author: DeCARLO, Judge.

text:
    James JACKSON v. STATE.
    3 Div. 372.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Frank W. Riggs and Von G. Memory, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Burglary, first degree; ten years.

Eight-year-old Cassandra McLendon was one of six children living with her mother, Irma Jean McLendon. Cassandra shared a bed with her nine-year-old brother, Jimmy, and the other children slept in adjoining rooms.

On February 9, 1974, Cassandra wasn’t feeling well, and her mother left the house to get some medicine. It was late and Cassandra, along with her brother James, was in bed watching television. They had fallen asleep and were awakened by the sound of breaking glass. Shortly, appellant entered the room, lifted Cassandra from the bed and carried her into the mother’s bedroom.

He laid her on the bed, snatched her panties off and asked Cassandra to hold his private parts. After doing as she was told, appellant slapped Cassandra and then got on top of her.

Cassandra testified appellant placed his private parts in her, and she hollered. At that moment a car drove up, and he ran out the back. Subsequently, Irma Mc-Lendon came in, and Cassandra related what had happened. After the police arrived, the child was taken to the hospital.

Jimmy McLendon recalled that on the night in question he got under the bed when appellant appeared in the room. Although the light wasn’t on in his bedroom, Jimmy could see by the light burning in the bathroom. He watched appellant carry Cassandra to their mother’s room. His testimony surrounding the incident was substantially the same as Cassandra’s, but he added that appellant placed a chair behind the front door before running out the back. Jimmy stated he saw appellant leave the house and get into a red car with a white top and two “arrows”.

Irma McLendon testified she lived at 3309 Nesbitt Avenue in Montgomery, Alabama. On February 9, 1974, she was at home with her children but left between 12:00 and 12:30 A.M. to get some medicine for Cassandra. Two of the boys were already asleep, and the other children were in their rooms. The back and front doors were locked when she left with a friend, Andrew Bulcher. They drove to Super Foods and returned in about 45 minutes. As she tried to enter the front door, she noticed a chair had been placed against it. After forcing her way into the house, she saw glass on the kitchen floor. She talked with Cassandra and then called the police. Upon their arrival, she gave them Cassandra’s torn panties which she had found on the bedroom floor.

Mrs. McLendon stated she had met appellant in 1967, and he was the father of her five-year-old daughter. Her relationship with him was sporadic, and he only called when he had “wife problems”. Two weeks before the incident with Cassandra she had told him not to come around anymore.

Detective H. C. Norton testified he and Detective Lawrence Rutland investigated the alleged burglary. On their arrival around 12:30 A.M., they noticed a chair positioned behind the front door. When the door was opened, it would strike the back of the chair. In the kitchen they saw a broken window and pieces of glass on the floor. Detective Norton noticed a redness just below Cassandra’s left eye and after talking with her, suggested she be taken to the hospital for examination.

Detective Norton identified a statement taken from Cassandra McLendon. In the statement the child described what happened and identified James Jackson as her attacker.

Detective W. W. Strain testified that approximately two and a half weeks after the offense, he arrested appellant in a red car with a red and white top.

The toxicologist’s report indicated the laboratory examinations of the vaginal smear and wash were negative. Examination of the panties revealed they were extensively torn with the crotch area separate. The presence of semen was not detected.

Appellant did not testify. Martha Jackson, Donnie Teganis and Doris Williams testified appellant was with them at a fish-fry on the night of February 8, 1974, and remained in their company until about 5:00 A.M. Doris Williams stated appellant left the party only once. She was with him, and they only went across the street.

I

Appellant complains that removal of a talesman upon State’s challenge that she would not convict on circumstantial evidence was error.

In qualifying the jury, the court made this inquiry of the veniremen:

“. . . Would any of you not convict on circumstantial evidence where it’s strong enough ? I think the only one of the group is Mrs. Reed.
“MR. THOMAS: The State moves to strike her for cause.
“THE COURT: All right. Strike her for cause.
“MR. RIGGS: Judge, we object to the State—
“THE COURT: All right. Object to it and take an exception. I have already struck her.
“MR. RIGGS: —Well, Your Honor, if I may state my grounds. This case isn’t a circumstantial evidence case, so we do object to striking her on the ground that she—
“THE COURT: Well, I overrule your objections. She is struck.”

A juror may be disqualified where he has expressed opposition to a conviction on circumstantial evidence. Under T. 30, § 57, Code of Alabama, 1940, Recompiled 1958, we find:

“On the trial for any offense which may be punished capitally, or by imprisonment in the penitentiary, it is a good cause of challenge by the state that the person. . . . thinks that a conviction should not be had on circumstantial evidence; . . . ”

Appellant argues the refusal to convict on circumstantial evidence, unless it is of the highest degree, will not disqualify a juror. Ott v. State, 160 Ala. 29, 49 So. 810.

In the case under consideration, Mrs. Reed answered she would not convict where the circumstantial evidence was strong enough. This negative response indicates not only a discrimination against a conviction on ordinary circumstantial evidence but prejudice against circumstantial evidence of any degree.

The court committed no error in sustaining the State’s challenge for cause, notwithstanding the assurance of defense counsel that the case did not rest upon circumstantial evidence. Collins v. State, 217 Ala. 212, 115 So. 223.

II

Appellant maintained that Cassandra’s mother had telephoned him demanding money, and through this conversation he sought to impeach her testimony.

Defense counsel endeavored to authenticate this conversation by testimony of Jack Lumpkin, manager of Reinhardt Motors where appellant worked. Mr. Lumpkin testified out of the jury’s presence that he answered an incoming call, and the person did not identify herself, but asked to speak to James Jackson. When appellant answered, Mr. Lumpkin heard the caller identify herself as Jean. Mr. Lumpkin did not recognize the voice. On questioning by the court he stated he had never knowingly received a call from that person and didn’t know who was calling.

After considering these facts, the trial court sustained the State’s objection, stating in substance that this witness could not testify to the authenticity of the conversation in question.

Although it is true that offers of proof should be allowed in order to afford appellate courts a knowledgable means of evaluating a contrary ruling by the trial court, Flurry v. State, 52 Ala.App. 64, 289 So.2d 632, we are also aware that evidence constituting the showing must be admissible and material. Sellers v. State, 7 Ala. App. 78, 61 So. 485.

In the present case the trial court was apprised of the intent of Mr. Lumpkin’s testimony. The court was also aware that before Mr. Lumpkin could testify about the alleged conversation, he had to recognize the caller. This he could not do. Any further showing from this witness could not accomplish that fact. His testimony was inadmissible, and the trial court’s action was proper.

Ill

It is insisted that appellant’s motion to exclude should have been granted. Counsel contends that possession or occupancy of the burglarized dwelling was not proved.

We do not agree.

The record reflects that upon direct examination, Irma McLendon stated she lived at 3309 Nesbitt Avenue, Montgomery, Alabama, and on the night in question she left the victim and her other children in the house with instructions not to open the door. Further she said the doors were locked and on her return, she found a broken window in the kitchen and glass on the floor.

Coupled with these facts we have the identification of appellant by Cassandra and her brother Jimmy. Also we have the girl’s testimony that appellant placed his private parts in her.

Additionally, Irma McLendon testified that about two weeks before the offense she had severed her relations with the appellant. It was understood that appellant was not to return.

The evidence presented was more than sufficient for the trial court to allow the case to go to the jury. Young v. State, 283 Ala. 676, 220 So.2d 843.

We have found no error in the record.

Affirmed.

TYSON, HARRIS and BOOKOUT, JJ., concur.

CATES, P. J., not sitting.


source: Caselaw Access Project

author: BOOKOUT, Judge.

license: Public Domain

text:
    Earnest DANIELS, alias v. STATE.
    3 Div. 391.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Robert S. Hill, III, Montgomery, for appellant.
    No appearance for the State.
   BOOKOUT, Judge.

Reversed and remanded on authority of Cornelius v. State, 54 Ala.App. 377, 308 So.2d 736 (1975), and cases cited therein.

Reversed and remanded.

All the Judges concur, except CATES, P. J., not sitting.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Anthony DUPUY.
    No. 56136.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Oct. 9, 1975.

      Gano D. Lemoine, Jr., Cottonport, Michael F. Kelly, Marksville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eddie Knoll, Dist. Atty., Jeannette Theriot Knoll, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant was charged under R.S. 14:30 with the murder of Adrian McNeal. The jury returned a responsive verdict of manslaughter, from which defendant has appealed, briefing six assignments of error.

Assignment of Error No, 1

Defendant moved for a change of venue on the ground that he could not obtain a fair and impartial trial by reason of prejudice against him in the minds of the residents of Avoyelles Parish.

C.Cr.P. 622 provides:

“A change of venue shall be granted whén the applicant proves that by reason of prejudice existing in the public mind or because o.f undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
“In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.”

The intent of this article as stated in the official revision comment is:

“. . . A change of venue ought to be available even though, individually, each juror is not susceptible to a valid challenge for cause, if the defendant can show that overriding all of these things and superimposed upon all of them he still cannot get a fair trial. The change of venue concept should operate where the state of the public mind against the defendant is such that jurors will not completely answer honestly upon their voir dire, or witnesses will be so affected by the public atmosphere that they will not testify freely and frankly.”

In such a motion, defendant has the burden of proving that he cannot obtain a fair trial in the parish where the prosecution is pending. State v. Bell, 315 So.2d 307 (La.1975); State v. Leichman, 286 So.2d 649 (La.1973); State v. Richmond, 284 So.2d 317 (La.1973).

Defendant introduced nine newspaper articles, none of which was inflammatory, and some twenty randomly selected witnesses by whom defendant sought to establish that he could not obtain a fair and impartial trial; the testimony of these witnesses did not support that contention. Defendant additionally argued that because of threats made against his life, extraordinary security measures would be taken which would adversely affect his opportunity to have a fair trial.

Article 622 requires a showing of more than mere knowledge by the public of the facts surrounding the case; in addition it requires proof of such prejudice in the public mind that a fair and impartial trial cannot be obtained in the parish. State v. Flood, 301 So.2d 637 (La.1974); State v. Leichman, supra; State v. Richmond, supra.

In light of the evidence in support of the motion for a change of venue, we cannot say that the trial court committed error in denying the motion.

Assignment of Error No. 2

Defendant contends that the State failed to prove that Avoyelles Parish was the parish of proper venue.

Evidence adduced at trial indicated that defendant and Jesse Bordelon met Adrian McNeal outside of Alexandria, Louisiana and drove him toward Simmesport, Louisiana. At Hamburg, a town in Avoyelles Parish, defendant left the main road and entered the Ring Levee Road, ostensibly to allow Bordelon to relieve himself. At this point, McNeal was tied and placed in the trunk of the automobile which then proceeded toward the new bridge at Simmes-port. Near the top of the bridge, defendant and Bordelon threw McNeal over the bridge into the Atchafalaya River, which forms the boundary between Avoyelles and Pointe Coupee Parishes.

As required by C.Cr.P. 615, the State has the burden of proving venue beyond a reasonable doubt:

“Improper venue may be raised by motion to quash, and in such case the motion shall be tried by the judge alone. Even if the issue of venue has been passed upon by the judge prior to trial, the state on the trial shall have the burden of proving proper venue beyond a reasonable doubt.”

The defense argues that there is no evidence that the middle area of the new bridge at Simmesport is in or even near the Avoyelles Parish boundary and therefore that venue has not been proven.

C.Cr.P. 611, requiring that the trial be brought in the parish of the offense, describes what is meant by “parish of the offense

“All trials shall take place in the parish where the offense has been committed, unless the venue is changed. If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.”

Official revision comment (b) clarifies this provision by the following language:

“In the above article the ‘act or element’ test is adopted in preference to the ‘substantial element’ test of the 1942 amendment of former R.S. 15:13. It will be noted that the act or element which confers venue must be one of several, which as a whole and united together constitute an offense.”

Therefore, if acts constituting an offense occur in more than one parish, venue is proper in either. Because there is uncontroverted evidence that McNeal was tied and placed in the trunk of the automobile near Hamburg in the Parish of Avoy-elles, the State has met its burden.

This assignment of error is without merit.

Assignment of Error No. 3

In that part of defendant’s brief under the heading “Assignment of Error No. 3,” he complains of the “notice of intention” to introduce confessions and inculpatory statements. The notice (C.Cr.P. 768) was handed defense attorneys immediately prior to the trial. Defendant objected to the notice because it “did not specify the specific confessions and/or statements.” The objection was overruled and the assignment of error was reserved.

In brief before us, defense counsel states that, because of a preliminary examination, the defense was aware of one purported confession, but was not aware that the State intended to adduce inculpatory statements from two other witnesses — the estranged wife of the accused and one other person.

When the testimony of the defendant’s estranged wife was adduced, the only objection made to the inculpatory statement related by the wife was based on the husband-wife privilege. No objection was made to the inculpatory statement testified to by the other witness that indicated the defense was surprised or prejudiced by the failure to identify the inculpatory statement in the “notice of intention.”

The character of the “notice of intention” required by C.Cr.P. 768 was recently and thoroughly discussed in State v. Sneed, La., 316 So.2d 372, decided June 23, 1975. A majority of this court was of the opinion that the article 768 notice should be adequate to inform the defendant of the nature of the particular inculpatory statement the prosecution planned to use.

We did not there hold, however, that the “bare-bones” notice, like the one used in this case (which merely stated that the prosecution intended to introduce confessions and statements, both exculpatory and inculpatory) was such a violation of the codal requirement that it would, without any showing of prejudice, require reversal.

Nor do we now find that the defendant in this case was so prejudiced. This assignment of error is without merit.

Assignment of Error No. 5

In this assignment, defendant argues that it was error for the trial court to refuse a challenge for cause against juror Herbert Moreau. The record shows that Moreau “went to school” with the prosecuting attorney and that Moreau had employed the prosecuting attorney on “several occasions.” It was not shown that this relationship would in any way influence this juror; moreover, the juror was questioned as follows:

“BY THE COURT:
Q. Would that relationship or this friendliness you have with Mr. Knoll, would that make you lead (sic) toward his side of the case rather than be fair?
A. No sir. No sir.
Q. It would not make you lean on his side?
A. No sir.
“BY DEFENSE COUNSEL:
Q. If you think that because of your relationship with Mr. Knoll. as a friend, that this would in any way impair you in a fair and impartial judgment of this defendant ?
A. No sir, I don’t think so.”

Because the trial court satisfied himself that this juror could accept the law as given by the court and the evidence as adduced at trial, we cannot say that he abused his discretion. State v. Jones, La., 315 So.2d 650, decided June 23, 1975; State v. Blanton, 312 So.2d 329 (La.1975); State v. Bastida, 310 So.2d 629 (La.1975); State v. Richmond, supra.

This assignment of error is without merit.

Assignment of Error No. 6

In his sixth assignment of error, defendant argues that the trial court erred in refusing to order Officer Don Miller, who was testifying from memory, to produce his police report for defense scrutiny.

This question was answered by our decisions in State v. Lane, 302 So.2d 880 (La.1974); State v. Payton, 294 So.2d 211 (La.1974); State v. Tharp, 284 So.2d 536 (La.1973). We have not required investigating officers to produce investigation reports when their testimony emanates from memory.

This assignment of error is without merit.

Assignment of Error No. 7

Defendant contends that the trial court erred in admitting into evidence statements made by him to his wife which, allegedly, were confidential.

This contention is based upon R.S. 15 :461, which reads in relevant part:

“The competent witness in any criminal proceeding, in court or before a person having authority to receive evidence, shall be a person of proper understanding, but;
“(1) Private conversations between husband and wife shall be privileged.”

Where there is a lack of evidence to the contrary, communications between spouses are presumed to be confidential. State v. Pissolotto, 209 La. 644, 25 So.2d 292 (1946).

In the case before us, defendant’s wife was questioned out of the presence of the jury with respect to communications made to her by defendant. It was her testimony that third persons were present during the two communications at issue: defendant’s mother on the first occasion, and his niece and her husband on the second. Upon the evidence introduced, the trial court determined that there were third persons present at the time of the conversations and concluded that the spousal immunity was unavailable to defendant. Objecting to this ruling, defense counsel contended that he had not had an opportunity to examine these third persons. Yet, as far as the record discloses, each of these persons was a defense witness; the defendant made no offer or attempt at that time to call them to the stand, and was not denied the right to call them by the court. Although each of these “third persons,” when called later, denied hearing the defendant make the inculpatory statements, it was then too late to assist the judge in deciding whether the husband-wife communication was truly confidential and thus privileged. The State had made a prima facie showing that the statements were not privileged, and the burden of going forward had shifted to the defendant on this, his effort to exclude the testimony. On the record before the trial judge at the time of the ruling, we find no error.

The conviction and sentence are affirmed.

      . According to stipulation, the aggregate circulation of these newspapers is 10,650, comprised in the following breakdown:
      4000 — The Alexandria Daily Town Talk (daily)
      2800 — The Weekly News (weekly)
      2800 — The Bunkie Record (weekly)
      950 — The Cottonport Leader (weekly)
      Additionally, it was stipulated that the population of Avoyelles Parish is 37,751.


author: TATE, Justice. BARHAM, Justice

text:
    STATE of Louisiana, Appellee, v. Buford Anthony DUPUY, Appellant.
    No. 56135.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Sept. 30, 1975.

      Gano D. Lemoine, Jr., Cottonport, Michael Kelly, Marksville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eddie Knoll, Dist. Atty., Jeannette Theriot Knoll, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of second degree murder. La.R.S. 14:30.1 (1973). He was sentenced to life imprisonment at hard labor. He relies upon ten assignments of error for reversal.

(1)

The most serious assignments of error (Nos. 7-10) concern prejudicial remarks by a prosecutor during the cross-examination of the defendant Dupuy. The prejudicial colloquies occurred towards the conclusion of a protracted cross-examination of the defendant (Tr. 212-288) during the evening hours of the seventh day of a trial extending over eight days. Except for the brief lapses noted, the cross-examination was professional and dispassionate.

The defendant insists that a mistrial alone, moved for at the time, could cure the prejudice thereby sustained. The contention presents a close issue whether reversal is required.

Towards the conclusion of the cross-examination that evening the defendant’s counsel objected to the prosecutor telling the defendant, “You’re smooth”, contending to the court that the prosecutor was “trying to prejudice the jury that the man is not telling the truth.” The assistant district attorney immediately replied, “I definitely think he’s not telling the truth.” Tr. 267.

The defense immediately objected to this most improper remark and moved for a mistrial. The district court strongly admonished the jury to disregard the remark.

Shortly thereafter, the defendant himself told the assistant district attorney, in reply to a question, “I don’t think, I don’t think you know what you’re asking.” Tr. 268. This prosecutor immediately replied, “Well, I don’t give a hoot what you think, Mr. Dupuy.” The prosecutor immediately apologized. In denying the mistrial, the court stated, “Well, we’re getting personal. Let’s not get personal.” Tr. 269.

The defendant then told the prosecutor, “ * * * if I’ve upset you, I’m sorry ... I’m sorry. I’m just trying to be truthful. I just want to tell you everything. I just — ” Whereupon the prosecutor flashed back, “If you were truthful, Mr. Dupuy, I wish that you would say you abducted Mr. Larry Normand from his house, knocked him out — ” Tr. 269-70.

At this point, defense counsel strongly objected again to these most improper remarks and moved for a mistrial. (It should be noted that the defendant admitted having shot the decedent Norman when the latter came to his home; however, he insisted that it resulted from an accidental discharge of his pistol during a tussle. However proper as a deduction from circumstantial evidence the prosecutor’s comment may have been by way of argument to the jury at the proper time, the remarks by the prosecutor were statements of fact by the prosecutor rather than questions. They presupposed as established fact that the defendant was guilty of a criminal course of conduct.)

The trial court indicated disapproval of the comment, concluding to the jury: “Gentlemen, you know, sometimes we get tired. I think we better recess until tomorrow morning.” Tr. 270. The rest of the cross-examination the following morning was uneventful, with the case going to the jury that noon.

The remarks by the prosecutor approached but did not fall within the category of prosecutorial statements which require mandatory mistrial under La.C.Cr.P. art. 770. Thus, a mistrial was required only if an admonition by the trial court was not sufficient to assure the defendant a fair trial. La.C.Cr.P. art. 771. However, the close issue presented is whether the trial court’s admonitions, reprimand, and the recess it declared were sufficient to cure the prejudicial effect of the prosecutor’s improper remarks concerning the credibility of the accused and his part in the crime. State v. Gaspard, 301 So.2d 344 (La.1974).

We have discussed the improper remarks in their immediate context at such length partly to indicate that they were impromptu responses to defense arguments or statements. While not necessarily excusable on that account, nevertheless taking into consideration this context in which they were made and the minor part the isolated remarks played in a long, full, and fair cross-examination, we do not feel the trial court erred by denying a mistrial. We cannot say the trial court abused its discretion by instead admonishing the jury and reprimanding the prosecutor, in the belief that these lesser measures were sufficient to preserve the fairness of the trial despite the improper comments of the prosecutor.

(2)

The other assignments of error are also without reversible merit:

Assignment One : The accused’s wife voluntarily consented to searches of the trailer-home of herself and the accused. She signed two written consents to search, July 4 and July 8, and in addition verbally consented on other occasions, according to the sheriff’s testimony. The consent of a spouse to search of jointly owned and controlled premises permits a warrantless search. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed. 2d 242 (1974); State v. Taylor, 303 So.2d 169 (La.1974); State v. Hubbs, 261 La. 173, 259 So.2d 53 (1972). The defendant did not bear his burden of proving illegality of the search. La.C.Cr.P. art. 703.

The wife’s consent is shown to have been freely given and not induced by artifice. We do not find factual merit in the contention that the consent was invalidated by her emotional state at the time. The State bore its burden of proving by clear and convincing evidence that the consent to the search was freely and voluntarily given. State v. Welch, 256 La. 1, 235 So.2d 72 (1970).

Assignments Two and Five: The defendant claims that the venue should have been changed (Two) or that, at any rate, the trial jury should have been sequestered (Five), due to the great public prejudice against the defendant in the locality. The showing made does not convince us that the trial court abused its discretion in either instance. See State v. Depuy, 319 So.2d 294 (rendered this date), wherein we discussed in more detail the evidence for a change of venue of both prosecutions. (No other evidence is in the present record.)

Assignment Three: The defendant contends that the trial court erroneously denied his challenge for cause of the prospective juror Jeansonne. The defendant’s counsel challenged Jeansonne for cause, on counsel’s statement that during the noon hour Jeansonne had expressed prejudice against the defendant. In rejecting the challenge, the court pointed out that Jean-sonne was not asked whether he had made the statement and that there was no evidence to such effect and that counsel’s assertion was not evidence. Jeansonne was still available for questioning at the time. Instead of pursuing the challenge for cause, counsel then exercised peremptory challenge against Jeansonne’s serving. We find no error in this trial court’s ruling.

Assignment Four: During the jury selection process, the defendant filed a motion for the state to produce a note signed by the decedent which incriminated the accused. The purpose was to secure for the defendant independent examination as to its authenticity. The assignment is based upon the trial court’s denial of the motion.

However, immediately after the denial, the prosecutor furnished the defense with a xeroxed copy of the note, in compliance with the request. No further complaint was made, nor was any complaint made during the trial, for instance at the conclusion of the State’s handwriting expert’s testimony, that the xeroxed copy was not sufficient for defense purposes. We find no merit to this assignment.

Assignment Six: We find no error in the trial court ruling admitting into evidence a non-gruesome photograph of the corpse of the decedent. See State v. Chavers, 294 So.2d 489 (La. 1974).

Decree

Accordingly, we affirm the conviction and sentence.

Affirmed.

BARHAM, J., dissents with reasons.

BARHAM, Justice

(dissenting).

The majority has held the following comments made by the assistant district attorney in cross-examination of the defendant to be non-prejudicial:

The ássistant district attorney, first commenting upon an answer by telling the defendant, “[yjou’re smooth,” then stating, “I definitely think he’s not telling the truth,” thereafter stated to the defendant, “Well, I don’t give a hoot what you think, Mr. Dupuy [the defendant witness] * * * I wish that you would say you abducted Mr. Larry Normand from his house, knocked him out — .”

At each point in the trial, defense counsel objected and moved for a mistrial. This is one of numerous cases arising in this jurisdiction where over-zealous prosecution or lack of the understanding of the role of the prosecutor has led the State to make outrageously prejudicial remarks regarding testimony from the witness stand. See my dissent in State v. Lepkowski, La., 316 So.2d 727.

The majority permits this activity to continue with the statement that the remarks “approached but did not fall within the category of prosecutorial statements which require mandatory mistrial under La.C.Cr.P. art. 770.” As indicated in the prior dissent this approach by this Court will merely encourage the prosecution to see how far it can go with personal remarks of a prejudicial nature before this Court will find them to be reversible. After looking at the case before us, and State v. Lepkowski, supra, I would be constrained to say that the prosecution is being offered much leeway in chosing its weapons in “currying” the jury’s disposition for conviction.

I respectfully dissent.


author: SANDERS, Chief Justice. TATE, Justice

text:
    STATE of Louisiana v. Verg Lee NERO.
    No. 55893.
    Supreme Court of Louisiana.
    Sept. 5, 1975.

      Bernard Jack Usprich, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Pres Kabacoff, New Orleans, for amicus curiae.
   SANDERS, Chief Justice.

The defendant was tried by jury, convicted of armed robbery, LSA-R.S. 14:64, and sentenced to serve a term of twenty years in the custody of the Louisiana Department of Corrections. He appeals, relying on twenty-three assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant assigns as error the allowance by the trial judge, on the day before trial, of an amendment to the bill of information by the State to change the name of the victim from Dennis Jean to Beryl Reese. Defendant argues that this change is not one of form but of substance, and that he was prejudiced thereby.

This Court disposed of an identical contention in State v. Hubbard, La., 279 So.2d 177 (1973), holding:

“ , . . Conceding arguendo that this was an amendment of substance, it was properly allowed before trial. State v. Royal, 255 La. 617, 232 So.2d 292 (1970); Article 487 Code of Criminal Procedure.
“The only relief to which appellant could be entitled is a continuance under Article 489 Code of Criminal Procedure. However, this is only upon a showing that he was prejudiced by the change of the name of the victim in the bill of information.”

The defendant made no showing of prejudice and filed no motion for continuance. Both Dennis Jean and Beryl Reese were witnesses to the armed robbery. We conclude that the amendment was properly allowed.

ASSIGNMENT OF ERROR NO. 2

In this assignment the defendant complains of the failure of the State to timely file a written answer to the defense Motion to Suppress Identification.

According to Rule IX of the Rules of the Criminal District Court, Parish of Orleans, all pleadings shall be in writing, and the party opposing a motion shall file his opposition no later than one day before the hearing. Here, during the hearing on the Motion to Suppress Identification, the State answered orally and was also permitted to file its late written answer, a general denial of the grounds asserted in the motion, over defense objection.

The trial judge explains in his per curiam that he permitted the State to file its written answer to the motion to suppress identification during the hearing thereon in view of the fact that there were practical considerations to explain the State’s tardiness in this regard, i. e., a change in the administration of the District Attorney’s office. Additionally, no prejudice was found to result from the delay. See LSA-C.Cr.P. Art. 921.

This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

This assignment pertains to the failure of the trial court to allow defendant to view a form signed by the victim, Beryl Reese, following the lineup involving the defendant.

At the hearing on the Motion to Suppress Identification, Beryl Reese testified that after the lineup she was called to a soundproof room where she was asked if she could identify anyone. She further testified that she then identified a person by number and completed a form of questions. At this point, defense counsel requested a copy of the form this witness completed at the lineup “for purposes of impeachment.” The request was properly denied. The broad assertion that production of this form was sought for purposes of impeachment is not an adequate basis to require production. LSA-R.S. 15:493; State v. Lane, La., 302 So.2d 880 (1974); State v. Gladden, 260 La. 735, 257 So.2d 388 (1972).

Again, during the examination of the same witness, Beryl Reese, on the motion to suppress identification, defense counsel was not allowed to ask this witness what she had filled out on the form described in the previous assignment of error.

At this hearing, the witness testified that the accused was number six in the lineup, and that she had already identified him when she made out the police form. In view of this testimony, no prejudice to the defendant resulted. See LSA-C.Cr.P. Art. 921.

ASSIGNMENT OF ERROR NO. 5

During the hearing of the motion to suppress identification, Officer Krinke, who was present at the lineup, testified that earlier on the day of the hearing, he had refreshed his memory concerning the lineup by looking at his supplemental report, that he remembered the lineup in question very vividly, and had only reviewed his report to be sure of the exact date. Defendant requested a copy of that report, and, when the request was denied, a bill of exceptions was reserved.

The officer made it clear in his testimony that he had a vivid independent recollection of the lineup and only referred to the report before appearing in court to refresh his recollection as to the exact date. He did not refer to the report while testifying. Under these circumstances, the defendant is not entitled to a copy of the report. State v. Lane, La., 302 So.2d 880 (1974); State v. Payton, La., 294 So.2d 211 (1974). Compare State v. Perkins, La., 310 So.2d 591 (1975); State v. Tharp, La., 284 So.2d 536 (1973).

ASSIGNMENT OF ERROR NO. 6

While Officer Krinke was testifying- at the hearing on the motion to suppress identification, he was asked if there was any voice identification during the lineup. His reply was in the negative, “to the best of my knowledge.” Counsel for defendant then sought to elicit answers tending to show that the officer was uncertain and requested that the court have the officer look at his report. The request was denied, and the denial is the basis for this assignment of error.

When his testimony is viewed as a whole, the officer was steadfast in his assertion that no one uttered a word on the show-up stage. He did remark that, if a voice identification had occurred, his report would indicate it. Nevertheless, he followed the remark with the statement: “But I would say positively that no one uttered a word on the stage.”

This case differs from State v. Sbisa, 232 La. 961, 95 So.2d 619 (1957) relied upon by the defendant. In Sbisa the main prosecuting witness was the officer who made a statement which was reduced to writing and which culminated in the indictment under which defendant was being prosecuted. . While under cross-examination, this officer made contradictory statements as to material facts of the crime charged. When asked whether a copy would refresh his memory, he replied that it would. Defendant called for production of the statement, and the court maintained the objection by the State. This Court held, under those facts, that the interest of justice would be better served by having allowed this witness to refresh his memory with respect to a matter very material to a successful prosecution. The Court stated: “This is particularly so because the State was relying solely on the testimony of the witness Bray to show knowledge by the defendant of the alleged graft being engaged in by his subordinates.”

We conclude there is no error in the ruling.

ASSIGNMENT OF ERROR NO. 7

The trial judge denied the motion to suppress identification based on the objection that the accused was not afforded an attorney at the lineup. Defendant contends that at the time of the lineup, “the prosecutorial function had reached a state where it was an adversary of Verg Lee Nero” and, therefore, counsel should have been present.

The lineup was conducted on August 29, 1973. The bill of information charging the defendant with armed robbery was filed on September 5, 1973, about a week later.

In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the United States Supreme Court held that the Sixth Amendment is inapplicable to pre-in-dictment lineups; hence, the presence of an attorney was not required. Applying the Kirby decision, this Court has likewise held that counsel is not required at pre-in-dictment lineups. See State v. Johnson, La., 306 So.2d 724 (1975); State v. Jefferson, La., 284 So.2d 577 (1973); State v. Edgecombe, La., 275 So.2d 740 (1973).

Hence, this assignment of error is without substance.

ASSIGNMENTS OF ERROR NOS. 8 AND 22

The motion to quash (No. 8) and the motion in arrest of judgment (No. 22) attack the composition of the general venire as unconstitutional in that no women were on the jury venire.

Although Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), held that our former constitutional and statutory provisions exempting women from jury service violated the federal constitution, Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), held that Taylor, as a matter of federal law, was not retroactive. State v. Rester, La., 309 So.2d 321 (1975). Since the jury in the present case was impaneled prior to the decision in Taylor v. Louisiana, supra, that decision is inapplicable here.

The contentions here are without merit.

ASSIGNMENT OF ERROR NO. 9

During the voir dire examination, defense counsel asked the following question of a prospective juror:

“Mr. Entringer, do you believe it would be better, in your opinion, for a crime to go unsolved than to convict an innocent man?”

The State objected to the question, and the trial judge sustained the objection.

In State v. Drumgo, La., 283 So.2d 463 (1973), this Court found a question substantially similar to the one here to be “unobj ectionable.”

No reversible error was found to exist, however, for the reason that “considerable latitude” was otherwise allowed in the questioning of the prospective jurors.

Article 786 of the Code of Criminal Procedure provides that the scope of the examination of prospective jurors “shall be within the discretion of the court.” Unless a clear abuse of that discretion occurs, this Court will not upset the conviction. State v. Bailey, 261 La. 831, 261 So.2d 583 (1972). State v. Coleman, 260 La. 897, 257 So.2d 652 (1972).

The question here — a hypothetical one — called for a prejudgment on a supposed set of facts. It required a selection of the better alternative, i. e., either an unsolved crime or a convicted innocent defendant. There was no abuse of discretion by the trial judge in disallowing such a question. See State v. Corbin, La., 285 So.2d 234 (1973).

Mr. Entringer, the prospective juror, did not serve on the jury here; and the trial judge adequately instructed the jurors of their duty to acquit on a finding that the State had failed to prove its case beyond a reasonable doubt.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 10

This assignment relates to a second question disallowed by the trial judge during voir dire examination:

“Mr. Coller, can you, in considering the testimony of an eye witness to a crime ... to this crime or to any crime, and that eye witness was a stranger to the person who committed the crime, would you consider the fact of how long that person had a chance to look at the defendant?”

We likewise find no abuse of discretion in this ruling. The purpose of the vo'ir dire examination is to determine the qualifications of prospective jurors by testing their competency and impartiality; hypothetical questions, aimed at determining in advance a juror’s opinion concerning the weight of certain evidence, are inadmissible. State v. Corbin, supra.

ASSIGNMENTS OF ERROR NOS. 11, 12, AND 13

These alleged errors deal with the curtailment by the court of matters sought to be presented by defendant in his opening statement. Error No. 11 complains of the sustaining of the State’s objection to the defense going into possible sentence for the crime charged; No. 12 relates to the refusal of the trial court to allow the defense to go into the State’s theory of the case in the opening- statement; No. 13 pertains to the failure of the trial court to allow the defense to explain, in its opening statement, whether or not the defendant might take the stand.

When defendant avails himself of the opportunity to make an opening statement under Article 765(4) of the Louisiana Code of Criminal Procedure, he must confine his remarks to the explanation of the nature of the defense and the evidence by which he expects to establish it. State v. Spencer, 257 La. 672, 243 So. 2d 793 (1971). See also State v. Mehan, 262 La. 611, 264 So.2d 581 (1972).

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 14

The testimony at trial was to the effect that two robbers had taken part in the commission of the crime. During the cross-examination by the defense of Officer Brady, who exhibited at the scene of the robbery a series of photographs to Dennis Jean, one of the witnesses to the crime, Officer Brady stated that Mr. Jean identified one of the pictures. Defense counsel then asked: “What did he say about the other pictures?” The State’s objection to the question as hearsay was sustained and a bill of exceptions was reserved.

The judge’s ruling was correct. The hearsay testimony was properly excluded. LSA-R.S. 15:434.

ASSIGNMENT OF ERROR NO. 15

Mr. Jean had testified on cross-examination that the robbery had occurred while he and the victim were in the victim’s automobile which was parked parallel to the street in a driveway in front of a used car lot. Mr. Jean stated that: “I don’t think there is a curb there.” In spite of this answer, defense counsel nevertheless persisted and asked if there was a curb in front of the car lot. The State objected on the ground that the witness had already answered the question. The trial judge sustained the objection and in his per curiam states that the line of questioning was not relevant to the witness’ ability to identify the defendant and was immaterial to the defense of an armed robbery prosecution.

The defense asserts that the questioning was designed to test the witness’ memory.

Since the witness had already answered the question, the trial judge did not abuse his discretion in disallowing the question.

ASSIGNMENT OF ERROR NO. 16

On further cross-examination Mr. Jean testified that, of the six photographs exhibited to him, he could only identify the defendant.

Defense counsel then asked:

“Was it your opinion that the other five pictures were of people that you had never seen before? Or, did you recognize somebody in the other picture, not being the armed robber? Sir, I’m asking too many questions. Did you — ”

The witness answered: “To my knowledge, sir, I had never seen — ” when he was cut off by State objection to the relevancy of this line of questioning.

The trial judge sustained the State obj ection; he states in his per curiam:

“The Court finds that the witness’ ability to identify other people in the photographs is not sufficiently relevant in this case. The only important relevant matter is the fact that the victim was able to identify the defendant. His ability to identify other pictures has no bearing on his ability to identify the defendant; therefore, this question is not sufficiently relevant. Also, no sufficient prejudice has been caused by this ruling . . . "

In determining the relevancy of evidence, much discretion is afforded the trial judge. LSA-R.S. 15:435; 15:441. State v. Pierre, 261 La. 42, 259 So.2d 6 (1972). Moreover, defense counsel obtained the information sought, the witness having expressed his inability to identify the, other photographs.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 17

Defendant contends that he was entitled to production of photographs in the possession of the State. This request for production was made during the testimony of an assistant district attorney, who took the witness stand and gave testimony to the effect that, during this trial, he observed a gentleman in the back of the courtroom believed by him to be one of the perpetrators of this armed robbery. The assistant stated that this information was based upon photographs of the alleged perpetrators of this robbery which were in his possession. Defendant requested an instanter subpoena for the photographs, and the court denied this request. Relying upon language in State v. Lowery, 160 La. 811, 107 So. 583 (1926), defendant claims the denial was reversible error, since the request was a reasonable one and the prosecution could have no legitimate interest in refusing production of these photographs.

The Lowery holding is inapplicable here. There the defendant, on trial for transporting intoxicating liquor, made a timely pre-trial request to analyze the confiscated liquid. In reversing the conviction, this Court stated that a determination of the nature of the liquid was essential to the defendant’s case. See also State v. Migliore, 261 La. 722, 260 So.2d 682 (1972).

The demand here was part of the continuing defense attempt to obtain information concerning the inability of one of the State’s witnesses, Dennis Jean, to identify the second robber, who was not on trial and whose identity was not essential in the case. Although defense counsel in oral argument before this Court asserted photographs were necessary to effectively cross-examine the witness, we find no support for this argument, nor do we find any prejudice from the failure to deliver the photographs to defense counsel. Denial of the motion for the production of the photographs was within the discretion afforded the trial judge. that the

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 18

A defense witness, Agnes Hall, who testified that she was living with defendant at the time of the commission of the offense, testified that on the night of the armed robbery she was with defendant all night at her home. She remembered that night because her baby had been discharged from Charity Hospital and was supposed to come home that day, but did not arrive until the following day. Defense counsel sought to read from the hospital records the date of the discharge of this child, and the objection of the State was sustained.

The ruling of the trial court that the date of the discharge of the child from the hospital was irrelevant is correct. There was no necessity for corroboration of the date testified to by Agnes Hall, as her testimony regarding this particular fact had not be assailed. See R.S. 15:496.

ASSIGNMENT OF ERROR NO. 19

When the sister of Agnes Hall, Peggy Hall (a defense witness), was testifying on cross-examination, the court allowed the State to ask her the following question:

“Just as a matter of curiosity. If you all were supposed to go pick the babies up on the 15th, how come you didn’t?”

Defendant objected on the ground the question was irrelevant and misleading.

Doubt as to the propriety or extent of cross-examination in criminal cases is resolved in favor of the cross-examination. See State v. Richardson, 258 La. 62, 245 So.2d 357 (1971). The scope and extent of a cross-examination rests largely in the discretion of the trial judge and his ruling in respect thereto will not be disturbed in the absence of an abuse of discretion. State v. Fulmer, 263 La. 971, 270 So.2d 116 (1972).

While the question might be considered irrelevant, it is evident that the defense itself opened the door to the line of questioning concerning the time element of the baby’s stay at the hospital. Considering the record as a whole, we are of the opinion that the question and answer were not prejudicial. See LSA-C.Cr.P. Art. 921.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 20

During the closing argument, defense counsel referred to the defendant’s criminal record. He stated that defendant had not taken the stand because “we did not wish it [the criminal record] to come out” and he urged the jury not to “let prejudice come in this case.”

During rebuttal, the prosecutor then mentioned three prior felony convictions. Defense counsel object, especially to the reference to the third conviction, which he alleged to be non-existent.

The prosecutor then stated: “I’ll withdraw the entire record, . . . the entire statements.” However, in response to a defense request “to instruct the jury to ignore . . . that last conviction,” the trial judge did instruct the jury, saying: “All right. Gentlemen, disabuse your mind from that conviction.”

In this assignment, defense counsel asserts that the prosecutor’s elaboration of his reference to the defendant’s criminal record is reversible error. He bases his argument upon the generally accepted rule that the prior convictions of an accused are inadmissible during his trial unless he takes the stand in his own behalf. LSA-R.S. 15:495; State v. Harper, 260 La. 715, 257 So.2d 381 (1972). However, we do not reach this issue, due to the failure of defense counsel to promptly move for a mistrial under Article 770 of the Louisiana Code of Criminal Procedure, providing in pertinent part:

“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.”

Official Revision Comment (b) to the above article provides: “A failure to move for a mistrial is a waiver of the error, since this article requires a motion by the defendant.” The defendant cannot be heard to complain when he objects, fails to move for a mistrial, yet requests instructions by the trial judge to counteract any prejudicial effect. Although a mistrial may have been in order here if moved for timely, the error is waived and the defendant is held to have acquiesced in the sufficiency of the requested instructions.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 21

This assignment deals with the refusal of the trial judge to give the special jury charges Nos. 1, 2, and 4 submitted by the defense. Although defense counsel assigns this refusal as error, he fails to specify in any respect the reasons supporting this assignment. Nevertheless, we have reviewed the charges and find them to have been properly excluded under Article 807 of the Louisiana Code of Criminal Procedure.

ASSIGNMENT OF ERROR NO. 22

This assignment of error is made to the overruling of the motion in arrest of judgment. The motion complained of the exclusion of women from the jury and “undue restriction of defendant’s voir dire.” These issues have already been considered in Assignments of Error Nos. 8, 9, and 10. We do not reach the question of whether or not the motion in arrest of judgment is a proper procedural vehicle to assert the complaints. See LSA-C.Cr.P. Art. 859; State v. Kibby, La., 284 So.2d 196 (1974).

ASSIGNMENT OF ERROR NO. 23

In this assignment the defense counsel complains of the denial of his Motion for a New Trial. He asserts in his brief that the verdict was “contary to law and evidence” — a contention presenting nothing for appellate review. State v. Gilbert, La., 286 So.2d 345 (1973). This assignment is without merit.

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

BARHAM and DIXON, JJ., dissent.

TATE, J., dissents and assigns reasons.

TATE, Justice

(dissenting).

I respectfully dissent. The writer does not believe that the defendant received a fair trial.

In the motion to suppress, cross-examination of the State’s identification witnesses was improperly curtailed. Assignments Nos. 3-6. Again, the question propounded on voir dire examination and disallowed by Assignment No. 8 has previously been held proper — yet once again voir dire examination has been curtailed by sustaining State objection to this type of question. At the trial, cross-examination of State witnesses by the defense was improperly curtailed. Assignments Nos. 14-18. ■ In gross derogation of the defendant’s rights, the prosecutor read to the jury an arrest and conviction record which were not in evidence. Assignment No. 20.

Further, while defense attorney’s statements to the jury were limited, Assignments Nos. 11-13, the State’s attorney was allowed free rein in his argument to the jury. Assignment No. 20. While defense questioning of its own witnesses was limited, Assignment No. 18, the State’s examination of the same witness on the same subject matter was permitted despite its irrelevancy, Assignment No. 19.

These errors and rulings, many of which may not have been in themselves reversible, in the writer’s belief taints this conviction by their cumulative effect of denying the accused a fair trial.

I respectfully dissent.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Houston HINES, Jr.
    No. 55963.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Sept. 30, 1975.

      J. Randolph Smith, DeCelle & Smith, Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-respondent.
   MARCUS, Justice.

Houston Hines, Jr. was charged by bill of information with receiving stolen things, to-wit: a Montclair tape player and tapes having a total value of $99.00, in violation of R.S. 14:69. It was asserted that the stolen items were the property of Roy Dawson Crowder. Defendant sought to suppress the evidence seized in connection with the charged offense, claiming the seizure was the result of an unconstitutional search of his car on an earlier date. By agreement of the parties, the motion to suppress was consolidated with the trial on the merits. At the conclusion of the trial, the judge overruled the motion to suppress, found defendant guilty and sentenced him to pay a fine of $100.00 and cost, or, in default, 30 days in jail and to serve 30 days in the parish jail. Upon defendant’s application to this court, we granted certiorari. Four assignments of error are presented for our review.

FACTS

Roy Crowder, an employee of the Otasco Store in West Monroe, reported to the police that his Montclair tape player and tapes had been taken from his parked car while on the lot in the rear of the store. The date of the reported theft was December 5, 1974. Around this time, Deputy Cook of the Ouachita Sheriff’s Office stopped a vehicle which was being operated by Houston Hines, Jr. The reason for the stop given by Cook was a loud muffler. Cook knew Hines from a previous pickup for auto theft and also knew that he had just been released from prison. He had also heard from a confidential informer that Hines was “pushing drugs.” Cook looked in the vehicle and also opened the trunk and a suitcase. According to Cook, Hines freely consented to the search. Nothing was found; however, Cook admitted that he noticed a tape player in the vehicle at the time. Hines was neither given a ticket nor arrested. Cook stated that he did not give him a ticket for the muffler violation for the reason that he did not want to cause him any more problems.

Later, Cook received information that the reported stolen tape player and tapes belonging to Crowder could be found at a boarding house owned by Mr. & Mrs. Hearne, where Hines was then staying. When interrogated by Cook about the stolen items, Mrs. Hearne gave her permission for Cook to take six tapes which she pointed out on a table in the dining room. Mrs. Hearne had seen Hines bring these tapes, together with a tape player, into the residence; however, he had removed the tape player that morning. These tapes were later identified by Crowder as part of the stolen items. Cook then talked to the girlfriend of Hines, Shirley Glass, who also lived in the Hearne house. She gave information that Hines had brought the tapes and tape player into the house. Information was later received from Hines that the tape player had been pawned by him to Ike Square for $10.00. Thereafter, Square surrendered the tape player to the authorities.

According to Cook, Hines told him, after being arrested and advised of his rights, that his half brother (Larry Minniefield) had given the tape player and tapes to him for his birthday. He further testified that Hines told him that he knew the items were stolen at the time he received them because his brother did not have any money to make such a purchase. Hines was first charged with theft of the items, but this charge was later amended to receiving stolen things, a violation of R.S. 14:69.

ASSIGNMENT OF ERROR NO. 1

The defendant contends that the verdict is contrary to the law and evidence. It is uncertain whether this assignment of error is directed to the trial judge’s denial of the defendant’s motion for a directed verdict of acquittal or his motion for a new trial. In his motion for a directed verdict, defendant argued that the “evidence as presented does not justify going forward.” We will assume that this is an allegation of no evidence, as we can only reverse the trial judge’s ruling on the directed verdict motion if, as a matter of law, we find that there is “no evidence” of some element of the offense in the récord. State v. Douglas, 278 So.2d 485 (La.1973).

R.S. 14:69 provides in pertinent part:

Receiving stolen things is the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.

The victim of the theft, Roy Crow-der, identified the tape player and tapes as the ones stolen from him. He placed a value on the items taken at about $99.00. Deputy Cook testified that, after he arrested defendant and advised him of his rights, defendant stated that his brother had given the items to him as a birthday present and he knew that they were stolen at the time, as his brother did not have any money to make such a purchase. Certainly, this constituted some evidence of each element of the crime charged. Hence, the trial judge correctly denied defendant’s motion for a directed verdict of acquittal.

In regard to defendant’s motion for a new trial, an assertion that the verdict as rendered is contrary to the law and the evidence presents nothing for our review. State v. Lisenby, 306 So.2d 692 (La.1975); State v. Gilbert, 286 So.2d 345 (La.1973). In sum, there is no merit in this assignment of error.

ASSIGNMENTS OF ERROR NOS. 2 AND 4

These assignments of error relate to the trial court’s denial of defendant’s motion to suppress evidence (Assignment of Error No. 2) and its permitting introduction of the tape player and tapes into evidence (Assignment of Error No. 4).

Defendant contends that these objects were seized as a result of a prior unconstitutional search of his vehicle by Deputy Cook. He argues that the information received at that time led to the subsequent search and seizure of the tapes at the Hearne house and the surrender thereafter of the tape player by Ike Square.

At the outset, we might say that, while defendant disputes that Deputy Cook made the initial stop of his vehicle because of a loud muffler, the record does not support his position. In addition to Deputy Cook’s testimony to this fact, defendant himself admitted that his muffler was a “little loud” and his exhaust was “leaking.” Also, his brother testified that only a couple of days before they had put some “gaskets” on it. Hence, we have no difficulty in concluding that Deputy Cook stopped the Hines vehicle because of a loud muffler.

Next, we agree with the finding of the trial judge that defendant freely and voluntarily consented to the search of his car. While Deputy Cook emphatically testified as to defendant’s consent, this fact is denied by defendant. Upon stopping defendant for a muffler violation, Deputy Cook recognized Hines and knew that he had just been released from prison and was on parole. He also had information that defendant had been involved with drugs. While these facts might be insufficient to establish probable cause for the search, they do support Deputy Cook’s testimony that defendant willingly invited him to check his vehicle. The fact that no drugs were found lends credence to Cook’s assertion. Obviously, defendant wanted to show him that he did not possess any drugs. Hence, we conclude that defendant freely consented to the search of his vehicle. A search conducted pursuant to a valid consent is constitutionally permissible. It then follows that Deputy Cook’s view of the tape player during this legal search in no way tainted the subsequent seizure of this item and the tapes. Likewise, the seizure thereafter of the tape player from Ike Square and the search and seizure of the tapes from Mrs. Hearne were based on their valid consent. Hence, the trial court correctly denied the motion to suppress and permitted the introduction of the tape player and tapes into evidence.

ASSIGNMENT OF ERROR NO. 3

Defendant claims the trial court erred in permitting the introduction of testimony concerning oral inculpatory statements made by defendant to Deputy Cook.

Defendant made no objection when Deputy Cook testified as to these statements. Likewise, defendant himself took the stand and corroborated that these statements were in fact made. Hence, there is no ground for complaint, as any irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. La.Code Crim.P. art. 841 (1966), as amended, La.Acts 1974, No. 297, § 1. Article 920 of the Code of Criminal Procedure provides:

The following matters and no others shall be considered on appeal:

(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

La.Code Crim.P. art. 920 (1966), as amended, Acts 1974, No. 207, § 1 (emphasis added). Paragraph (b) to the Official Revision Comment under Article 920 of the Code of Criminal Procedure provides in pertinent part:

The 1974 amendment to clause (1) basically conforms the article to the assignment of errors procedure. For errors to be included in the assignment of errors reviewable on appeal, the requisite procedures must have been followed. See Arts. 841, 842, 844, 845, 851, 859.

Hence, no error is presented in this assignment of error for appellate review.

DECREE

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

      . Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 864 (1973) ; State v. Sears, 298 So.2d 814 (La.1974) ; State v. McMellon, 295 So.2d 782 (La.1974).

      . State v. Forbes, 310 So.2d 569 (La.1975); State v. Taylor, 303 So.2d 169 (La.1974); State v. Frierson, 302 So.2d 605 (La.1974).

      . The requirement of an objection shall not apply to the court’s ruling on any written motion.


author:
CALOGERO, Justice.
      BARHAM, J.,

text:
    STATE of Louisiana, Appellee, v. Stanislaus ROBERTS, Appellant.
    No. 56090.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Oct. 9, 1975.

      Jack W. Caskey, James E. Williams, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., James L. Babin, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Richard G. Lowe, an attendant of a gas station, was shot and killed during an armed robbery. Defendant Stanislaus Roberts was indicted for first degree murder. The armed robbery is alleged to have been perpetrated by defendant Roberts and one Calvin Arceneaux. After a trial by jury, Roberts was found guilty as charged and sentenced to death. Defendant appeals his conviction relying upon five assignments of error.

Assignment of Error No. 1.

Defendant argues that the trial court erred when it denied his motion for a new trial based upon the allegation that the state had failed to prove one of the elements of the crime.

Defendant was charged with first degree murder under R.S. 14:30(1) which provides in part that:

First degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated rape or armed robbery;
* * * * * *
Whoever commits the crime of first degree murder shall be punished by death.

It is alleged that defendant was engaged in the perpetration of an armed robbery which is defined by R.S. 14:64:

Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

Defendant argues that the state did not prove that the items taken from the gas station had any value or, alternatively, that the state did not prove that the items were taken from the immediate control of the victim Richard Lowe.

Richard Lowe was the night attendant at the gas station and was in sole charge of the station at the time of the incident. That which was taken from the premises was certainly taken from his control. State v. Refuge, 300 So.2d 489 (La. 1974).

The record shows that the perpetrators of the crime entered the premises unarmed. However, they removed a .38 Colt revolver from a desk drawer and armed themselves with it. This gun was used to threaten, and finally to kill, the attendant. It was the weapon employed by Roberts to facilitate theft of a second pistol and two empty moneybags. Its brandishment also contributed to the successful removal from the premises of the very same .38 Colt revolver and several gallons of gasoline or its monetary equivalent, three dollars. When the perpetrators departed the premises, they took with them the two guns and the two moneybags from the station office and the three dollars which they had received for the gas.

The .38 Colt revolver was introduced into evidence; the original owner of the gun testified that he had sold the gun to the owner of the station, but he did not specify the sale price. The other gun and the moneybags, however, were not introduced into evidence. (Presumably they were never recovered.) The state made no independent tender of proof relating to the monetary value of the guns or the bags. At issue here, then, is whether the state is required to put on affirmative proof of the value of the thing taken in order to satisfy R.S. 15:271 which requires that “[t]he plea of not guilty throws upon the state the burden of proving beyond a reasonable doubt each element of the crime necessary to constitute the defendant’s guilt.” State v. Brown, 301 So.2d 605 (La.1974).

The phrase “anything of value” is defined very broadly by statute in Louisiana:

“Anything of value” must be given the broadest possible construction, including any conceivable thing of the slightest value, movable or immovable, corporeal or incorporeal, public or private, and including transportation, telephone and telegraph services, or any other service available for hire. It must be construed in the broad popular sense of the phrase, and not necessarily as synonymous with the traditional legal term “property.” R.S. 14:2(2).

Certainly there is no question that the items taken here (an operable Colt police .38 caliber revolver which defendant used to kill the gas station attendant, another pistol, and two moneybags) would constitute something of value, certainly if “anything of value” is to be given “the broadest possible construction, including any conceivable thing of the slightest value.”

However, we need not resolve the question of whether independent proof need be made of the specific value of the two guns and two empty moneybags inasmuch as the monetary equivalent of the gas taken is conclusively shown to have been three dollars, the amount which Arceneaux got for the gas from the startled customer.

This assignment of error lacks merit.

Assignment of Error No. 2.

Defendant assigns as error the trial judge’s decision to allow the state to amend the indictment on the day of the trial. The pre-amendment indictment charged the defendant with the murder of Richard G. Lowe while defendant was engaged in an armed robbery. The state was allowed to amend the indictment so that it would state that the same Richard G. Lowe was the person robbed as well as the person murdered. The amendment was granted, over counsel’s objection, after court had convened on the first day of the trial but before the trial had commenced. Defendant moved for a continuance alleging that defendant was properly informed of the nature of the accusation against him only moments before the trial began and that he should be granted a continuance to afford him time to alter or supplement his defense.

Before a trial begins, the trial judge may order an indictment amended. C.Cr.P. Art. 487. So long as the amendment merely clarifies the crime charged and does not add a new crime, the amendment is proper. State v. Bluain, 315 So.2d 749, decided on June 23, 1975; State v. Royal, 255 La. 651, 232 So.2d 465 (1970). The fact that such a clarification has been made does not necessarily prejudice the defendant. If, however, the defendant can show that he has been prejudiced in his defense on the merits by the change, the trial court must, on motion of the defendant, grant a continuance for a reasonable time. C.Cr.P. Art. 489. But this defendant failed to show in what respect his defense was prejudiced by the change. In the absence of any showing of prejudice, the trial judge properly overruled defendant’s motion for a continuance. State v. Royal, supra.

This bill lacks -merit.

Assignment of Error No. 3.

Defendant contends that the selection of the grand jury which indicted him and the petit jury which convicted him was unconstitutional, in derogation of the due process clauses of the Louisiana Constitution of 1921 and the United States Constitution. He argues that the systematic exclusion of women from these juries requires that this Court reverse the conviction.

Defendant was tried in September, 1974. On January 21, 1975, the United States Supreme Court held in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) that the Louisiana system of requiring women to register in order to serve on juries was unconstitutional. Then in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), that same Court held that the decision in Taylor would be applied only prospectively from January 21, 1975. This Court has applied the Daniel holding in State v. Raster, 309 So.2d 321 (La.1975) and has consistently affirmed that decision. State v. Wilson, 315 So.2d 646, decided on June 23, 1975; State v. Williams, 310 So. 2d 528 (La.1975); State v. Devore, 309 So.2d 325 (La.1975).

Defendant’s claim of unconstitutionality because of the exclusion of women from the jury venire is without merit.

Assignment of Error No. 4.

Defendant argues that the statute under which he was convicted and sentenced is unconstitutional in derogation of the Eighth and Fourteenth Amendments to the United States Constitution which prohibit the state from imposing cruel and unusual punishment. The statute under which defendant Roberts was tried, R.S. 14:30(1), mandates the death penalty upon conviction. Defendant argues from Mr. Justice Brennan’s concurrence in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) that the death penalty should be held unconstitutional per se. But the Furman decision did not hold that punishment by death was necessarily cruel and unusual. And this Court has held that the death penalty imposed after conviction of first degree murder under another subsection of the statute at issue here was not unconstitutional per se. State v. Hill, 297 So.2d 660 (La. 1974). In the Hill case this Court stated:

“The death penalty for murder, when the perpetrator has the intent to kill or inflict great bodily harm on more than one person, is neither barbarous nor disproportionate to the offense. See State v. Selman, supra; State v. Crook, 253 La. 961, 221 So.2d 473 (1969); 21 Am. Jur.2d, Criminal Law, § 613, p. 563. In fact, the Due Process Clause of the United States Constitution sanctions the death penalty when it is imposed with due process of law.
“We conclude, therefore, that capital punishment per se is' not constitutionally proscribed.” 297 So.2d at 661.

We here hold that the death penalty mandated by R.S. 14:30 after conviction under subsection (1) is not unconstitutional per se.

Assignment of Error No. 5.

Defendant argues that the statute under which defendant was tried and convicted is unconstitutional because the jury is empowered to return a responsive verdict of second degree murder or manslaughter, neither of which carries the death penalty. He argues that the jury, therefore, maintains the power to apply the death penalty in a discriminatory manner in violation of the Eighth and Fourteenth Amendments to the United States Constitution as they were delineated in Furman v. Georgia.

Under article 814 of the Louisiana Code of Criminal Procedure, the jury may render responsive verdicts for first degree murder which do not carry the death penalty. This Court has held on two occasions that the power of the jury to bring in a responsive verdict for a separate though lesser included offense which does not carry the death penalty is not contrary to the United States Supreme Court decisions in Furman v. Georgia. In the case of State v. Hill, supra, this Court reversed the decision of the trial court which had quashed an indictment on the grounds that the power of the jury to return responsive verdicts without the death penalty was unconstitutional. This Court stated:

“As provided in the statute, the death penalty is mandatory for first degree murder. Article 817 of the Louisiana Code of Criminal Procedure, as amended by Act 125 of 1973, prohibits a qualification of the guilty verdict. If the defendant is found guilty as charged, the trial judge must impose the death penalty. The penalty cannot be applied in a discriminatory manner. See Furman v. Georgia, supra; State v. Holmes, 263 La. 685, 269 So.2d 207 (1972). It is true that Article 814, as amended by Act 126 of 1973, lists as responsive verdicts second degree murder, carrying a sentence of life imprisonment, and manslaughter, carrying a sentence of imprisonment up to 21 years. See LSA-R.S. 14:30.1; LSA-R.S. 14:31. The use of these lesser verdicts, however, is contingent upon the jury finding insufficient evidence to convict the defendant of first degree murder, with which he is charged.” 297 So.2d at 662.

Likewise in the case of State v. Selman, 300 So.2d 467 (La.1974), we affirmed a conviction for aggravated rape and the sentence of death. The Court pointed out that the Louisiana legislature, following the ruling in Furman v. Georgia, enacted amendments to Article 814 and 817 of the Code of Criminal Procedure. These amendments removed the possibility that a jury could qualify its verdict with the words “guilty without capital punishment.” In such a case the punishment would have been imprisonment at hard labor for life. As the statute is presently written, if a jury brings in a verdict of guilty of aggravated rape or guilty of violation of any of the other four subsections of R.S. 14:30, the jury does not have a choice of verdicts. The Court in Selman stated:

“If the jury finds under the facts of the case, that the accused is guilty of aggravated rape, the death penalty shall be imposed. On the other hand, if the jury finds under the facts of the case that the accused is either guilty of attempted aggravated rape or simple rape, they will render a verdict of guilty for that particular crime. We must bear in mind that attempted aggravated rape and simple rape are separate and distinct crimes with separate penalty provisions for each. The fact that death is the mandatory penalty for aggravated rape but not for the responsive verdicts of attempted aggravated rape and simple rape is of no moment. The sole determining factor as to which penalty will be imposed depends upon the particular crime for which the jury finds the accused guilty, if any. Therefore, we conclude that there is no discretion in the jury for the imposition of the death penalty where the accused is found guilty of aggravated rape.
“Hence, the present death penalty in Louisiana for aggravated rape is constitutionally permissible. It does not violate the Eighth and Fourteenth Amendments to the United States Constitution.” 300 So.2d at 473.

We here affirm the Hill and Selman rulings and determine that this bill lacks merit.

For the reasons assigned, the conviction is affirmed.

BARHAM, J.,

dissents, being of the opinion that Louisiana’s system of responsive verdicts makes the death penalty unconstitutional under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). See dissents in State v. Hill, 297 So.2d 660 (La.1974) and State v. Selman (La.) 300 So.2d 467.

DIXON, J., dissents for the reason expressed by BARHAM, J.

      . The record shows that the co-perpetrator Arceneaux pumped three dollars worth of gas for a customer. The startled motorist fled when he heard shots fired within the station and Arceneaux pocketed the money.

      . Actually, the trial judge had suggested to the district attorney that the amendment be made so that the indictment would not later be invalidated as a similar one had been in State v. Smith, 275 So.2d 733 (La.1973). That case has now been overruled. State v. James, 305 So.2d 514 (La.1974).

      . No prospective juror had been questioned or sworn; no witness had taken the stand.

      . The invalidated constitutional provision, Art. 7, § 41, was operative until January 1, 1975, when the Louisiana Constitution of 1974 became effective. The new Constitution does not contain a provision granting women exemption from jury service unless they volunteer, and Article 402, C.Cr.P., was accordingly repealed by Act 20 of 1974 (Ex.Sess.).

      . The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Fourteenth Amendment applies this prohibition to the states.

      . Only two of the five justices comprising the majority, namely Justices Douglas and Brennan, concluded that the death penalty was cruel and unusual punishment per se under the Eighth and Fourteenth Amendments.

      . That subsection was R.S. 14:30(4) which reads “First degree murder is the killing of a human being: ... (4) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.”


author: TATE, Justice.

text:
    James GRAVES, Plaintiff-Appellant-Relator, v. KAISER ALUMINUM AND CHEMICAL CORPORATION, Defendant-Appellee-Respondent.
    No. 55752.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Sept. 30, 1975.
    Robert M. Caswell, Kronlage, Dittmann & Caswell, New Orleans, for plaintiff-appellant-relator.
    Paul B. Deal, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendant-appellee-respondent.
   TATE, Justice.

We granted certiorari, 309 So.2d 676 (1975), to review the unreported ruling of the Court of Appeal, Fourth Circuit, dismissing the plaintiff’s appeal. The reason for the dismissal was that the plaintiff’s devolutive appeal bond was not filed until November 12, 1974, or well more than the ninety-odd days allowed by La.C.Civ.P. art. 2087 after the trial court judgment of June 25, 1974.

We reverse. Under the facts to be set forth, the plaintiff timely filed a motion for his appeal to proceed in forma pauperis. His right to appeal, favored under our law, cannot be defeated by the failure of the district court to sign the timely presented order of appeal in forma pauperis.

The facts we deem pertinent are:

The trial court signed judgment on June 25, 1974, with notice of judgment mailed that same day. On August 15, 1974, the plaintiff filed an amended petition for appeal. This petition unambiguously prayed for leave to appeal in forma pau-peris, and attached to the petition were affidavits of third persons as to the plaintiff’s impoverished financial condition, in compliance with La.C.Civ.P. art. 5183.

The trial court refused to sign an order granting the plaintiff an appeal without bond or prepayment of costs, as permitted by La.C.Civ.P. arts. 5181, 5185(4). Instead, it ordered the defendant Kaiser to show cause at 10:30 a. m. on September 23 why the order to appeal in forma pauperis should not be permitted. The minutes show that on September 23 the trial court continued the rule without date, “due to no appearance of counsels.”

At this point, we must note that the time to perfect the devolutive appeal was to expire on September 25, 1974, La.C.Civ.P. arts. 2087, 1974, ninety days after the three-day delay for applying for a new trial. (No motion for a new trial had been made.)

The legal context in which the pertinent facts occurred should be noted:

An applicant is permitted to continue to litigate or to appeal without pre-payment of costs by furnishing an application to do so together with the affidavit of hi'mself and of a third parson of his poverty. Articles 5183, 5185(4), La.C.Civ.P. If he is permitted to appeal in forma pauperis, the mere signing of the order of appeal perfects the appeal. Article 2088.

On the other hand, the adverse party may traverse the facts of poverty, requesting that the order permitting the mover to proceed without pre-payment of costs be rescinded. Article 5184. Further, the judge himself may inquire into the facts to satisfy himself that the applicant is entitled to the privileges of litigating without prepayment of costs. Article 5183; City Stores v. Petersen, 263 La. 577, 268 So.2d 662 (1972).

The statute according the privilege to litigate in forma pauperis, as initially enacted, extended the privilege only to those parties who filed the affidavits of poverty with their first pleading. Act 156 of 1912, as amended by Act 260 of 1918. However, by Act 165 of 1934, a party was permitted to assert the privilege at any time during the pendency of the suit, including on appeal or for purposes of appeal only.

The legislative intent was thus to broaden the privilege to permit it to be asserted for the first time for the purpose of perfecting a devolutive appeal. Because of such strong legislative intent, this court early stated that the proper method of reconciling “the right of an impoverished litigant to take a devolutive appeal from an adverse judgment as late as he sees fit within the time prescribed by law, and without giving an appeal bond”, with the right of the appellee to traverse the affidavits of poverty, “is to recognize the right of the appellee to apply to the appellate court to have the case remanded for the purpose of traversing the affidavits on which the right to appeal in forma pauper-is was granted, if sufficient time for the traverse was not allowed in the court which rendered the judgment.” Buckley v. Thibodaux, 181 La. 416, 159 So. 603, 605 (1935). See also Brewer v. Thoele, 186 La. 168, 171 So. 839 (1937).

In the light of this legal context and under the circumstances of this case, the trial court’s actions (a) in failing to sign the order permitting the plaintiff to appeal in forma pauperis and in setting a contradictory motion on the eve of the expiration of the appellate delay, and (b) in then continuing said contradictory motion beyond the statutory delay allowed to perfect the appeal, had the effect of depriving the plaintiff-appellant of his statutory right of appeal. These actions were performed sua sponte by the trial court. Further, the record in the trial court, including the evidence at the trial, indicates no substantial reason for the trial court to doubt the plaintiff’s affidavits of indigency.

The defendant Kaiser, appellee, relies, however, on the jurisprudence that the late filing of the appeal bond deprives the appellate court of jurisdiction to hear the appeal. Orrell v. Southern Farm Bureau Casualty Insurance Co., 248 La. 576, 180 So.2d 710 (1965).

From the earliest, however, our jurisprudence has recognized an exception to this principle. This exception here applies: When the motion for appeal has been timely made within the delay period allowed to perfect an appeal and has been continuously pressed, the appeal as ultimately perfected has been held valid despite the tardy filing of the bond, where the failure to perfect it within the delay period results from the erroneous refusal of the trial court to sign an appeal order timely after it has been presented to it or from the trial court’s placing unreasonable conditions upon the exercise of the right to appeal. The fault in the tardy filing is then regarded as imputable to the court system rather than to the appellant. La.C. Civ.P. art. 2161.

See: Magnolia Petroleum Co. v. Marks, 223 La. 662, 66 So.2d 585 (1953) (trial court refused to fix amount of bond required, being of erroneous good faith belief that no bond was required by statute); Coney v. Coney, 218 La. 218, 48 So.2d 902 (1950) (failure of tardy filing of allegedly excessive appeal bond resulted from supreme court review of issue of exces-siveness) ; Rosenthal-Brown Fur Co. v. Jones-Frere Fur Co., 157 La. 887, 103 So. 251 (1925) (delay occasioned by review of alleged excessiveness of appeal bond); Ready v. City of New Orleans, 27 La.Ann. 169 (1875) (delay occasioned by mandamus proceeding to compel the trial judge to grant the appeal); Succession of Parker, 18 La.Ann. 644 (1866) (district court, misapprehending the law, did not fix the amount of the bond at the time the appeal was granted); Succession of Jacobs, 5 Rob. 270 (1843) (delay created by initial refusal of trial judge to allow the appeal).

For the foregoing reasons, we reverse the order of the court of appeal dismissing this appeal, and we remand it to the court of appeal for further proceedings in accordance with law. The costs of review by this court are to be paid by the defendant-appellee; other costs of appellate review to be assessed upon determination of the appeal.

Motion to dismiss overruled, and appeal remanded to the Court of Appeal.

      . The trial court deleted from an earlier order of appeal attached petition of July 26, 1974 a provision permitting the appeal to proceed in forma pauperis, but it had directed that the appeal be granted “upon petitioner furnishing bond with good and solvent surety, if necessary”, without fixing the amount of the bond as required for the order granting the appeal to be valid. See Dupre v. Hartford Accident and Indemnity Co., 197 So.2d 119 (1967) (La. App.3d Cir.), reluctantly applying the “anachronistic technicality”, 197 So.2d 121, founded upon old opinions of this court.

      . To complete the chronology, the trial court signed an order of appeal on November 7, 1974, which fixed the bond in the amount of $450.00. This was furnished by the plaintiff on November 12, 1974.

      . The evidence shows that, following his 1973 injury, the plaintiff had not been able to work except for a short period of three weeks or so, when due to painful residual he could not continue. Assuming that the wife’s obtaining a job as clerk to support her husband, her child, and herself somehow affected her husband’s privilege to litigate in forma pauperis, the record does not indicate the amount of the wife’s earnings or disclose substantial reason to doubt the impecunious condition of the couple due to the cessation of any earnings by the husband.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Donald KUYKENDALL.
    No. 56110.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Sept. 30, 1975.
    Jack Peebles, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Defendant, who was charged by bill of information with simple burglary, a violation of LSA-R.S. 14:62, was convicted by a jury and sentenced to serve fifteen years at hard labor as a multiple offender. During the course of trial, defendant reserved eight bills of exceptions. These eight bills are the basis of three assignments of error on appeal.

At approximately 4:45 a. m., on November 24, 1973, Elwood Wehrwein, his wife Marilyn, and their daughter, Ruth, who live at 2515 Carondelet Street in New Orleans, were awakened by dogs barking; investigating, they saw a man and a boy on the roof of an adjacent restaurant. The Wehrweins called the police. During the half hour or more that it took for the police cars to arrive, Mr. and Mrs. Wehr-wein and their daughter saw the two individuals try various windows and break the glass in a door, and saw the man lift the boy through the broken window in the door into the restaurant building. Because of the distance, the Wehrweins were unable to distinguish the features of the two burglars or to hear their voices; however, the lighting was good and they observed their clothing and general appearance.

When the police cars arrived, the two burglars were still present. As the officers alighted from their vehicle and approached the restaurant, Ruth Wehrwein saw the man, Donald Kuykendall, jump off the roof, fall, and, apparently injuring himself from the fall, lean against an air conditioning unit. He was arrested there by Officer Firmin. Officer Stoltz testified that he saw the boy jump from the roof; he chased the boy and arrested him.

ASSIGNMENT OF ERROR NO. 6

Defendant argues that the lower court erred when it sustained the State’s objection to the following defense question to a police officer on cross-examination : “Do you recall what she [Ruth Wehrwein] told you that she observed ?”

Defendant argues that Ruth Wehrwein’s testimony was critical to the case presented by the State, since she was the only witness who testified that she saw one of the burglars jump off the roof and then be apprehended by a police officer. Defense counsel admits that the testimony of the officer is hearsay, but argues that it is admissible for impeachment purposes, since Ruth Wehrwein had already testified.

At trial Ruth Wehrwein testified that when the police officers arrived at the scene of the crime “the tall guy jumped off the roof and he fell on the ground, and he busted his knee and stood against the air conditioning unit.” The witness then indicated on a photograph the window in her house at which she was standing when she saw the defendant, Kuykendall, jump from the nearby roof, and also marked the air conditioning unit against which he leaned. Thereafter, she stated that she observed Officer Firmin arrest the man who had jumped from the roof, while the latter was leaning or sitting on the air conditioning unit.

During cross-examination, Ruth Wehr-wein testified that after the police arrived, she told one of them she had seen two people on top of the roof trying to break in, and when asked by defense counsel, “Did you tell him that you saw them jump off the roof,” the witness responded, “No, he didn’t ask me.” Later, in cross-examination, when asked by defense counsel again whether she had told one of the arresting officers that she had seen someone jump off the roof, she said, “I can’t recall if I did or not.”

Miss Wehrwein had freely admitted to the jury that she had not told the police on the date of the burglary that she had seen Kuykendall jump from the restaurant roof at the approach of the officers, resulting in his arrest by Officer Firmin. Since the witness freely admitted making the prior statement, nothing in either LSA-R.S. IS :493, describing the foundation necessary for proof of a prior contradictory statement, or in the jurisprudence of this State sanctions the introduction of the testimony.

This assignment of error lacks substance, and is, therefore, without merit.

ASSIGNMENTS OF ERROR NOS. 5 AND 7

Defendant alleges that the lower court erred in refusing to order the State to produce in court, for the purpose of cross-examination, the police reports made by Officer Firmin and Officer Stoltz, the arresting officers. Neither officer had the report with him in court.

This Court has held that a trial court, under these circumstances, need not order the production of a police report to be used to cross-examine an officer, unless the defendant shows that the report is inconsistent with the officer’s in-court testimony. State v. Tharp, 284 So.2d 536 (1973); State v. Franklin, 263 La. 344, 268 So.2d 249 (1972); State v. Gladden, 260 La. 735, 257 So.2d 388 (1972); State v. Nails, 255 La. 1070, 234 So.2d 184 (1970); State v. Whitfield, 253 La. 679, 219 So.2d 493 (1969); and State v. Martin, 250 La. 705, 198 So.2d 897 (1967). Since there is no showing that the officers’ in-court testimony differed from their reports, the defendant was not entitled to have the reports produced for purposes of cross-examination.

ASSIGNMENT OF ERROR NO. 4

Defendant alleges that the lower court erred when it sustained the State’s objection to the following question asked by defendant on the cross-examination of Mr. Wehrwein: “Now, with regard to what you observed on that other roof, did you notice the approximate ages of the people on the roof?”

Defendant argues that the State was permitted to ask Ruth Wehrwein to approximate the ages and that she was allowed to answer; therefore, the defendant should have been able to obtain an answer from Mr. Wehrwein. Assuming that error was committed, the error was harmless. LSA-C.Cr.P. Art. 921. As stated in defendant’s brief to this Court,

“It will be recalled that no witness at the trial identified appellant here, Donald Kuykendall, as being one of the two persons on the roof. All three members of the Wehrwein family observed him at the trial, yet none were willing to testify that this was one of the men on the roof.”

The identification of the defendant by the Wehrweins was not in issue here, as they were never called upon to identify the defendant. All three testified that they had seen two individuals on the roof, one considerably taller than the other. Ruth Wehrwein testified that the taller one jumped from the roof and was the same person who was leaning against the air conditioning unit when the police officer arrived on the scene and arrested him. While error may have been committed in disallowing the question, especially since the State was allowed to ask the same question of Ruth Wehrwein without objection, the alleged error was harmless.

This assignment of error is without merit.

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

BARHAM, J., concurs, being of the opinion that the majority is in error in its narrow interpretation of the circumstances under which a police report must be produced. See State v. Tharp, 284 So.2d 536 (La. 1973), and the opinions which followed, all holding that if the police report has been used to refresh the memory or is past recollection recorded, it must be produced for full cross-examination purposes.