author: MARCUS, Justice.

text:
    STATE of Louisiana v. Frankie SEPULVADO.
    No. 61216.
    Supreme Court of Louisiana.
    May 22, 1978.

      Mark H. Kramer, as Public Defender for Sabine Parish, Leesville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Frankie Sepulvado was indicted for the crime of carnal knowledge of a juvenile in violation of La.R.S. 14:80. After trial by jury, he was found guilty as charged and was sentenced to serve three and a half years at hard labor. On appeal, defendant relies on nine assignments of error for reversal of his conviction and sentence.

FACTS

Four years prior to the commission of the present offense, defendant and the victim became acquainted while attending a local high school. During the early morning hours of April 2, 1977, defendant, who was then eighteen years one month old, met with the unmarried fifteen-year nine-month old victim who had slipped away from her home, and had sexual intercourse with her with her consent in Sabine Parish. On the evening of that same day (April 2), the victim again left home and met defendant at which time they travelled to Texas where they lived together for two weeks. Intending to get married, they returned to their respective homes in Sabine Parish. Subsequently, defendant was charged with the instant crime of carnal knowledge of a juvenile committed in Sabine Parish on or about April 2, 1977.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion for a mistrial urged prior to the prosecutor’s opening statement. The motion was grounded on the claim that the trial judge improperly granted a continuance after trial had commenced.

Defendant’s contention is without merit. A continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced. La.Code Crim.P. art. 708. A jury trial commences when the first prospective juror is called for examination. La.Code Crim.P. art. 761. In the instant case, the record reveals that, after the jury had been selected and sworn and, therefore, after trial had commenced, the trial judge ordered a recess for a period of two days so that a defense witness, who had been personally served with a subpoena but had failed to appear at trial, could be attached and brought to court. Defense counsel consented to the granting of the recess. In view of the fact that defendant consented to the recess which had been ordered for his benefit to assure the attendance at trial of a defense witness, defendant has no cause to complain. Moreover, there is no showing of any prejudice resulting from the recess. Hence, the trial judge did not err in denying defendant’s motion for a mistrial.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in permitting the state to question the victim as to acts of sexual intercourse with defendant other than that with which defendant was charged. He argues that this constituted evidence of other crimes which was not admissible.

Defendant was charged with committing the crime of carnal knowledge of a juvenile in Sabine Parish on or about April 2, 1977. On direct examination, the victim testified that on Saturday night (April 2), she had left home and met defendant at which time they travelled to Texas where they remained two weeks. They then returned to Sabine Parish because they wished to marry. The victim was asked if she had engaged in sex with defendant on the night she left with him for Texas. Without objection, she responded that she had had sex with defendant that night in Texas. The victim also testified that she had engaged in sex with defendant in Sabine Parish during the early morning hours of April 2, 1977. Thereupon, the district attorney asked: “But you had sex relations with him subsequent to that also, did you not?” The victim replied in the affirmative. Defense counsel objected for the first time. The objection was overruled.

La.Code Crim.P. art. 841 provides that an irregularity or error cannot be availed of after verdict unless it was objected to “at the time of occurrence.” In the instant case, defendant’s objection to the victim’s testimony regarding acts of sex with defendant other than that with which he was charged came too late. The victim had previously testified, without objection, that she engaged in sex with defendant in Texas on the night after she had sex with him in Sabine Parish. Hence, defendant may not avail himself of the alleged error on appeal. La.Code Crim.P. art. 841; State v. Hillman, 298 So.2d 746 (La.1974); State v. Kelly, 262 La. 143, 262 So.2d 501 (1972). Moreover, after defendant’s untimely objection, the only further reference to sexual relations with defendant other than the crime charged was the testimony of the victim on redirect that during their two-week stay in Texas she and defendant had lived together and any sexual relations in which she engaged while in Texas would have been with defendant.

Assignment of Error No. 2 has no merit.

ASSIGNMENT OP ERROR NO. 3

Defendant contends the trial judge erred in permitting Dr. C. E. Poim-beouf to express an opinion as to whether the victim had engaged in sexual intercourse. He argues that the expert witness possessed insufficient qualifications to express an opinion in this specialized field.

La.R.S. 15:466 sets forth the guidelines for the qualification of expert witnesses:

The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.

We have consistently held that the competency of an expert witness is a question of fact to be determined within the sound discretion of the trial judge. His rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error. State v. Lewis, 353 So.2d 703 (La.1977); State v. Gray, 351 So.2d 448 (La.1977); State v. Madison, 345 So.2d 485 (La.1977); State v. Marks, 337 So.2d 1177 (La.1976); State v. Vassel, 285 So.2d 221 (La.1973). The record reflects that Dr. Poim-beouf, an experienced physician engaged in general medicine and practice, was the parish deputy coroner for several years prior to his examination of the victim. He had previously served as the parish coroner for six years and possessed medical training and experience in the fields of obstetrics and gynecology. Based on the foregoing facts, we do not consider that the trial judge abused his discretion in permitting the witness to express an opinion as to whether the victim had engaged in sexual intercourse.

Assignment of Error No. 3 lacks substance.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in permitting Mrs. Dewitt Sep-ulvado, the mother of the victim, to testify at trial. He argues that her testimony was irrelevant.

On direct examination, Mrs. Sepulvado testified that her daughter was born on July 2, 1961, and that most of the information contained in her daughter’s birth certificate, which had previously been introduced at trial, had been supplied by her. She further testified that, upon her daughter’s return to Sabine Parish, she telephoned her daughter while the latter was at the home of defendant’s mother. The witness related that she and her husband later met their daughter at city hall and took her to the parish deputy coroner for a physical examination.

This court has consistently held that the trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. King, Nos. 60,732 and 60,733, 355 So.2d 1305 (La., 1978); State v. Russell, 352 So.2d 1289 (La.1977); State v. George, 346 So.2d 694 (La.1977); State v. Owens, 301 So.2d 591 (La.1974); State v. Ackal, 290 So.2d 882 (La.1974). In the instant case, the testimony of Mrs. Sepulvado was presented by the state to establish the birth date of her daughter in order to prove that she was twelve years of age or over but under the age of seventeen years, an essential element of the crime of carnal knowledge of a juvenile under La.R.S. 14:80. The testimony of the witness further demonstrated that her daughter (the victim of the crime) was taken to the coroner for an examination immediately upon her return to Sabine Parish. As such, the testimony of the witness was relevant and admissible. Hence, the trial judge did not abuse his discretion in permitting the witness to testify at trial.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in denying his motion for a mistrial grounded on the claim that defendant’s marriage certificate was improperly introduced at trial to establish his date of birth. He argues that admission of the marriage certificate in evidence prejudiced his defense in that it placed before the jury the fact that he had married someone other than the victim subsequent to the commission of the instant offense.

To establish that defendant was over the age of seventeen, an essential element of the crime charged, the state called Mrs. Marie Sepulvado Craig, defendant’s mother, who testified that defendant was born on March 10, 1959. After identifying a marriage certificate bearing her son’s name and reflecting his birth date, the state offered the document in evidence. Defendant objected and also moved for a mistrial. The trial judge denied the motion but ordered that all matters written on the certificate except defendant’s name, signature and birth date be deleted from the document prior to its introduction in evidence. Thereafter, Mrs. Craig testified that, although no certificate of defendant’s birth had been recorded with the state, she did have defendant’s baptismal certificate which recited his date of birth. This certificate was received in evidence without objection. At this time, outside the presence of the jury, the prosecutor offered to withdraw the marriage certificate from evidence, stating that the only reason he had offered it in the first place was that he was under the impression that there was no birth certificate of any kind and thus the marriage certificate was the only written evidence of defendant’s birth date. The trial judge rejected his offer to withdraw the document on the ground that the marriage certificate formed the basis of a defense objection; therefore, it should remain in evidence. The prosecutor then requested that the document not be displayed to the jury.

Defendant’s motion for a mistrial is governed by La.Code Crim.P. art. 775 which states in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.

Mistrial is a drastic remedy and, except in instances in which the mistrial is mandatory, is warranted only when a trial error results in substantial prejudice to the defendant, depriving him of a reasonable expectation of a fair trial. State v. Russell, 352 So.2d 1289 (La.1977); State v. Overton, 337 So.2d 1058 (La.1976); State v. Redfud, 325 So.2d 595 (La.1976).

In the present case, the marriage certificate was relevant in establishing defendant’s date of birth in order to prove that he was over the age of seventeen years, an essential element of the crime charged. As such, it was admissible in evidence. To minimize any prejudice which defendant might suffer as a result of the introduction of the document in evidence, all written material contained on the certificate aside from defendant’s name, date of birth and signature was carefully deleted from the document prior to its admission in evidence and, at the state’s request, the certificate was not displayed to the jury. Moreover, evidence had been adduced earlier at trial, without defense objection, that defendant had married someone other than the victim subsequent to the commission of the instant offense. In view of the foregoing facts, we do not consider that defendant suffered such prejudice from the introduction of the marriage certificate in evidence to warrant the granting of a mistrial.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in permitting Mr. Dewitt Sepulvado to testify that Hosea Hill, the place where the crime was allegedly committed, is situated in Sabine Parish. He argues that this testimony was irrelevant.

The victim testified that she had engaged in sex with defendant in the latter’s vehicle while it was parked on a hill located in Sabine Parish on Blue Lake Road near a body of water. Subsequently, Mr. Sepulva-do, the father of the victim, testified that a well-known parking area frequented by local teenagers was Hosea Hill situated in Sabine Parish. Defendant’s objection to this testimony on the ground of relevancy was overruled by the trial judge. The witness further testified that the hill was at a distance of approximately three miles from their home and was located in the direction of the Blue Lake area.

This court has consistently held that the trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. King, Nos. 60,732 and 60,733, 355 So.2d 1305 (La.1978); State v. Russell, 352 So.2d 1289 (La.1977); State v. George, 346 So.2d 694 (La.1977); State v. Owens, 301 So.2d 591 (La.1974); State v. Ackal, 290 So.2d 882 (La.1974). In the instant case, the testimony of Mr. Sepulvado corroborated the testimony of the victim that the crime occurred in Sabine Parish by establishing that the hill described in the victim’s testimony as the scene of the crime was Hosea Hill which is situated in Sabine Parish. As such, the witness’ testimony was relevant and admissible to prove that Sabine Parish was the parish of proper venue of the criminal prosecution. La.R.S. 15-441. Hence, the trial judge did not abuse his discretion in permitting the witness to testify to this fact.

Assignment of Error No. 6 has no merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends the trial judge erred in refusing to give a requested special charge to the jury pertaining to the method by which the evidence presented at trial should be evaluated. Defendant’s requested special charge was confusing and not wholly correct. In any event, the proper method of evaluating evidence adduced at trial was correctly included in the trial judge’s general charge to the jury. Hence, the trial judge correctly refused to give the requested special charge. La.Code Crim.P. art. 807.

Assignment of Error No. 9 is without merit.

By Act 635 § 1, effective September 9, 1977, article 894.1 was added to the Louisiana Code of Criminal Procedure to provide that, where a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if one or more conditions are met. The new statute also enumerates various grounds which, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation. It is further provided that the “court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” While attempting to comply with this statute, the trial judge sentenced defendant to serve three and one half years at hard labor. However, considerations taken into account and the factual basis therefor in imposing sentence stated by the trial judge for the record do not reflect that he followed the sentencing guidelines that should be considered before imposing sentences of incarceration, suspending sentences or placing a person on probation. Under the facts and circumstances of this case, the trial judge might well have suspended defendant’s sentence in whole or in part or placed him on probation had he accorded weight to the enumerated grounds set forth in the statute. Accordingly, it will be necessary for us to vacate defendant’s sentence and to remand the case to the trial court with instructions to the trial judge to consider the sentencing guidelines in the statute before imposing sentence.

DECREE

For the reasons assigned, the conviction is affirmed but the sentence imposed is vacated and set aside, and the case is remanded to the Eleventh Judicial District Court, Parish of Sabine, with instructions to the trial judge to sentence defendant in accordance with law.

      . The crime charged herein is alleged to have occurred on or about April 2, 1977. La.R.S. 14:80 was amended by La. Acts 1977, No. 539, § 1, eff. Sept. 9, 1977. Hence, the new statute is not applicable to the instant prosecution.

      . In brief to this court, defendant has expressly abandoned Assignments of Error Nos. 7 and 8. Therefore, they are no longer before this court for review.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Russell PETTA.
    No. 61219.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.

      James Burnett Aime, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Russell Petta, was convicted of perjury, La.R.S. 14:123, following a judge trial and sentenced to two years at hard labor. Execution of the sentence was suspended and defendant was placed on two years active probation. On appeal defendant relies upon eleven assignments of error. For the reasons given below we affirm.

During an Orleans Parish special grand jury inquiry into alleged involvement of policemen in the commission of various burglaries, the defendant, a police officer, was called before the grand jury to testify. In his testimony the defendant denied having made telephone calls for the purpose of suborning a witness to one of the burglaries. On the basis of this testimony the defendant was indicted by the grand jury for perjury.

ASSIGNMENTS OF ERROR NOS. 1, 2, 4 and 10

These assignments relate to attempts by the defendant to show irregularities in the grand jury proceedings in which he was indicted for perjury. Prior to trial defendant unsuccessfully moved to examine' the entire transcript of the grand jury proceedings relative to the investigation in which he was called to testify. The State provided defendant with a copy of his testimony but refused to let him examine the entire transcript. During the trial defense counsel attempted to question the grand jury foreman and an assistant district attorney about the evidence presented to the grand jury which resulted in the defendant being charged with perjury. The court sustained the State’s objection on the ground that the evidence sought was not relevant to any issue justiciable at trial. The ruling was correct. The excluded evidence was perhaps relevant to prove a defect in the contents or form of the indictment which may be grounds for a motion to quash. La.C.Cr.P. art. 532 et seq. Since the defendant did not file a motion to quash, however, the grounds were waived. La.C.Cr.P. art. 535. The objectionable evidence was not relevant to any issue capable of being decided by the court upon trial of the case, and it was therefore properly declared inadmissible.

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 3

During the trial the State introduced into evidence a transcript of the testimony given by the defendant at the grand jury proceedings. Defense counsel initially objected on the ground that the best evidence of defendant’s alleged perjurious testimony would have been the tape recording of the testimony. The trial judge agreed to listen to the recording in addition to reading the transcript. Although defendant’s attorney approved of this procedure, he objected to the filing of the transcript into the record. Defendant does not contend .that the assigned error resulted in a miscarriage of justice, is prejudicial to his rights, or constitutes a substantial violation of a constitutional or statutory right.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 5, 6 and 7

In these assignments defendant contends that tape recordings and transcripts of two telephone conversations between himself and a third party, Phillip Pravata, were inadmissible as evidence because the conversations were taped in violation of the federal statutes dealing with the interception of oral communications by electronic means, 18 U.S.C. § 2510 et seq., and in violation of defendant’s rights derived from the Fourth Amendment. The contentions are without merit.

Under the federal statutes dealing with the interception of oral communications, prior judicial authorization for the interception is unnecessary if one of the parties to the communication has consented to such interception. 18 U.S.C. § 2511(2)(c) provides:

“(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication of one of the parties to the communication has given prior consent to such interception.”

The record reflects that Pravata gave his consent to the New Orleans police to have recording equipment placed on his telephone so that conversations with the defendant could be recorded. Under these circumstances there was no violation of the federal statutes.

In United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) the Supreme Court held that the Fourth Amendment did not require exclusion of evidence of conversations between the defendant and a government informant which were monitored by government agents through a radio transmitter concealed on the informant. The Court reasoned that the defendant had no expectation of privacy that the conversation would not be passed on to police agents.

These assignments do not present reversible error.

ASSIGNMENT OF ERROR NO. 8

In this assignment the defendant contends in his brief that the trial court improperly curtailed his examination of a witness which precluded him from impeaching the credibility of the State’s key witness.

While questioning Captain Martin, a police officer, defense counsel asked him if Pravata, another State’s witness, had told him about a conversation between Pravata and defense counsel. The State objected contending the testimony was not admissible as an exception to the hearsay rule because no predicate had been laid to impeach Pravata through a prior inconsistent statement. La.C.Cr.P. art. 493. Defense counsel made no argument in support of the admissibility of the testimony and the trial court sustained the State’s objection.

Because no grounds were made known at trial to support the admissibility of this evidence, this objection was not preserved for our review. La.C.Cr.P. art. 841. Moreover, the State is correct in its contention that no predicate had been laid to impeach Mr. Pravata. A reading of Pravata’s testimony indicates that he was never given an opportunity to acknowledge or deny a conversation with Captain Martin. Under La.R.S. 15:493, the foundation for proof of a contradictory statement was not established. See, State v. Redwine, 337 So.2d 1041 (La.1976).

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 11

In defendant’s motion for a bill of particulars he requested the State to provide him with the “correct” answers to the questions to which he allegedly gave untruthful responses at the grand jury proceedings. The State refused to answer this request and the trial court ruled that defendant was not entitled to the information. Defendant contends that the information was necessary for preparation of his defense.

An accused must be informed of the nature and cause of the accusation against him. La.Const.1974, Art. 1, § 13. However, a motion for a bill of particulars does not entitle the defendant to discover the State’s evidence or of the details of the State’s case. State v. Hunter, 340 So.2d 226 (La.1976); State v. May, 339 So.2d 764 (La.1976).

We find no error in the trial court’s refusal to order the State to provide defendant with the requested information. The indictment in this case, which set forth the portions of defendant’s testimony alleged to be false, was sufficient to inform the defendant of the nature and cause of the charges against him.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 12

At the close of the State’s case defendant unsuccessfully moved for an acquittal on the ground that the State had not proven essential elements of the crime of perjury, i. e., that the statements made by him were material to the issues under investigation by the grand jury and that he knew his statements to be false. La.R.S. 14:123.

As we stated in State v. Occhipinti, 358 So.2d 1209 (La.1978), materiality of false testimony is a matter of law for determination by the court rather than a factual question. The defendant contends that whether or not he called Pravata after the burglaries occurred was not material to the grand jury investigation of police involvement in certain burglaries. We disagree. The questions posed to the defendant were directed toward establishing police involvement in a certain burglary at City Park and an attempt by the police officers involved to cover up their implication in that burglary through communications with Pravata. Defendant’s denial before the grand jury that he contacted Pravata, a City Park policeman, to aid in the cover-up was a statement relating to a matter material to the issues and questions before the grand jury.

We further find that the trial court was correct in denying the motion for acquittal on the ground that there was no evidence that defendant knew his statements to be false. The State introduced the defendant’s grand jury testimony and the tape recordings of the telephone calls between defendant and Pravata. This latter evidence tended to show that defendant knew his statements before the grand jury were false.

This assignment lacks merit.

For the reasons assigned defendant’s conviction and sentence are affirmed.

      Assignment of error number nine was waived by the defendant.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Nathaniel GIBSON.
    No. 61228.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.

      William J. O’Hara, III, Supervising Atty., Bruce G. Buhler, Student Practitioner, Loyola Law School Clinic, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Nathaniel Gibson with armed robbery, a violation of LSA-R.S. 14:64. After a trial, the judge found defendant guilty. The court sentenced defendant to twenty years at hard labor. Defendant now appeals his conviction and sentence, relying upon three assignments of error.

On January 1, 1977, Nathaniel Gibson entered a neighborhood restaurant and bar owned by Mr. and Mrs. Sam Sholes. Gibson pulled a gun and demanded the money from Mrs. Sholes. A scuffle ensued between Gibson and Mr. Sholes. Mrs. Sholes gave Gibson approximately $500 and he fled.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

Herein, defendant complains of the trial court’s ruling sustaining the State’s objection to statements heard by Lawrence Williams, a bar patron, and the denial of the motion for a new trial based on that ruling. Defendant argues that Williams’ testimony is admissible as part of the res gestae of the crime.

Hearsay is an out-of-court statement offered at the trial to prove the truth of the matter contained in the statement. State v. Gonzales, 258 La. 103, 245 So.2d 372 (1971); State v. Thomas, 159 La. 1076, 106 So. 570 (1925); 29 Am.Jur.2d, Evidence, § 497, p. 555.

Res gestae is a well-recognized exception to the hearsay rule. The res gestae exception is statutorily defined as follows:

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

The utterances of bystanders, as well as participants, are admissible under this exception when a proper foundation has been laid. State v. Bean, La., 337 So.2d 496 (1976).

In State v. Bean, supra, we stated:

“The rationale of the exception is the special reliability of utterances made under the pressure and excitement of a crime or other extraordinary occurrence. Basic to the exception, therefore, is the requirement that the declarant must have personally observed the event about which he makes a factual utterance. Carney v. Pennsylvania Railroad Company 428 Pa. 489, 240 A.2d 71 (1968); Montesi v. State, 220 Tenn. 354, 417 S.W.2d 554 (1967); Pugh, Louisiana Evidence Law, p. 506 (1974); Comment, Excited Utterances and Present Sense Impressions as Exceptions to the Hearsay Rule in Louisiana, 29 La.L.Rev. 661, 673 (1969); 6 J. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, § 1751, p. 155 (3rd ed. 1940); McCormick, Evidence, § 297 p. 705 (2d ed. 1972); Anno.-Declarations-Condition of Admissibility, 127 A.L.R. 1030 (1940).
“The fundamental principle is correctly stated in 29 Am.Jur.2d, Evidence, § 724, p. 795, as follows:
‘In cases or jurisdictions in which statements by bystanders may properly be admitted as part of the res gestae, the admissibility of a particular declaration may be affected by evidence or lack of evidence that the bystander actually observed the principal act to which the statement relates. In this connection, the res gestae exception to the hearsay rule cannot properly dispense with the requirement that in some way, at least, and with some degree of persuasive force, it must appear that the declarant was in reality a witness to the thing which he declared.’ ”

Lawrence Williams had not seen the robbery or the scuffle which ensued because he had gone to the restroom. When he returned, he saw the robber exiting. From Williams’ vantage point, he could not discern the man’s facial features. However, he was personally able to determine that the man he saw leaving the barroom was more darkly complexioned than the defendant.

Williams’ hearsay testimony of the statements made by the bar patrons immediately after the man fled was disallowed by the trial court judge. Defendant argues that his ruling is reversible error, as the description of the robber by the patrons is inapplicable to the defendant and is, therefore, exculpatory.

The foundation laid in the present case is insufficient to establish that the utterance heard by the witness was a spontaneous utterance under the pressure of the occurrence by a bystander who had personally observed the robber as he committed the crime. Hence, the utterance was inadmissible under the res gestae exception. See State v. Bean, supra.

Assignments of Error Nos. 4 and 5 do not present reversible error.

ASSIGNMENT OF ERROR NO. 3

In Assignment of Error No. 3, defendant contends that the trial court erred in denying his motion for a directed verdict.

Initially, we note that the 1975 legislature abolished the motion for a directed verdict. LSA-C.Cr.P. Art. 778. The motion for acquittal, however, is proper in non-jury cases. A trial judge’s denial will not be reversed on appeal unless there is a complete lack of evidence of the crime or an essential element thereof. State v. Little, La., 353 So.2d 255 (1977); State v. Penson, La., 351 So.2d 1181 (1977); State v. Spot, La., 340 So.2d 1349 (1976).

The State introduced the following testimony by Mr. Sholes, the victim:

Nathaniel Gibson entered the bar and restaurant on January 1, 1977. He pulled a gun and demanded all the money from Mrs. Sholes. Gibson scuffled with Mr. Sholes and fled when Mrs. Sholes gave him the money he demanded.

Thus, there is ample evidence that defendant committed the armed robbery. The trial court judge properly denied defendant’s motion.

Assignment of Error No. 3 is without merit.

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

      . Assignments of Error Nos. 1, 2, and 6 have not been briefed or argued. They are, therefore, considered abandoned. State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).

      . The definition of hearsay has been recently restated in State v. Martin, La., 356 So.2d 1370 (1978). The Court stated:
      “We have on occasion indicated that an out-of-court assertion by a testifying witness is not hearsay, although it does not appear that this notion was actually crucial to any of our decisions. In other cases, this Court has stated the definition of hearsay in language which would include an out-of-court assertion of a testifying witness. After warning that any one-sentence definition is an oversimplification, Professor McCormick proposes the following:
      ‘Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ C. McCormick, Evidence, § 246 (Cleary ed. 1972).
      “Upon reflection, we conclude that Professor McCormick’s formulation is preferable as a brief definition of hearsay.” [Footnotes omitted.]


author: SUMMERS, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Eddie POUNDS.
    No. 61,229.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.

      Hugh P. Lambert, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lindsay A. Larson, III, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

By bill filed February 7,1977 the District Attorney informed the Criminal District Court of Orleans Parish that on January 28, 1977 Eddie Pounds

". . . did illegally and intentionally carry concealed on his person a firearm, to-wit: a pistol, the said EDDIE POUNDS having previously been convicted of carrying a concealed weapon on April 22, 1975 in the Criminal District Court for the Parish of Orleans, and also having previously been convicted of carrying a concealed weapon, on May 18, 1973 . . ."

The offense is a violation of Article 95 of the Criminal Code which, in pertinent part, provides:

“A. Illegal carrying of weapons is:
(1) The intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one’s person.
B. Whoever commits the crime of illegal carrying of weapons shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.
C. On a second conviction, the offender shall be imprisoned with or without hard labor for not more than five years.
D. On third and subsequent convictions, the offender shall be imprisoned with or without hard labor for not more than ten years without benefit of parole, probation, or suspension of sentence.
E. The enhanced penalty upon second, third, and subsequent convictions shall not be applicable in cases where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction or convictions, and the time of the commission of the last offense for which he has been convicted; the sentence to be imposed in such event shall be the same as may be imposed upon a first conviction.
F.The provisions of this Section except Paragraph (4) of Subsection A shall not apply to sheriffs and their deputies, state and city police, constables and town marshals, or persons vested with police power when in the actual discharge of official duties.”

After pleading not guilty to the charge, Pounds was tried, found guilty and sentenced to serve five years at hard labor in the custody of the Department of Corrections. On this appeal seven assignments of error are urged as a basis for reversal of the conviction and sentence and granting defendant a new trial.

Assignment 1: While the record does not reflect that an objection was made to the fact that the trial judge informed the jury that the defendant was guilty of previous offenses, defendant’s version of this issue is contained in affidavits submitted by defense counsel and his assistant at the trial. As these affidavits are understood, the trial judge preliminarily advised the jury, in accordance with the bill of information, that defendant was being tried for carrying a concealed weapon, a gun, having twice been previously convicted of the same offense. Defense counsel asserts in the affidavits that objection was made to this comment by the trial judge outside the presence of the jury and a request was made for a mistrial.

If the affidavits of the defense counsel are properly understood, they complain of the reading of the indictment in the presence of the jury. Some provisions regulating the steps of a trial are essential to orderly proceedings. One such step in the normal order of trial after the selection and swearing of the jury is “[t]he reading of the indictment.” La.Code Crim.Pro. art. 765(2). A reading of the indictment in this case involves a reference to the fact that defendant is being tried for carrying a concealed weapon, a gun, having previously been twice convicted of the same offense, giving dates and the count of the prior convictions.

It is required by Article 464 of the Code of Criminal Procedure, in the absence of a prescribed short form in Article 465, that “The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.”

Thus, in order to charge defendant in accordance with Article 95 of the Criminal Code, it was necessary that the bill of information set forth defendant’s two previous convictions in order to sustain a charge for a third conviction. Reference to the two previous convictions was therefore required to state “the essential facts constituting the offense charged.” Such a statement in this indictment is authorized by Article 483 of the Code of Criminal Procedure in explicit terms.

“If it is necessary to allege a prior conviction in an indictment, it is sufficient to allege the name or nature of the offense and the fact, date, and count of the conviction.
“An indictment shall not contain an allegation of a prior conviction of the defendant unless such allegation is necessary to fully charge the offense.”

This article is designed to facilitate the allegation of prior convictions where they must be included in the original indictment, and where the prosecutor is not authorized to wait until after conviction to inform the defendant that he has been prosecuted as a multiple offender. Examples are offenses where the criminal statute provides enhanced penalties for recidivist offenders, such as, theft (La.Rev.Stat. 14:67), operation of a vehicle while intoxicated (La.Rev.Stat. 14:98), reckless operation of a vehicle (La.Rev.Stat. 14:99), possession of marijuana (La.Rev.Stat. 40:966(D)(2)), and the instant statute on concealed weapons.

A contention that these allegations of prior offenses deprive defendant of the presumption of innocence and the constitutional right not to incriminate himself are not tenable. U.S.Const. Amend. V, La.Const. art. I, § 16. These constitutional rights are met by provisions of equal dignity and efficacy. It is a basic constitutional mandate that in a criminal prosecution an accused shall be informed of the nature and cause of the accusation against him. U.S.Const. Amend. VI; La.Const. art. I, § 13. It is this latter right which Articles 464 and 483 of the Code of Criminal Procedure implement.

Without the statement in the bill of information relative to prior offenses the accused could not know whether he would stand trial for a misdemeanor or felony; whether the prior convictions were under the same statute; and whether the prior convictions were too remote in time to warrant the enhanced penalty provided for in the statute. All of this is required to inform the accused or the “nature and cause of the accusation against him” and to satisfy the constitutional mandates to that effect.

Decisions of this Court have upheld the principles relied upon here in a prosecution for a multiple-offender conviction for possession of marijuana. State v. Keys, 328 So.2d 154 (La.1976); and in a prosecution for driving while intoxicated, State v. Gerald, 250 La. 759, 199 So.2d 536 (1967). See also State v. Daniel, 141 La. 423, 75 So. 102 (1917); State v. Compagno, 125 La. 669, 51 So. 681 (1910). To do otherwise would render recidivist statutes like Article 95 entirely ineffective.

On the foregoing authority no error occurred when the bill of information was read in the presence of the jury.

Assignments 2, 3, 5 and 6: It is asserted that it was error to refer to the prior convictions in the bill of information, without affording defendant an opportunity to produce evidence concerning the circumstance surrounding these convictions.

After the opening statement of the State’s attorney, and before any witness testified, this stipulation was read to the jury: “It is agreed by and between the parties that Eddie Pounds pled guilty to the charge of illegal carrying of weapons on May 18, 1973, and on April 22, 1975.” In conjunction with the stipulation the trial judge strongly emphasized to the jury that the defendant’s prior convictions were to have no bearing on their determination of guilt or innocence in the instant prosecution. Thereafter defendant testified. During the course of his testimony, defense counsel asked him to relate the circumstances of his prior guilty pleas to the crime of carrying a concealed weapon. An objection by the State’s Attorney that the stipulation precluded further inquiry into those guilty pleas was sustained. Defense counsel’s offer to proffer this testimony was refused by the trial judge.

Having stipulated to convictions of the previous offenses, the issues relating to them were foreclosed in this prosecution. Consequently testimony concerning these prior convictions was irrelevant. It is the existence of the prior convictions which supply the elements of the crimes. Attacks upon these prior convictions are properly the subject of post conviction remedy.

Assignment 7: Accepting defendant’s assertion that the State’s attorney referred to the fact that defendant did not call his girl friend as a witness to testify because her testimony would be harmful, we do not find that error resulted.

According to the defense version of the case as gleaned from defendant’s testimony, defendant was arrested at approximately 1:55 in the morning. Defendant testified that immediately prior to his arrest he left his house and told his girl friend that he was going to get something to eat at Ross’ Restaurant. This testimony was offered to show that he had a right to be where he was when arrested and that he was doing something reasonable.

It is inferred that the State’s statement was made in closing argument, although that part of the record has not been designated and no reference to the transcript of testimony is made in support of this assignment of error.

In any event, evidence under the control of a party and not produced by him creates a presumption that it was not produced because it would not have aided him. La.Rev.Stat. 15:432. And, in argument, the State is entitled to refer to lack of evidence and to conclusions of fact drawn therefrom. La.Code Crim.Pro. art. 774. On this authority the State’s reference to the girl friend’s failure to testify was permissible.

Assignment 8: It is contended the trial judge erred by instructing the jury on the effect of flight by an accused. Such an instruction is said to presuppose that the defendant did in fact flee from the scene of the crime.

At the trial defendant testified that while he was on the way to get something to eat, a man who was being chased by the police ran past him and the police wrongfully believed that it was defendant who had been running from them. The arresting officer testified, however, that he chased defendant without losing sight of him until the moment of the arrest. The question of flight, therefore, was at issue and the law of flight was applicable to the case. As such the court was obligated to charge the jury on the law of flight. La.Code Crim.Pro. art. 802(1).

In his charge the trial judge carefully stated that it was incumbent upon the jury to determine whether defendant fled. The charge did not presuppose that defendant fled as the defense contends.

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

CALOGERO, J., concurs, having reservations about the treatment of assignments of error ¶ 2, 3, 5, 6.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

By its ruling on defendant’s assignments of error numbers 2, 3, 5 and 6 this Court has compounded the inequity of its previous decisions. The majority opinions of this Court which permit a prosecutor to cross-examine a defendant on the circumstances surrounding the crime forming the basis of a prior conviction, regardless of their irrele-vanee to the witness’ credibility, State v. Dupar, 353 So.2d 272 (La.1977); State v. Chenier, 343 So.2d 177 (La.1977); State v. Williams, 339 So.2d 728 (La.1976); State v. Elam, 312 So.2d 318 (La.1975); State v. Jackson, 307 So.2d 604 (La.1975); have been criticized, Pugh, The Work of the Louisiana Appellate Courts for the 1974-1975 Term—Evidence, 36 La.L.Rev. 662-64 (1976); and in my opinion are incorrect. The decision in the instant case only adds to the injustice by denying to a defendant, who has admitted a prior conviction by stipulation, the right to bring out circumstances surrounding his prior convictions which may be favorable to his defense. If the State is to be allowed to explore such irrelevant details at trial, it would seem that fairness and equal application of law require that the defendant be extended the same privilege.


author: DIXON, Justice.

text:
    B. E. WELCH v. CROWN ZELLERBACH CORPORATION.
    No. 61235.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.

      Charles B. W. Palmer, Amite, for plaintiff-applicant.
    Charles M. Hughes, R. Bradley Lewis, Bogalusa, for defendant-respondent.
   DIXON, Justice.

Plaintiff B. E. Welch brought suit against Crown Zellerbach Corporation (Crown) for workmen’s compensation benefits. The trial court maintained peremptory exceptions of prescription, peremption and res judicata filed by the defendant and dismissed plaintiff’s suit with prejudice. The First Circuit Court of Appeal affirmed the judgment on the exception of peremption, not reaching the plea of res judicata. 351 So.2d 1255 (La.App.1977). We granted writs to review that ruling.

B. E. Welch, a timber cutter, was injured on May 20, 1970 when he stepped into a hole while loading logs onto a pulpwood truck. On April 28, 1971 Welch filed suit seeking workmen’s compensation benefits against Robert Campbell, Inc., alleging that he was an employee of that corporation and that he was injured during the course of his employment. On August 19, 1971 Welch joined Austin Carpenter as defendant and amended his petition to allege that he was employed by Carpenter who in turn was a subcontractor of Campbell. The case went to trial and judgment was rendered in favor of Welch, holding the defendants liable in solido for workmen’s compensation benefits. Only defendant Campbell appealed. The First Circuit Court of Appeal reversed the judgment of the lower court insofar as it held Campbell liable, holding that because certain interrogatories taken from Campbell, although in the record before the court, had not been introduced at trial, there was no evidence which the court could consider establishing Campbell’s status as statutory employer. Welch v. Robert Campbell, Inc., 316 So.2d 822 (La.App. 1st Cir. 1975), writ denied 321 So.2d 523 (La.1975).

On October 11, 1973 Welch filed the present action against Crown. In his petition plaintiff alleged that he was injured while employed by Carpenter; that Carpenter was a subcontractor of Campbell; and that Campbell was a subcontractor of Crown. Crown filed the peremptory exceptions mentioned above and the plaintiff responded with the argument that Crown was solidarily liable with Carpenter and Campbell and that the periods of prescription and peremption were interrupted by suit against those solidary obligors. R.S. 23:1209; C.C. 3552; see Malone, Louisiana Workmen’s Compensation Law and Practice, § 384, p. 502 (1951). The trial court maintained the exceptions and dismissed the action.

The Court of Appeal affirmed, holding that prescription was not interrupted because the Court of Appeal had previously held that Campbell was not liable to the plaintiff for workmen’s compensation, and therefore could not be solidarily liable with Crown. The court thus gave preclusive effect to the prior judgment in Welch v. Robert Campbell, Inc., supra.

The Court of Appeal relied on Trahan v. Liberty Mutual Insurance Co., 314 So.2d 350 (La.1975), in sustaining the defendant’s plea of prescription. In Trahan, four men were killed while working in a salt mine operated by Diamond Crystal Salt Company. Their widows brought suit for wrongful death benefits against six executive officers of the company and their insurers, Liberty Mutual Insurance Company and The Insurance Company of North America. The case was tried and the jury’s exoneration of the defendants was affirmed by the Court of Appeal. After judgment, two of the plaintiffs filed a second suit against Liberty Mutual and INA alleging that the wrongful deaths were caused by the negligence of the other two original plaintiffs. In response to the defendants’ plea of prescription, the plaintiffs argued that prescription was interrupted by the prior suit against Liberty Mutual and INA under the provisions of R.S. 9:5801 and C.C. 2097. This court found that R.S. 9:5801 had no application because the causes of action in the two suits were different because a cause of action in tort has no identity independent of the defendant upon whose fault the suit is based, and there was no allegation of common fault linking the insureds in the two suits. Because there were two separate causes of action, there could be no solidarity in liability between the defendants in the first suit and the defendants in the second suit. Accordingly, we sustained the exception of prescription.

In the present case, Welch has a single action for workmen’s compensation benefits with the right to proceed under R.S. 23:1061 against either the subcontractor, the principal, or both. Trahan, therefore, is not controlling. Instead, the proper resolution of the case depends upon whether the plaintiff is prevented by the operation of res judica-ta or some other preclusion device from reexamining the relation of Robert Campbell, Inc. to the plaintiff and Crown Zellerbach.

RES JUDICATA

As a result of our civilian heritage, res judicata under Louisiana law is perceived to be much narrower in scope than its counterpart in common law jurisdictions. See 51 Tul.L.Rev. 611 (1977); Maloney, Preclusion Devices in Louisiana; Collateral Estoppel, 35 La.L.Rev. 158 (1974). Louisiana legislative authority for res judicata establishes a presumption of correctness and precludes relitigation of the object of the judgment only when there is (1) an identity of the parties, (2) an identity of “cause” and (3) an identity of the thing demanded. C.C. 2285-2287, 3556(31); Mitchell v. Bertolla, 340 So.2d 287 (La.1976); Sliman v. McBee, 311 So.2d 248 (La.1975); Scurlock Oil Co. v. Getty Oil Co., 294 So.2d 810 (La.1974). The absence of any of these identities is fatal to a plea of res judicata.

There exists an identity of parties whenever the same parties, their successors, or others appear so long as they share the same “quality” as parties. See Quinette v. Delhommer, 247 La. 1121, 176 So.2d 399 (1965); 2 Planiol, Traite Elementaire de Droit Civil, No. 54A(4) at 35-36 (11th ed. La.State L.Inst.trans.1959). Crown Zeller-bach and Robert Campbell, Inc. do not represent the same entity in the present case and either or both could be held liable for the full amount under R.S. 23:1061. Because there is no identity of parties in the present suit and the former action against Robert Campbell, Inc., res judicata does not prevent the relitigation.

COLLATERAL ESTOPPEL

The defendant maintains that Welch is precluded from relitigating the issue of the liability of Robert Campbell, Inc. by the issue preclusion device termed collateral es-toppel.

Collateral estoppel is a doctrine of issue preclusion alien to Louisiana law. Developed in the common law, the device precludes the relitigation of issues actually decided in a prior suit between the parties on a different cause of action. See Mitchell v. Bertolla, supra, and the authorities collected therein. Even among common law jurisdictions the doctrine is not applied uniformly since there are different theories on whether “mutuality” or an identity of parties is necessary. See Annot. 8 A.L.R.3d 1044 (1970).

Because of a basic difference between the meanings ascribed to the common law from “cause of action” and the civil law “cause” in res judicata, the doctrine of collateral estoppel is not susceptible of an orderly application in a jurisdiction utilizing civil law terminology. Under the common law, res judicata applied where there is an identity of parties and causes of action in both suits. See 51 Tul.L.Rev. 611 (1977). Unlike the limited meaning given “cause” in our system, “cause of action” encompasses all grounds upon which the claim might have been based. Collateral estoppel, developed to supplement common law res judicata, is therefore necessarily defined in terms which have different meanings when used in Louisiana.

The introduction of collateral estop-pel into our system would effectuate a change fundamentally different from that established by ancient legislation. By choosing to define res judicata in narrow terms, the legislators apparently concluded that the inconvenience caused by relitigation is outweighed by the injustice of perpetuating erroneous judicial decisions. The adoption and application of an issue preclusion device which would broaden the operation of res judicata in Louisiana would subvert the original ideal established by codes.

While this court has on occasion recognized collateral estoppel in our system of law, no clear understanding of the application of that doctrine has been developed in the cases or in legal literature. Therefore, we hold that none of the variations of the common law doctrines of res judicata apply in Louisiana.

CONCLUSION

Both lower courts erred in sustaining the defendant’s exception of prescription without deciding whether Crown Zellerbach Corporation was the statutory employer of Welch because of the relationships among Welch, Carpenter, Campbell and Crown. If Crown was solidarily liable to Welch, along with Carpenter and Campbell or either, the earlier suit of Welch v. Robert Campbell, Inc., supra, interrupted prescription running in favor of Welch.

Therefore, the judgments of the lower courts are reversed, and the case is remanded for further proceedings; defendant is cast for costs incurred to date.


author: SANDERS, Chief Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Joseph V. SMITH.
    No. 61248.
    Supreme Court of Louisiana.
    May 22, 1978.

      Ralph L. Barnett, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Gordon K. Konrad, Abbott J. Reeves, Asst. Dist. Attys., Research and Appeals, for plaintiff-appellee.
   SANDERS, Chief Justice.

The Grand Jury of Jefferson Parish indicted defendant with negligent homicide, a violation of LSA-R.S. 14:32. Defendant was convicted by a unanimous verdict on April 12, 1973. The court sentenced defendant to serve twenty-four months in the Parish Prison. Defendant was then released on his appeal bond pending the disposition oí his appeal in this Court. Because of a series of delays, defendant’s appeal was not lodged in this Court until December 20, 1977.

On appeal, defendant relies upon six assignments of error for reversal of his conviction and sentence. Assignments of Error Nos. 1, 2, 3 and 4 are specifically abandoned by defendant.

The negligent homicide charge against the defendant arose from the following circumstances: Defendant, while driving his automobile on April 1, 1972, struck and killed a fifteen-year-old boy about 9 p. m. Both the person called to the scene of the accident by defendant and the investigating police officer observed that defendant appeared to be drunk and each smelled a strong odor of alcohol on defendant’s breath. Defendant also performed poorly on field sobriety tests. Subsequent to his arrest, defendant refused to take a PhotoElectric Intoximeter test (PEI) to determine the amount of alcohol in his blood. At trial, the State introduced as evidence the fact that defendant refused to submit to the PEI test. The introduction of this evidence of defendant’s refusal to submit to the PEI test forms the basis of defendant’s assignments of error in this appeal.

ASSIGNMENTS OF ERROR NOS. 5, 6, 7, 8, 9, AND 10

Defendant argues that the basis of the State’s case of negligent homicide is that defendant was driving while intoxicated and that an important part of the State’s case was that he refused to take the PEI test.

Defendant contends that reference to his refusal to take the PEI test was prejudicial to him and constituted reversible error on several grounds.

He first asserts that the trial judge erred in ruling that the law in effect at the time of the accident was LSA-R.S. 32:661 as it existed prior to the 1972 amendment to the statute.

Prior to its amendment in 1972, LSA-R.S. 32:661 provided:

“A. Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of Section 662 of this Part, to a chemical test or tests of his blood, breath, urine or other bodily substance for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages. The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages. The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered.
“B. Any person who is dead, unconscious or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn the consent provided by Subsection A of this section, and the test or tests may be administered subject to the provisions of Section 662.”

In 1972, Subsection C was added to LSA-R.S. 32:661:

“C. When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first inform the person of the consequences of a refusal. In addition, the law enforcement officer shall have the person sign a standard form advising such person of his constitutional rights; the law enforcement officer shall have the person sign a separate form advising such person of the consequences of his refusal to submit to a chemical test, provided however that a single combination of the two forms may be used. If the person is unable or unwilling to sign the form, the law enforcement officer shall certify that such person was informed of his constitutional rights and was unable or unwilling to sign said form. If the above procedure is not complied with, the results of the test or any reference to it is inadmissible into evidence in any criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages.”

The accident in question occurred on April 1, 1972. Section C, supra, was added to LSA-R.S. 32:661 by Act No. 534, § 2 of 1972, which became effective on July 26, 1972. Hence the trial court correctly determined that the 1968 statute controlled. State v. Austin, La., 282 So.2d 711 (1973).

Second, defendant alleges that the 1968 statute was unconstitutional. This argument is without merit. The Fifth Amendment to the United States Constitution providing the privilege against self-incrimination applies only to “evidence of a testimonial or communicative nature.” Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. Since testing of bodily evidence, i. e., blood, urine, breath, violates no privilege against self-incrimination, neither does testimony of a refusal to give such evidence violate the constitutional privilege. State v. Dugas, 252 La. 345, 211 So.2d 285 (1968), cert. denied, 393 U.S. 1048, 89 S.Ct. 679, 21 L.Ed.2d 691. See State v. Tillett, La., 351 So.2d 1153 (1977); State v. O’Conner, La., 320 So.2d 188 (1975).

Third, defendant states that: “The trial judge allowed admission into the general jury charge a specific reference to Revised Statute 14:98 relative to DWI [driving while intoxicated] and Revised Statute 32:661 relative to refusal to submit to an intoximeter test.” Since defendant was charged with negligent homicide, whether or not he was under the influence of intoxicating beverages at the time of the automobile accident was a factual issue at trial. See, State v. Dugas, supra. Hence, the reference to LSA-R.S. 14:98, defining driving while intoxicated, and to LSA-R.S. 32:661, stating a driver’s implied consent to chemical tests, were appropriate.

Defendant’s Assignments of Error Nos. 5, 6, 7, 8, 9, and 10 are without merit.

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

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents for reasons assigned by CALOGERO, J.

CALOGERO, Justice,

dissenting.

By analogy to the rule concerning the compulsory extraction of bodily evidence the majority holds in this decision that defendant’s communication of a refusal to submit to a photoelectric intoximeter test (P.E.I. test, for intoxication), notwithstanding the absence of Miranda warnings does not violate the defendant’s privilege against self-incrimination. It thereby implies that a refusal to take a P.E.I. test is not evidence of a testimonial or communicative nature. I disagree. I believe that evidence concerning a defendant’s refusal to take a P.E.I. test is the type of evidence protected by the privilege against self-incrimination and would, therefore, reverse defendant’s conviction and sentence. Accordingly, I dissent.

      . LSA-R.S. 32:666 specifically provides that refusal to submit to chemical test is admissible into evidence:
      “If a person under arrest refuses to submit to a chemical test under the provisions of this Part, evidence of refusal shall be admissible in any criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages.
      “This section has no application to a civil action or proceeding.”


author: SUMMERS, Justice. DIXON, Justice

text:
    STATE of Louisiana v. Norman SMITH, Dale Deverney, Ben Wilson and Jeannie Collins.
    No. 61276.
    Supreme Court of Louisiana.
    May 22, 1978.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Howat A. Peters, Jr., Asst. Dist. Attys., for plaintiff-relator.
    Jim Garrison, Tucker, Schonekas & Garrison, New Orleans, for defendant-respondent.
   SUMMERS, Justice.

Ben Wilson, Jeannie Collins, Dale Deverney, and Norman J. Smith were jointly indicted by the Orleans Parish Grand Jury for possession with intent to distribute heroin, a controlled dangerous substance, a crime denounced by Section 966 of Title 40 of the Louisiana Revised Statutes. Prior to trial, defendants filed motions to quash the indictment on the ground that trial of the offense charged would constitute double jeopardy. For written reasons assigned the trial judge quashed the indictment and ordered defendants discharged. Certiorari was granted on the State’s application. 353 So.2d 1334 (La.1978).

Insofar as pertinent to the issue presented the facts are that on June 19, 1975 defendants were arrested by Orleans Parish police. Twelve ounces of heroin were seized. The Orleans Parish Grand Jury returned its indictment on June 26, 1975. Thereafter trial of the matter was continued on several occasions.

In the meantime, on September 28, 1976, defendants were indicted by the federal grand jury for the Eastern District of Louisiana charging them with conspiracy to possess with intent to distribute heroin, a crime denounced in Sections 841(a)(1) and 846 of Title 21 of the United States Code. These charges are based upon the identical facts relied upon by the State to support its charges. In the federal trial on January 7, 1977 Collins pled guilty as charged and testified for the Government; Wilson and Smith were convicted, and the charges against Deverney were dismissed.

On February 4 and 7, 1977, defendants filed motions to quash alleging that trial on the State charges would constitute double jeopardy. The indictments were quashed on November 22, 1977 and, on the State’s December 22, 1977 application, certiorari was granted April 21, 1978.

The Fifth Amendment to the United States Constitution guarantees that “no person . . . shall ... be subject for the same offense to be twice put in jeopardy of life or limb . . . .” By its decision in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the Supreme Court of the United States announced that the double jeopardy provisions of the Fifth Amendment to the United States Constitution were applicable to the states.

Louisiana’s Constitution also provides that “No person shall be twice placed in jeopardy for the same offense, except on his application for a new trial, when a mistrial is declared, or when a motion in arrest of judgment is sustained.” La.Const. art. I, § 15. Article 591 of the Code of Criminal Procedure is to the same effect. In addition, Article 597 of the Code declares that “Double jeopardy does not apply to a prosecution under a law enacted by the Louisiana Legislature if the prior jeopardy was in a prosecution under the laws of another state or the United States.”

Whether the double jeopardy guarantees of the Federal and State Constitutions bar a subsequent state prosecution for an offense arising out of identical facts which were the subject of a prior federal prosecution is a question which has been decided by the United States Supreme Court as well as by this court. In Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), the United States Supreme Court ruled that the subsequent trial of a defendant in state court after he had previously been acquitted on federal charges for the same offense did not deprive him of due process of law under the fourteenth amendment to the United States Constitution. Similarly, in Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), the Court held that a subsequent federal prosecution on the same charge for which a defendant had been convicted in state court did not place the defendant twice in jeopardy for the same offense under the fifth amendment. The principle enunciated in these cases is that successive prosecutions by different sovereignties do not violate the double jeopardy clause of the fifth amendment and, therefore, are constitutionally permissible.

The United States Supreme Court again examined the concept of dual sovereignty in relation to the double jeopardy clause in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), wherein it was held that a conviction for violation of a municipal ordinance barred a subsequent prosecution in state court for the same offense. The Court reasoned that municipalities and states are not distinct sovereign entities but rather the cities are subordinate governmental instrumentalities created by the state to assist in the carrying out of state governmental functions. The judicial power to try a defendant under municipal and state law springs from the same organic law. Hence, a subsequent state prosecution was barred under the double jeopardy clause by a prior municipal conviction. In so ruling, the Court analogized the relationship existing between municipalities and the state to that existing between the territories and the federal government. The Court expressly recognized that, because the state does not derive its power from the federal government, the federal government and the state are distinct sovereign entities. Hence, successive prosecutions by these different sovereignties do not violate the double jeopardy clause. In view of the rationale adopted in Waller, Bartkus and Abbate are of continuing validity. The principles announced in these decisions have been codified in Article 597 of the Criminal Code.

In recent decisions this Court has adhered to the principle developed in the federal decisions by holding that, under the doctrine of double jeopardy, a subsequent prosecution by a different sovereign is constitutionally permissible under both Federal and State Constitutions. State v. Forbes, 348 So.2d 983 (La.1977); State v. de la Beckwith, 344 So.2d 360 (La.1977). Applying this principle to the instant case, the subsequent state prosecution of these defendants on a similar charge for which they were previously prosecuted in federal court did not place them twice in jeopardy for the same offense under the Federal and State Constitutions. Hence, the trial judge erred in granting defendants’ motions to quash the indictment on the ground of former jeopardy.

Furthermore, the state prosecution is not barred by collateral estoppel. The doctrine of collateral estoppel simply means that, when an issue of ultimate fact has been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. The doctrine is embodied in the double jeopardy guarantee of the fifth amendment. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Since the first prosecution was in federal court, identity of parties, an essential requirement of collateral estoppel is lacking. State v. de la Beckwith, supra.

For the reasons assigned, the judgment of the trial court quashing the indictments is reversed and set aside, and the case is remanded to the trial court to be proceeded with in accordance with law.

DIXON, J., dissents with reasons.

CALOGERO, J., dissents.

DIXON, Justice

(dissenting).

I respectfully dissent.

All the reasons which support the prohibition against double jeopardy are applicable when a defendant is prosecuted in the state system and federal system for the same offense. Only the fiction of dual sovereignty supports the majority holding.

A genuine adherence to the constitutional guarantee against double jeopardy would prevent this dual prosecution. See Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), where it was decided that when a witness in a state proceeding is forced to give testimony in the state proceeding (under a grant of immunity) which might incriminate him under federal law, that testimony cannot be used in a prosecution in the federal system.

      . La.Rev.Stat. 40:966 pertinently provides:
      “Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally:
      (1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance [heroin] classified in Schedule I .

      . 21 U.S.C. § 841(a)(1) provides:
      “Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally-—
      (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance [heroin] . . . .” See § 812.
      21 U.S.C. § 846 provides:
      “Any person who attempts or conspires to commit any offense defined in this chapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”

      . At the time Bartkus was decided, the proscription of double jeopardy contained in the fifth amendment was not applicable to the states. Hence, the decision was reached under the due process clause of the fourteenth amendment.