author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Eugene STRIPLING and Andrew Johnson.
    No. 59947.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Rehearings Denied March 3, 1978.

      Garland R. Rolling, Metairie, for Andrew Johnson, Jr.
    Arthur L. Harris, Sr., New Orleans, for Eugene Stripling.
    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.
   SUMMERS, Justice.

Eugene Stripling, Andrew Johnson and Arthur Crossland were indicted by the grand jury of Orleans Parish for aggravated rape committed on December 30, 1974. La.Crim.Code art. 42. During their joint trial a directed verdict was granted in favor of Crossland. Stripling and Johnson were convicted and sentenced to death. Thereafter, on Stripling’s motion the sentence of death was vacated, and he was sentenced to serve twenty years in the custody of the Director of the Department of Corrections. Johnson has not been resentenced.

On December 30, 1974 Terrence Batiste and the victim were at home at 3217 St. Peter Street in the city of New Orleans. At approximately 10:15 p. m. they heard what sounded like a gunshot coming from the next apartment, occupied by Wendell and Patricia Ricard, although only Wendell was present at the time. When they went next door to see what was happening, two armed males pushed them back into their living room and turned the lights off. Then Wendell Ricard, the neighbor, was brought into the Batiste living room by a third armed male. The assailants then searched the Batiste residence for valuables.

Terrence Batiste and Wendell Ricard were made to lie on the floor, while Eugene Stripling took the victim into the bathroom, where he raped her. Thereafter, Andrew Johnson replaced Stripling and also raped the victim.

When the victim returned to the living room she noticed her husband lying naked on the floor. Later he was allowed to put on short pants. During this time one of the intruders was beating and kicking Wendell Ricard. Shortly thereafter, Patricia Ricard returned home. She was called to the Batiste apartment, and then searched for money in the presence of the other victims.

All four victims were then tied with strips of sheet and taken to the Ricard apartment. Patricia Ricard was left in the living room of that apartment, and the others were shut in the bathroom. After the assailants left, a neighbor came and freed the victims.

I

Crossland and Johnson filed a pretrial motion to suppress, alleging that physical evidence and statements seized or obtained from them in a search of Stripling’s apartment were not obtained as a result of a valid arrest or search, but were “seized or obtained as the result of unlawful search without a valid warrant and without probable cause.”

Both Stripling and Johnson rely upon the denial of this motion to assign error. Three arguments are made: 1) The commissioner who issued the search warrant was without power to do so since the law establishing his office was unconstitutional and invalid; 2) there was no probable cause for the issuance of the search warrant; and 3) the warrant was issued in connection with the investigation of an aggravated burglary; therefore the evidence seized could not be used in this prosecution for aggravated rape.

The Commissioner’s Authority

The defense contends that Act 548 of the Legislature for the year 1974, which purported to create the office of the Commissioner, did not have a vote of two-thirds of the membership of the House of Representatives as required by Section 87 of Article VII of the Constitution of 1921. For this reason, it is said, the Act is unconstitutional and the Commissioner was without authority to issue the search warrant in question.

Courts are directed by a long line of decisions, both federal and state, and by a general proposition applicable to constitutional government, not to pass upon the constitutionality of an act of the legislature if the case can properly be decided on another ground. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Benton-Volvo-Metairie, Inc. v. Volvo Southwest, Inc., 479 F.2d 135 (5th Cir.1973); State In Interest of Toler, 262 La. 557, 263 So.2d 888 (1972); Succession of Bienvenu, 106 La. 595, 31 So. 193 (1901).

A determination of the constitutionality of the Act is not essential to this decision. The commissioner issuing the warrant was at least a de facto officer acting under color of authority. Until his title to the office is attacked directly and held to be invalid, the acts of a de facto official are as valid and effectual, when they concern the public or the rights of third parties, as though he were an officer de jure and cannot be collaterally attacked. This proposition was upheld by a unanimous court in State v. Johnson, 249 La. 950, 192 So.2d 135 (1966), where the authority of the legislature was questioned because of its failure to reapportion itself every ten years as directed by Sections 2 and 3 of Article III of the Constitution of 1921. In passing upon the issue the Court declared:

“If the legislators who enacted this law were not de jure officers as defendants contend, we do not hesitate to say they were de facto public officers. Generally, for reasons of public policy, the acts of a de facto officer are valid as to third persons and the public until the officer’s title to office is adjudged insufficient. In the meantime, the officer’s authority may not be collaterally attacked or inquired into by third persons. Acts of de facto officers, then, are clothed with the same validity as the acts of de jure officers.”

Probable Cause

In brief the State contends that the issue of probable cause is not before this Court because that issue was not presented to the trial judge, and no contemporaneous objection was made on that basis at the time of the contested ruling.

This argument is not well taken. The motion referred to specifically raised the issue of probable cause, as the quoted language in the first paragraph of this part discloses. The only evidence to be considered on such a contention is the sufficiency of the affidavit relied upon by the magistrate, and the affidavit and the warrant are in this record. When taken together the affidavit and motion present the issue.

No objection is required to a ruling on a written motion in order to permit the ruling to be considered on appeal. La.Code Crim. Pro. art. 841. Since the issue of probable cause was presented to the trial judge by the motion and affidavit, and the ruling has been assigned as error and argued in this Court, it must be considered.

The lengthy affidavit upon which the magistrate relied sought the issuance of the warrant to search Stripling’s apartment on 3510 Pleasure Street, Apt. A, in New Orleans for the purpose of seizing a .38 caliber revolver and cartridges, a stereo component, a man’s “Timex” wristwatch, a sawed-off shotgun, a .45 caliber automatic pistol and an unknown quantity of marijuana. The reasons for the request are quoted in footnote.

The defense contends that paragraph one of the affidavit merely recites the facts of the offense. While this is correct it is not an insignificant recital. It is a sworn statement of two police officers setting forth their knowledge of pertinent facts surrounding the offense obtained by them as a result of their investigation. Their investigation revealed that the offense was perpetrated by three Negro males, armed with a sawed-off shotgun, a .45 caliber automatic pistol and a .38 caliber revolver. Recovery of a spent .45 caliber casing at the scene corroborates the use of the .45 caliber automatic.

According to the defense, paragraphs 2 and 6 of the affidavit fail to recite facts which substantiate the confidential informant’s credibility. More importantly, the defense asserts, the magistrate was not given information setting forth the underlying circumstances and factual basis for the informant’s belief that Stripling was the “third perpetrator of the offense.”

Facts within the informant’s knowledge supplied the requisite credibility and underlying circumstances. The informant knew, as the investigating officers had ascertained previously, that the suspects were Negro males and one was armed with a .38 caliber revolver at the time of the offense. In addition, the informant knew where the suspect lived and his alias, “Papa”. These facts were verified by a search of the police files of Crossland. A bureau of identification photo of Crossland had been shown to a victim and he was positively identified.

The recital in the affidavit concerning Johnson is attached, and it fully satisfies the requirements of probable cause.

The informant also knew that the third suspect was armed with a .45 caliber automatic, a fact already known to the officers. In addition he knew this suspect’s alias to be “Stripper” and knew that “Stripper” was then wanted for simple escape, facts verified from the police records by the affi-ants. He informed the officers also that Johnson was then in “Stripper’s” apartment, with the objects taken at the time of the offense.

When the entire affidavit is considered, together with the information known to both officers who made the affidavit and investigated the case, plus the corroboration of the informant’s story obtained from police records, the federal Fourth Amendment standards relied upon by defendants are not offended. U.S.Const. amend. IV; United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The affidavit submitted to the magistrate may be based entirely on hearsay, but, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the credibility of the information reported include a) direct personal observation by the informant, or b) if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information. State v. Paciera, 290 So.2d 681 (La.1974); State v. Linkletter, 286 So.2d 321 (La.1973).

In our view the affidavit adequately supports a finding of probable cause for the issuance of the search warrant.

Warrant Issued for Another Crime

No reason is assigned for the claimed invalidity of the warrant because it was issued upon the representation that the crime of aggravated burglary was under investigation, although the evidence seized was used in a prosecution for aggravated rape.

While the instant prosecution is based upon a charge of aggravated rape, the identical factual situation could serve to support a charge of aggravated burglary. Aside from this fact, the controlling factor to be considered in deciding the validity of a search warrant is not the prosecution in which the evidence will be used, but whether there was probable cause for its issuance and whether other legal requirements for issuing a valid search warrant have been fulfilled. Evidence properly seized when these standards are satisfied is available to the State for any legitimate purpose. La. Code Crim.Pro. art. 161.

II

A motion to quash was filed based upon the proposition that the death penalty prescribed by Article 42 of the Criminal Code was unconstitutional. The motion to quash was filed in February 1975. The motion was denied. No court had then declared Article 42 unconstitutional. To the contrary, this Court had upheld the constitutionality of the Article’s death penalty provision in State v. Selman, 300 So.2d 467 (La.1974). However, the defense contention later proved to be correct after Stripling and Johnson were convicted in May of 1975 and the United States Supreme Court decided Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212, in 1976, reversing this Court’s holding in State v. Selman. But when the United States Supreme Court decided Selman, the Court did not reverse the guilty verdict rendered in that case. Instead, the court followed the pattern previously established in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), by letting the conviction stand and setting aside the sentence of death.

Since the United States Supreme Court decision in Selman v. Louisiana this Court has affirmed the convictions and fashioned an appropriate sentence in lieu of the death penalty in those cases tried under the version of Article 42 declared unconstitutional in Selman v. Louisiana. These cases have been remanded for resentencing to the most serious penalty for a lesser included offense — that is, imprisonment for twenty years at hard labor. State v. Lee, 340 So.2d 180 (La.1976).

On the basis of these decisions Stripling’s death penalty has been set aside and he has been resentenced to imprisonment for twenty years. For the same reason Johnson’s death penalty cannot stand, and his case must be remanded to the trial court for resentencing in accordance with the rule of State v. Lee. Therefore the ruling of the trial judge supports this conviction, but Johnson’s sentence must be corrected.

III

By assignment of error defendant Johnson complains that the trial judge denied his motion to suppress his pre-indictment identification. Stripling deliberately declined to join in this motion.

This assignment is primarily based upon the contention that the investigating officers presented a group of nine photographs to the victims to determine whether they could identify the offenders. No one was identified. Two days later, it is argued, the same nine photographs were again presented to the victims with a photograph of defendant Johnson added. It is claimed the addition of Johnson’s photograph to a group shown only two days earlier is, in effect, the same as if only Johnson’s photograph had been presented for identification. Exhibition of a single photograph for identification is a procedure which the defense proclaims to be objectionable and suggestive.

Contradictory testimony was heard on this point. Some witnesses remembered that the photographs were different at the second showing, others recalled that they were the same. In denying this motion the trial judge must have reconciled these discrepancies in favor of the State’s position. Because of this factual determination the conclusion should be that no undue suggestion resulted from the procedure used by the investigating officers.

Aside from the addition of Johnson’s picture to the second round of photographs, the defense asserts that a subsequent physical line-up was also unduly suggestive. Of the eight people in the physical line-up all were suspects in other cases being processed in line-ups on that day. Because of this the defense submits that suspects were used interchangeably in line-ups, and no special effort was made by the police to man the line-up with individuals of the same general description.

A photograph of the physical line-up in the record does not support the defense conclusion. While the participants are not identical they were dressed identically, they are all black, of the same general age, and they do not present physical characteristics which are noticeably suggestive or dissimilar.

Ultimately no prejudice resulted if these line-ups were somewhat suggestive. There was a well-founded independent basis for the in-court identification of Stripling and Johnson by all four of the victims present who witnessed the events surrounding the rapes. The entire event lasted an hour and forty-five minutes, perhaps two hours. During this time all four victims were in close proximity to their captors, the lights were on most of the time and the perpetrators of the crime wore no disguises or masks of any kind. The four victims did not become hysterical or overly excited during their prolonged captivity and abuse. They remained calm enough to be acutely aware of what transpired and to have impressed upon their memory the image of those responsible for their plight.

“A trial court properly admits an in-court identification if it has a source independent of the out-of-court identification. In this determination, three factors are relevant: (1) the prior acquaintance of the witness with the accused; (2) the length of time the witness observed the perpetrator before, during, and after the commission of the offense; (3) the circumstances under which the observation was made, i. e., the illumination at the scene, the witness’s physical capacities, and the witness’s emotional state at the time of the observation.” State v. Taylor, 347 So.2d 172, 180 (La.1977).

Although all factors to be considered were not satisfied in the instant case, the circumstances referred to do indicate sufficient out-of-court compliance with some factors to provide an independent source for the in-court identification.

IV

A motion for continuance filed on May 22, 1975 on behalf of defendants was based upon the allegation that they were indigent and desired copies of transcripts of the evidentiary hearings held in connection with preliminary motions they had filed. These would cost $400, it was alleged, and they were unable to raise the full amount, requiring additional time to raise the balance needed — $200. It was an abuse of discretion for the trial judge to deny this continuance, the defense argues.

It has long been recognized that the right to counsel guaranteed under the Sixth Amendment to the United States Constitution and Article I, Section 13, of the Louisiana Constitution of 1974 means the effective assistance of counsel, and effective assistance requires time for and a fair means of preparation. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

The preliminary motions in question were heard on February 13, 1975, over three months before the trial, which took place on May 22-23, 1975. Stripling and Johnson were represented by the same attorneys at the hearings on the preliminary motions and at the trial. No special need for the transcript is cited, and inasmuch as defense counsel were present at the hearings they were informed of what transpired there. Furthermore, no plausible reason is advanced for delaying until the morning of the trial to move for this continuance. If the necessary funds could be raised at all, they could have been raised in the three months preceding the day of trial. These circumstances convincingly demonstrate that the trial judge did not abuse his discretion in denying the motion for continuance. La.Code Crim.Pro. art. 712.

V

On direct examination Officer Antoine Saacks was asked for a narrative of facts concerning his execution of the search warrant involved in this case. The relevant portion of his testimony was transcribed as follows: “. . .1 knocked on the door and identified myself as a police officer. There was numerous shuffling inside the residence. At this, believing that contraband or some other evidence was being destroyed . . . .” At this point the defense objected to the expression of a belief or an opinion by the witness, and the objection was overruled.

While the officer’s testimony does resemble an expression of opinion, his testimony is in fact a reasonable and natural inference to be drawn from a common occurrence. When it is drawn in this context an inference is not governed by the requirements which pertain to an expression of opinion. La.Rev.Stat. 15:463. Therefore, the testimony is admissible as an inference from the relevant fact that shuffling inside the residence followed the announcement that the police were demanding entrance. La.Rev. Stat. 15:441. See State v. Passman, 345 So.2d 874 (La.1977); State v. Glover, 340 So.2d 1346 (La.1976); State v. Lee, 340 So.2d 1339 (La.1976), cert. denied, 431 U.S. 941, 97 S.Ct. 2658, 53 L.Ed.2d 260 (1977).

VI

At the trial the State produced a document purporting to be a bill of sale for a revolver allegedly taken from Wendell Ricard on the night of the crime. Officer Saacks was asked to read the serial number from the bill of sale and the defense objected that the document was hearsay, but the objection was overruled.

It is the defense contention that there had been no authentication of the alleged bill of sale as required by Section 460 of Title 15 of the Revised Statutes, which provides:

“Any document, other than an authentic act, may be proved by any one who saw it written, or by a comparison of hands, or by any one who, from his knowledge of the handwriting of the person alleged to have written the document can testify that the document produced is in the handwriting of said person.”

Although the defense professes that prior to the quoted testimony there was no evidence laying a foundation for the production of the bill of sale identifying an important piece of evidence, there is this testimony in the record by Officer Saacks:

“On December 30, 1974, at the time of the burglary of Mr. Ricard, a .38 caliber R.G. was stolen. At that time he supplied us with a bill of sale, which he had the serial number indicated on it. At the time that Andrew Johnson was arrested, the weapon was confiscated and the serial number on the gun in which he was in possession of was the same as the serial number given by Mr. Ricard as stolen from him on December 30, 1974.”

No objection was made to this testimony. In view of this, the later reading of the serial number from the bill of sale added nothing new to the evidence. Although the document was not properly proven as required by Section 460 the technical error in the ruling of the trial judge was not prejudicial to the substantial rights of the accused or a substantial violation of a statutory right in the context of the overwhelming evidence of guilt in this record. La.Code Crim.Pro. art. 921.

For the reasons assigned, the conviction and sentence of Eugene Stripling are affirmed; the conviction of Andrew Johnson is affirmed, but the case is remanded to the trial court for the resentencing of Andrew Johnson in keeping with the reasons assigned.

CALOGERO and DENNIS, JJ., concur.

      . “On, Monday, 12-30-74 Detective Sgt. A. Saacks and Detective Peter Menkiewicz initiated an investigation into an Aggravated Burglary which occurred at 3219 St. Peter St. and was reported under item # L-26686-74. Said offense being perpetrated by three (3) negro male subjects, one subject being armed with a sawed-off shotgun, one with a .45 cal. automatic pistol, and one with a chrome plated .38 cal. revolver. In perpetuating the offense, the subject with the sawed-off shotgun struck one of the victims with the weapon and said weapon discharged into the ceiling of the residence. Also during the commission of the offense, the subject with the .45 cal. automatic pistol shot one of the victims with the weapon, and a spent .45 cal. automatic casing was recovered from the scene.
      “On Wednesday, 1-1-75, the investigating detectives were contacted by a reliable confidential informant, who has given information in the past which had led to arrests and convictions in Orleans Parish. The informant stated that one of the perpetrators of the offense (in fact, the one who had been armed with the .38 cal. chrome revolver) was known to him as ‘papa’, a negro male who resided at Pauger and N. Tonti Sts. The detectives research N.O.P.D. files and found that a negro male, one, Arthur Crossland (Bol # 151-617) resides at 2940'/2 Pauger, which is located at the intersection of Pauger and N. Tonti Sts. The files also revealed that Crossland goes by an alias of ‘Papa’.
      “The detectives then showed a Bol photo of Crossland along with others of similar negro males to a victim of the offense. On 1-1-75 at about 3:15 pm the victim, Cynthia Ricard, positively identified the subject, Crossland as one of the perpetrators of the offense.
      “On Friday, 1-3-75 the detectives were again contacted by the same reliable confidential informant as previously mentioned. At this time the informant stated that another of the perpetrators of the burglary (in fact the one armed with the sawed-off shotgun) was a negro male known to him as Andrew who resides on Foy Pk. in the St. Bernard Project. The detectives researched the N.O.P.D. files and found that one Andrew William Johnson (Bol # 134-557) resides at 1313 Foy Pk. in the St. Bernard Project. On 1-3-75 the detectives showed a Bol photo of Johnson along with others of similar negro males to the victims of the aggravated burglary. Three of the victims positively identified Johnson as the subject who had been armed with the sawed-off shotgun, on the night of the burglary.
      “On Friday, 1-3-75, the detectives were again contacted by the same confidential informant, who stated that the subject ‘Papa’ was presently in the Chef Menteur Hwy. area, and that he was presently armed with the chrome .38 cal. revolver used in the aggravated Burglary. The detectives proceeded into that area and were successful in apprehending Arthur Crossland aka ‘Papa’. At the time of the arrest Crossland was armed with a S. & W. .38 cal. chrome revolver.
      “Early on the morning of Saturday, 1-4-75, The detectives were again contacted by the same confidential informant who stated that the third perpetrator of the offense, the one who was armed with the .45 cal. automatic pistol, was a subject known to him as Eugene ‘Stripper’, and that he, ‘Stripper’ was presently wanted Simple Escape. The informant further stated that the subject ‘Stripper’ and the subject Andrew were presently at 3510 Pleasure St. Apt. # A. and that they had the weapons used in the commission of the Aggravated Burglary along with the property taken in the aforementioned offense in the residence with them. The information also stated that the subjects were also in possession of an unknown quantity of marijuana. The undersigned researched the files of the N.O. Police Dept, and found that one Eugene Lewis (B of I # 141 988) who uses the alias of Stripper was presently wanted by the N.O.P.D. for Simple Escape. Officers were able to obtain a B of I photo of Lewis and again contacted the informant. The informant was allowed to view the photograph and he positively identified the subject known to him as Eugene Stripper. Due to the late hour officers did not contact the victims for a photograph identification.”


source: Caselaw Access Project

author: TATE, Justice. DIXON, Justice CALOGERO, Justice

license: Public Domain

text:
    Howard A. KIDDER, Plaintiff-Appellee-Respondent, v. Bob ANDERSON and Capital City Press, Inc., Defendants-Appellants-Relators.
    No. 59988.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Rehearing Denied March 2, 1978.

      John G. Weinmann, Harvey D. Wagar, III, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for amici curiae.
    Robert L. Kleinpeter, Kleinpeter & Nev-ils, Baton Rouge, for plaintiff-respondent.
    F. W. Middleton, Jr., F. M. Coates, Jr., W. A. Abercrombie, Jr., Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-applicants.
   TATE, Justice.

The plaintiff Kidder sues a newspaper reporter (Anderson), and his employer-publisher to recover damages resulting from the publication of several newspaper articles and editorials. Kidder was Acting Chief of Police of Baton Rouge. He alleges damages caused him by defamatory articles depicting him, a law enforcement officer, as accepting payoffs and favors from barroom proprietors and gamblers, as interested in the operation of a house of prostitution in the 1950’s, and as using the influence of his office for personal gain.

The trial jury awarded Kidder damages of $400,000. Reducing the award to $100,-000, the court of appeal affirmed judgment in favor of Kidder. 345 So.2d 922 (La.App. 1st Cir. 1977).

On application of the defendants, we granted certiorari, 346 So.2d 1271 (1977), because we entertained doubt that the intermediate court had correctly applied the constitutional rule regulating recovery of damages by a public official claiming he had been defamed by criticism:

A public official may not recover damages for a defamatory statement, even if false, relating to his official conduct “unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Company v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964). Moreover, the public official plaintiff must meet this burden not merely by a preponderance of the evidence, but with “clear and convincing proof.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). See also New York Times Company v. Sullivan, cited above, 376 U.S. 285-86, 84 S.Ct. 729.

(1)

As stated in New York Times Company v. Sullivan, cited above, 376 U.S. 279, 84 S.Ct. 725, the reason for the rule is that otherwise “would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone.’ ”

That opinion also noted, 376 U.S. 269, 84 S.Ct. 720, that the constitutional safeguard for freedom of expression “ ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people’ ” and that “ ‘The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.’ ”

As we ourselves recently reiterated in Mashburn v. Collin, 355 So.2d 879 (La.1977): “ ‘The stake here, if harassment succeeds, is free debate. One of the purposes of the Times principle, in addition to protecting persons from being cast in damages in libel suits filed by public officials, is to prevent persons from being discouraged in the full and free exercise of their First Amendment rights with respect to the conduct of their government. . . . Unless persons, including newspapers, desiring to exercise their First Amendment rights are assured freedom from the harassment of lawsuits, they will tend to become self-censors.’ ”

(2)

In upholding an award, the court of appeal, with one judge dissenting, concluded: (a) that, reviewing the evidence (after trial on the merits), it was unable to find error in the apparent jury determination that the charges were false in fact; and (b) that, since the information had been gathered from disgruntled police officers and persons whom the jury apparently found to be unreliable, the jury could reject good faith in publication and could find the malice test met, because “recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of the reports.” St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262 (1968).

(3)

The error in the intermediate majority’s reasoning is that the credibility of the publisher’s informants must be judged, not on the basis of an evaluation of sworn testimony at a trial (after full opportunity to rebut accusations), but rather on the basis of information available to the reporter at the time of publication. St. Amant v. Thompson, cited above.

That police officers were disgruntled and antagonistic to their proposed chief is not necessarily an indication of their unreliability as informants. In fact, some of these very police officers now attacked as unreliable have often appeared as witnesses in criminal prosecutions by the state, with their credibility vouched for by officers of the state.

In St. Amant v. Thompson, cited above, the United States Supreme Court reversed this court’s affirmance of a judgment for damages in a public official’s defamation action. As in that case, the bias of the informant is not persuasive in determining malice, where the information has been obtained from an informant in a position to know the information published and where there is no clear and convincing evidence that the person publishing the information had any personal knowledge unequivocally indicating the unreliability of his informant.

With regard to the reliability of the information conveyed by these police officers, the criterion is not whether they were motivated by selfish reasons to furnish the derogatory information. Rather, it is whether or not they were in a position to obtain the information furnished by them, and whether or not the report they conveyed was so inherently improbable as to create indisputable doubt as to its authenticity. St. Amant v. Thompson, cited above.

Again, having attacked the police officer information as suspect on the ground of bias, the plaintiff also suggests that the newspaper reporter improperly relied upon information conveyed to him (and corroborated by written statements obtained from them) from gamblers and barmaids as to payoffs or bribes.

We are unable to accept the inference that, therefore, the reporter should not have relied upon information as to bribery conveyed by them. Just as the state is rarely in a position to rely upon the testimony of church wardens and Sunday-school teachers to prove criminally corrupt activities by public officials, so newspaper investigation of reports of corruption must often obtain first-hand corroboration from those present in the barrooms or gambling houses, rather than from citizens who spend their time only at home, in church, or at work in less colorful occupations.

On the merits, substantial evidence, of police officers and others, indicates factual circumstances which might give rise to an inference of impropriety on the part of Kidder during his long police career, despite the recognition of his merit by his steady advance to the highest ranks of the police force. Nevertheless, we find no reason to reject the jury’s apparent finding that, despite these indications of impropriety (indications perhaps unavoidably arising from police association, in order to obtain information of law-violation, with persons on the fringes of crime), Chief Kidder was a reliable police officer throughout his career, with plausible explanations and denials for the various incidents of alleged impropriety involved.

(4)

The issue, however, is not the ultimate falsehood of the defamatory statements. It is, rather, whether a newspaper reporter and publisher uttered them with actual malice, i. e., with reckless disregard of whether they were false or not.

In each instance, the published statements were based upon interviews, generally corroborated by written statements taken at the time, with individuals in an apparent position to know of the factual accuracy of the information conveyed.

The record discloses no reason for Anderson or his publisher to doubt the trustworthiness of the information received by them and subsequently published.

We do not find persuasive the contention that malice is shown because the mayor appointing Kidder, a very able, honest, and well-respected official, advised the local media that he had investigated rumors concerning Kidder prior to this appointment and, on the basis of his investigation, found no basis for the charges. The mayor’s information, based on his investigation, was essentially irrelevant to the present query, in the absence of any indication that it gave the defendants substantial reason to doubt the authenticity of information gathered by their own different and possibly more detailed investigation, nor the veracity of the sources (including the police officers) relied upon by them.

The endorsement of an appointee by his superior cannot be said to constitute reason to silence the publication of charges based on sources whom the publisher has no other reason to disbelieve. To accept the plaintiff’s position might well be to immunize from public discussion the prior conduct of persons whom highly placed officials, upon appointing them, endorse as without blemish based upon the appointing official’s investigation, however thorough he deems it.

Accordingly, we find that the plaintiff Kidder, a public official, has not proved by clear and convincing evidence that the defamatory statements written and published by the defendants, although false, were done so with actual malice — that is, either with actual knowledge of the falsity of the reports published, or else with reckless disregard of whether or not they were false. Having failed to meet this constitutional requirement for recovery of defamation damages by a public official, the plaintiff Kidder’s suit must be dismissed.

(5)

Additionally, we find that the motion for summary judgment was improperly denied.

In support of the motion, the defendants made essentially the same showing as was outlined above: that each piece of information was obtained, usually in writing before publication, from police officers and others with first-hand knowledge in a position to report the information given.

As we recently stated in Mashburn v. Collin, cited above at 355 So.2d 879: “In cases affecting the exercise of First Amendment liberties, proper summary judgment procedure is essential. . Summary adjudication may be thought of as a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeri-torious actions which threaten the free exercise of rights of speech and press.”

The dissenting judge in the court of appeal correctly observed, 345 So.2d 948:

“ * * * the burden placed upon a plaintiff in defeating a motion for summary judgment [in a freedom of expression case] is a most severe and difficult challenge to meet, though not impossible. He cannot merely allege malice or reckless disregard, nor hope to prove malice by questioning the defendant or defendant’s witnesses. Where in the ordinary type of case he could be successful in defeating the motion by only putting forth a minimum of evidence, here he confronts the guarantees of the First and Fourteenth Amendments, and thus stands the risk of the motion being successful if he cannot at this stage of the proceedings show that he can produce sufficient evidence on the trial that will prove with ‘convincing clarity’ the defendant’s malice. Stated another way, I am convinced that the single thread that is woven throughout this entire fabric is that in order for plaintiff to be successful on the threshold issue of summary judgment, he must come forth with strong evidence, convincingly clear evidence, that the defendant either know the statements published were false or that he had reckless disregard of whether they were false or not. Otherwise, if plaintiff is allowed to escape summary judgment by simply a minimum showing, he has thus effectively invoked the ‘chilling effect’ of trial doctrine.”

Decree

For the foregoing reasons, we reverse the judgment in favor of the plaintiff public official and against the defendant newspaper reporter and publisher, and we dismiss the plaintiff’s suit for defamatory damages, at his cost.

REVERSED AND RENDERED.

SUMMERS, J., dissents.

DIXON, J., dissents with reasons.

CALOGERO, J., dissents and assigns reasons.

DIXON, Justice

(dissenting).

I respectfully dissent.

Mashburn v. Collin, 355 So.2d 879 (La.1977), cited so frequently in the majority opinion, has almost nothing to do with the issues here presented. To cite the Mash-burn case so frequently can only perpetuate the confusion demonstrated in First Amendment eases. Mashburn involved the right of a food critic to describe his opinion of a restaurateur’s cooking. This case involves the execution by a newspaper of its deliberate and well-proved intention to destroy the reputation of a public official by reporting, as factual allegations, charges which were based on little more than gossip.

The majority opinion is also in error in its appreciation of the burden of proof. There is no finding that the jury was improperly instructed. There is substantial evidence to support the finding of the jury. The majority almost says the jury was right and the newspaper wrong, but the jury had evidence before it which the paper had not obtained before publication.

All the evidence before the jury was available to the paper before it printed the articles about its victim. I cannot say the jury was wrong when it found as a fact that the paper acted with actual malice (reckless disregard of the truth) in printing allegations which were proved to be false. The evidence adduced at trial must be viewed in the light most favorable to the verdict. Cape Publications, Inc. v. Adams, Fla.App., 336 So.2d 1197 (1976), cert. den. - U.S. -, 98 S.Ct. 440, 54 L.Ed.2d 305 (1977); Alioto v. Cowles Communications, Inc., 519 F.2d 777 (1975), cert. den. 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 259 (1975).

For the reasons detailed by the Court of Appeal, I would affirm.

CALOGERO, Justice

(dissenting).

I would affirm the judgment of the Court of Appeal which let stand a trial court defamation judgment while reducing it from $400,000 to $100,000. The Court of Appeal properly applied the law. They held plaintiff to the burden of proving “actual malice,” New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), with “clear and convincing proof.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

Accordingly, I dissent.

      . Although we do nbt intend to make a detailed review of the evidence, we note that the court of appeal wrongly attributed to Dr. Moody an expression of vindictiveness towards Mr. Kidder, 345 So.2d 937, whereas the quote from Tr. 1577 (stenographic page 159), is actually part of the testimony of Kidder’s brother-in-law (following stenographic page 158, Tr. 1541), James McBride. The latter here attempts to explain a basis for very damaging information he had furnished to Anderson and a police officer assisting Anderson in his investigation. No reason whatsoever is shown for doubting the reliability of the information furnished by Dr. Moody.


author: TATE, Justice. MARCUS, Justice

text:
    Robert M. DUPAS, Jr., Plaintiff-Appellant-Relator, v. CITY OF NEW ORLEANS, Travelers Insurance Company and William O. Brown, Defendants-Appellees-Respondents.
    No. 60163.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Rehearing Denied March 3, 1978.

      Gerald P. Aurillo, Metairie, for plaintiff-appellant-relator.
    James L. Selman, II, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, Philip S. Brooks, City Atty., Gerald A. Stewart, Asst. City Atty., New Orleans, for defendants-appellees-respondents.
   TATE, Justice.

While crossing a roadway, the plaintiff Dupas, a pedestrian, was struck by a police vehicle driven by the defendant Brown. He sues Brown, the latter’s employer (the City of New Orleans), and their insurer for severe personal injuries sustained. The trial and intermediate courts dismissed Dupas’s suit on the ground of his contributory negligence. 346 So.2d 322 (La.App. 4th Cir. 1977).

The accident occurred at about 9:00 p. m. on a very dark night. The plaintiff Dupas was struck by the defendant Brown’s vehicle while Dupas was crossing a deserted roadway. Brown, a police officer, was traveling slowly without headlights and in complete darkness, in an attempt to surprise some suspected rabbit hunters.

We granted certiorari, 349 So.2d 874 (La.1977), because we entertained doubt that, under the circumstances, the inattentiveness of the pedestrian constituted contributory negligence.

For reasons to be stated, we find that the pedestrian took adequate precautions against injury from oncoming motor traffic to be reasonably expected. Such traffic would be using headlights as required by law, unlike Brown’s darkened vehicle, and the lights would alert him to its approach. The pedestrian was not contributorily negligent in failing to anticipate and guard against the grossly negligent approach of a vehicle down the highway in complete darkness.

Principal Issue

As the court of appeal correctly found, the motorist Brown’s conduct was grossly negligent, however commendable the purpose in attempting to arrest illegal rabbit hunters. Our essential inquiry, therefore, is whether Dupas’s conduct, under the circumstances, subjected himself to unreasonable risk of injury so as to constitute contributory negligence.

As we summarized in Smolinski v. Taulli, 276 So.2d 286, 290 (La.1973) (citations omitted):

“Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection. The standard of conduct to which the plaintiff must conform for his own protection is that of a reasonable man under like circumstances. The party relying upon contributory negligence has the burden of proving it.

“Failure to take every precaution against every foreseeable risk or to use extraordinary skill, caution, and foresight does not constitute negligence or contributory negligence. . . . [The victim] is required only to use reasonable precautions, and [his] conduct in this regard is not negligent if, by a common-sense test, it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances.”

Context Facts

In main outline, the facts are relatively undisputed:

On the evening of the accident there had been radio reports of unidentified flying objects (UFO’s) in the skies over New Orleans East. The plaintiff Dupas and his brother-in-law, Knickmeyer, had gone to a deserted section of the area to watch for them, taking a pair of binoculars.

Dupas and Knickmeyer had stationed themselves on opposite sides of the south incline of an overpass over Interstate Highway 10. The overpass was situated in swamplands and dead-ended on both sides, having been built in anticipation of future development.

The only traffic using the overpass was the occasional vehicle which used the overpass as a turnaround to transfer from one side to the opposite-bound other side of the limited-access Interstate Highway. (During the hour or more the UFO-watehers were there before the accident, only two vehicles used the overpass. Both of them were police vehicles, one of them Brown’s vehicle which struck Dupas.)

Dupas and Knickmeyer had one pair of binoculars between them. They would each scan the skies with naked eyes, and the person using the binoculars would raise them from time to time to examine more closely a suspected UFO. At intervals, one or the other would cross over to take the binoculars and use them himself for a while.

The UFO-watchers were in complete darkness on this very dark night. They took no precautions to alert oncoming traffic to their presence. Rather (see discussion below), they relied upon their own notice of the lights of oncoming vehicles to move out of the roadway.

These pedestrians had stationed themselves on the south side of the overpass, about 60 feet below its crest. In the meantime, the motorist Brown had stationed his darkened police vehicle on the other (north) side of the crest, about 30 feet below it, to watch for illegal rabbit hunters. Due to the crest between them, neither party was in a position to observe the other, aside from the extreme darkness of the night.

Brown thought he observed a vehicle leave the Interstate and shine a spotlight into the marshes, as if rabbit hunting. The vehicle was at the north of the overpass, perhaps on an access road. In order to catch the hunters in the act, Brown quietly started his car and proceeded without lights, completely darkened, at a slow (quiet) speed of 15 mph. His intention was to turn around at the bottom of the south end of the overpass and to return to the north end to check the activity of the occupants of the vehicle.

After Brown had cleared the crest, he saw a pedestrian (the plaintiff Dupas) crossing the roadway, binoculars to eyes, about 10 feet in front of him. Tr. 80-81. At the time, Dupas had just crossed the midline of the roadway into Brown’s southbound lane, crossing it apparently proceeding towards the other (west) side.

Brown’s vehicle struck Dupas in Brown’s southbound lane just over the center-line, Tr. 95, about 65-75 feet below the crest.

Brown had also glimpsed the other pedestrian (Kniekmeyer) stationed on the east side of the overpass, facing westerly towards his path.

Dupas’s Contributory Negligence

The previous courts held that Dupas was contributorily negligent in observing for UFO’s while on the traveled portion of the roadway, inattentive to oncoming traffic. We think that, in so doing, they overlooked the importance all participants attached to the lighting by headlights to alert them to the presence of other vehicles on this completely darkened and deserted stretch of roadway, and its significance in determining whether Dupas was contributorily negligent under the circumstances.

While the defendants argue that Dupas was oblivious to any oncoming traffic whatsoever, a fair reading of the evidence as a whole indicates that, while watching for UFO’s, Dupas and Kniekmeyer also kept a lookout for oncoming headlights.

In describing Dupas and his conduct, Kniekmeyer testified that he and Dupas kept a lookout for automobiles coming up on that overpass as well as looking for UFO’s. He testified, Tr. 404-05:

“We wasn’t watching the binoculars constantly, we were watching for UFO’s and watching for traffic, that’s how we seen the first truck that came up because the lights would reflect up there before the vehicle would even get on the overpass.”

This testimony was corroborated by the testimony of Officer Boepple. He had driven a police truck up the south incline of the overpass about thirty minutes before the accident, in connection with his own investigation of UFO sightings. His police vehicle, unlike Brown’s, made full use of its headlights.

As he came up the overpass, Boepple noticed the reflectors of the plaintiff’s parked motorcycle. Then, as he approached the crest, he saw the two pedestrians, one (Kniekmeyer) leaning on the abutment and the other (Dupas) in the roadway in his path. As the police truck approached, Du-pas moved over to the side of the road. Tr. 152.

Boepple testified, “once I got about 30 or 40 feet from him he [Dupas] moved out of the way [“off the street”], he saw me coming.” Tr. 159. Although Boepple was approaching at a speed of 20-25 mph, he wasn’t required to stop to avoid hitting Dupas, instead he (Boepple) “came no-wheres near making contact with him.” Tr. 160.

Officer Boepple then stopped, conversed about UFO’s, and casually cautioned the pedestrians to be careful. (They, of course, thought they were acting carefully, in getting off the roadway (if on it) when headlights alerted them to an oncoming vehicle.)

The defendant Brown’s testimony itself indicates the importance of headlights in alerting persons on or near the overpass to the approach of oncoming traffic from either side of the overpass.

The care Brown took to darken his own vehicle, so as not to alert suspected hunters of its presence, illustrates this. Further, in describing his ability to see the outside (west) wall on the other (south) side of the crest of the overpass from his parked position on the north incline, he observed: “You could only see to the crest unless the car was coming up the other side.” Tr. 76. (In context, we take this to mean that he could not see beyond the crest unless headlights of oncoming traffic outlined the structure.)

Under these circumstances, Dupas was exercising reasonable care to protect himself from oncoming traffic reasonably to be expected. He and his companion relied on the headlights, either coming up the incline on his side of the overpass or else illuminating the crest if coming from the other side, of oncoming traffic to alert them to the approach of the isolated vehicle which might exceptionally use the deserted dead-end overpass.

In crossing the darkened roadway without observing for the approach of an illegally darkened vehicle, which he could not reasonably anticipate, Dupas did not act with unreasonable disregard of his own safety. We cannot say that a pedestrian is negligent simply because he crosses a deserted roadway at night, nor in failing to anticipate that from the total darkness ahead a darkened vehicle will come upon him as he crossed the center-line. As we noted earlier, “Failure to take every precaution against every foreseeable risk or to use extraordinary skill, caution, and foresight does not constitute negligence or contributory negligence.”

In Law v. Osterland, 198 La. 421, 3 So.2d 680 (1941), we held that a pedestrian who crossed a roadway in the face of oncoming lights of traffic — in what the court of appeal had held to be grossly negligent conduct — was not contributorily negligent in assuming that the oncoming motorist was approaching in accordance with traffic laws. (In fact, the motorist was speeding at an excessive rate.)

Citing well-settled jurisprudence, we stated, 3 So.2d 683: “ * * * ‘A pedestrian should use ordinary care for his own safety when crossing a street or highway; however, he has the right to assume that others will use a like care to avoid injuring him. Failure to anticipate omission of such care does not render the pedestrian negligent as a matter of law.’ ”

See also: Brantley v. Brown, 277 So.2d 141 (La.1973); Duffy v. Hickey, 151 La. 274, 91 So. 733 (1922); Carpenter v. Hartford Accident & Indemnity Co., 333 So.2d 296 (La.App. 1st Cir. 1976); Normand v. Piazza, 145 So.2d 110 (La.App. 4th Cir. 1962).

Here, for instance, in all probability the accident would not have occurred if the headlights of Brown’s vehicle had been shining, since its approach could then have been seen by Dupas or his companion in their lookout, as the lights outlined the crest of the overpass before it crossed it (and all the more readily after the vehicle came over the crest onto the southerly incline). Dupas could then have desisted from crossing or have stepped back into the opposite lane so as to avoid the vehicle.

Further, if the headlights had been shining, Brown himself could have seen Dupas in the roadway as he came over the crest, instead of when only 10 feet from him, and could have easily stopped (at 15 mph), slowed, honked his horn to alert the pedestrian, or otherwise have avoided the accident, even though the pedestrian himself was unaware of his approach. Brown would thus have been liable, if he had failed to avoid the accident, if he had been shining his headlights as required by law. See, e. g., Pierre v. Landry, 341 So.2d 891 (La.1977); Guilbeau v. Liberty Mut. Ins. Co., 338 So.2d 600 (La.1976). It would be an anomalous result that he could escape present liability because his negligence was of a grosser nature, i. e., driving a vehicle on the roadway completely without lights to observe persons on it or to alert them of his approach.

Conclusion

The plaintiff Dupas’s recoveries are not barred by contributory negligence, as held by the previous courts. He is thus entitled to recovery for damages which resulted from Brown’s tort. However, as a matter of present preferable policy, we usually do not fix quantum where neither the trial nor the intermediate court has passed upon this question. See, e. g., Smolinski v. Taulli, 276 So.2d 286 (La.1973). Instead, we remand the proceedings for such purpose.

For the reasons assigned, the judgments of the district court and of the Court of Appeal, Fourth Circuit, are reversed insofar as they dismiss the demand of the plaintiff. The case is remanded to the Court of Appeal, Fourth Circuit, in order that it may fix the damages to which the plaintiff is entitled; and for such court to render judgment for such sums against the defendant. All costs are taxed against the defendant.

REVERSED AND REMANDED.

MARCUS, J., dissents and assigns reasons.

SUMMERS, J., dissented.

MARCUS, Justice

(dissenting).

I consider that Dupas subjected himself to an unreasonable risk of injury under the circumstances. Accordingly, I agree with the courts below that his contributory negligence was a proximate cause of the accident thereby barring his right to recover. I respectfully dissent.

      . Due to brain injury suffered as a result of the accident, Dupas himself was not mentally able to give significant testimony.

      . We pretermit whether, if Dupas had looked, the defendants have preponderantly proved that he could have observed the dark object approaching. The vehicle’s driver did not see Dupas until within ten feet of him. Tr. 80-81. Brown also testified that he could see no more than 10-15 feet ahead of him, as he proceeded without headlights down the darkened slope. Tr. 116.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Robert DOMINICK.
    No. 60296.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Rehearing Denied March 3, 1978.

      Raymond L. Simmons, Simmons, Nelson & Dunn, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   CALOGERO, Justice.

On January 19, 1977 defendant Robert Dominick was indicted by the Grand Jury for the Parish of East Baton Rouge for the armed robbery of Ronnie J. Lawrence in violation of R.S. 14:64. After a trial by jury defendant was found guilty as charged. He was sentenced to ninety-nine years at hard labor without benefit of parole, probation or suspension of sentence.

The testimony adduced at defendant’s trial revealed the following facts surrounding the incident which led to defendant’s arrest and conviction. On the evening of January 14, 1977 defendant and two companions, Kenneth Porter and Wilbert Matthews, borrowed a car from defendant’s girlfriend in New Orleans and drove to a Shoney’s Restaurant in Baton Rouge. At the restaurant, Kenneth Porter, a former Shoney’s employee, spoke briefly with a friend who still worked in the kitchen of the restaurant. Thereafter defendant, along with Porter and Matthews, departed the restaurant and went to a Greyhound Bus terminal. After waiting several hours at the terminal the three returned to Shoney’s after Porter conversed by telephone with his friend who worked there. The three men arrived at approximately 2:30 a.m., some time after closing time. Two of the men, Porter and Matthews, wearing ski caps and bandanas, gained access to the premises through a rear door which was opened by Porter’s friend allegedly to take out the restaurant’s garbage. The men ordered the assistant manager, Ronnie J. Lawrence, to give them the money in the safe and ordered another employee to give them the money from the cash register. They received an amount totaling over $2,700.00. The two men then locked all the employees except Ronnie Lawrence in the restaurant’s office. Taking Lawrence with them, they rejoined defendant in the rear of the restaurant where he had been waiting in a car.

On appeal of the armed robbery conviction defendant Dominick now relies on twenty-four assignments of error, consolidated into eleven arguments, for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1, 2 AND 15

In these assignments defendant contends that the trial court erred in admitting into evidence a taped inculpatory statement made by him on the day of his arrest.

By assignments numbers one and fifteen defendant alleges that the statement was involuntarily given since he was not provided an attorney prior to questioning despite his request for one. At a hearing held prior to defendant’s trial on his motion to suppress the statement it was revealed that defendant was initially arrested in New Orleans and then transported to Baton Rouge by an assistant district attorney and an investigator for East Baton Rouge Parish. After his arrest in New Orleans defendant indicated on a “Rights of Arrestee” form his preference to speak with an attorney before making a decision regarding a waiver of his rights. The New Orleans police officer who arrested defendant testified at the hearing that no attorney was provided the defendant since New Orleans police had no intention of questioning him prior to his being transported to Baton Rouge. Before defendant was transported to Baton Rouge and again upon his arrival in Baton Rouge the Baton Rouge authorities also informed defendant of his rights. On neither of these occasions did defendant give any indication that he wanted to see an attorney. In Baton Rouge defendant signed another “Rights of Arrestee” form in which he waived his Miranda rights. Furthermore, the tape of defendant’s statement itself revealed that defendant was again read his rights, including his right to counsel, and that he waived them.

From the evidence, it also appears that though defendant requested counsel in New Orleans before giving a statement, the Baton Rouge authorities were unaware that such a request had been made. And at no time did defendant give any indication to the Baton Rouge authorities that he desired to consult with counsel prior to giving a statement, despite their numerous recitations of that right to him.. Under the above circumstances we find no error in the trial court’s denial of defendant’s motion to suppress as there was no violation of defendant’s constitutional rights protected by Miranda.

In State v. Adams, 347 So.2d 195, 199 (La.1977) this Court phrased the general rule on the admission of confessions into evidence as follows:

Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 14:451; La. Code Crim.P. art. 703(C). It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The issue of voluntariness is a question of fact and the trial judge’s ruling thereon, based on conclusions of credibility and weight of the testimony, is given great weight. It will not be disturbed on appeal unless unsupported by the evidence. State v. Adams, supra; State v. Stewart, 325 So.2d 819 (La.1976).

When an accused, as in the present case, has voiced a desire to speak with an attorney prior to waiving his Miranda rights the investigating officers must terminate any questioning of the accused until an attorney is present. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 14 L.Ed.2d 694, (1966). The accused is not precluded, however, from later changing his mind and waiving those same rights. State v. Peevy, 321 So.2d 324 (La.1975); State v. Higginbotham, 261 La. 983, 261 So.2d 638 (La.1972). See also, State v. Strahan, 348 So.2d 79 (La.1977).

In the present case the defendant was confronted by police officers from two different jurisdictions. He was advised of his constitutional rights per Miranda on several occasions by both the New Orleans and Baton Rouge authorities. His waiver of these rights before the Baton Rouge authorities was in no way related to or a product of any acts by either the New Orleans or Baton Rouge police. We find no indication in the record now before us that the defendant’s waiver of rights was the result of subterfuge on the part of law enforcement agencies to circumvent either the holding or spirit of the Miranda decision. Officer Gill of the Baton Rouge Police Department and Special Investigator Stewart of the East Baton Rouge District Attorney’s Office both testified that neither promises nor threats had been made to induce or force defendant to give his statement and their testimony was uncontradict-ed. Therefore, we find that the trial judge did not err in admitting defendant’s statement into evidence.

In assignment of error number two, defendant contends that the taking of his confession was tantamount to the acceptance of a plea of guilty. Therefore, he argues, the confession taken approximately eight hours after defendant’s arrest violates Article 559 of the Code of Criminal Procedure which requires the court, upon defendant’s motion within thirty days of entry of the plea, to set a plea aside which has been accepted within forty-eight hours of defendant’s arrest. Article 559 refers only to guilty pleas and has no applicability to the taking of confessions. A confession is not tantamount to a guilty plea.

These assignments lack merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment defendant alleges that the trial judge erred in restricting the scope of defendant’s voir dire examination of prospective jurors.

It is well established that the scope of voir dire examination is within the sound discretion of the trial judge and his rulings will not be disturbed on appeal in the absence of a clear abuse of discretion. State v. Ford, 349 So.2d 300 (La.1977); State v. Clark, 325 So.2d 802 (La.1976). To determine whether the scope of the voir dire examination was improperly restricted, however, the entire record of the voir dire examination must be reviewed. State v. Vinet, 352 So.2d 684 (La.1977); State v. Ford, supra.

Our review of the voir dire examination in the present case indicates that defendant was given wide latitude in his voir dire examination. The particular objections raised by defendant are either substantively nonmeritorious under our jurisprudence or were not properly perfected in the lower court for our review.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 6

In this assignment defendant alleges that the trial court erred in denying his motion to quash the indictment under Article 485 of the Code of Criminal Procedure. Defendant contends that the bill of particulars together with the indictment show that the offense charged was not committed. In essence, defendant argues that since the state’s answer to the bill of particulars stipulated that he was not physically armed with a dangerous weapon he could not have committed the charged offense, armed robbery.

A review of the state’s answer to defendant’s bill of particulars reveals that the complete answer to defendant’s question was that although defendant was not “practically” armed with a dangerous weapon he was “legally” armed with one. The state’s theory was that defendant, although himself not armed, was a principal to the crime charged under R.S. 14:24. This statute provides that “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”

We agree with the state that under these facts defendant Dominick was a principal in the commission of the crime and that, for that reason, he need not have personally held a weapon to be guilty of armed robbery. The answer provided was sufficient and did not serve to show that defendant had not committed the offense charged. Therefore, there was no error in denial of the motion to quash.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 8

In this assignment defendant contends that the trial judge erred in denying his motion to have all motions tried and disposed of at least ten days before trial. As this motion was filed only five days before the date set for defendant’s trial the trial judge construed it essentially as a motion to continue and denied said motion.

The disposition of a motion to continue is within the sound discretion of the trial judge, C.Cr.P. art. 712, and unless there is a showing that such discretion has been arbitrarily or unreasonably abused, that ruling will not be disturbed on appeal. State v. Smith, 322 So.2d 197 (La.1975); State v. Brewer, 301 So.2d 630 (La.1974); State v. Navarre, 289 So.2d 101 (La.1974).

In a similar case, wherein the sole ground for obtaining a continuance was that the preliminary motions were not tried until just before trial on the merits, this Court indicated that actual prejudice must be shown due to the trial court’s denial of a continuance. State v. Taylor, 324 So.2d 425 (La.1975).

In the present case there has been no showing of prejudice. In fact, defendant’s counsel engaged in a very aggressive and seemingly well-prepared defense of defendant’s case. We find no abuse of discretion on the part of the trial court in denying defendant’s motion.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 7 AND 12

In assignment number seven defendant alleges that the trial court erred in denying his motion for a mistrial based on a statement made by the trial judge during voir dire which allegedly amounted to a comment on the evidence.

This assignment is without merit. The challenged statement in no way amounted to a comment on the evidence but was only a proper example to determine whether the jurors understood the concept of “principal” to a crime. R.S. 14:24.

In assignment of error number twelve defendant makes the same objection to a similar statement made by the prosecuting attorney during opening statement. This assignment is also without merit. The statement was properly within the scope of the state’s opening statement. C.Cr.P. art. 766.

These assignments lack merit.

ASSIGNMENT OF ERROR NO. 20

Prior to trial defendant filed several special jury charges which he requested be given the jury relative to the presumption of innocence, the burden of proof on the state, the definition of reasonable doubt and the credibility and use of witness testimony. Defendant contends in this assignment that the trial judge erred in refusing to give these charges. We find no merit in the contention. Each special charge submitted by defendant was included in the trial judge’s general charge to the jury. C.Cr.P. art. 807.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 13, 14, 16, 17, 18, 19 AND 23

In these assignments defendant contends that the trial judge erred in failing to grant defendant’s request for a mistrial based on several statements, allegedly prejudicial in nature, made by either the prosecutor or trial judge. Each of these assignments lack merit. The statements objected to by defendant in these assignments were either proper comments by the prosecuting attorney or trial judge or were not of the type that would mandate a mistrial. C.Cr.P. art. 770.

These assignments lack merit.

ASSIGNMENTS OF ERROR NOS. 22' AND 25

In these assignments defendant contends that the trial judge gave an improper supplemental instruction to the jury (number twenty-two), and that he erred in giving an improper special charge requested by the state (number twenty-five). Defendant did not object during trial on either of these grounds but did move for a new trial under Code of Criminal Procedure Article 851(4) and (5). The trial judge properly denied the motion. The additional instruction was both correct and helpful to the jury which had requested further instructions. The special charge submitted by the state was also of the same character. Even if it was not helpful to the jury, however, the state’s special charge did not cause prejudice to the defendant so as to warrant the trial court’s granting of a new trial.

These assignments lack merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

In these assignments defendant complains of the trial court’s denial of a motion to sequester prospective jurors in order that each juror could be questioned individually (number four) and contends that a mistrial should have been granted when a prospective juror’s prejudicial remark was heard by the other selected and prospective jurors (number five).

Although our law does not provide specifically for sequestration of prospective jurors there is also nothing which prohibits it. However, as defendant failed to show any special circumstances which would have justified the sequestration we find no error in the trial judge’s denial of this motion. State v. Robinson, 302 So.2d 270 (La.1974).

The statement made by a prospective jur- or which is the subject of assignment number five was not sufficiently prejudicial to defendant to warrant a mistrial. Therefore, the trial judge did not err in denying defendant’s motion. State v. Monk, 315 So.2d 727 (La.1975).

These assignments lack merit.

ASSIGNMENTS OF ERROR NOS. 21 AND 24

In assignment of error number twenty-one defendant contends that the trial judge erred in denying his motion for a new trial based on the alleged prejudice suffered by defendant from the hysterical utterance of a woman outside the courtroom, a matter which was totally unrelated to the present case. No prejudice has been shown by defendant and as such this assignment lacks merit.

In assignment of error number twenty-four defendant alleges that the trial court erred in denying his motion for new trial which suggested that two witnesses be subjected to a polygraph test to determine whether their testimony was truthful. The trial judge properly denied this motion.

Louisiana Code of Criminal Procedure Article 851 does allow a trial judge much discretion in ruling on a motion for new trial. Moreover, the court is required to order a new trial when it is of the opinion that the “ends of justice would be served” by doing so. C.Cr.P. art. 851(5). And were a trial judge to order a polygraph test in such a situation we would be presented with a different case and might find no abuse of discretion in doing so. However, we are more than satisfied that a trial judge’s refusal to order a polygraph examination is in no way an abuse of his discretion, particularly since the polygraph has not yet been held admissible at trial. State v. Governor, 331 So.2d 443 (La.1976); State v. Corbin, 285 So.2d 234 (La.1973).

These assignments lack merit.

ASSIGNMENTS OF ERROR NOS. 10 AND 11

Defendant contends in these assignments that the grand jury indictment was insufficient since it was signed by the acting foreman rather than the foreman himself. C.Cr.P. art. 383. These assignments lack merit. As the foreman was not present on January 19, 1977 when the indictment was returned, the signature of the assistant foreman was substantial compliance with the requirements of C.Cr.P. art. 383. State v. Mouton, 319 So.2d 331 (La.1975).

Decree

For the foregoing reasons the conviction and sentence of defendant Robert Dominick is hereby affirmed.

AFFIRMED.

      . The dead body of the assistant manager Ronnie Lawrence was later found in a field in New Orleans near the Desire Housing Project. Although not clear from the record, it is presumed that defendant is still awaiting trial in New Orleans relative to this murder.

      . It might be noted that defendant was supplied with an attorney at his arraignment before a magistrate.

      . Defendant raised this objection by motion to quash the petit jury. The substance of defendant’s motion, however, indicates that it was actually a request for a mistrial.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Bruce EDWARDS.
    No. 60400.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Rehearing Denied March 3, 1978.

      Edward A. Haggerty, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Patrick Fanning, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Bruce Edwards with possession of heroin with the intent to distribute, a violation of LSA-R.S. 40:966. After a trial, the jury found him guilty as charged. The trial judge sentenced him to life imprisonment. Defendant appeals his conviction and sentence, relying upon five assignments of error.

The facts surrounding defendant’s arrest and conviction are that:

Police officers executed a search warrant for defendant’s residence. Upon entering, the officers asked defendant if he had any contraband or valuables to declare before they conducted a thorough search of the house pursuant to the warrant. At that time, defendant voluntarily surrendered a bag of marijuana and certain narcotics paraphernalia. Later during the search of the house, Officer Jenkins found two tin foil packets of heroin under a fur rug in defendant’s bedroom. Other officers, accompanied by the defendant, searched unsuccessfully underneath the house for heroin believed to be hidden there. After-wards, Officer Nelson, observing a bulge in defendant’s shirt pocket, reached in and removed a piece of cloth containing a bag of heroin.

ASSIGNMENT OF ERROR NO. 1

In Assignment of Error No. 1, defendant complains that the trial court erred in denying his motion to suppress. In support of his motion, defendant argues that: the search warrant was for a place, not a person; the heroin found in his shirt was planted on him, as he did not knowingly possess the contraband; the search was invalid because it was overly long, excessive, and general; and that the police improperly arrested him for any contraband found in the residence because he was not the owner of the residence.

Defendant denies that any heroin was recovered in his presence or that anything was taken from his shirt pocket. He, nonetheless, has standing to attack the legality of the alleged seizure of heroin under Article 1, § 5 of the Louisiana Constitution (1974).

The details of the search and seizure are as follows:

Pursuant to a search warrant for defendant’s father’s residence, where defendant lived, police officers entered the residence and informed the occupants of their intention to search. The officers advised defendant of his Miranda rights and asked if he had any valuables or contraband to declare before they conducted the search. Defendant responded by voluntarily giving the police a bag of marijuana and narcotics paraphernalia, customarily used in the preparation of heroin for sale.

The police officers testified that defendant informed them that the heroin was hidden under the house. However, defendant alleges that the police told him that they had information that the heroin was hidden there and that he was ordered outside the house. The officers testified that defendant then asked if he could get a pair of shoes and a shirt before going into the cold night air. The officers stated that defendant went into his room and put on a shirt. Defendant contends conversely that he was taken outside and that he was bare-chested during the outside search under the residence.

The testimony is uncontroverted that defendant and several police officers crawled underneath the house and with the aid of flashlights searched unsuccessfully for at least thirty minutes.

Later, Officer Nelson noticed a bulge in defendant’s shirt pocket and reached in and removed a brownish shoe cloth in which a plastic bag of heroin was wrapped. Defendant counters that he was not in intentional ownership of the heroin found in his shirt pocket. He argues that the contraband was planted on him by the police. He testified that the shirt containing the heroin was given to him by one of the officers after the outside search was completed and prior to his being taken to the police station.

The credibility of the officer’s testimony regarding the discovery of the evidence in defendant’s shirt pocket goes to the weight of the evidence, rather than to its admissibility. Consequently, the trial court properly admitted the evidence, noting it to be a question for the jury’s consideration. State v. Hunter, La., 343 So.2d 143 (1977); State v. Drake, La., 319 So.2d 427 (1975); State v. Freeman, La., 306 So.2d 703 (1975); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

Defendant also contends that the search was excessive. Defendant submits that a search by approximately twelve law enforcement officers for a period of about one and one half hours is unreasonable. In support, defendant cites Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Further, defendant complains that the officers threatened him, pulled his sister’s hair, and beat him repeatedly.

The officers denied that either defendant or his family was subjected to physical abuse. Their testimony was apparently accepted by the trial judge, and we discern no basis for disturbing that finding.

We do not find either the number of officers present (approximately twelve) or the length of time (one and one half hours) required for the execution of the search warrant unreasonable.

Defendant also contends that because the search warrant did not specifically authorize the police to search his person, the heroin taken from his pocket was improperly seized and thus inadmissible. However, the State counters that the evidence was seized incident to a valid arrest.

Louisiana Code of Criminal Procedure Article 201 defines arrest:

“Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.”

We considered Article 201 in State v. Marks, La., 337 So.2d 1177, 1182 (1976). Therein we stated:

“It is the circumstances indicating an intent to effect an extended restraint on the liberty of an accused, rather than the precise timing of an officer’s statement: ‘You are under arrest,’ that are determinative of when an arrest is actually made. State v. Warren, 283 So.2d 740 (La.1973). This principle was recognized in Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) wherein the Court noted that regardless of when Peters was ‘arrested’ it was clear that an arrest, for purposes of constitutional justification, had taken place before the search commenced, when the subject was grabbed by the collar and his freedom of movement curtailed on the basis of probable cause to believe that he was engaged in criminal activity. . . .”

A search incident to a lawful arrest is a well-established exception to the war-rantless search prohibition. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Robinson, La., 342 So.2d 183 (1977); State v. Marks, supra.

In United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), the United States Supreme Court approved a search as being incident to an arrest even when conducted ten hours after the actual arrest, based upon the arrestee’s initial susceptibility to a search coupled with his custodial status during the intervening period. Therein, the Court noted the following language with approval:

“ ‘While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent — take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence.’ ”

In the instant case, upon entry, the officers advised defendant of his Miranda rights and asked if he had any personal items, valuables, or contraband that he wished to surrender before they thoroughly searched the house. In response, defendant voluntarily tendered a bag of marijuana and narcotics paraphernalia. The officers testified that they would not have allowed defendant to leave had he attempted to depart the scene.

As defendant surrendered marijuana to the officers, possession of which is a violation of LSA-R.S. 40:966 as a controlled dangerous substance, the officers were entitled to arrest defendant at that time. Thereafter, the evidence discloses that defendant’s freedom of movement was curtailed. The fact that the officers did not voice the words, “you are under arrest” does not render the detention any less a legal arrest. Thus, we conclude that defendant was under arrest and that Officer Jenkins’ seizure of the heroin from defendant’s shirt pocket was incident to a lawful arrest.

Moreover, other heroin was properly introduced into evidence. See Assignment of Error No. 4 relating to State’s Exhibit No. 10. Therefore, regardless of the heroin taken from defendant’s shirt, the State offered other evidence that defendant was in possession of heroin. The admission of the two tin foil packets of heroin, State’s Exhibit No. 10, when combined with the sophisticated narcotics paraphernalia used in the sale of heroin, provide evidence of defendant’s possession of heroin with the intent to distribute.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

In Assignment of Error No. 2, defendant complains that the trial court judge erred in denying his motion for a mistrial based on an alleged failure of the officers to clearly inform defendant of his Miranda rights at the time of his detention.

Initially, we note that the officers did clearly inform defendant of his Miranda rights. Therefore, the assignment has no factual basis.

Moreover, LSA-C.Cr.P. Arts. 770 and 771 provide for the grounds for mandatory and permissive mistrials. The objection raised herein is not included as one of the specifically enumerated grounds. Defendant was in no way precluded from receiving a fair trial. The trial court, therefore, properly denied defendant’s motion.

Assignment of Error No. 2 is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

In these two assignments of error, defendant complains of the trial court’s admission into evidence of State’s Exhibits Nos. 2, 3, 4, 5, 8, 10, 11, 12, and 13. The exhibits are respectively:

(2) A piece of cloth containing a sealed plastic envelope of heroin;

(3) One flour sifter;

(4) One metal strainer;

(5) One amber colored bottle marked “Lactoce Hydrous, U.S.P.”;

(8) One syringe with needle intact;

(10) Two pieces of aluminum foil each containing heroin;

(11) One strainer;

(12) Two white Methaqualone tablets; and

(13) Numerous measuring spoons.

In Assignment of Error No. 3, defendant complains that the trial court erred in admitting into evidence the plastic bag of heroin and the shoeshine rag in which it was wrapped. He alleges that he did not knowingly possess the heroin. We have previously disposed of this contention. See Assignment of Error No. 1.

Defendant bases his objection to the remaining items admitted into evidence on the lack of eonnexity between himself and the evidence. Defendant argues that he was not in physical or constructive possession of the items seized.

We have repeatedly held that guilty knowledge is an essential element of the crime of possession. State v. Knight, La., 298 So.2d 726 (1974); State v. Porter, La., 296 So.2d 302 (1974); State v. Smith, 257 La. 896, 244 So.2d 824 (1971). Guilty knowledge and intent, though questions of fact, need not be proven as a fact, it may be inferred from the circumstances of the transaction. LSA-R.S. 15:445. LSA-R.S. 15:446 provides that “When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent . . . .”

One need not physically possess the controlled dangerous substance to violate the prohibition against possession; constructive possession is sufficient. It is well settled that a person may be in constructive possession of a controlled dangerous substance if it is subject to his dominion and control, regardless of whether or not it is in his physical possession. State v. Roach, La., 322 So.2d 222 (1975); State v. Alford, La., 323 So.2d 788 (1975).

In the instant case, the officers asked defendant if he had any contraband to declare. In response, defendant removed a metal box containing strainers, measuring spoons, and marijuana from his bedroom dresser and gave it to the police. During the search of the premises, Officer Bethey found the lactose and other paraphernalia for cutting heroin in defendant’s bedroom closet. Additionally, Officer Jenkins found two tin foil packets of heroin under a fur rug in defendant’s bedroom.

Accordingly, the trial court judge properly admitted the evidence. The ultimate determination of eonnexity of the items was a factual question for the jury.

Assignments of Error Nos. 3 and 4 are without merit.

ASSIGNMENT OF ERROR NO. 5

In Assignment of Error No. 5, defendant complains of the trial court’s refusal to grant his motion for a new trial.

Therein, defendant argues that the verdict is contrary to the law and the evidence. We have consistently held that a denial of a motion for a new trial based on the ground that the verdict is contrary to the law and the evidence presents nothing for this Court’s review. State v. Jack, La., 332 So.2d 464 (1976); State v. Woods, La., 327 So.2d 405 (1976); State v. Hines, La., 319 So.2d 313 (1975). The defendant makes no argument that there was a complete absence of evidence.

In his motion, defendant also reurges the grounds upon which he based his previous assignments of error. Having previously disposed of his allegations of error as having no merit, we likewise find the trial court’s denial of defendant’s motion for a new trial entirely proper.

Assignment of Error No. 5 is without merit.

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


author: MARCUS, Justice. TATE, DIXON and CALOGERO, JJ.,

text:
    STATE of Louisiana v. Larry Paul TUCKER.
    No. 60409.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Rehearing Denied March 3, 1978.

      Donald R. Jory, Jennings, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Bernard N. Marcantel, Dist. Atty., for plaintiff-appel-lee.
   MARCUS, Justice.

Larry Paul Tucker was charged in the same information with three separate counts of contributing to the delinquency of a juvenile in violation of La.R.S. 14:92A(8). After trial by a judge, defendant was found guilty as charged on each of the three counts. On the first count, defendant was sentenced to serve six months in the parish jail and to pay a fine of two hundred and fifty dollars plus court costs, or, in default thereof, to serve six months in the parish jail. On each of the remaining counts, defendant was sentenced to serve six months in the parish jail. The terms of imprisonment were ordered to be served consecutively. The trial judge suspended execution of the jail sentences and placed defendant on supervised probation for a period of two years. On appeal, defendant relies upon two assignments of error for reversal of his convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to quash the bill of information grounded on the claim that the statute under which he was charged (La. R.S. 14:92) is unconstitutionally vague.

Article 1, section 13 of the Louisiana Constitution of 1974 provides that in a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. This constitutional guarantee requires that penal statutes describe unlawful conduct with sufficient particularity and clarity that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. State v. Defrances, 351 So.2d 133 (La.1977); State v. de la Beckwith, 344 So.2d 360 (La.1977); State v. Lindsey, 310 So.2d 89 (La.1975). Under the fourteenth amendment to the United States Constitution, words and phrases used in statutes must not be so vague and indefinite that any penalty prescribed for their violation would constitute a taking of liberty or property without due process of law. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); State v. de la Beckwith, supra; State v. Lindsey, supra.

La.R.S. 14:92A(8) provides:

Contributing to the delinquency of juveniles is the intentional enticing, aiding or permitting, by anyone over the age of seventeen, of any child under the age of seventeen, and no exception shall be made for a child who may be emancipated by marriage or otherwise, to: .
Absent himself or remain away, without authority of his parents or tutor, from his home or place of abode; .

We are of the opinion that this provision “give[s] a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” Papachristou v. City of Jacksonville, supra. Accordingly, the statutory provision is not unconstitutionally vague.

Nor is the statute unconstitutionally overbroad. The fourteenth amendment to the United States Constitution protects individuals from incursions by the state into certain areas of their lives. A statute is overbroad and, thus, constitutionally defective if it extends state criminal authority beyond the proper reach of government into one of these protected private areas. Scott v. District Attorney, Jefferson Parish, State of La., 309 F.Supp. 833 (E.D.La.1970), aff’d, 437 F.2d 500 (5th Cir. 1971). See also Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). Hence, overbreadth is a concept which applies only to cases where a constitutionally protected right is claimed in the prosecution. State v. Cox, 352 So.2d 638 (La.1977). The act of “intentionally enticing, aiding or permitting” a juvenile to absent himself or remain away from home “without authority of his parents or tutor” is not conduct protected by the federal or state constitutions. Accordingly, La.R.S. 14:92A(8) is not unconstitutionally overbroad.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in denying his motion for a new trial.

Defendant’s motion was grounded on the sole contention that the verdict was contrary to the law and evidence. This contention was not the basis for the assigned error to be urged on appeal; nor was it briefed or argued on appeal. Hence, we consider it to have been abandoned. In any event, it is well settled that, even where error is assigned to the refusal of the trial judge to grant a motion for a new trial on the allegation that the verdict is contrary to the law and evidence, nothing is presented for our review. State v. Provost, 352 So.2d 661 (La.1977); State v. Fowlkes, 352 So.2d 208 (La.1977); State v. Williams, 343 So.2d 1026 (La.1977); State v. Jack, 332 So.2d 464 (La.1976); State v. Bartley, 329 So.2d 431 (La.1976).

The basis for the assigned error of the trial judge in refusing to grant defendant’s motion for a new trial and the one briefed on appeal is that the statute under which he was convicted (La.R.S. 14:92) is unconstitutionally vague. This contention was considered in Assignment of Error No. 1 and, for reasons assigned therein, is without merit.

DECREE

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

TATE, DIXON and CALOGERO, JJ.,

dissent. The evidence does not prove a violation of the statute. If the statute is construed to cover the conduct (that a tenant is held criminally responsible for the illegal action of a co-tenant, of which the accused tenant had no knowledge), the statute is unconstitutional.