Before leaving home they locked all the doors and windows. When they returned home, they found a bedroom door opened which was closed when they left the house earlier. The French doors leading into the living room were open. They went to the back porch and found the back door wide open. The window behind the back door was open and the screen was cut and torn off and the lock had been cut or broken.

She and her son started looking through the house to see if anything was missing. Mrs. Hicks discovered her digital clock radio was missing and her son’s shotgun was also missing. She stated that the clock had a unique or peculiar feature about it in that when the hour reached 4 o’clock, the four turned to an “H”. Mrs. Hicks later identified her clock when it was brought to her house by Sergeant Larry Lynn of the Dothan Police Department. Mrs. Hicks valued all of the property taken from her home to be over twenty-five dollars.

Edgar M. Hicks, Jr., testified that he was living with his mother on November 21, 1974. He corroborated his mother’s testimony concerning the condition of the house before they left and the condition it was in when they returned. He also confirmed her testimony as to the missing property. He stated the shotgun was a Winchester 16 gauge single shot and belonged to him. He later saw and identified the shotgun when Sergeant Lynn brought it to his house. He valued all the stolen property from his mother’s home to be in excess of $25.00, and that the gun and clock were worth at least $40.00.

Mr. James Emfinger testified that he was the owner of Stough Street grocery store in Dothan and that on Saturday, November 23, 1974, appellant came to his store and told him he had a gun he wanted to sell. Emfinger told appellant he didn't need a gun but appellant insisted that he look at the gun. They went outside and appellant opened the car door and got the gun and handed it to Mr. Emfinger. As Mr. Emfinger was looking at the gun, some police officers drove up and asked appellant if that was his gun and appellant said it was not his gun and gave the officer some name as the owner. Mr. Emfin-ger said there was another man with appellant but he did not know him. He had seen appellant before and made a positive in-court identification of appellant as the man who brought the gun to his store.

Mr. Robert Jackson was employed as a police officer with the City of Dothan on November 23, 1974. He was on patrol duty on that date and had a partner with him by the name of Lewis. This officer knew appellant. He stated they were patrolling Stough Street and saw appellant, a man by the name of Connie Fish, and Mr. Emfinger standing next to a car and one of them was holding a shotgun Up. The officers stopped their patrol car and got out and walked to where these men were standing with the shotgun. Officer Jackson asked who owned the shotgun and appellant said it belonged to him and he was trying to sell it. Jackson told appellant the gun fitted the description of one that had been reported stolen, and he would like to take the gun and check it out and appellant then said the gun did not belong to him— that he did not own it. He further stated that the gun belonged to a man named Blackman. Officer Jackson said he would like to check it out and they started to the patrol car with appellant. Officer Lewis was in front, appellant was behind Lewis and Officer Jackson was behind appellant. Just as they got to the patrol car, appellant made a break and started to run away. He only made a few steps when Officer Jackson apprehended him. He was then and there advised of his constitutional rights, arrested and put in the patrol car, and transported to the police department. Officer Jackson turned the shotgun over to Sergeant Lynn and said it was in the same condition as when he received it from appellant.

On cross-examination Jackson was asked if appellant didn’t tell him that the gun belonged to Billy Joe Walker and he said, “No, he didn’t.”

Sergeant Larry Lynn of the Dothan Police Department testified that he was assigned to do some additional investigation in connection with the reported break-in of the home of Mrs. Hicks. That on November 23, 1974, he went to the home of Judge Hall at 910 Whiddon Street. He knew that Judge Hall was appellant’s father-in-law. He asked Hall if appellant lived there and Hall stated that he stayed there off and on. He asked Hall if he could look in the house for some items taken during a burglary, specifically, a radio and a shotgun and Hall consented for the officer to search his house and signed a consent form.

On voir dire Lynn testified that he found the radio in the bedroom. In the room at the time was appellant’s wife and he did not ask appellant’s wife if he could search the room as he already had the written consent to search from the owner of the house. He further testified that appellant’s wife had just gotten out of the hospital with a newborn baby and was just staying with her parents. Hall told Lynn that appellant did not stay there regularly, but he was in and out.

The trial court stated he wanted to hear from Judge Hall. Hall testified that he lived at 910 Whiddon Street and he owned the house. He was buying the house and paying on it at the bank. He stated that his daughter was staying there temporarily because she just had a baby. That she and her husband had a house across town. That she and her husband were not residents in his home and that they did not pay him any rent for the use of the bedroom. He said before she had the baby, they were not living there.

The Court asked this witness if he or his wife had any personal belongings in that room and he stated he had two or three suits that belonged to him in that room and that his wife had some clothes in there, too.

The Court continued to question Judge Hall as follows:

“Q You say Adam stayed there in that room sometimes and stayed with his mother sometimes?
“A Yes, sir.
“Q He didn’t pay you any rent ?
“A That’s right.
“Q Did your daughter, Adam’s wife, pay you any rent ?
“A No, sir.
“Q Did you give those policemen your consent — did you allow them to go in the room and search it that day?
“A Yes, sir.
“Q You gave Detective Lynn the right to go in there?
“A Yes, sir.
“Q Did your daughter give him permission to go in there and search ?
“A She did after I went back and told her the law wanted to investigate back there.”

Sergeant Lynn was recalled and testified that when he was standing and talking to Judge Hall, the door to the bedroom was open and his attention was attracted by the light on the digital dial of the clock radio. That he did not push the door open saying, “I never did touch it.”

From the record:

“THE COURT: Without you touching the door and pushing it open, and walking in the room, you could see the digital clock?”
“A. Yes, sir, we were standing in the doorway and he said, ‘You can search my house anywhere you want to.’ ”
“THE COURT: You knew that a digital clock had been taken in this burglary that you were investigating ?
“A. Yes, sir.”

The motion to suppress was overruled.

Sergeant Lynn then testified before the jury that after receiving permission from Judge Hall to search the house, he found the digital clock radio. He took the clock to Mrs. Hicks and she identified it as the one taken from her home. The shotgun that Sergeant Lynn received from Officer Robert Jackson was shown to Edgar Hicks and identified by him as his gun and the gun that was taken in the burglary.

Appellant testified that he bought the clock and shotgun from Billy Joe Walker. He admitted that he told Officer Lynn that he bought the clock and shotgun from a man by the name of James Blackman. He stated that he didn’t know a James Black-man and just made up that name.

Appellant contends that the evidence seized in this case, a digital clock radio, was the result of an illegal search and seizure and should have been excluded from the evidence.

In overruling the motion to suppress, the trial judge said:

“THE COURT: The detective says he could see the digital clock from the living room, where he was standing. I am not convinced this defendant and/or his wife had the exclusive occupancy of that bedroom. They were guests, in my opinion, in that home and had the right, by his permission, to use that bedroom. They certainly didn’t have the complete and exclusive rights, or dominion or control over that bedroom, because the defendant, or the wife or some of the other children had clothes in there, and by this defendant’s own testimony, his brother-in-law came and went from that bedroom and had the right to use it. I think he was a guest in the home and that Mr. Judge Hall had dominion and control over that house and I think he had the right to give the police permission to search it, if, in fact, he did get permission. At this point, I am going to overrule your motion.”

That Judge Hall was the owner of the house that was searched is clear from the evidence. He gave Officer Lynn permission to search anywhere in his house. We hold that the consent to search was unequivocal and specific, and was freely and intelligently given. There was clear and positive testimony that Judge Hall consented to the search. Courts throughout the country have consistently held that searches without warrants are constitutionally permissible when executed with the owner’s consent. Hardy v. State, 53 Ala.App. 75, 297 So.2d 399; Myers v. State, 55 Ala. App. 404, 316 So.2d 235; Hernandez v. State, 50 Ala.App. 558, 280 So.2d 831; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854; United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242.

We find no error in the record and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: CATES, Presiding Judge.

text:
    Jackie Curtis HAYNES v. STATE.
    7 Div. 423.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    Jerry B. Oglesby, Anniston, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis, III, Asst. Atty. Gen., for the State, appellee.
   CATES, Presiding Judge.

Rape: sentence, twenty-five years.

Appellant has moved us to reverse the conviction because the court reporter without good causes delayed the preparation of the transcript of evidence. He does allege that the evidence transcript which was tardily filed was substantially incorrect.

Our Federal courts have taken to offering our State prosecutors (1) new trials, (2) “out of time” appeals or (3) habeas corpus discharges. No consideration seems to be given as to what would be a reasonable time for an appellate court to act. By analogy to the speedy trial case of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, no inflexible test for vitiating prejudice emerges.

We are cognizant that there is presently a crisis in our trial courts due to a shortage of court reporting personnel and funds to pay for evidence transcripts for pauper prisoners who appeal convictions. Time limits are set out in the Appellate Rules but no ultimate time is fixed. Thus in Brooks v. State, 283 Ala. 459, 218 So.2d 271, under the former rules the Supreme Court ordered an evidence transcript to be filed in sixty days, “unless this period be extended by the trial court for cause.”

In the instant case the trial occurred October 1, 1975. The order for a free transcript was made October 8, 1975. The transcript was filed February 6, 1976 with the Circuit Clerk.

Since no reversible error appears (Code 1940, T. 15, § 389) we fail to see any prejudice to the appellant because of the delay. Obviously his sentence has not expired. Since our procedure does not yet recognize video tapes we do not consider that an appellant can expect an instantaneous replay in this Court. Pope v. State, 7 Div. 410, Ms. February 3, 1976, clearly does not apply.

The judgment below is

AFFIRMED.

All the Judges concur.

      . This Court has rejected “out of time” appeals. Wade v. State, 51 Ala.App. 441, 286 So.2d 317.


text:
    Gissander Clifford WRIGHT v. STATE.
    1 Div. 625.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    Carlton & Carlton, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant was indicted for first degree murder and convicted on a plea of not guilty of second degree homicide. The jury fixed punishment at twenty years in the penitentiary. He was a partial indigent then and now.

Appellee’s Motion

The State filed a motion to strike the court reporter’s transcript of the evidence and to dismiss the appeal.

Appellee asserts that the court reporter’s transcript of the evidence was filed beyond the time required by law and should be stricken.

This court held in Willie James Pope v. State, 7 Div. 410, Court of Criminal Appeals Ms. February 3, 1976, that an indigent’s right to appeal cannot be thwarted by inaction on the part of the court reporter. We cited Brooks v. State, 283 Ala. 459, 218 So.2d 271 (1968); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 724, 9 L.Ed. 899 (1963).

Because of this partial indigency, we are unwilling to strike appellant’s brief which movant asserts was belatedly filed in this court.

The motion of appellee is overruled.

On the Merits

Landry v. State, 56 Ala.App. 421, 321 So.2d 759, is a companion case of one presented on this appeal. The facts are the same as appears in Landry, supra, except it does not appear, as in Landry, that Landry was seated “ ‘with his hands behind his back shuffling.’ ” In other words there is no evidence in the instant case that indicated appellant had possession of the death weapon.

We conclude from the evidence in the appeal record before us that appellant was present when the homicide occurred. But so far as we find there is no evidence that implicates him as a principal in the murder. To convict of aiding and abetting the State must prove more than defendant’s mere presence. Wilson v. State, 219 Ala. 364, 122 So. 617. If there is no prearrangement or preconcert between persons charged with crime, the mere presence of one of them to give aid if necessary, is not aiding or abetting unless the principal knew of such presence with intent to aid. Jones v. State, 174 Ala. 53, 57 So. 31.

But we think it is clear from the evidence that all five of the persons in the automobile that was stopped had confederated and while in Mobile were searching for narcotics for their own use; also that they procured and used such narcotics thereby committing a felony under the laws of Alabama, Act No. 1407, Vol. Ill, Acts 1971, p. 2378, Section 204. (Schedule !)•

The Supreme Court of Alabama observed in Stokely v. State, 254 Ala. 534, 49 So.2d 284, as follows:

“However, if an offense is committed by one or more of them, from causes having no connection with the common object, the responsibility for such offense attaches exclusively to its actual perpetrator. Frank v. State, 27 Ala. 37; Jordan v. State, 79 Ala. 9, 13; Williams v. State, 81 Ala. 1, 5, 1 So. 179. In such cases it is a question for the jury whether the act done was in prosecution of the purpose for which the party had assembled or confederated, or was independent, of it, and without any previous concert. Frank v. State, 27 Ala. 37, supra.”

We note that one shotgun and two pistols other than the death pistol were in the car. It is common knowledge that narcotic addicts often resort to violence to get narcotics.

We hold that under the factual situation here involved, it was a question for the jury whether the homicide was in prosecution of the quest for narcotics for which they had assembled or confederated, or that the homicide was independent of it and without any previous concert. If not independent of the quest for narcotics, appellant was an accessory under Title 14, Section 14, Code of Alabama 1940, Recompiled 1958. We think that the jury could have drawn inference that one of the five fired the fatal shot and that appellant, if he did not fire the shot, was an accomplice or an accessory. All five were engaged in the narcotics quest and while so engaged the homicide was spawned.

The judgment is affirmed.

The foregoing opinion was prepared by Honorable Bowen W. Simmons, serving as a judge of this Court under Section 2 of Act No. 288 of 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.


text:
    James Leslie LOCKE v. STATE.
    4 Div. 442.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    No brief for appellant.
    No brief for appellee.
   CATES, Presiding Judge.

This is an appeal on the record proper, i. e., without the transcript of testimony.

The appellant was convicted of selling marijuana and sentenced to two years in the penitentiary. At all stages he was without counsel.

The record shows the following:

“COURT’S BENCH NOTES
“12-15-75 The defendant appearing in open court, was advised by the Court that the Grand Jury had returned an indictment against him charging him with the sale of marijuana. The defendant being asked whether he had an attorney to represent him advised the Court that he did not have an attorney and was not financially able to employ one. During the conference with the defendant by the Court, the defendant related that he owned four motor cycles the value of which was $4,000.00, and in addition thereto owned four automobiles the value of which was $3,500.00, for a total of $7,500.00, that there were no mortgages, liens or encumbrances against any of these articles. The Court advised Mr. Locke that it was the opinion of the Court that he was not indigent and that an attorney would not be appointed to represent him for that reason. The defendant related that the value of the property was not really that much, but that was the value that he put on them for his own use — that he did not want to sell the motorcycles and automobiles would bring something over $1200.00 in the open market. The Court made known to the defendant that counsel would not be appointed, that he would be arraigned on January 13, 1975, later tried, and that it would be his responsibility to employ counsel. This conversation between the defendant and the Court was reported by the Court Reporter and is on file in this cause.
“Done this the 15th day of December, 1975.
ERIS F. PAUL
Judge.

No provision is made in Act 526, September 16, 1963, as amended, for an appeal from a ruling by the trial judge that an accused is not indigent for the purpose of appointing him a free lawyer.

Under Code 1940, T. 15, § 389 we have examined the entire record and consider that the judgment below is due to be

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Edward L. WRIGHT v. STATE.
    6 Div. 897.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    Edward L. Ramsey, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Robbery; sentence: ten years.

On April 9, 1974, Daisy Ward, Mattie Alford and Barbara Hatten went to the First National Bank in Birmingham at 9:00 A.M. All three women were employees of a local motel and had taken their pay checks along with checks of other employees to be cashed at the bank.

After Mattie Alford cashed her checks, she returned to the car and saw a black male sitting in the back seat. She asked what he was doing there, and he said, “Barbara said that she would give me a lift.” He said that his name was Dave. When Daisy Ward and Barbara Hatten returned from the bank, they all left in the car. Each one of the women assumed their passenger was a friend of one of the other two until it was discovered that none of them knew him. At that point, he pulled a gun on them and robbed them of the proceeds of the checks. However, before leaving the car, he returned the money which belonged to the three women and kept the remainder. He told them he was returning their money, that he was “not all bad.”

Edward Cousins, a police officer, arrested the appellant on May 3, 1974, and advised him of his constitutional rights before interrogating him. Appellant was also placed in two lineups. At the first lineup, Mattie Alford positively identified him as the person who had robbed them, saying:

“I knew it was him the minute I walked in the door.
‡ sfc * * * *
“I was sure, but I didn’t want to say so. I was sure I had seen him, because I was standing out there, talking to him, at the car.”

When asked if she could identify the defendant because she had seen him at the scene of the robbery, or because someone had pointed him out to her in a lineup, she said:

“I can identify him as he robbed.”

However, Barbara Hatten did not make a positive identification of the appellant at that lineup.

The second lineup was held on May 6, 1974, wherein both Mattie Alford and Daisy Ward identified the appellant. Daisy Ward testified that she, “was kind of sure at the first one, but I just didn’t want to say, you know, without thinking of myself.”

After extensive voir dire examination, the trial court ruled that Mattie Alford’s identification was not the result of a tainted lineup. The testimony of both Barbara Hatten and Daisy Ward concerning appellant’s identification was likewise presented to the jury.

Barbara Hatten and Daisy Ward testified that the appellant pulled a gun on them and forced them to give him the money. They gave the appellant approximately $800.00. Daisy Ward stated on voir dire that the police did not point out the appellant in any way and Barbara Hat-ten testified that no name of any suspect was given her by Sgt. Cousins.

Sgt. Cousins testified as to the manner of conducting the two lineups. He stated that the appellant was identified by Mattie Alford, Barbara Hatten and Daisy Ward as the man who robbed them. He said that Mattie Alford and Daisy Ward picked the appellant from the second lineup, that Barbara Hatten did not positively identify him from the lineup, but did identify him from photographs shown to her after the lineup.

The defense presented three neighbors of appellant that testified he was at home on the morning of the robbery. They also testified as to the appellant’s good reputation. Appellant’s mother likewise testified that he was at home until noon on the date in question.

The appellant took the stand and denied taking part in the robbery. He stated that he did not own a gun and that- he was at his home during the time of the robbery.

I

Appellant contends that the in-court identification was tainted by a suggestive lineup and that he was not represented by counsel at the lineups.

An accused has no absolute right to counsel at a lineup unless, at the time of such lineup, “adversary judicial proceedings have been initiated against him.” Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed. 2d 619, likewise holds that there is no right to counsel at a pre-indictment identification by photographs. The instant case concerns pre-indictment lineup and photograph identification and thus appellant was not legally entitled to counsel at that stage.

II

In the instant case, the trial court heard exhaustive voir dire examination of witnesses for both sides concerning whether a tainted or suggestive lineup was conducted.

At one point, Daisy Ward testified that Sgt. Cousins told her the suspect’s name was Lee Wright, before she viewed the lineup. However, she later testified that she was not certain whether she was told his name before or after the lineup. Sgt. Cousins testified that he did not tell any of the three witnesses a suspect’s name before viewing the lineup and that he did not in any way point out the appellant to any of them.

Viewing the evidence, we find some discrepancies in the witnesses’ recollections concerning the appellant. However, all three witnesses were present in the car for about 45 minutes at which time the appellant held a gun on them. It is not unlikely that victims of such an incident may have some trouble describing appellant’s appearance and what took place in explicit detail.

We are of the opinion that the in-court identification was not tainted by either of the two lineups. Likewise, there is evidence that the witnesses based their identification on “an independent source,” the robbery itself, not on the lineup. Cole v. State, 52 Ala.App. 447, 293 So.2d 871 (1974); Rhodes v. State, 50 Ala.App. 661, 282 So.2d 100 (1973).

The third witness, Barbara Hatten, not being certain when viewing the lineup, identified the appellant after viewing photographs. properly displayed by the police department. She stated that she was not told the appellant’s name before viewing the lineup. Sgt. Cousins, at R. p. 241, testified that Barbara Hatten had actually picked “Number 2” in the first lineup, which was the appellant, but was hesitant in her identification. She was not positive until viewing the photographs. She also stated at trial that when she returned from the bank to the car, she saw the appellant sitting in the car. We find the evidence sufficient to support the trial court’s decision that the in-court identification was not tainted.

In Mitchell v. State, 52 Ala.App. 174, 290 So.2d 241, this Court said:

“Since the only identification of the appellant by the State witness, prosecutrix, was at the preliminary trial and the main trial, her failure to make a positive identification of the appellant beforehand at a lineup or at a showing of pictures, though properly admissible as testimony, is not conclusive, but may and should be considered along with any other testimony showing any and all opportunities that she may have had personally to view or have any contact with the appellant.”

The State’s evidence made a prima facie case, notwithstanding a few inconsistencies and contradictions. However, this was a matter for the jury to consider in reaching a verdict. Conflicting evidence always presents a jury question, and a verdict rendered thereon will not be disturbed on appeal. Pugh v. State, 51 Ala.App. 164, 283 So.2d 616 (1973).

A further and careful review of the entire record shows the case to be free of prejudicial error.

AFFIRMED.

All the Judges concur.


text:
    Kathleen PEASE v. The CITY OF MONTGOMERY.
    3 Div. 394.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    Benjamin E. Pool, Montgomery, for appellant.
    Randall C. Morgan, Montgomery, for ap-pellee.
   CATES, Presiding Judge.

Ordinance breach by exhibiting, * * * selling, having in possession, etc., obscene matter. Fine, $50.00.

I

The City’s motion to affirm for lack of assignment of errors is not well taken. See former Supreme Court Rule 52, April 23, 1973, 290 Ala. XVII.

II

Toward the end of the oral charge the trial judge said among other things:

“* * * You will have with you the complaint in this case, and you will have with you during your deliberation the exhibits that have been offered in evidence. This is a sordid case, filthy in the view of the court, and I think it would be in the view of you jurors.”

Defense counsel duly excepted and the Court responded:

“I don’t think that is necessary, but I think you will agree. Anyway, let it get in the record.”

Unlike England and our Federal jurisdiction, Alabama does not let a judge sura up the evidence on his own motion. The statute, T. 7, § 270, reads:

“The court may state to the jury the law of the case, and may also state the evidence when the same is disputed, but shall not charge upon the effect of the testimony, unless required to do so by one of the parties.”

See also McElroy on Evid. (2d ed) § 469.-01; Summerlin v. State, 40 Ala.App. 652, 120 So.2d 755, and Bertrand v. State, 46 Ala.App. 631, 247 So.2d 386.

The comment being invasive of the jury’s province in practically telling the jury how to decide the obscenity of the proferred material cannot be cosmeticized by application of the Harmless Error doctrine.

Ill

Propter aliud examen, in view of the fluidity of the law of pornography we refrain from commenting on any other aspect of this record.

The judgment below is reversed. The appellant is not discharged but the cause is remanded for such further proceedings as the law requires.

REVERSED AND REMANDED.

All the Judges concur.


author: DIXON, Justice. TATE, Justice

text:
    STATE of Louisiana v. Alvin JOHNSON and Isiah Smith.
    No. 57299.
    Supreme Court of Louisiana.
    May 17, 1976.
    Rehearing Denied June 30, 1976.

      Numa V. Bertel, Jr., Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendants were convicted of armed robbery and sentenced as multiple offenders. They appeal their convictions and sentences, raising seventeen assignments of error. Because we find reversible error in none of them, we affirm.

Assignments of Errors Nos. 1 and 2

In their first two assignments defendants urge this court to extend the rights of discovery in criminal cases. In their pretrial motion for a bill of particulars and prayer for oyer, defendants requested the following information:

“1. An exact description of the type of weapon seized;
“2. The age of the victim;
“3. The names of witnesses by whom the defendant was identified;
“4. The names of all other witnesses; and
“5. All oral statements made by the defendant.”

The State refused to provide the information and the trial court agreed.

A defendant claiming self-defense to a charge of homicide is entitled to information regarding any dangerous weapon found on or nearby the deceased. State v. Woodruff, 281 So.2d 95 (La.1973). Due process and fundamental fairness require that a defendant charged with homicide be given the right to choose his own ballistics expert to examine the alleged murder weapon and bullet in order to rebut testimony by the State’s expert witnesses. Barnard v. Henderson, 514 F.2d 744 (1975).

But defendants in the case before us only argue that liberal discovery is the better practice. That question is not before us. This State has not adopted liberal discovery in criminal cases, and this court has only extended the right of pretrial discovery of the State’s evidence in cases where the failure might seriously handicap the defense. There is no showing in this case that the failure of the State to describe the gun handicapped the defense in any way.

These assignments are without merit.

Assignments of Errors Nos. 5, 6, 8 and 27

In each of these assignments defendants contend they were deprived of their rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Assignments 5, 6 and 8 concern failure by the victims to identify defendants at a pretrial line-up. Assignment 27 concerns a prior inconsistent statement made by one of the State’s witnesses.

In advance of the motion to suppress the identification, defendants requested all exculpatory information in the State’s possession. The State responded that it had none.

During the motion to suppress the identification, Sergeant Orin Mills and Detective Rhett Magnon, who conducted the line-up, testified that only one of the victims could identify Johnson and that neither victim could identify Smith. Defense counsel then asked the trial court to “apply the sanctions [of Brady v. Maryland, supra] and dismiss the prosecution because [the prosecution] has withheld that fact.” The trial court refused to dismiss the charges.

The information that neither victim could identify Smith and that only one could identify Johnson might indeed be “exculpatory” and defendants might have had a right to such information after their request. Brady v. Maryland, supra. However, we find that this information, rather than being suppressed, was furnished in ample time. The motion to suppress the identification was heard on July 19, 1974, eleven days prior to'the July 30, 1974 trial. The officers’ testimony at the motion to suppress amply notified defendants of the results of the line-up. Nor is there any showing that this notice was inadequate.

In any event, it is clear under Brady that defendants were not entitled to dismissal of the charges against them. Because there has been no showing that the time or manner of disclosure prejudiced defendants, we hold that the disclosure during the motion to suppress accorded defendants their full rights under Brady.

During the State’s case in rebuttal, Deputy William Taylor, Sr. testified he saw Smith and Johnson on May 10, 1974. According to Taylor’s testimony, Smith approached him and said, “Well, if anybody asks you where I been all day, just tell them I been with you all day.” Later that evening, Taylor visited Smith’s home. When he arrived there were as many as three plain-clothesmen inside. He told them he had been with Smith and Johnson from 12:00 noon until about 5:30 p. m. Moments later he told one of the officers he had lied and that he had not been with the defendants all day. Detective Magnon included this in his report.

When asked during direct examination why he had said both defendants were with him that day, Taylor explained that his statement was made to Smith’s sister, as a favor to Smith, in response to a question she asked. Taylor further explained that though the plain-clothesmen were in the room, they had not identified themselves to him and he did not know who they were. It was not until he stepped outside that he was informed by one of the officers they were detectives investigating an armed robbery. At this time Taylor revealed he had lied.

On cross-examination Taylor was again asked whether he had lied. He admitted that he had and reiterated his explanation. Defendants then moved for production of the State’s documentation of these prior inconsistent statements: Detective Magnon’s report. The trial court refused defendants’ motion. We agree.

Defendants do not contend that the prior inconsistent statement in Detective Mag-non’s report is different from the prior inconsistent statement admitted under oath by Taylor. Were they to do so, a different situation might present itself.

R.S. 15:493 provides:

“Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.”

Because the witness did distinctly admit making the prior inconsistent statement, evidence that he did make it, e. g., Detective Magnon’s report, is inadmissible. Thus the report is not evidence which Brady refers to as “material,” and Brady does not require that defendants be given a copy of Magnon’s report.

These assignments lack merit.

Assignments of Errors Nos. 10 and 12

These assignments concern the identification of Smith by the liquor store teller.

The victim was brought to a line-up on May 21, 1974. A total of eight persons participated in the line-up; each person faced the victims, then turned to show a profile view. Each member of the line-up was compelled to place a wig on his head and recite the following sentence: “Give me the money out of the register and act normal.” After the victims left the room a photograph of the line-up was taken.

Immediately subsequent to the line-up, the teller said she wasn’t sure and could not make an identification. The owner of the liquor store could identify only Johnson.

Sometime after his line-up proceeding but before trial, the teller visited the district attorney’s office and was shown two photographs: one of Smith and one of Johnson. They were not shown to her among a group of photographs; rather, they were the only pictures she saw. The teller then recognized Smith as one of the four men who had robbed her. She was also shown the photograph of the line-up, and she selected Smith from that picture.

At trial the victim identified Smith as being a participant in the robbery. On cross-examination defense counsel attempted to bring out facts concerning the nature of the two photographs from which the identification was made. He asked whether there were numbers printed on the pictures shown her. Apparently, defense counsel wished to attack the photographic identification procedure as being unduly suggestive not only because the victim was shown only two pictures but also because the photographs were “mug shots,” therefore suggesting the suspects had previous criminal records.

The State objected to defense counsel’s questions, and the jury was removed. The State urged that the fact that the photographs were mug shots was inadmissible (see State v. Price, 325 So.2d 780 (La.1975)). Defense counsel responded that any right not to have the “mug shot” nature of the photographs revealed to the jury was waived. The trial court refused to accept the waiver and sustained the State’s objection.

A conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so im-permissibly suggestive as to give rise to a substantial likelihood of irreparable misi-dentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

While the practice of showing a suspect singly to persons for the purpose of identification, and not as part of a line-up, is not favored, whether an imper-missibly suggestive identification occurs depends on all the circumstances. State v. Moseley, 284 So.2d 749 (La.1973); State v. Newman, 283 So.2d 756 (La.1973); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Simmons v. United States, supra.

The trial court erred in prohibiting defense counsel from eliciting facts surrounding the out-of-court photographic identification. The presentation to the victim of two photographs, one of each defendant, after defendants had been taken into custody is not lightly to be condoned. The potential for misidentification is strong, especially where the photographs shown are mug shots, which tend to connect the defendant with other criminal proceedings. Defense counsel should not have been prevented from showing the possible taint of the out-of-court identification.

However, even if the out-of-court identification was tainted, if the in-court identification had a source independent of the out-of-court identification, the in-court identification does not violate defendant’s due process rights. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Simmons v. United States, supra; State v. Newman, supra; State v. Amphy, 259 La. 161, 249 So.2d 560 (1971).

The record before us reveals the following facts.

At 2:00 p. m. on May 10, 1974, four men entered the Continental Liquor Store. They ordered the teller to act naturally and to continue to wait on customers; they ordered her to give them “just the paper money.” The robbers were in the store for ten minutes or more. Each man wore a wig when he entered. Two remained in the front of the store while the other two jumped behind the counter. During most of the time they were in the store, they obscured their faces behind their wigs. However, as they were leaving, the last robber, whose face was no longer hidden by his wig, came close beside the teller and ordered her to lie down.

At trial the teller testified she looked directly at the robber who told her to lie down, the lighting was good, and she was positive Smith was the robber who ordered her down. She also testified that her initial failure to identify Smith stemmed from her fear for her safety. She feared repercussions by the robbers who were not apprehended.

Accordingly, we find the in-court identification was based on an independent source and was free of any taint caused by the pretrial photographic identification.

These assignments present no merit.

Assignment of Error No. 11

In this assignment defendants complain the trial court erred when it curtailed the cross-examination of Dolores Cooper relative to her psychiatric background. However, rather than brief this contention to this court, defense counsel merely submits it “on the face of the record.” Assignments of errors neither briefed nor argued are deemed abandoned. State v. Coleman, 322 So.2d 195 (La.1975); State v. Reed, 324 So.2d 373 (La.1975).

This assignment is without merit.

Assignment of Error No. 14

This assignment was preserved during the following cross-examination of Detective Magnon concerning an alleged confidential informer:

“Q Now, that man gave you certain information about this case, the perpetrators in this case ?
“A Yes, he did.
“Q Is that man’s name on this witness list?
“A No, it is not.
“Q Is that man’s name in your report?
“A No, it is not.
“Q You deliberately withheld it?”

The prosecution objected that the officer need not reveal the name of his confidential informant. See Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); State v. Thorson, 302 So.2d 578 (La.1974). Defense counsel responded that there had been no showing that the alleged informer had the “reliability” necessary to qualify him as a confidential informant.

We note at the outset that defendants do not contend the informant’s reliability was inadequate to sustain a finding of probable cause for the issuance of a warrant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Though it is difficult to discern, it appears from the record that defense counsel’s complaint is centered about the allegation that Detective Magnon deliberately withheld the name of the informer, and that defendants were entitled to the name in lieu of an adequate showing that the alleged informer was indeed “reliable.”

But counsel does not contend that the informer could provide “exculpatory” testimony. Brady v. Maryland, supra; indeed, according to Magnon’s testimony, the confidential informer was an eyewitness to the armed robbery and identified Smith as being a participant therein. Nor does counsel contend the informant’s identity is essential to adequately prepare the defense. State v. Thorson, supra. There is no obligation to disclose the names of every person who possesses information about an offense.

This assignment lacks merit.

Assignments of Errors Nos. 15, 22, 23, 24 and 28

Each of these assignments concerns alleged prejudicial remarks made by the prosecutor.

During cross-examination of Detective Magnon, defense counsel asked the ages of the persons present in the home when defendants were arrested. The State objected that the question lacked relevancy. The following colloquy transpired:

“BY THE COURT: I don’t see the relevancy of the ages and the number of these people in the house, especially the children, unless you can show me some relevancy.
“BY MR. JOHNSON: Sir, if I have a twelve year old child that witnessed what happened in there.
“BY THE COURT: If you have the witness, put him on.
“BY MR. JOHNSON: I don’t know who was in there. I’m asking him.
“BY MR. MOORE-. Your Honor, the best place he can find out is from his own client.”

Defendant requested a mistrial, arguing Mr. Moore’s statement was a comment on his failure to take the stand. From the trial court’s refusal of this motion, Assignment No. 15 was taken.

Upon motion by defendant, a mistrial shall be declared where the prosecutor comments on defendant’s failure to testify. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); La.C.Cr.P. 770.

Here, however, defendants did testify, and it is not argued that the prosecutor’s remark in any way compelled this testimony. Nonetheless, the remark did not direct the jury’s attention to defendants’ failure, or anticipated failure, to testify.

Assignment 15 lacks merit.

Assignments of Errors Nos. 22, 23 and 24 were reserved during the State’s cross-examination of defendant Smith. Each concerns alleged prejudicial remarks or questions by the prosecutor.

Assignment No. 22 was reserved when the prosecution asked the following question:

“Q. Mr. Smith, you heard Fred Manthey identify you as one of the perpetrators of the armed robbery of the Continental Liquor Store?”

In fact, Manthey had been unable to identify Smith as one of the robbers. Defense counsel objected to the question and moved for a mistrial. The trial court denied the motion: we agree.

Defendant has not argued that the question was propounded in bad faith. The question came within the scope of C.Cr.P. 771, allowing a mistrial only if the trial court is satisfied an admonition to the jury cannot assure a fair trial. Any misleading tendency was corrected by defendant’s contemporaneous objection which reminded the jury that no identification had in fact been made. Though the trial court gave no admonition, defendant did not request one; hence, he has no complaint. State v. Knight, 323 So.2d 765 (La.1975).

Assignment No. 23 stems from the following cross-examination:

“Q. Are you the same Isiah Smith, Jr. that was convicted of burglary in 1961 and received three years in the Louisiana State Penitentiary?
“A. Right.
“Q. Are you the same Isiah Smith, Jr. that was convicted of simple burglary and received six months, six years in the Louisiana State Penitentiary?
“A. Right.
“Q. Mr. Smith, aren’t you a thief ?
“BY MR. JOHNSON: I object to that, sir.
“BY THE COURT: Objection sustained.”

And later in cross-examination with respect to Smith’s failure to subpoena alleged alibi witnesses:

“Q. Knowing all the time that they may be able to vouch for you ?
“A. I knew the majority of them had records and you would call them thieves just like you called me.
“Q. But you are a thief, aren’t you?”

Assignment No. 24 stems from the following cross-examination :

“Q. Let me ask you this. Wouldn’t you have viewed yourself more of a man if you would have said, ‘Police, this is the stuff. I don’t want to get hung up with that. I’m going to walk a straight line.’ Wouldn’t it have been more reasonable to do that than to take it ?
“A. Well, Deputy Taylor is a friend of mine. He was a deputy back here. He could have gave me some advice on something to do. It’s just like my position was just like a junky needing a fix.
“Q. Are you a junky ?
“A. No.
“Q. How do you know how a junky feels ?
“BY MR. JOHNSON: I object, sir. Even the mention of narcotics is prejudicial.
“BY MR. MOORE: He’s the one that mentioned a junky.
“A. I’ve lived with them. I’ve lived around them.”

Defendants objected and requested a mistrial. The State argued the questions were permissible because Smith first made reference to “thief” and “junky.”

The prosecutor’s question whether Smith was a thief was inappropriate; the relevant evidence was Smith’s prior convictions, and that had been adduced. The fact that the prosecutor repeated the improper question casts serious doubt on the possibility that it was made unwittingly. Smith referred to the accusation that he was a thief only after the State had first propounded the improper question and objection to the question had been sustained. Thus we cannot approve the all to facile contention that Smith’s reference to the previous improper question made a proper question out of an improper one. As a matter of trial conduct, this type question should not be countenanced. Louisiana Code of Professional Responsibility, Disciplinary Rule 7-106(C) (2) (6). As to the question whether Smith was a “junky,” we find that too was improper. Smith’s original reference was merely by way of analogy, a figure of speech. The use of such figurative speech cannot be said to make Smith’s being a “junky” a material issue. R.S. 15:435.

Yet we are convinced the trial court acted within its discretion by not ordering a mistrial. The remarks did not fall within the scope of C.Cr.P. 770, which makes a mistrial mandatory for certain comments. Rather, the remarks came within the scope of C.Cr.P. 771(1):

“In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
“(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770.”

The trial court was satisfied the questions would not deprive defendant of a fair trial and defendant requested no admonition.

Assignment No. 28 concerns the following comments by the prosecutor during closing argument:

“. . . Now, here we have two men who take the stand. Alvin Johnson was convicted of manslaughter, or killing somebody. Isiah Smith was convicted of two burglaries, a thief, an armed robber, rather a thief and a murderer. Now, who are you going to believe? Are you going to believe the civilian witnesses, Fred Manthey, Dolores Cooper, the police officer who are sworn to uphold the law, or are you going to believe a thief and a murderer ?”

Defense counsel objected to the reference to Johnson as a murderer and again moved for a mistrial. The trial court denied the motion but did instruct the jury that it was to ignore the reference to Johnson as a murderer.

In referring to Johnson as a murderer, the prosecutor was referring to Johnson’s conviction for manslaughter, which conviction had been properly admitted into evidence. Thus the comment was not within the scope of C.Cr.P. 770, and the trial court’s admonition cured any defect caused by the prosecutor’s remark.

These assignments lack merit.

Assignment of Error No. 33

This assignment concerns the trial court’s refusal of defendants’ motion for a new trial. In brief to this court defendants contend the motion should have been granted for reasons raised in other assignments and because the verdict was contrary to the law and the evidence.

Because the defendants’ other assignments present no merit and because the allegation that the verdict is contrary to the law and the evidence presents nothing for review, State v. Williams, 262 La. 160, 262 So.2d 507 (1972), this assignment lacks merit.

Assignment of Error No. 36

In this assignment, Johnson contends he was improperly sentenced under the habitual sentencing statute, R.S. 15:529.1. The State offered into evidence a booking sheet and a fingerprint card bearing the name Alvin Johnson; Johnson’s fingerprints were taken in the courtroom. Johnson objected that the State's fingerprint expert failed to follow correct fingerprinting identification procedures. The basis of defendant’s complaint was that the expert did not recite the number of “identification points” upon which his identification was based.

The expert testified that he had been trained at the F.B.I. school, that he had been working in his field for five years making thirty fingerprint identifications per week, and that he had been accepted in at least three courts as a fingerprint expert. He further testified that the procedure he used in court was the procedure he used in his laboratory work and that he was positive the Alvin Johnson in court was the same Alvin Johnson referred to in the State’s evidence. He testified he was certain of the identification regardless of the fact that he had not counted the number of similar points of identification.

Based on the expert’s testimony in support of his identification and the lack of any evidence to show his methods were improper, we find no error in the admission of the evidence of the fingerprint identification.

This assignment presents no- merit.

For the reasons stated above, the convictions and sentences are affirmed.

TATE, J., dissents and assigns reasons.

TATE, Justice

(dissenting).

I respectfully dissent.

It was error (Assignments Nos. 10 and 12) not to permit the accused to explore, in front of the jury, the circumstances by which the victim, who at first had failed to recognize the robbers at the line-up, was induced to identify the two defendants on the basis of the two photographs of them (only) subsequently shown to her by the police.

Denying that her memory was “refreshed” by such suggestive identification techniques, the victim testified positively that she now fully recognized them. She, of course, had an independent “basis” to do so (which at first was insufficient for her to make the identification).

The circumstance that there was a possible independent basis for the identification should not immunize from jury examination whether unduly suggestive techniques had not in fact induced it. I am not prepared to hold that the identification techniques were irreparably prejudicial, in view of the victim’s explanations that she had recognized the robbers at the original lineup but was afraid to identify them at that time. Nevertheless, the accused were entitled to explore fully whether, despite this after-the-fact explanation of her initial failure to identify them, the victim’s present identification of them at the trial did not result from the “refreshing” of her memory by the photographs after she had first failed to identify them at the lineup.

Accordingly, I respectfully dissent.

      . The trial court ruled that the informant was reliable after Magnon testified the informant had given him information in the past which led to arrests and convictions and that the informant had provided him with information in criminal matters.


author: DIXON, J.,

text:
    James Charles JANISE v. Magdalene Gobeil JANISE.
    No. 57996.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re Magdalene Gobeil Janise applying for certiorari, or writ of review, to the Court of Appeal, 328 So.2d 711, Third Circuit, Parish of Calcasieu.

Writ refused. Under the facts found, the result is correct.

DIXON, J.,

concurs in the denial, but is of the opinion Newson v. Newson, 176 La. 699, 146 So. 473 (1933) may be correct, and in the proper case, the question of attorney’s fees for recovering past due alimony should be reconsidered by this court.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Jack S. WARNER.
    No. 58069.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: Jack S. Warner, applying for Certiorari, or writ of review, to the Court of Appeal, 329 So.2d 913, Second Circuit, Parish of Jackson.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.

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


author: SUMMERS, J.,

text:
    Amy Roy ISTRE et al. v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
    No. 58071.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Amy Roy Istre, et al. applying for certiorari or writ of review to the Court of Appeal, 329 So.2d 486, Third Circuit, Parish of Acadia.

Application denied; no error of law in the court of appeal opinion.

SUMMERS, J.,

is of the opinion the writ should be granted. Even on the facts announced by the Court of Appeal erroneous conclusions of law were made. Unwarranted assumptions and presumptions are errors of law.


text:
    James B. DAVIS v. AETNA CASUALTY AND SURETY COMPANY et al.
    No. 58040.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: James B. Davis, applying for Certiorari, or writ of review, to the Court of Appeal, 329 So.2d 868, Second Circuit, Parish of Caddo.

Writ refused. There is no error of law in the judgment.

DIXON, J.,

is of the opinion the writ should be granted. The result reached is unreasonable. The majority of this Court believes that if plaintiff alleges no amount for an item of special damages, the Court of Appeal is not limited in the award, but if an amount of future special damages is alleged in the petition the Court of Appeal can award no greater amount than that alleged. Such mechanical result is not intended by the Code of Civil Procedure.

CALOGERO, J., dissents from denial of writ.

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


author: TATE, J.,

text:
    Fayella Amrine KEEN et al. v. PEL STATE OIL COMPANY et al.
    No. 58046.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Fayella Amrine Keen, individually and as natural tutrix of her minor child Nelda Rayn'e Keen, Sandra Kaye Keen Throgmorton, Glenda Faye Keen Easterday, Rhonda Darlene Keen Swift, The Audubon Indemnity Co. and Melton Truck Lines, Inc., applying for Certiorari, or writ of review, to the Court of Appeal, 332 So.2d 286, Second Circuit, Parish of Caddo.

Writ denied. No error of law.

TATE, J.,

is of the opinion that a genuine issue of fact exists, necessitating a weighing of factors in the light of a full trial, and therefore feels that summary judgment was not appropriate.

CALOGERO and DENNIS, JJ., are of the opinion writ should be granted.


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

text:
    STATE of Louisiana v. Frank D. BENNS.
    No. 58092.
    Supreme Court of Louisiana.
    June 24, 1976.
   In re Frank D. Benns, applying for writs of certiorari, prohibition, mandamus and for Stay Order.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.

TATE, J., and DIXON, J.,

concur. Un- • der the showing that the State intends to try the accused on June 28th, there is not as yet any denial of a speedy trial. However, if the state again continues the case the matter may be reurged in our opinion.


text:
    STATE of Louisiana ex rel. Arthur JONES v. CRIMINAL DISTRICT COURT, SECTION G, ORLEANS PARISH.
    No. 57935.
    Supreme Court of Louisiana.
    May 15, 1976.
   In re: Arthur Jones applying for writ of mandamus.

Writ granted. It is ordered that a mandamus issue commanding the trial judge to rule forthwith upon petition for habeas corpus, a copy of which petition is attached to the order.


text:
    STATE of Louisiana ex rel. Charles FULIMER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 57983.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: Charles Fulimer applying for writs of certiorari and habeas corpus.

Writ denied. The application has no merit. Under the sentence imposed and the provisions of R.S. 15:824 we construe applicant’s sentence to be imprisonment at hard labor under the direction of the Department of Corrections.


text:
    John H. WHITE, d/b/a White Construction and Equipment Rental Company v. RIMMER AND GARRETT, INC.
    No. 57968.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: John H. White, d/b/a White Construction & Equip. Rental Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Acadia, 328 So.2d 686.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant he notified.


text:
    STATE of Louisiana v. Patricia MITCHELL.
    No. 57977.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: John M. Mamoulides, District Attorney, State of Louisiana applying for Writ of Review. Granted. (See Order.)

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Thomas C. Wicker, Judge of the 24th Judicial District Court, for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 18th day of June, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 3rd day of September, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Patricia MITCHELL.
    No. 58012.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: State of Louisiana applying for writ of review. Granted. (See Order.)

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Thomas C. Wicker, Judge of the 24th Judicial District Court, for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 18th day of June, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 3rd day of September, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Leroy PAYNE v. C. Murray HENDERSON, Warden, Department of Corrections, State of Louisiana, et al.
    No. 57980.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: Leroy Payne applying for writs of certiorari and habeas corpus.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. Bobby Joe FABIAN v. C. Paul PHELPS, Warden, Louisiana State Penitentiary and Department of Corrections.
    No. 57982.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: Bobby Joe Fabian applying for writ of habeas corpus.

Application denied; there is no merit in the allegation of the petition.

I


text:
    STATE of Louisiana v. Francis GIARDINA.
    No. 57990.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: Francis Giardina applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. Applicant has a remedy by review in the event of conviction.


text:
    HIGHLANDS INSURANCE CO. v. L. J. DENNY AND SON and State Automobile Insurance Association.
    No. 57994.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: L. J. Denny and Son and State Automobile Insurance Association applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Concordia, 328 So.2d 779.

Writ denied. On the facts found by the court of appeal, the result is correct.


text:
    Dr. Eugene A. GARCIA v. HOLLYWOOD POOL CORPORATION.
    No. 57991.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: Hollywood Pool Corporation applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 328 So.2d 899.

Writ denied. Under the facts found by the court of appeal, the result is correct.


text:
    Ms. Willie Mae HILLS v. Garland L. BONIN, Director, Division of Family Services.
    No. 57992.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: Ms. Willie Mae Hills applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish East Baton Rouge, 329 So.2d 773.

Application denied; -even under applicant’s construction, her application for judicial review was late (31 days from mailing of notice.)


text:
    Walter L. MULL v. Robert L. DAVIS et al.
    No. 58020.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: Commercial Union Assurance, In-tervenor applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 329 So.2d 827.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STANDARD BRANDS, INC. v. DEPARTMENT OF HIGHWAYS, State of La., et al.
    No. 58021.
    Supreme Court of Louisiana,
    June 2, 1976.
   In re: Standard Brands, Inc., applying for certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 329 So.2d 821.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Walter L. MULL v. Robert L. DAVIS et al.
    No. 58022.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: Walter L. Mull, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    UNITED STATES FIDELITY & GUARANTY CO. v. DEPT. OF HIGHWAYS, State of La., et al.
    No. 57993.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: U. S. Fidelity and Guaranty Co., applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 329 So.2d 826.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    O’Neal Walter SCOTT v. I. L. LYONS AND COMPANY, LTD., et al.
    No. 57974.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: O’Neal Walter Scott applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans, 329 So.2d 795.

Application denied; no error in the judgment of the court of appeal.


text:
    RYDER TRUCK RENTAL, INC. v. STATE of La., DEPT. OF HIGHWAYS. STANDARD BRANDS, INC.v. DEPT. OF HIGHWAYS, State of La., et al. U. S. FIDELITY & GUARANTY CO. v. STATE of La., DEPT. OF HIGHWAYS, et al. Walter L. MULL v. Robert L. DAVIS et al.
    No. 58001.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: Ryder Truck Rental, Inc., R. L. Smith Manufacturing Co. and Robert L. Davis, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 329 So.2d 826; 329 So.2d 821; 329 So.2d 827.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    O’Neal Walter SCOTT v. I. L. LYONS AND COMPANY, LTD., et al.
    No. 58038.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: I. L. Lyons and Co., Ltd. et al. applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans, 329 So.2d 795.

Application denied; no error in judgment of the court of appeal. the


text:
    FONTENOT’S RICE DRIER, INC. v. FARMERS RICE MILLING CO., INC.
    No. 57995.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: Farmers Rice Milling Co., Inc. applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Calcasieu, 329 So.2d 494.

Writ denied. The result is correct.


text:
    Brenton T. MORSE, Jr. v. J. RAY MCDERMOTT AND CO., INC., and Retirement Plan for Employees of J. Ray McDermott and Co., Inc., and subsidiaries and affiliated companies.
    No. 57984.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: Brenton T. Morse, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 330 So.2d 411.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    UPPER AUDUBON ASSOC. et al. v. AUDUBON PARK COMMISSION et al. The AUDUBON PARK COMMISSION v. NOVELTY ENTERPRISES, INC. The AUDUBON PARK COMMISSION v. J. D. DOUGLAS CONCESSIONS, INC.
    No. 57997.
    Supreme Court of Louisiana.
    June 2, 1976.
   In re: Novelty Enterprises, Inc. and J. D. Douglas Concessions, Inc. applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans, 329 So.2d 206; 329 So.2d 209.

Writ denied. The result is correct.


text:
    STATE of Louisiana v. Kenneth B. WELCH.
    No. 58151.
    Supreme Court of Louisiana.
    June 10, 1976.
   In re: Kenneth B. Welch applying for writs of certiorari, (review) prohibition, mandamus, habeas corpus and for stay order.

Writ denied. Under the circumstances shown, the relators are not entitled to the relief sought.


text:
    STATE of Louisiana v. Willie D. BRIGGS.
    No. 58150.
    Supreme Court of Louisiana.
    June 10, 1976.
   In re: Willie D. ■ Briggs applying for writs of certiorari, (review) prohibition, mandamus, habeas corpus, and for stay order.

Writ denied. Under the circumstances shown, the relators are not entitled to the relief sought.


text:
    STATE of Louisiana ex rel. Prentice ROBINSON, Jr. v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58074.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Prentice Robinson, Jr., applying for writ of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. The ruling of the trial court is correct. See recorded colloquy of April 9 and 10, 1973 at the time of the plea as well as joint motion of April 10, 1973 our docket #53,354.


text:
    Oscar UMBEHAGEN v. EQUITABLE EQUIPMENT COMPANY.
    No. 58037.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Equitable Equipment Company applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit Parish of Orleans, 329 So.2d 245.

Writ denied. Judgment is not final.


text:
    STATE of Louisiana ex rel. Melvin MASON v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57979.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Melvin Mason applying for writ of habeas corpus.

Writ refused. Since trial judge has ordered a hearing on relator’s petition, this matter is now moot.


text:
    PARKWAY DEVELOPMENT CORPORATION et al. v. CITY OF SHREVEPORT et al.
    No. 58041.
    Supreme Court of Lousiana.
    June 11, 1976.
   In re City of Shreveport and L. Calhoun Allen, Jr. applying for certiorari, or writ of review to the Court of Appeal, Second Circuit, Parish of Caddo, 330 So.2d 646.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.

Argument is especially requested on assignment of error No. 1.


text:
    STATE of Louisiana v. George L. NATTIN, Sr.
    No. 58039.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: State of Louisiana applying for certiorari, prohibition and mandamus.

Writ denied. We find no abuse of discretion in the trial judge’s judgment.


text:
    William F. LAWLESS v. GULF SOUTH TITLE INSURANCE AGENCY, INC.
    No. 58060.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: William F. Lawless applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 329 So.2d 879.

Application denied; no error of law in the court of appeal opinion.


text:
    CAMELOT CITIZENS ASSOCIATION et al. v. Michael L. STEVENS.
    No. 58049.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Camelot Citizens Association, et al. applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 329 So.2d 847.

Writ denied. The result is correct.


text:
    Thomas Doylas SUTTON v. Larry H. LANGLEY et al.
    No. 58064.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: T. D. Sutton and Brenda Gail Sutton applying for certiorari or writ of review to the Court of Appeal, Second Circuit, Parish of Caddo, 330 So.2d 321.

Writ denied. On the facts found by the Court of Appeal there is no error in the judgment.


text:
    Lucille WEBERT v. ASSOCIATED INDEMNITY CORPORATION.
    No. 58065.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Lucille Webert applying for cer-tiorari or writ of review to the Court of Appeal, First Circuit, Parish of Caddo, 330 So.2d 331.

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


text:
    FIRST NATIONAL BANK OF RUSTON v. John M. MILLER et ux. and Barron Mobile Homes, Inc.
    No. 58066.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Barron Mobile Homes, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Union, 329 So.2d 919.

Writ denied. Judgment of the Court of Appeal is correct.


text:
    Wanda J. WAGES v. Robert RIDDLE, d/b/a “Big Star”. Mary L. SKAINS v. Robert RIDDLE, d/b/a “Big Star”.
    No. 58068.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Wanda J. Wages and Mary L. Skains applying for certiorari or writ of review to the Court of Appeal, Second Circuit, Parish of Jackson, 330 So.2d 126.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.


text:
    STATE of Louisiana v. Freddie Lee FIELDS.
    No. 58070.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Freddie Lee Fields applying for writ of certiorari.

Writ denied. Under the current statutes and jurisprudence, the relator is not entitled to the relief sought.


text:
    STATE of Louisiana ex rel. Norman R. SPEER v. FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO.
    No. 58075.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Norman R. Speer applying for writ of mandamus.

Writ denied. Return from trial judge and District Attorney attaches letters received by them from relator content of letters relate to a matter different from allegations made in application to this court. Relief sought in writ to this court should first be addressed to the district court.


text:
    STATE of Louisiana ex rel. Joe Nathan TUBBS v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58076.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Joe Nathan Tubbs, applying for writs of habeas corpus and certiorari.

Writ denied. The ruling of the trial judge is correct.


text:
    STATE of Louisiana ex rel. Joe Nathan TUBBS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58078.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Joe Nathan Tubbs applying for writs of certiorari.

Writ denied. The showing made does not warrant the relief sought.


text:
    STATE of Louisiana ex rel. Gary LODRIGUES v. TWENTY SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY.
    No. 58080.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Gary Lodrigues, applying for writ of mandamus.

Application denied; a return from the 22nd Judicial District reveals that both burglary charges were nol prossed on May 10, 1976. Therefore the issue is moot.


text:
    STATE of Louisiana ex rel. Isaac WINDOR v. Mr. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, et al.
    No. 58082.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Isaac Windor, applying for writ of habeas corpus.

Writ denied. The ruling of the trial judge is correct.


text:
    STATE of Louisiana ex rel. Anthony FIELDS v. CRIMINAL DISTRICT COURT SEC. “D” PARISH OF ORLEANS.
    No. 58108.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Anthony Fields, applying for writ of mandamus.

Writ denied. The trial judge has acted upon the application for habeas corpus. Therefore this application for mandamus is moot.


text:
    STATE of Louisiana ex rel. Fred O. ROBERTSON v. The Hon. Judge Matthew S. BRANIFF, Judge, Criminal District Court, Parish of Orleans.
    No. 58112.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Fred O. Robertson applying for writ of mandamus.

Writ denied. The matter is moot.


text:
    Cortez Burns ARMOUR v. SHONGALOO LODGE NO. 352, FREE AND ACCEPTED MASONS.
    No. 58059.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: Shongaloo Lodge No. 352, Free and Accepted Masons applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Webster, 330 So.2d 341.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana ex rel. Eldridge E. PAYTON and Robert E. Husband v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58077.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: Eldridge E. Payton and Robert E. Husband applying for writs of habeas corpus, certiorari, prohibition, mandamus and other remedial writs.

Writ granted. An evidentiary hearing is ordered on the issue of whether the defendants requested their attorney to appeal but were denied their right of appeal.


text:
    STATE of Louisiana ex rel. Albert CLARK v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58101.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: Albert Clark, applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ granted. An evidentiary hearing is granted to determine whether the applicant is a security risk.


text:
    STATE of Louisiana ex rel. Joseph Jimmy CARTER v. Hon. Robert FLEMING, Judge, 16th Judicial District Court, Parish of St. Mary.
    No. 58081.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: Joseph Jimmy Carter applying for writ of mandamus.

Writ granted. Evidentiary hearing ordered as to applicant’s right to an out of time appeal based upon his contention that he was not advised of his right to appeal.


text:
    STATE of Louisiana ex rel. Eugene REDD v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Angola, Louisiana.
    No. 57726.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: Eugene Redd, applying for writ of habeas corpus.

Writ denied. Our review of the trial transcript convinces us that, whatever the legal merit of applicant’s complaint about an illegal and impermissibly suggestive lineup photographic identification, the witness (one of two positively identifying victim at the scene of the crime) had an independent basis for the in court identification of applicant at his trial.


text:
    MAXWELL MOTORS, INC. v. Harold E. TOLAR.
    No. 58056.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: Harold E. Tolar, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson, 330 So.2d 334.

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


text:
    STATE of Louisiana ex rel. Albert CLARK v. Hon. Frank MARULLO, Judge, Section “D” Criminal District Court, Parish of Orleans, New Orleans, Louisiana.
    No. 58083.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: Albert Clark applying for writ of mandamus.

Writ denied. The issue raised is moot because applicant’s attorney has been provided a transcript of the trial.


text:
    STATE of Louisiana ex rel. Randell Clay SIMMIONS v. WARDEN, LOUISIANA STATE PENITENTIARY.
    No. 58079.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: Randell Clay Simmions, applying for writ of habeas corpus.

Writ denied. The contentions of error are revealed to be without merit by the recorded colloquy at the time the plea of guilty was taken following the selection and empanelling of a trial jury on October 29th, 1973, and by the evidence of the motions heard immediately prior thereto.


text:
    William B. LAWRENCE v. George E. WILLIAMS et al.
    No. 58067.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: George E. Williams, Joyce Williams and Allstate Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Morehouse, 330 So.2d 121.

Writ denied. The judgment is correct.


text:
    STATE of Louisiana ex rel. Robert MATTHEWS v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58084.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: Robert Matthews applying for writ of habeas corpus.

Writ refused. Relator is not entitled to relief sought.' The statute making the credit of prior jail time mandatory is not retroactive. There is no deprivation of constitutional rights.


text:
    Herbert Reeves WOODELL et al. v. Viri ROBERTS.
    No. 58091.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: Herbert Reeves Woodell applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo, 329 So.2d 858.

Writ refused. On the facts found by the Court of Appeal, the result is correct.


text:
    Oliver Lee BROOKS v. Carey JONES.
    No. 58089.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: Carey Jones, applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bossier, 329 So.2d 904.

Writ denied. On the facts found, judgment of the court of appeal is correct.


text:
    STATE of Louisiana ex rel. Nolan J. DAUZAT, Jr. v. Hon. Earl H. EDWARDS, Judge, 12th Judicial District Court, Parish of Avoyelles.
    No. 58086.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: Nolan J. Dauzat, Jr. applying for writ of mandamus.

Writ denied. The applicant is not entitled to the relief sought, for the reasons stated by the trial court.


text:
    STATE of Louisiana v. Talman HEGWOOD, Jr.
    No. 58169.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: Taiman Hegwood, Jr., applying for supervisory writs, writs of certiorari, prohibition, mandamus and stay order.

Writ denied. Trial Court correctly denied motion for continuance made on day of trial on ground that defendant was dissatisfied with his court-appointed counsel and wanted to retain his own counsel. State v. Austin, 258 La. 273, 246 So.2d 12 (1971). Likewise, trial judge did not abuse his discretion in denying defendant’s motion to represent himself when said motion was made for first time on day of trial. But cf. Faretta v. California, 422 U. S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Nix, 327 So.2d 301 (La. 1976) per curiam in denying application for rehearing.