author: SANDERS, Chief Justice. CALOGERO, J., TATE, Justice SUMMERS, Justice. TATE, Justice

text:
    STATE of Louisiana v. Mitchell ALFRED.
    No. 57266.
    Supreme Court of Louisiana.
    May 17, 1976.
    On Rehearing Sept. 24, 1976.

      George H. Fust, New Orleans, for defendant-appellee.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellant.
   SANDERS, Chief Justice.

The Orleans Parish Grand Jury charged Mitchell Alfred in separate indictments with the first-degree murders of Tobin Underwood, Sr., and Johane McQueen in violation of LSA-R.S. 14:30. Defendant moved to quash the indictments on the ground that he had been denied his right to a speedy trial. The trial court granted the motion; the State timely appealed the quashing of the indictments. The State also gave notice of its intention to apply for writs to seek review of the trial court’s ruling, although an application for writs was never filed.

Recently, in State v. James, La., 329 So.2d 713 (1976), we held that when the State seeks review of a final pre-con-viction judgment or ruling in a criminal case, application to this Court for a writ under our supervisory jurisdiction is the proper procedure. However, at the time of the State’s appeal here, this Court had not as yet determined that Louisiana Code of Criminal Procedure Article 912(B)(1) was ineffective because of its conflict with the 1974 Louisiana Constitution. Therefore, we shall treat this appeal as an application for supervisory writs.

The following chronology of events, gleaned from the record, is necessary to assess the correctness of the trial court’s ruling quashing the indictments based on the denial of the defendant’s constitutionally guaranteed right to a speedy trial.

The two murders defendant is alleged to have committed took place on November 3, 1973. The Grand Jury returned indictments charging first-degree murder on July 11, 1974. Continuances in the matter were granted the State on September 20, 1974 and November 19, 1974. Due to the unavailability of a jury, the trial court continued the trial on two dates, January 28, 1975 and January 29, 1975. On March 19, 1975, the Court again granted the State’s motion for a continuance. The defense filed motions for a speedy trial on April 4, 1975, and the minute entries reflect that on May 15, 1975, the trial date was set for May 22, 1975. On the day the trial was to begin, the State filed a motion for a continuance, to which the defense objected. The trial court denied the motion for a continuance, and the district attorney nolle prosequied the cases.

On June 5, 1975, the Grand Jury again returned two true bills charging defendant with first degree murder. On July 21, the defense filed motions to quash each indictment; on that date the trial court set July 31, 1975, as a hearing date for the motions and set the trial for August 20, 1975. The motions to quash were heard on the assigned date, July 31, and overruled.

On August 20, 1975, the date set for trial, on joint motion of the State and the defense, the trial date was continued. The two reasons for the requested continuance were listed as (1) the absence of a police officer witness “for both the State and the defendant”; and (2) the absence of the attorney of a witness “expected to implicate himself in a crime.” The trial was reassigned for September 29, 1975. On the trial date, the State filed a motion for continuance, and the court denied it. Thereupon, the State again nolle prosequied the two cases and again, for a third time, the Grand Jury returned new indictments on October 9, 1975.

On October 14, 1975, the defendant filed a petition for habeas corpus, alleging that he was being denied a speedy trial. Two days later, he filed a motion to quash the indictments, alleging that he had been denied a speedy trial. A hearing on the motion to quash was held on October 17, 1975, at the conclusion of which, the trial court sustained defendant’s motion. It is from this ruling that the State appealed.

The State correctly asserts that under Louisiana Code of Criminal Procedure Article 578 it has three years from the institution of the prosecution in a capital case in which to try the accused. The original indictment was returned on July 11, 1974. On October 17, 1975, the trial court quashed the indictments. The State asserts that it had valid reasons for requesting the several delays in the trial.

Under Louisiana Code of Criminal Procedure Article 691, the “district attorney has the power, in his discretion, to dismiss an indictment . . . and in order to exercise that power, it is not necessary that he obtain consent of the court.” It is clear from Louisiana Code of Criminal Procedure Article 693 that the dismissal by the district attorney of an indictment discharges the particular indictment, and the dismissal is not a bar to a subsequent prosecution.

In State v. Fronton, La., 319 So.2d 405 (1975), in defining the district attorney’s power to dismiss an indictment, this Court stated:

“In City of Lake Charles v. Anderson, 248 La. 787, 182 So.2d 70 (1966), we held that the entering of a nolle prosequi rests entirely within the discretion of the prosecuting attorney and leave of court is unnecessary. See also State v. Brackin, 113 La. 879, 37 So. 863 (1905); State v. Frazier, 52 La.Ann. 1305, 27 So. 799 (1900); State v. Moise, 48 La.Ann. 109, 18 So. 943 (1895); State v. Bugg, 6 Rob. 63 (1843); Marr’s Criminal Jurisprudence of Louisiana, Vol. 1, 2nd Edition, Section 11, p. 35; Wharton’s Criminal Law and Procedure (Anderson) Vol. 1, Section 14, p. 19; 22A C.J.S. Criminal Law § 457c, p. 5; 14 Am.Jur., Criminal Law, Section 296, p. 967.
“The prevailing rule is set forth in Marr’s Criminal Jurisprudence of Louisiana (1906) ‘Nolle Prosequi,’ Section 466, p. 804, as follows :
“ ‘In all stages of a criminal prosecution before a jury is impanelled the prosecuting attorney has an arbitrary control over his indictments, and may enter a nolle prosequi as to them, at pleasure, without the consent of the court or of accused. . . .’ ”

Thus, unless the defendant has been unconstitutionally denied a speedy trial, the defendant has no valid basis for avoiding trial. According to Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), this case must be decided on its own facts with regard to four factors: (1) length of delay, (2) reasons for delay, (3) the accused’s assertion of his right to a speedy trial, and (4) the prejudice to the accused resulting from the delay.

The facts of this case reveal that the delay from the original indictment to the granting of the motion to quash was fifteen months. This lapse of time, per se, is not inordinate. According to Louisiana Code of Criminal Procedure Article 578, the State has three years in which to try the accused after the institution of the prosecution. The trial court observed during the hearing on the motion to quash that the State was blameless in connection with the delays, recognizing that the continuances granted in the early stages of the proceedings were upon the State’s showing of good cause. The defendant requested a speedy trial in April, 1975, complying with Barker. However, several months after requesting a speedy trial, the defendant joined in a motion to continue the case. In State v. Bullock, La., 311 So.2d 242 (1975), after considering the defendant’s own responsibility for the delay in commencing his trial, we denied his speedy trial contention. Moreover, in the instant case, the defendant makes no showing of prejudice resulting from the delay.

Under all of the circumstances, we conclude that the fifteen-month delay in bringing the case to trial does not constitute a denial of a speedy trial in violation of the constitutional guarantees.

For the reasons assigned, the State’s appeal is dismissed. A supervisory writ is granted, and the trial court’s ruling quashing the indictments is reversed and set aside. The motion to quash is overruled, and the case is remanded to the Criminal District Court, Parish of Orleans, for further proceedings according to law and consistent with the views herein expressed.

TATE, J., dissents and assigns reasons.

CALOGERO, J.,

dissents, being of the view that the ruling of the trial judge was correct.

DENNIS, J., dissents for the reasons assigned by TATE and CALOGERO, JJ.

TATE, Justice

(dissenting).

As the trial court properly held, the defendant was denied a speedy trial despite repeated requests therefor. The state cannot evade the constitutional requirement of a speedy trial by nolle pressing the charge each time it is denied a continuance, and then re-indicting. The state cannot, by repeated indictments, maintain the threat of prosecution over an accused, yet refuse to try the charge on its merits. To do so, as the trial court held, violates the accused’s right to a speedy trial.

ON REHEARING

SUMMERS, Justice.

In two separate indictments returned on July 11, 1974, Mitchell Alfred was charged by the grand jury of Orleans Parish with the November 3, 1973 first degree murders of Johane McQueen and Tobin Underwood, Sr. La.R.S. 14:30. According .to the transcript of a hearing in this matter, the charges also involve burglary and necrophilia.

Alfred was called to the bar on July 17, 1974 and his arraignment was continued by the trial judge “until July 23, 1974 and for a determination of counsel.” On July 23 defense counsel was enrolled and pleas of not guilty to each charge were entered. Defense counsel was then granted thirty days to file pleadings.

The State filed a motion for continuance on September 20, 1974, alleging that counsel for a State witness, “who may possibly inculpate himself through his testimony,” could not be present. A continuance was granted until November 19, 1974. On that day, on the basis that the “matter requires further investigation prior to prosecution”, the State again moved for a continuance. This too was granted until the case was reset by the office of the District Attorney.

In the meantime, the case was set for trial on January 28, 1975, at which time it was continued by the court “due to no jury”, and the court set a “status hearing” for January 29. On that day the court again continued the trial until March 19, 1975, “due to no jury being available.”

On the appointed day, March 19, 1975, the State moved for a continuance for the reason that “Detective John Kastner, a crucial State witness is unavailable due to his being -bedridden as the result of gunshot wounds.” Continuance was granted until the case was reset. Later, the trial judge observed that all continuances in these “early stages of the proceedings” were for “good cause.” Defense counsel acknowledged this to be “correct”.

Then, on April 3, 1975, defense counsel filed a motion for a speedy trial on the grounds that Alfred had been incarcerated in parish prison for eight months, the proof against him was not evident, nor the presumption of guilt against him great, and he was innocent of the crimes charged.

With the cases in this posture, on May 15, 1975 the court set both cases for trial on May 22, 1975. And, when the court met on that day, the State again moved for a continuance. This time it was alleged that Officer Kastner was in the hospital; and an assistant district attorney, who was presumably involved in the case, was involved in a trial in another section of the court. Defense counsel objected, and this continuance was denied; whereupon, the State entered a nolle prosequi as to both cases. However, defendant was again arrested and held in custody pending renewed charges.

Alfred was indicted by the grand jury for the second time on June 5, 1975 for the first degree murders of McQueen and Underwood. The minutes of court for June 16 and July 2, 1975 are not available. However, the record shows that on July 8, Alfred was arraigned on the new charges, pled not guilty qnd was granted fifteen days to file pleadings and to determine counsel.

Alfred was in court on July 14, and, although his attorney had been notified, he did not appear. The court, therefore, continued the hearing until July 21. At that time defense counsel filed motions to quash each case alleging double jeopardy. These were set for hearing on July 31, and the trial of both cases was then set for August 20.

When the court met on July 31 it considered the motions to quash founded upon pleas of double jeopardy. After the hearing the motions were denied without objection.

On the day set for trial — August 20— a joint motion for continuance was filed by the State and defendant, alleging that Detective Charles Faught, a witness for the State and defendant, and counsel for David Dexter, a State witness, were unavailable. Because of this motion, the trial was continued to September 29, 1975.

A motion for continuance was filed by the State on September 29, the day scheduled for trial, in which the State represented that its principal witness had recently escaped from parish prison, and the State’s witness Charles Faught was out of State and had not been served with a subpoena. This continuance was denied, and, for the second time, the State nolle prossed the charges.

Indictments with identical charges were again returned by the grand jury on October 9, 1975. As a result defense counsel filed an application for habeas corpus on October 14, which was set for hearing on October 16. Alleging that he had been denied a speedy trial, defendant filed motions to quash on October 16. These were set for the next day and sustained.

In sustaining the motions, the trial judge recognized that he had no authority to question the district attorney’s right to nolle prosse or the grand jury’s authority to rein-dict defendant. At the same time, the trial judge announced, “without putting any blame whatsoever on the State, the Court understands the State’s position in this matter.” He also found that “Witnesses have been unavailable for seventeen months.”

On the State’s application, wri'ts were granted under this Court’s supervisory jurisdiction to review this ruling. After consideration, the order sustaining the speedy trial motions was reversed, and the case was remanded for further proceedings. A rehearing was granted, however, on defendant’s application.

The right to a speedy trial is guaranteed by the Federal and State Constitutions. U.S.Const. amend. VI; La.Const. art. I, § 16 (1974); La.Code Crim.Pro. art. 701. It is a fundamental right under the Federal Constitution which is imposed by the Due Process Clause of the Fourteenth Amendment on the States. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); State v. Gladden, 260 La. 735, 257 So.2d 388 (1972).

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court first formulated the criteria by which the right to a speedy trial should be judged. There the court held that a claim that a defendant has been denied his right to a speedy trial is subject to a balancing test, in which is weighed the conduct of both the prosecution and the defendant. In determining whether a defendant’s rights to a speedy trial have been denied, courts should consider such factors as 1) length of the delay, 2) reason for the delay, 3) the defendant’s assertion or nonassertion of his right, and 4) prejudice to the defendant resulting from the delay.

Length of Delay

Although it is alleged in the indictment that the offenses occurred on November 3, 1973, the record does not establish when the accused was arrested. Louisiana law and recent interpretations of the federal constitution recognize that the guarantee of a speedy trial does not become applicable until the defendant in some way becomes an accused, which in most cases is the day of arrest. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); Barker v. Wingo, supra; United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Stetson, 317 So.2d 172 (La.1975); State v. Moore, 300 So.2d 492 (La.1974); State v. Gladden, 260 La. 735, 257 So.2d 388 (1972); La.Code Crim.Pro. art. 578 (Comments).

In the absence of a showing that the defendant became an accused earlier, the indictment must be considered as the accusation for the purpose of computing the delay applicable to the claim of denial of the right to a speedy trial. Under this formula the delay commences on July 11, 1974, and continues to the date when defendant's right to a speedy trial was upheld, October 17, 1975, a total of fifteen months and six days.

Taken alone this delay is not inordinate under either federal standards or the decisions of this Court. Barker v. Wingo, supra, a case strikingly similar to the case at bar, involved a delay exceeding five years. The passage of nineteen months between an arrest and a second indictment does not in itself demoristrate a violation of the Sixth Amendment guarantee of a speedy trial, when the defendant was promptly indicted and convicted, subsequently obtained the vacation of his conviction, and was then immediately rearrested and reindicted. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966).

In State v. Gladden, supra, a delay of two years was not considered excessive. A delay of one year and nine months did not result in the denial of a speedy trial in State v. Roddy, 263 La. 1064, 270 So.2d 508 (1972), and a ten-month delay between arrest and trial was conceded to be reasonable in State v. Harris, 297 So.2d 431 (La.1974). Delays occasioned by reassignments at the State’s request resulted in twenty-six months delay from the time of indictment in State v. Moore, 300 So.2d 492 (La.1974); nevertheless, that circumstance alone did not result in the denial of a speedy trial.

Where the defendant was convicted of murder in 1966 and sentenced to death, the death penalty set aside in 1971 and a new trial ordered which did not commence until 1974, the resulting eight-year delay did not deny the defendant a speedy trial as this Court held in State v. Bullock, 311 So.2d 242 (La.1975).

A period of exactly one year from the date the offense was committed to date of trial did not result in a delay which would entitle the defendant to have his conviction set aside in State v. Jones, 320 So.2d 182 (La.1975). A prosecution instituted in 1971 in State v. Howard, 325 So.2d 812 (La.1976), where the trial took place more than three years thereafter, was held not to deprive a defendant of a speedy trial.

Delay of almost fifteen months between arrest and trial was held to be “neither inordinate nor unusual” in State v. Brown, 326 So.2d 839 (La.1976), while a two-year delay in State ex rel. Eames v. Amiss, 288 So.2d 316 (La.1974), did not result in the discharge of the defendant. See also State v. Dupree, 256 La. 146, 235 So.2d 408 (1970).

Thus, by repeated decisions applying the tests set forth in Barker v. Wingo this Court has refused to declare that a speedy trial was denied. These cases involved considerable delays, often more lengthy than the fifteen months involved here. It is fair to conclude from these pronouncements, in the absence of unusual circumstances, that a fifteen-month delay is “neither inordinate nor unusual,” State v. Brown, supra, in a prosecution involving a double murder.

While it is elementary that legislative acts may not impair constitutional guarantees, it is worthy to note that in a capital case Article 578 of the Code of Criminal Procedure allows a delay of three years from the date of institution of the prosecution within which the trial may be commenced. Such an enactment is a recognition by the legislature that the time limitation thereby ordained is reasonable and acceptable under ordinary circumstances. Statutes of limitation are the primary guarantees against inordinate delays between accusation and trial. La.Code Crim. Pro. arts. 578-82; 18 U.S.C.A. § 3281-82; United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); State v. Howard, 325 So.2d 812 (La.1976); State v. Stetson, 317 So.2d 172 (La.1975); State v. Gladden, 260 La. 735, 257 So.2d 388 (1972). These statutes represent a legislative assessment of relative interests of the State and defendant in administering and receiving justice, and they should be considered by the courts. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Theard, 203 La. 1026, 14 So.2d 824 (1943). Judged by this legislative criterion, the delay in the instant case is neither inordinate nor unreasonable.

Reason for the delay

From the time of the indictment on July 11, 1974, until the defendant filed a motion for a speedy trial on April 3, 1975, no objection was recorded by defendant to any of the continuances during this nine-month period. To the contrary, defense counsel acknowledged that this delay was for “good cause”. It is evident, moreover, that some of the delay occurring during this interval was not attributable to the State. Some of the delay, for example thirty days for file pleadings, was granted by the trial judge to defendant. Another delay, almost two months, transpired because no jury was available; continuance was granted by the trial judge, not due to any cause attributable to the prosecutor.

Even after defense counsel filed his speedy trial motion, on April 3, 1975, he did not urge its adjudication. Rather, he later joined in a motion to continue the case on August 20, 1975. As a result of this motion for continuance the trial date was fixed for September 29, 1975 without defense objection. This is another delay of thirty-nine days which is for good cause, a delay to which defendant subscribed. Significantly, too, this delay terminated within eighteen days of the date on which the trial judge sustained the defendant’s claim that he had been denied a speedy trial.

Furthermore, the trial judge “without putting any blame whatsoever on the State,” declared when he granted the motion to quash that he understood the State’s position in the matter. He also found that witnesses were unavailable for seventeen months. Notwithstanding these pronouncements, and in spite of the fact that fifteen months has not been considered an inordinate delay in such a prosecution, he ordered the indictments quashed.

The per curiam of the trial judge assigned additional reasons which apparently influenced his action. While recognizing the District Attorney’s right to nolle prosse, he said that “the district attorney should not be allowed to abridge a defendant’s right to a speedy trial by means of constant nolle prosequies and re-indictments.” However, this reason overlooks the fact that until the defense filed its speedy trial motion on April 3, 1975 and the trial judge first denied a continuance to the State on May 22, 1975, all delays were acknowledged to be for good cause, and a substantial segment of that delay was due to continuances granted by the court for the defendant’s benefit and because juries were unavailable. Until that time, the defendant had recorded no objection. In addition, the trial judge recognized the absence of State witnesses. Under these circumstances the court’s refusal to grant more time compelled the District Attorney to avail himself of the authority he undoubtedly possessed to nolle prosse and again present the case to the grand jury for reindictment. It may be that he gained time by this tactic, but a recognition of this fact does not detract from the realization that a prosecution for a double murder was involved, and it was not unreasonable for the prosecutor to avail himself of all legitimate means to gain adequate time to marshal the proof needed to properly present its case. That was his responsibility. To do less would not serve the State’s interest. His plenary power in this regard is not subject to question, and, under those circumstances, he is entitled to the presumption that he exercised this power for a proper and lawful purpose in keeping with his duty as a public official. La.R.S. 15:432.

In summary, there were a number of reasons for the delay: Time was needed for the defense to file pleadings, to accommodate the trial date to the availability of a jury panel in a crowded docket, to enable the district attorney to further investigate the case, and to compel the attendance of absent witnesses.

None of these delays were extraordinary or capricious; none were deliberate on the part of the District Attorney, designed to hamper the defense; none were due to negligence on the part of the court, the prosecutor or others charged with the responsibility of providing a speedy trial; all were legitimate and recognized grounds for continuances. In some cases delays are demanded by the nature of the situations presented. No hard and fast time limit can be fixed for all cases; each must be decided on its own facts and circumstances.

Defendant’s Assertion of the Right

Not until April 3, 1975 did' defendant assert the right to a speedy trial by filing a written motion to that effect. The motion, however, did not allege grounds for the demand or set forth in any respect the prejudice to the defendant which had occurred or which might occur by further delays. Moreover, the defendant made no effort to set the motion for trial or to otherwise obtain a ruling. To the contrary, despite the dormant motion for a speedy trial, defendant joined in a motion for continu-anee, more than four months thereafter because one of the principal witnesses for the defense could not attend the trial.

Thereafter, on October 17, 1975 defendant filed a second motion for a speedy trial. This motion was acted upon forthwith with the result that the indictments against defendant were quashed.

Prejudice to the Defendant

None is alleged. None is shown. There is, of course, some prejudice inherent in all accusations of crime, arrests and incarcerations. The anxiety and concern suffered by the accused and the disruption. of his family life by the charge and incarceration are factors to be considered. Loss of his job is another. But defendant has not alleged disruption of his family life, and the record does not shed light on whether he had a job. Deprivation of liberty which results from incarceration is always prejudicial. But this prejudice, like other, is a necessary consequence of any valid criminal charge, especially where the accusation involves first degree murder, a non-bailable offense.

The amorphous quality of the right to a speedy trial leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because, unlike the exclusionary rule or the reversal for a new trial, it means that a defendant who may be guilty of a serious crime, or two as in this case, will go free without having been tried. Overzealous application of this remedy would infringe “the societal interest in trying people accused of crime, rather than granting them immunization because of legal error . . . .” United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), White, J. Barring extraordinary circumstances, courts should be reluctant indeed to rule that a defendant has been denied a speedy trial. In none of this Court’s decisions since Barker v. Wingo has a defendant been released for this reason.

The delay that can be tolerated for an ordinary street crime is considerably less than for a serious double murder. In any case, however, a valid reason, such as a missing-witness, should serve to justify appropriate delays.

The most serious basis for a complaint by the accused that he has been denied a speedy trial is the fact that he has been prejudiced thereby. And the most persuasive argument to support a claim of prejudice is the fact that the defense has been impaired. The defense is principally impaired by the death or disappearance of its witnesses during the delay. But there is no claim here that this has happened. This delay was not unusual considering the nature of the case and the reasons assigned for continuances.

The action of the District Attorney nolle prossing the charges is authorized and nothing in this record indicated that this was done to hamper the defense. It was resorted to, obviously, to preserve the prosecution for a time when the State was prepared.

For the reasons assigned our judgment on original hearing is reinstated and affirmed.

TATE, J., dissents and assigns written reasons.

DIXON, J., dissents.

CALOGERO, J., dissents for the reasons assigned by TATE, J.

TATE, Justice

(dissenting).

As the trial court properly held, the defendant was denied a speedy trial despite repeated requests therefor.

The state cannot evade the constitutional requirement of a speedy trial by nolle pross-ing the charge each time it is denied a continuance, and then re-indicting. The state cannot, by repeated indictments, maintain the threat of prosecution over an accused, yet refuse to try the charge on its merits. To do so, as the trial court held, violates the accused’s right to a speedy trial.

The state may not indefinitely postpone trial on a charge without violating the speedy-trial rights of an accused under the federal constitution. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Likewise, such prosecutorial conduct offends the speedy-trial guarantee provided by our state constitution. Louisiana Constitution of 1974, Article I, Section 16.

      . Article 912(B) of the Louisiana Code of Criminal Procedure provides in pertinent part:
      “B. The state cannot appeal from a verdict of acquittal. Adverse judgments or rulings from which the state may appeal include, but are not limited to, judgments or rulings on:
      (1) A motion to quash an indictment or any count thereof;

        (2) A plea of time limitation;
      (3) A plea of double jeopardy;
      (4) A motion in arrest of judgment;
      (5) A motion to change the venue;
      (6) A motion to recuse; and
      (7) Repealed.”
      Article V, Section 5(D) and (E) of the Louisiana Constitution of 1974 provides in pertinent part:

        “(D) Appellant Jurisdiction. In addition to other appeal provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional; (2) the defendant has been convicted of a felony or fine exceeding five hundred dollars or imprisonment exceeding six months actually has been imposed.

        “(E) Other Criminal Cases; Review. In all criminal cases not provided in Paragraph (D) (2) of this Section, a defendmvt has a right of appeal or review, as provided by law.” (Emphasis added.)


source: Caselaw Access Project

author: SUMMERS, Justice. PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Charles OVERTON.
    No. 57480.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 13, 1976.

      J. Michael Hart, Theus, Grisham, Davis & Leigh, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., James A. Norris, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

An information charged that Charles E. Overton and'Billy Ray Jacobs committed aggravated burglary of the dwelling of Mary B. Davis in Monroe. La.R.S. 14:60. Overton was tried separately, found guilty and sentenced to twenty years at hard labor, the sentence to be executed by the Department of Corrections. Six assignments are argued by the defense on this appeal.

I.

The first assignment of error complains of the denial of a defense motion to suppress an alleged confession or inculpatory statement of the defendant and an identification at a pretrial photographic lineup wherein there were alleged irregularities. The latter contention of error in denial of the motion to suppress the line-up identification is not argued on appeal because the identification evidence was not introduced by the State. The defense does, however, rely upon its contention that it was error to deny the defense motion to suppress the alleged confession or inculpatory statement.

In the motion it is argued that the alleged inculpatory statement given by the defendant was obtained without first giving the warnings to which defendant was entitled. Later during the trial, the motion was amended to allege the involuntary character of defendant’s confession.

Detective Andrew Milstead testified on direct examination that Overton’s statement was taken on June 18, 1975 in the interrogation room of the Monroe Police Department in the presence of Detective Sergeant Joe Cummins. Overton was first advised of his rights and signed a waiver of rights form, which was witnessed by the officers. The statement was then recorded and later a typewritten transcription was prepared. Milstead testified that no promises of reward and no threats or duress were used to induce Overton to confess; and that he made the statement freely and voluntarily. Detective Cummins testified to the same effect.

Although he was not in the interrogation room when the statement was taken on June 18, Detective Leon Price testified he was present while Overton was questioned on that day and that no threats and no promises of reward or leniency were made to induce Overton to respond to interrogation.

By cross-examining these witnesses defense counsel sought to establish that on several occasions prior to the taking of defendant’s statement during interrogation defendant had maintained his innocence, that he was finally administered a psychological stress evaluation (PSE) test by Chief Martin. The effect of this persistent police action was to create a climate of duress which was such that the confession should be considered involuntary and be suppressed. The defense seeks by this argument to intimate without proving that, among other things, something occurred during the PSE test which unduly influenced defendant to confess.

The record, however, does not support the defense theory. Each time Overton was questioned prior to the occasion when the recorded statement was made, he submitted freely and voluntarily with full knowledge of his rights.

There was no error in the ruling of the trial judge denying the motion to suppress. The only question involved is one of fact, and the ruling of the trial judge on such a finding is entitled to great weight. La.R.S. 15:451; State v. Ned, 326 So.2d 477 (La.1976); State v. Stewart, 325 So.2d 819 (La.1976).

II.

In a motion for a speedy trial filed on September 9, 1975 defendant set forth that his case was set for trial on September 30, 1975, and that the victim of the burglary would not return from Texas to testify on the trial date, a fact which was known to the State. He anticipated, as a consequence, that the State would move for a continuance, which should be denied. Pretermitting the validity of this motion in anticipation, the issue of whether a speedy trial was denied is considered.

By this record it is established that the burglary occurred on May 30, 1975; defendant was arrested on June 18, 1975; he pled not guilty on June 30, 1975; and the case was then set for trial on September 30, 1975. Defendant filed a motion for preliminary examination on July 9, 1975. The motion was set for hearing on July 24, 1975, the hearing resulting in a finding of probable cause. A motion to suppress and to disclose information favorable to defendant was filed on July 30, 1975 and set for hearing on August 28, 1975, at which time both motions were denied.

When defendant appeared for trial on September 30, 1975 the State’s attorney asked that the case be reset for October 13, 1975 in order that a case in which a mistrial had been ordered could be tried again. To this motion defense counsel objected, stating that his client, who was indigent and could not furnish bail was ready for trial. The trial judge, noting that this case was not the first on the docket, set the case for trial on October 13, 1975. On that day the matter proceeded to trial.

As the facts disclose, the length of time (4^/2 months) from the offense to the date of trial was not excessive; the reason for the delay (preferential retrial of a mistrial, the position of this case on the docket and the hearings on defense motions) were in keeping with orderly procedure and the authority of the trial judge to control the docket; and the prejudice to the defendant, if any, as a result of the continuance from September 30 to October 13 has not been demonstrated. Thus defendant’s assertion that he was denied a speedy trial is not satisfactorily established. La.Const. art. I, § 16 (1974) ; La.Code Crim.Pro. art. 578; State v. Howard, 325 So.2d 812 (La.1976); State v. Stetson, 317 So.2d 172 (La.1975); State v. Gladden, 260 La. 735, 257 So.2d 388 (1972).

The argument is also made that the State did not comply with Article 707 of the Code of Criminal Procedure when it failed to file a written motion for a continuance on September 30, stating its reasons for requesting the continance. The Article requires that “An application for a continuance shall be by written motion alleging specifically the grounds upon which it is based, and when made by a defendant, must be verified by him or his counsel’s affidavit.” As the argument is understood, if the State had been required to comply with Article 707 the grounds for its request would not have stood the test of validity, and the continuance would have been denied. The Code requirement of a written motion was apparently waived by the defense.

Because adequate grounds for the resetting or continuance existed, because another case was entitled to preferential hearing, the short delay until October 13 subjected defendant to no prejudice.

This contention is therefore without merit.

III.

During the trial the Assistant District Attorney was questioning Detective Milstead, and this question and answer ensued:

"Q. Did these descriptions that you received assist you in any way in your investigation?
A. Yes, sir, they did. We had had contact with the two subjects that were arrested on previous occasions.”

From the argument of counsel it is apparent that the answer meant that the officers had previous contact with this defendant and his accomplice who they later arrested on the aggravated burglary charge which is the subject of this prosecution. Defense cousel objected and asked that the jury be retired. When the jury was retired, defense counsel argued that the reference to previous “contacts” with defendant was a reference to previous criminal conduct, which was grounds for mistrial, and he so moved. In reply the State argued that the reference to previous “contacts” was too vague to permit the inference that it referred to prior criminal conduct of defendant.

Insofar as pertinent here, Article 770 of the Code of Criminal Procedure provides:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
“(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible ;
“An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”

As a reading of Article 770 readily discloses, its provisions are not authority for defendant’s contention that a mistrial should be ordered. The remark complained of was not made by the judge, district attorney or a court official. State v. Clark, 288 So.2d 612 (La.1974). Instead, the remark was made by a witness — a police officer testifying as a witness for the State.

Although no specific reference to these articles is made in the defense brief, the cases cited indicate that reliance is also placed on Articles 771 and 775 of the Code of Criminal Procedure. Article 771 reads:

“In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
“(1) When the remark or comment is made by the judge, -the district attorney, or a court official, and the remark is not within the scope of Article 770; or
“(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
“In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

It is only that portion of Article 771 which refers to a remark or comment of a witness which could deprive the defendant of a “fair trial” that has application here. In this case, although the defendant moved for a mistrial, the record does not disclose that the trial judge admonished the jury with respect to Detective Milstead’s remark. Application of Article 771, therefore, must depend upon whether Detective Milstead’s remark was of such significance that it deprived this defendant of a fair trial.

Nor does Article 775 of the Code of Criminal Procedure mandate a mistrial in this instance. That article lists these grounds for mistrial:

“A mistrial may be ordered, and in a jury case the jury dismissed, when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
“Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
“A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.”

The only conceivable ground listed in Article 775 upon which the defense contention could rest is the broad ground referred to as “prejudicial conduct in or outside the courtroom [which] makes it impossible for the defendant to obtain a fair trial . . . .” This short, vague and indefinite remark that the officer had prior “contact” with defendant does not so necessarily, or even probably, refer to prior criminal conduct, a reference which may in some instances deprive the defendant of a fair trial. The nature of the “contact” is not made clear even by inference, and the range of possibilities is almost unlimited. As the State’s brief suggests, the previous contact could have been personal, official as an informant, official as having seen the defendant from a distance on a number of occasions, as the result of parking ticket violation, etc.

In the light most favorable to the defendant, if a shaded reference to prior criminal activity could be inferred in these circumstances, this technical impropriety would not result in the denial of a fair trial or warrant a mistrial. There is no intimation whatever that the State was responsible for Detective Milstead’s reference to prior “contacts,” State v. Johnson, 261 La. 620, 260 So.2d 645 (1972); State v. Sinclair, 258 La. 84, 245 So.2d 365 (1971); it was only Milstead’s manner of explaining how the defendant’s identity was established to his satisfaction. In that light, therefore, the references to prior contacts was relevant. And this Court recognizes that it is no objection that relevant evidence bearing on the question at issue also tends to show the commission of other crimes by the accused. State v. Hamilton, 307 So.2d 329 (La.1975); State v. Kinchen, 290 So.2d 860 (La.1974).

It should also be noted that Detective Milstead’s answer was not responsive to the question and cannot be chargeable to the State. State v. Lewis, 315 So.2d 626 (La.1975).

Cases cited to support the defense contention are clearly distinguishable. In State v. Foss, 310 So.2d 573 (La.1975) a police officer gave an unresponsive answer to a question propounded by defense counsel which was held to warrant reversal. The answer was to the effect that defendant bragged that the police had referred to him as “the king pin of the burglary organization.” That remark cannot be likened to the one in the case at bar. Moreover, the Foss opinion is not authoritative on this issue. Only two justices subscribed to the reasons expressed there.

In the other case relied upon, State v. Smith, 310 So.2d 580 (La.1975), the police officer testified that, on a date prior to the day on which the crime was committed, he followed defendant from the Capital Area Narcotics Control Office until defendant apparently “culminated a transaction.” A reversal was held not to be warranted because of this remark in the Smith Case.

Mistrial is a drastic remedy and, except in instances in which the mistrial is mandatory, is warranted only when a trial error results in substantial prejudice to the defendant depriving him of a reasonable expectation of a fair trial. State v. Redfud, 325 So.2d 595 (La.1976); State v. Whitley, 296 So.2d 820 (La.1974) ; State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972).

This assignment is without merit.

IV.

During cross-examination of Detective Milstead by defense counsel the witness was asked if he recalled what was said in the confession about a necklace. At this time the confession had not been introduced in evidence. The State objected that the best evidence of the confession’s content was in the confession itself, and the trial judge so ruled. A protracted argument followed in which the trial judge repeatedly informed counsel that the best evidence rule was applicable to questions concerning the content of the confession. Despite the argument by defense counsel, no formal objection to the ruling was lodged.

In his argument defense counsel stated that his intention was to ascertain from the witness the circumstances surrounding the taking of defendant’s confession. This, the trial judge explained, was not what defense counsel asked the witness; instead, the witness was asked if he recollected what was in the confession. The explanation continued:

“How the statement was taken, yes, and what his manner and demeanor during the course of the statement, yes. Now if you want to contradict what is in the statement by asking him if something was eliminated from the statement or are there any gaps in the statement, yes, but not what his recollection is of the contents of the statement.”

Thereafter, defense counsel proceeded with the cross-examination along the lines suggested by the trial judge, using as a guide to questioning a transcribed copy of the confession which had been furnished by the State. When the questioning again sought to elicit the content of the confession from the witness the State renewed its objection that the statement was the best evidence of its content. Notwithstanding the persistence of the State’s objection the trial judge allowed defense counsel to proceed. Consequently there is no substance to the defense contention that by the prosecutor’s objections and the rulings of the trial judge his constitutional right to cross-examination was frustrated. La. Const. art. I, § 16; La.R.S. 15:275; La.R.S. 15:280.

V.

Objection by the defense was raised to the introduction of two photographs of the victim taken shortly after the battery upon her while she lay in a hospital bed fully clothed. The pictures do portray bruises on her face and bruises, lacerations and bandages on the lower parts of her arms. They are not, however, properly categorized as dramatically gruesome photographs; nor are they designed to unduly appeal to the emotions or sympathy of the jury. The photographs are relevant to corroborate and strengthen the victim’s testimony that her assailants beat her with a pistol, and as such they are admissible, for she was the only eyewitness to the crime. Their probative value is established, but their prejudicial effect is questionable. State v. Holland, 297 So.2d 413 (La.1974); State v. Gibson, 271 So.2d 868 (La.1973); State v. Hall, 256 La. 336, 236 So.2d 489 (1970).

VI.

It is asserted by the defense in support of this assignment that the trial judge erred in overruling a motion for a new trial which complained that permitting the jury to view the photographs of the victim in its deliberations, out of the presence of the defendant was improper.

After closing argument the Assistant District Attorney requested that the photographs referred to in Part V, above, be furnished to the jury for viewing in open court. The photographs had been introduced in evidence but had not been viewed by the jury. The trial judge denied this request, but later (it appears informally) advised counsel for the State and the defense that the photographs would be sent into the jury room for viewing by the jurors during their deliberations. No contemporary objection was made to this procedure.

Pretermitting a determination of whether defense counsel was informed in advance and had an opportunity to object to the procedure, we are nevertheless satisfied that the action of the trial judge was authorized by Article 793 of the Code of Criminal Procedure:

“A juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.”

As the article reads, the matter is one to be decided “in the discretion of the court.” In this situation, where the jury had not yet viewed the photographs in evidence, it was more orderly to permit the photographs to be sent to the jury room than to conduct an unorthodox proceeding for this purpose in open court after oral arguments. La.Code Crim.Proc. art. 765. There is no abuse of discretion in this ruling.

Since the motion for a new trial otherwise reurges issues already disposed of by the Court in other parts of this opinion, they need not be reconsidered here.

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

DENNIS, J., concurs.

TATE, J., concurs, but with reservations as to overbroad assertions in parts III and VI of the opinion.

ON APPLICATION FOR REHEARING

PER CURIAM.

Defendant in his application for rehearing submits that paragraph VI of the original petition contains factual and legal errors.

Paragraph VI of the original petition concerns a request by the jury to the judge, after deliberations had begun, through a deputy sheriff, to view two photographs which had been admitted in evidence, but which had not been seen by the jury during the trial.

The judge’s per curiam to Assignment of Error No. 6 states that the district attorney requested, after the completion of closing arguments, permission to allow the jury to view the two photographs. Defendant objected because the case was closed. The objection was sustained. The judge considered that the jury was entitled to inspect any objects received in evidence, if it wished, in the jury room. The per curiam recites that the judge later informed both counsel that the jury had requested to view the photographs, “and that the request would be granted.” The per curiam states that-the defendant made no objection.

We need not decide whether the defense waived any right by the failure to object when informed by the trial judge, in the hall or at a concession stand, while the jury is deliberating, that the judge has sent or will send evidence in to' the jury.

Defendant relies on Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975). There the United States Supreme 'Court, in an opinion by Chief Justice Burger, reversed a conviction because the jury had communicated in writing with the trial judge about whether the judge would accept a verdict of guilty. with “extreme mercy.” The United States Supreme Court stated that the jury’s request should have been answered in open court:

“ . . . Federal Rule Crim.Proc. 43 guarantees to a defendant in a criminal trial the right to be present ‘at every stage of the trial including the impaneling of the jury and the return of the verdict.’ Cases interpreting the Rule make it clear, if our decisions prior to the promulgation of the Rule left any doubt, that the jury’s message should have been answered in open court and that petitioner’s counsel should have been given an opportunity to be heard before the trial judge responded. See, e. g., United States v. Schor, 418 F.2d 26, 29-30 (C.A.2 1969); United States v. Glick, 463 F.2d 491, 493 (C.A.2 1972).” 422 U.S. 35, 39, 95 S.Ct. 2091, 2095, 45 L.Ed.2d 1, 6.

Federal Rule of Criminal Procedure 43 parallels our Code of Criminal Procedure art. 831. No Louisiana cases have been found which relate directly to the facts of 'the case before us. We find Rogers v. United States, supra, persuasive. If the trial judge in Louisiana communicates with the jury, he should do so in open court. The defendant and his attorney should be present. Even when the request is simple request to review documents in evidence, that request should not be granted in the absence of defendant and counsel.

Since, however, there is no violation of a specific statute, nor of a constitutional right, we have examined the record to determine what prejudice, if any, was suffered by the defendant.

The argument on the motion for a new trial was that the photographs were highly prejudicial, gruesome, designed to inflame the emotions of the jury, and were of no' probative value.

We need not determine whether the photographs were of any probative value. (The trial judge admitted the photographs “in order to depict the true situation and not colored by the personal excitement or animosity that any of the witnesses might have.”).

The pictures are in the record before us and are neither gruesome nor inflammatory. Two in number, about three inches square, they are color Polaroid photographs of low quality. The subject in each picture is an elderly lady in a hospital bed with the lower part of her body covered with bedclothes and the upper part of her body dressed in a short sleeved housecoat or house dress. She was wearing glasses and there are spots of discoloration around one eye. There are some bandages on each arm, and there are discolorations apparent on each hand and lower arm.

If the trial judge had made known the jury’s request in open court, we find no reason why it should not have been granted, and no prejudice to the defendant.

Assignment of Error No. 6 is without merit.

Rehearing denied.

SUMMERS, J., concurs.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Harry COLE.
    No. 57553.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearing Denied Oct. 13,1976.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., M. Charles Brandt, Asst. Dist. Atty., for plaintiff-relator.
    Arthur A. Lemann, III, Supervising Atty., Loyola Law School Clinic, New Orleans, Paul A. R. Mason, Student Practitioner, for defendant-respondent.

       Dixon, J., was of the opinion that a rehearing should be granted.

   SUMMERS, Justice.

Defendant, Harry Cole, was indicted by the grand jury of Orleans Parish for possession with intent to distribute heroin, a violation of Section 966 of Title 40 of the Revised Statutes. He filed a motion to suppress, alleging that the evidence (heroin) was seized without a search warrant, arrest warrant, or otherwise pursuant to a valid arrest. After a hearing the motion to suppress was granted by the trial judge. The State then filed an application for writs of certiorari, mandamus and prohibition in this Court to review the ruling of the trial judge.

On November 15, 1975 Officers Albert Green, Howard Johnson, and Leary Adams, members of the Urban Squad Narcotics Task Force of the New Orleans Police Department Narcotics Division, were assigned to conduct a surveillance in the Calliope Housing Project area of the City of New Orleans. Informants had disclosed that defendant Cole was dealing in narcotics in that general vicinity. Concerned citizens had also informed the police of the narcotic activity “surrounding” Cole in the neighborhood. While the main objective of the assignment was to investigate Cole’s activities, narcotic activity in general was also an objective of the surveillance.

The officers proceeded in an unmarked police car, driving around the designated area and stopping from time to time. Then, from a distance, Officer Johnson observed ten or fifteen black males mingling in the project courtyard near the intersection of Thalia and Galvez Streets. It appeared to the officers that they were transacting some sort of business. Johnson thought he recognized some of the participants from their mannerisms and build. Cole was included in the group and was known to Johnson who had gone to school with him. From his five years of experience observing narcotic activity, it appeared to Johnson that one of the participants was collecting what he assumed to be money from the others.

In order to obtain a closer look, the police vehicle was driven to a parking area where they stopped in a position where they were not readily visible to Cole, who knew them, for he had been stopped by them before. From this vantage point the officers saw Cole leave the group and enter the hallway of one of the apartment buildings at 1416 South Galvez Street. He was observed through windows as he ascended the stairway within the building.

About five minutes later Cole was seen as he descended the stairway. The officers drove toward the apartment building, and, as Cole emerged within ten or fifteen feet from the police car, Johnson called out “Harry”. Cole looked up, and as he turned toward the police car he opened his left hand and dropped several tin foil packets which the officers saw glittering as they fell to the ground.

As Cole took a few steps toward the police ear, the officers got out and stopped him. Johnson frisked Cole to make sure he was not armed, while Green walked past them and picked up the tin foil packets. Johnson joined him, opened one of the packets and found a powdery substance which he believed to be heroin.

Green then informed Cole that he was under arrest and advised him of his rights as an arrestee. Cole was then asked if there was more heroin in the apartment. He replied that there was none. He was then asked if the officers could go up to his apartment and Cole approved, stating there was nothing there. Cole then led them to the apartment where they searched Cole and found $169 in his pockets. Search of the apartment produced two pistols and 28 tin foil packets of heroin.

In regard to the tin foil packets of heroin retrieved by the police from the ground where Cole dropped them, we can find no evidence of an illegal search or seizure. In fact, there is no evidence of any search or seizure under these circumstances. The heroin was abandoned property. Burton v. United States, 272 F.2d 473 (9th Cir. 1960), cert. denied, 362 U.S. 951, 80 S.Ct. 863, 4 L.Ed.2d 869; State v. Williams, 304 So.2d 311 (La.1974). When the officers observed the glittering tin foil packets they had ample cause to detain and arrest Cole. Their experience in narcotic investigations told them what these packets contained. Prior to that time, the mere calling out of Cole’s first name did not constitute such an infringement upon his right to privacy which would warrant invalidation of his subsequent arrest.

A law enforcement officer may, under statutory authority in this State, stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony and may demand an explanation of his actions. He may also search the outer clothing of such person for a dangerous weapon. La.Code Crim.Proc. art. 215.1.

As these facts demonstrate, the officers had grounds to reasonably suspect that Cole was engaged in a narcotic transaction. Complaints of concerned citizens and informants, together with their experience in such matters, led them to believe that Cole was collecting money for the sale of narcotics from the group assembled in the project courtyard. His hurried trip to the apartment to obtain the narcotics fell into the familiar pattern of a narcotic transaction.

If policemen are to serve any purpose at all in their efforts to detect and prevent crime by being out on the streets, they must be able to take a closer look at challenging situations as they are encountered. Washington v. United States, 130 U.S.App.D.C. 144, 397 F.2d 705 (1968).

The apartment where the heroin was found was searched with the express approval and consent of Cole. His defense to this search and seizure is based upon the testimony of his wife. She testified that she and Cole had been separated for four years, and he did not live in the apartment which she occupied with their two minor children. According to her testimony, Cole lived elsewhere, although he came to the apartment often to visit the children. The record also establishes that Cole had given the address of this apartment as his residence on a previous unrelated occasion, and that when he was booked for the instant offense he furnished that address as his residence. Moreover, when the officers requested permission to search his apartment, he led them to the rooms where the heroin and guns were found. This evidence, which is all the record furnishes, makes the defense contention that Cole had no right to give consent to search the apartment subject to considerable doubt.

Assuming arguendo that this was not Cole’s apartment and that he did not have the right to consent to the search, the question is: Does the alleged illegality of the search affect his rights? The Constitution protects a person against unreasonable searches and seizures. It protects a person’s proprietary interest, Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), together with the right to privacy resulting from the mutual use of property by persons generally having joint access or control for most purposes. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

Thus, if Cole had none of these rights in the apartment no interest or right of his was abridged. “It is well settled that the Fourth Amendment to the United States Constitution protects people, not places. It is the individual’s reasonable expectation of privacy that our society values and the constitution protects.” State v. Hines, 323 So.2d 449 (La.1975); La.Const. Art. I, § 5 (1974).

To counter the foregoing proposition the defense argues that despite the fact that Cole had no right to privacy in the apartment to be protected, the apartment was searched without the consent of his wife who did have such a right. The search was, therefore, illegal. The defense argues Cole was adversely affected by that search and seizure and therefore has standing under Article I, Section 5, of the 1974 Constitution of Louisiana to raise its illegality.

Pretermitting a decision of this proposition, the contention is answered by the fact that Cole consented to the search. Thus, whether he had a right to give that consent or not, he cannot now take the position that this consent has no effect. To say the least it denies him the right to invoke the illegality of the search, if it was such, since, insofar as he is concerned, by consenting he waived the right to object. Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921); State v. Sears, 298 So.2d 814 (La.1974); State v. Comeaux, 252 La. 481, 211 So.2d 620 (1968); State v. Page, 251 La. 810, 206 So.2d 503 (1968).

For the reasons assigned, the ruling of the trial court is annulled and set aside, and the case is remanded for further proceedings not inconsistent with the reasons assigned herein.

DIXON, J., concurs.


author: DENNIS, Justice.

text:
    Ronald C. McGUIRE v. CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
    No. 57567.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Jake Shapiro, Alexandria, for plaintiff-applicant.
    Richard E. Lee, Holt, Wagner & Lee, Pineville, for defendant-respondent.
   DENNIS, Justice.

On August 10, 1971, plaintiff, Ronald C. McGuire, filed suit against defendant, Central Louisiana Electric Company, Inc., hereinafter Cleco, for damages sustained through Cleco’s alleged wrongful cutting and trimming of trees on his property. Cle-co held a conventional servitude on plaintiff’s lot extending five feet within the property and paralleling plaintiff’s southern property line. On February 23,1971, Cleco, through Meador Contracting Company of Louisiana, Inc., hereinafter Meador, a subcontractor working under a Cleco work order, cleared a ten-foot strip within plaintiff’s south property line. Three trees within the servitude were cut; three trees outside the servitude were cut; and the foliage on the south side of three other trees, also outside the servitude, was removed. Portions of plaintiff’s property outside the servitude were scarred by ruts left by the subcontractor’s equipment, and the six unsightly stumps were not removed.

The trial court dismissed plaintiff’s claim at his costs, ruling that Cleco had a broad right to cut and trim trees threatening its power lines under its right-of-way agreement, and that in any event, the cutting had been done by an independent contractor, over which Cleco had no control and for which Cleco was not responsible. The Third Circuit Court of Appeal found the exact location of the agreed right-of-way uncertain, but assumed that “a marginal encroachment” occurred. That court affirmed the trial court’s dismissal with one judge dissenting, based on its conclusion that, notwithstanding the limited right-of-way granted Cleco by plaintiff’s ancestor in title, by virtue of La.Civil Code article 771, Cleco acquired “the right to trim trees and shrubbery located off of the right-of-way proper.” We granted writs, and, for the reasons hereinafter stated, reverse.

The Right-of-Way Permit acquired from plaintiff’s ancestor in title, in pertinent part, authorized Cleco:

“ * * * [T]o cut and trim trees and shrubbery to the extent necessary to keep them clear of said electric line or system and to cut down from time to time all dead, weak, leaning or dangerous trees that are tall enough to strike the wires in falling.
“It is understood and agreed that the Right-of-Way and easement hereby granted [one half of which is located on plaintiff’s property] is 10 feet in width.”

A conventional servitude established by title is governed principally by the intention of the parties. Article 709 of the Louisiana Civil Code provides that owners of land may establish “such servitudes as they deem proper,” subject to public policy limitations, and that where servitudes are established by title,

“The use and extent of servitudes thus established are regulated by the title by which they are granted, * * *.”

See also, La.C.C. arts. 748, 774; 1 M. Pla-ñid, Traité élémentair de droit civil (La.St. L.Inst. transl. 1959), No. 2964; Yiannopou-los, Predial Servitudes; Creation by Title; Louisiana and Comparative Law, 45 Tul.L. Rev. 459, 494 (1971) and cases cited therein.

The contract in the instant case expressly limits the width of the present servitude to ten feet, and in our opinion is not ambiguous. The contractual language delineating the servitude follows the language authorizing its holder to cut and trim vegetation and by its position indicates the parties’ intention that these accessory rights be exercised only within the servitude boundaries. The construction given the right-of-way agreement by the majority of the court of appeal would, in effect, delete the restriction on the width of the servitude and thus disregard the intention of the parties. Therefore, the decision below was contrary to codal principles and, as the dissenting judge aptly pointed out, would produce an anomalous result:

“ * * * [A]n owner can no longer expressly limit the extent of a conventional servitude. The servitude will be expanded to whatever a ‘reasonable’ limit may be. * * *”

Even if one were to consider the right-of-way agreement ambiguous, which we do not, instruments purporting to establish predial servitudes “in case of doubt as to their ‘ extent or the manner of using them, are always interpreted in favor of the owner of the property to be affected.” La.C.C. art. 753; McGuffy v. Weil, 240 La. 758, 125 So.2d 154 (1960); Boudreaux v. Landry, 120 So.2d 535 (La.App. 1st Cir. 1960). Thus, any doubts should be resolved in favor of the plaintiff in this case.

The majority of the court of appeal fell into error when it followed Sticker v. Southern Bell Telephone and Telegraph Company, 101 So.2d 476 (La.App. 1st Cir. 1958) and applied only articles 771-72 of the La.Civil Code to the facts of this case. These articles provide:

“Art. 771. When a servitude is established, everything which is necessary to use such servitude is supposed to be granted at the same time with the servitude.
“Thus the servitude of drawing water out of a spring carries necessarily with it the right of passage.
“But the passage, in this case and in all others in which it is permitted as an accessory to some other servitude, must be made in the way the most direct, the shortest, and the least inconvenient to the estate subject to the servitude.”
“Art. 772. He to whom a servitude is due, has a right to make all the works necessary to use and preserve the same.”

Sticker involved a right-of-way established, not by title, but through appropriation by the utility under the now defunct St. Julien Doctrine. See St. Julien v. Morgan L. & T.R. Co., 35 La.Ann. 924 (1883) overruled prospectively by Lake v. Louisiana Power & Light Co., 330 So.2d 914 (La.1976). In Sticker the court of appeal ruled that, by virtue of accessory rights granted the holder of a servitude by La.Civil Code articles 771-72, the telephone company was entitled to clear trees and shrubs to a distance of six feet on either side of the center line of the servitude, because that action was reasonable and necessary to the servitude’s continued usefulness.

The majority below failed to note that Sticker did not . involve a servitude established by title. In the absence of an expressed agreement between the parties, and based on the circumstances of that case, the twelve foot wide clearance area approved by Sticker as necessary to use the telephone line servitude, did not represent an unreasonable application of articles 771-72. However, in the present case, because of the contract between the parties limiting the width of the right-of-way the court was required to give heed not only to articles 771-72, but also articles 709, 748, 753 and 774 which, as we explained above, required the court to restrict the area of the servitude to that intended by the parties as stated in the instrument.

We cannot agree with the court of appeal majority’s finding that “[t]he exact location of the right-of-way * * * is not clear from the record * * As the dissenting judge in the court below observed,

“ * * * A surveyor employed by McGuire [plaintiff] testified * * * that he located CLECO’s transmission line ‘right along the south' line of Lot 10 (rear of McGuire’s property).’ The R/W instrument grants a ten foot R/W affecting the rear five feet of McGuire’s property and five feet off his neighbor’s lot. ‡ ‡ *

Furthermore, the conclusion of the trial court that Cleco could not be liable for the acts of its subcontractor is manifestly erroneous. The record establishes that Cleco in its work order to Meador, directed that a ten-foot area along the south side of plaintiff’s property be cleared, although this work order was not made part of the record. At the same time, the conventional right-of-way held by Cleco entitled it to clear trees and shrubs only within five feet of the plaintiff’s property line. The record nowhere suggests that Cleco was unaware of the limits of its servitude. To the extent Cleco instructed its subcontractor to clear more property than it was entitled to clear, Cleco became liable for its use of the servitude in an unauthorized and unreasonable manner. La.Civil Code articles 771, 774. Cf. Duet v. Louisiana Power & Light Company, 169 F.Supp. 184 (E.D.La.1958).

The servitude granted Cleco carries as an accessory right under La.Civil Code article 771, an accessory right not expressly limited by the terms of the contract, reasonably to enter upon the servient estate to cut and trim trees and shrubs within the specified width of the servitude proper. An adjunct to this right is the obligation to repair, insofar as reasonably possible, the damage caused by that entry. Louisiana Power & Light Company v. Ristroph, 200 So.2d 14, 25 (La.App. 1st Cir. 1967), writ refused 251 La. 39, 202 So.2d 654 (1967). In this case it would extend to removal of the stumps and repair of the ruts left by Meador’s machinery.

Plaintiff is thus entitled to recover for the three trees improperly removed by Cleco’s subcontractor; for the cost of removing the six stumps left by the subcontractor; and for the cost of repairing the ruts left by the subcontractor’s machinery. Costs and expert fees should be assessed against the defendant. Because they are neither provided for in the contract establishing the servitude nor by law, plaintiff is not entitled to recover attorney’s fees as damages. See Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1959). Accordingly, this Court must remand to the court of appeal for determination of the quantum of damages to which plaintiff, on the basis of the record, is entitled.

For the reasons assigned, this cause is reversed and remanded to the Court of Appeal, Third Circuit, for further proceedings, consistent with this opinion.

       Contrary to the implication left by the court of appeal opinion in its footnote 1, plaintiff’s failure to file an assignment error concerning this item of damages does not prevent the court from granting relief. La.C.C.P. arts. 2129, 2164.


author: MARCUS, Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. Dewitt O. NICHOLS and Adrion D. Nichols.
    No. 57578.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearing Denied Oct. 13, 1976.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Edward E. Roberts, Jr., Asst. Dist. Atty., for plaintiff-appellant.
    J. Michael Small, Gravel, Roy & Burnes, Alexandria, for defendant-appellee.
   MARCUS, Justice.

Dewitt 0. Nichols and Adrion D. Nichols were jointly charged by bill of information with the crime of committing aggravated battery upon John Ray Martin, a Louisiana State Police Trooper, in violation of La.R.S. 14:34. The trial judge sustained the defendants’ motion to quash the bill of information on the ground of former jeopardy. The state appeals from this adverse ruling.

We note, ex proprio motu, that we lack appellate jurisdiction to entertain the state’s appeal. In State v. James, 329 So.2d 713 (La.1976), we recently held that under article V, section 5(D) of the 1974 Louisiana Constitution, the state no longer has the right to invoke the criminal appellate jurisdiction of the supreme court for our review of final pre-conviction adverse judgments or rulings, except in criminal cases in which a law or ordinance has been declared unconstitutional. We stated in James that where the state desires review of such a judgment or ruling in a criminal case, application to this court for a writ of review under our supervisory jurisdiction is the proper procedure for it to follow. La.Const. art. V, § 5(A) (1974). However, since the state took this appeal before the date that the James decision was handed down (March 29, 1976), we elect to treat the state’s appeal as an application for a writ of review.

The instant prosecution stems from an altercation on October 25, 1975 between defendants and Trooper Martin which developed after Trooper Martin placed Adrion Nichols under arrest for driving while intoxicated. The state alleges that Adrion Nichols and his son Dewitt, the passenger in the car at that time, fought the trooper and, during the course of the struggle, took his flashlight and radio microphone and struck him on the head with it several times. Additional troopers, responding to Trooper Martin’s radio call for assistance, arrived at the scene, managed to subdue defendants, and placed them under arrest.

In addition to the present felony charge of aggravated battery upon Trooper Martin, both defendants, as a result of these incidents, were charged by bill of information with the misdemeanor offenses of simple criminal damage to property, in violation of La.R.S. 14:56, and resisting an officer, in violation of La.R.S. 14:108. Adrion Nichols was also charged with the misdemeanor of operating a motor vehicle while intoxicated, in violation of La.R.S. 14:98. On December 5, 1975, defendants entered pleas of guilty to all of the misdemeanor charges, and on January 21, 1976, sentences for these offenses were imposed.

The issue before us is whether this prosecution for aggravated battery, after pleas of guilty to the charge of resisting an officer, places defendants in double jeopardy.

Both the Louisiana and federal constitutions provide that no person shall be twice placed in jeopardy of life or liberty for the same offense. U.S.Const. amend. 5; La. Const. art. 1, § 15 (1974). Article 596 of the Louisiana Code of Criminal Procedure states that double jeopardy exists in a second trial only when the charge in that trial is:

(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.

(Emphasis added.)

Louisiana applies the “same evidence” test for determining the identity of offenses where the plea of double jeopardy is raised. This test holds that two offenses are the same for double jeopardy purposes if the same evidence is required for the conviction of each offense. If one offense requires proof of additional facts which the other does not, then the accused may be tried and convicted on both offenses, State v. Cain, 324 So.2d 830 (La.1975), citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), unless the gravamen of the second offense is essentially included within the offense for which first tried, in which case the second prosecution is barred because of the former jeopardy. State v. Smith, 323 So.2d 797 (La.1975); City of Baton Rouge v. Jackson, 310 So.2d 596 (La.1975); State v. Didier, 262 La. 364, 263 So.2d 322 (1972); State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972); State v. Foster, 156 La. 891, 101 So. 255 (1924); State v. Roberts, 152 La. 283, 93 So. 95 (1922).

Since defendants have not yet been tried on the instant charge of aggravated battery, we do not, of course, have a trial transcript to determine whether the evidence required for their conviction of that charge is the same as that necessary for their conviction of resisting arrest. We do, however, have for that purpose the state’s answer to defendants’ motion for a bill of particulars, in which the state sets forth the facts that it intends to prove at the trial on the charge of aggravated battery as follows:

. [T]he State shows that at approximately 1:45 a. m. on October 25, 1975, Louisiana State Police Trooper J. R. Martin was headed South on Louisiana Highway No. 1 North, when he observed a vehicle headed North on said highway in the south-bound lane. The Trooper had to take evasive action to avoid a collision with the vehicle. The Trooper turned his vehicle around and followed the said vehicle, noticing his erratic maneuvers, and eventually stopped the vehicle in the vicinity of Rapides Station on Louisiana Highway 1 North. The passenger of the vehicle, later identified as Dewitt O. Nichols, got out of the vehicle on the passenger’s side and came around behind said vehicle and asked to talk to the Trooper. The Trooper informed the passenger that he wanted to talk to the driver of the vehicle and not him. The Trooper then proceeded to obtain the driver’s license from the driver and asked him to step out of the vehicle and back to the Trooper’s vehicle. As the driver, who was later identified as Adrion D. Nichols, got out of the vehicle, he staggered back to the front of the State Police vehicle and the Trooper noticed a strong odor of alcohol on the driver’s breath, noticed that his eyes were bloodshot, that his clothes were disarranged and that he was unsteady on his feet. At that particular time, and after observing the driver, the Trooper placed Adrion D. Nichols under arrest for driving while intoxicated.
The Trooper began to place handcuffs on Adrion D. Nichols and noticed that the passenger, Dewitt 0. Nichols, began approaching him from the rear. In order to avoid a confrontation at that time, the Trooper did not place the handcuffs on Adrion Nichols and instead asked Adrion Nichols to get into the rear seat of the State Police vehicle. The Trooper then asked Adrion Nichols if he had a preference as to a wrecker service to pick up his 1974 Ford vehicle that he was driving at the time he was stopped. Adrion Nichols informed the Trooper that he wanted Drewett Wrecker to pull his vehicle. The Trooper called Troop E Headquarters and informed them that the subject wanted Drewett Wrecker by request and began to fill out the wrecker request form. The Trooper was sitting in the front seat of the State Police vehicle while he was filling out the wrecker request form and he got out of the vehicle to get the license number off of the subject’s pickup truck. He then returned to his vehicle and opened the door to the back seat of his vehicle and asked the driver to sign the wrecker request form. The driver started to get out of the vehicle to sign the request form and the Trooper informed him to stay in the vehicle and sign the form in the vehicle. At this point Adrion Nichols pushed the Trooper back away from the unit and got out of the State Police vehicle. As the Trooper was trying to get Adrion Nichols back into the vehicle, Dewitt Nichols grabbed him from the rear and a fight ensued between Dewitt Nichols and Adrion Nichols, both beating and biting the Trooper. The Trooper was fighting and trying to make his way into the State Police vehicle front seat in order to call on his radio for assistance. The Trooper finally managed to grab his radio microphone and call for help. Adrion Nichols grabbed the mike during the fighting on the front seat of the vehicle and pulled it out of the radio and hit the Trooper in the head several times with it. The passenger, Dewitt Nichols, wrestled the Trooper’s flashlight from the Trooper and was beating the Trooper with it. During the fighting, both Adrion Nichols and Dewitt Nichols kept saying that they were going to kill the Trooper.

The state’s answer to the bill of particulars is corroborated by the arrest reports of Trooper Martin and the police reports of Troopers Cotton, Alderman, and Tasser, the troopers who arrived to rescue Trooper Martin from defendants’ attacks.

After carefully reviewing the facts that the state will attempt to prove at the trial of this case, we are convinced that defendants’ plea of former jeopardy is without merit. Defendants committed the offense of resisting an officer, as defined by La.R.S. 14:108, when Dewitt Nichols jumped on Trooper Martin’s back, and when both he and Adrion Nichols beat and hit the trooper. Additionally, both defendants committed the offense of resisting an officer when they continually threatened Trooper Martin that they were going to kill him. All these aforesaid actions constitute, as alleged in the bill of information, the “intentional obstruction]” of Trooper Martin in his attempt to arrest defendants lawfully, in his official capacity and as authorized by law.

In contrast, the bill of information charging defendants with aggravated battery recites that they “committed a battery with a dangerous weapon, to-wit: a flash light and a radio microphone, upon T.F.C. Johnny Ray Martin.” The offense of aggravated battery is defined by law as the intentional use of force or violence upon the person of another by means of a dangerous weapon. La.R.S. 14:33; La.R.S. 14:34. The proof required for conviction of this crime is the evidence that defendants intentionally struck Trooper Martin with his flashlight and radio microphone. The evidence required for conviction on the aggravated battery charge is therefore totally distinct and different from that necessary for conviction of the offense of resisting an officer. Furthermore, the gravamen of the crime of aggravated battery is clearly not essentially included within the offense of resisting an officer. State v. Didier, supra.

While the charges for aggravated battery and resisting an officer may have arisen from the same criminal “episode” or “transaction,” this factor does not preclude the state from prosecuting defendants for both offenses. We have consistently rejected the contention that an accused who commits separate and distinct offenses during the same criminal episode or transaction may not be prosecuted and convicted for each offense. City of Baton Rouge v. Jackson, 310 So.2d 596 (La.1975); State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974); State v. Pettle, 286 So.2d 625 (La.1973); State v. Richmond, 284 So.2d 317 (La.1973); State v. Thames, 261 La. 96, 259 So.2d 26 (La.1972).

We conclude, therefore, that the trial judge was in error in sustaining defendants’ motion to quash the bill of information based on former jeopardy.

DECREE

For the reasons assigned, the state’s appeal is dismissed; its application for a writ of review is granted; the ruling of the trial court sustaining the motion to quash is reversed; and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion.

DIXON, J., dissents.

CALOGERO, J., dissents and assigns reasons.

TATE, J., dissents for the reasons assigned by CALOGERO, J.

CALOGERO, Justice

(dissenting).

I disagree with the majority opinion in this case because I feel the prosecution of these two men is barred by the federal and state guarantees against being placed in jeopardy twice for the same offense. U.S. Const, amend. V; La.Const. art. I, § 15. This guarantee is explained in Article 596 of the Louisiana Code of Criminal Procedure as follows:

“Double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.”

In determining whether two different charges constitute the “same offense” for purposes of the prohibition against double jeopardy, this Court in recent decades has applied what is known as the “same evidence” test. State v. Smith, 323 So.2d 797 (La.1975); State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974); State v. Roberts, 152 La. 283, 93 So. 95 (1922). As set forth in State ex rel. Wikberg v. Henderson, supra, this test holds that

“offenses are ‘the same’ if the elements required to support a conviction upon one of the offenses would have been sufficient to warrant a conviction upon another. . . Stated differently, where the gravamen of the second offense is essentially included within the offense for which first tried, the second prosecution is barred because of the former jeopardy.” (footnotes omitted) (emphasis added)

An early expression of this “same evidence” test was contained in State v. Roberts, supra, as follows:

“[Ijdentity of the offense is an essential element in support of a plea of autre fois [double jeopardy]. By this is not meant formal, technical, absolute identity; the rule is that there must be only substantial identity, that the evidence necessary to support the second indictment would have been sufficient for the first.” (emphasis added)

This language is quoted in official revision comment (a) to article 596 of the Louisiana Code of Criminal Procedure and has been cited with approval in numerous decisions by this Court. See e. g., City of Baton Rouge v. Jackson, 310 So.2d 596 (La.1975); State ex rel. Wikberg v. Henderson, supra; State v. Didier, 262 La. 364, 263 So.2d 322 (1972); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967).

Under the “same evidence” test as developed and applied by this Court, I believe that the current prosecution of Adrion and Dewitt Nichols for aggravated battery is barred by their earlier conviction for resisting an officer. The reports written by the officers for the arrest of defendants for resisting arrest include the fact that the Nichols defendants employed a flashlight and radio microphone to beat Trooper Martin. And when the defendants requested to “be informed as to the specific and exact manner the state will contend the alleged offense was committed” through their bills of particular, the state responded with a recital of facts which included the facts which the majority now contends are essential elements only of the charge of resisting arrest.

In addition, at the hearing on the motion to quash the aggravated battery bills of information, the defendants and the state stipulated as follows:

“[DEFENSE]: Additionally, [the prosecutor] and I have agreed to stipulate that the transaction or episode referred to in Paragraph Two (2) of the State’s response to my Motion for Bill of Particulars in the felony charge is the transaction which gave rise to all the misdemeanor charges and the felony charge of aggravated battery. It is further stipulated that the investigative reports from the various policemen which are attached to my evidentiary offerings pertain to that one single transaction. Is that satisfactory, Mr. Ware?
“[PROSECUTION]: Yes, Your Honor, the State will stipulate that the misdemeanor charges to which they have already pled and the aggravated battery arise out of a continuous series of events which occurred within the time specified.”

The state, however, contends that the conduct referred to in connection with the misdemeanor charge of resisting an officer was that conduct which occurred after the assisting troopers arrived on the scene. Thus the state’s basic argument is that while defendants did commit the offense of resisting an officer at the time they fought with Trooper Martin immediately following the arrest of defendant Adrion Nichols for DWI, they committed a second resisting an officer offense at the point in time when the other three troopers arrived, and that it was this “second” offense of resisting the four officers together, to which defendants pled guilty. Based on this view of the altercation, it is contended that the state was at liberty to charge defendants with aggravated battery, rather than with resisting an officer, in connection with the “first” incident.

This distinction offered by the state is not supported by the facts as set out in the arrest reports or in the response to the motion for bill of particulars, all of which treated the incident as a single, continuing event. As charged, there was but one offense of resisting arrest which incidentally occurred over a period of time (approximately fifteen minutes in duration) and involved all four state troopers, i. e., Trooper Martin and the three officers who arrived at the scene to assist him. If we were confronted with a situation where a defendant was charged with battery on one officer and resisting as to three other officers or where a defendant was clearly charged with actual delineated sequential occurrences, I might see the plea of double jeopardy in a different light. Under the facts and circumstances of the instant case, however, it is apparent that there was a single, continuous event and that a component part of the charged offense of resisting arrest was the battery on Trooper Martin. Thus I feel that the test set forth in article 596 of the Code of Criminal Procedure, providing that double jeopardy exists in a second trial when the charge in that trial is “[bjased on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial” (emphasis added), must be applied in the instant case.

The remaining question, therefore, is whether, under the “same evidence” test as developed and applied in this state and under the facts before us, resisting an officer and aggravated battery constitute the “same offense,” so as to bar prosecution for the aggravated battery following the conviction and sentencing on the resisting charge.

La.R.S. 14:108 defines the offense of resisting an officer as follows:

“Resisting an officer is the intentional opposition or resistance to, or obstruction of, an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property, or to serve any lawful process or court order, when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.
The phrase “obstruction of” as used herein shall, in addition to its common meaning, signification and connotation mean:
(a) Flight by one sought to be arrested before the arresting officer can restrain him and after notice is given that he is under arrest.
(b) Any violence toward or any resistance or opposition to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
(c) Refusal by the arrested party to give his name and make his identity known to the arresting officer.
(d) Congregates with others on a public street and refuses to move on when ordered by the officer.” (emphasis added)

As made clear in the Reporter’s Comment in connection with this article, the language is general and is intended to cover not only an individual who is being arrested but also resistance or obstruction by a third person. Thus, both Adrion Nichols who was initially arrested and Dewitt Nichols who was not, committed the offense of resisting an officer.

As applicable to the instant case a battery is defined as “the intentional use of force or violence upon the person of another,” La.R.S. 14:33 and aggravated battery is “a battery committed with a dangerous weapon.” La.R.S. 14:34. In the instant case, the aggravated battery was the principal method by which defendants committed the offense of resisting arrest. While the two crimes are not technically or absolutely identical, as previously noted “the rule is that there must be only substantial identity . .” (emphasis added) State v. Roberts, supra. Here the same conduct of defendants was involved in both offenses. The evidence as to the aggravated battery is essentially identical to the evidence which supported the charges of resisting an officer.

I therefore believe that the trial court correctly held that the prosecution for aggravated battery was barred by the previous conviction on the charges of resisting an officer and that the state’s application should be denied.

      . Defendants do not contend that the convictions for simple criminal damage to property and operating a motor vehicle while intoxicated would bar the prosecution for aggravated battery on the ground of double jeopardy.

      . Made applicable to the states in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

      . La.R.S. 14:108 provides:
      Resisting an officer is the intentional opposition or resistance to, or obstruction of, an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property, or to serve any lawful process or court order, when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.
      The phrase ‘obstruction of as used herein shall, in addition to its common meaning, signification and connotation mean:
      (a)Flight by one sought to be arrested before the arresting officer can restrain him and after notice is given that he is under arrest.
      (b) Any violence toward or any resistance or opposition to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
      (c) Refusal by the arrested party to give his name and make his identity known to the arresting officer.
      (d) Congregates with others on a public street and refuses to move on when ordered by the officer.
      Whoever commits the crime of resisting an officer shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both.
      (Emphasis added.)

      . This is not to say that evidence of the fistic encounter and the threats against Trooper Martin, i. e., the evidence of the crime of resisting arrest, would not be admissible at the trial on the charge of aggravated battery. The evidence, if admitted, would be admissible as part of the res gestae; its admission would not be required for the purpose of proving an essential element of the aggravated battery charge. See State v. Richmond, 284 So.2d 317 (La.1973).

      . The prosecution and defendants stipulated that the resisting arrest and aggravated battery charges arose from the same criminal episode or transaction.