text:
    Clarence and Inez PRESTENBACH, Plaintiffs-Appellees-Relators, v. SENTRY INSURANCE COMPANY, Defendant-Appellant-Respondent.
    No. 58013.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Rehearing Denied Jan. 21, 1977.

      William D. Hunter, Dale P. Martin, Lippman, Hunter & Rawls, Morgan City, for plaintiff-applicant.
    Daniel R. Atkinson, Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, for defendant-respondent.
   TATE, Justice.

The plaintiffs sue to recover for the wrongful death of their son, Michael Pres-tenbach, age 18. Michael was drowned when the vehicle driven by his friend Blan-co, age 19, left the highway and overturned in an adjacent water-filled borrow pit.

The trial court awarded judgment against the defendant, Blanco’s liability insurer. The court of appeal reversed, holding that Michael Prestenbach had assumed the risk of Blanco’s negligence. 329 So.2d 840 (La.App. 1st Cir. 1976).

We granted certiorari, 332 So.2d 860 (La. 1976), because we thought, in so doing, the court of appeal overlooked the proper test for barring recovery on the basis of assumption of risk.

The ultimate issue

The ultimate issue is: May recovery be barred on the basis of assumption of risk in an action for the death of a passenger against his host driver, when the accident is caused by the driver’s intoxication, but the driver is not so obviously intoxicated as to charge the passenger with knowledge of his driver’s intoxication?

Facts

The accident occurred about 2:30 in the morning. At approximately 8:00 p. m. on the preceding evening, Blanco and Banks, a co-worker, left their place of employment in Morgan City, rode around a short while in Blanco’s Mustang, and bought two fifths of strawberry wine (9 per cent alcohol). The two boys continued to ride about the city, Blanco, the driver, drinking half of his bottle and Banks drinking all of his and the remainder of the other.

Blanco drove to his home to change his clothes. He telephoned the plaintiffs’ son, Prestenbach, and another boy, Marino, and invited the two to join Banks and him for the evening.

Prestenbach and Marino joined the group at approximately 9:30 or 10:00 p. m. Pres-tenbach, Banks, and Marino then purchased a fifth of strawberry wine apiece. The boys then drove about, drinking wine. The survivors of the group testified that although Blanco, the driver, did not purchase wine, he did take a few sips as the bottles were passed amongst the boys.

At about 10:00 p. m., the four boys then drove to a Burger King and each purchased a large hamburger, french fries, and a milkshake. They then met Mike Dragna, who they picked up later in the evening.

The five boys then traveled to a party at Bayou Vista, a nearby community, arriving around 10:30 p. m. Although the testimony is contradictory, it does appear that alcoholic beverages were available. The boys who survived the mishap which occurred later in the evening, testified that they had not drunk at the party, neither had they seen the driver have a drink.

From the testimony adduced at trial it appears that the boys mingled at the party and had little knowledge as to what the driver actually did.

Banks and Marino left the party for approximately twenty minutes to take Drag-na back to Morgan City. When they returned, Juanita Green asked for a ride home. The group (Blanco and Miss Green in the front seats; Marino, Prestenbach, and Banks in the rear) left the party at approximately 11:30 or 12:00 p. m.

The group purchased two six-packs of beer in Berwick and continued on to Morgan City. The survivors testified that Blanco drank one, maybe two beers while driving.

The group then decided to drive to a nightclub in Houma. Arriving in Houma, the group decided to go to a lounge tended by friends. It appears that the boys went inside and ordered each a beer. Shortly thereafter, Blanco returned to the car to tend to Miss Green, who was ill. Approximately twenty minutes later, the other boys rejoined Blanco and Miss Green, and the group left for Morgan City.

As they traveled on Highway 90, Blanco accelerated to approximately 100 to 110 miles per hour. It is unclear from the testimony at which point Blanco accelerated. It can be concluded, however, that this occurred just prior to the accident; for seconds before the mishap, Prestenbach told Blanco to slow down because the engine could not take the strain and a bridge ahead could not be negotiated at that speed.

Blanco did not slow down. Seconds later, the vehicle left the highway and overturned in the pit. Blanco and Prestenbach drowned. (Their companions survived.)

At 6:30 a. m., four hours after the accident, blood-alcohol tests were performed on Blanco and Prestenbach and disclosed .124 percent by weight of alcohol in Blanco’s blood and .044 in Prestenbach’s. (In Louisiana criminal law, a level of .100 gives rise to a presumption of intoxication. La.R.S. 32:662. In several other states, the expert testimony shows, the presumed level of intoxication is .150. In either case, however, as the court of appeal held, there is no such statutory presumption of intoxication in civil cases.)

Those who survived the accident testified that Blanco appeared “normal” during the course of the entire evening. All who testified stated that the driver did not appear to be intoxicated.

The witnesses at trial testified that the most they had seen Blanco drink was two or three beers, half a bottle of wine, and a few sips of wine from another. Mr. Wilde and Mr. Olivier, who tended bar at the lounge where the boys made their last stop that night, testified that although Blanco was in a good mood, a “party mood,” he did not appear to be intoxicated. His speech was not slurred, nor were his reflexes impaired.

Dr. Lester Sykes testified that a lay person cannot detect that a person having a blood-alcohol reading of .124 is actually intoxicated. The survivors testified that Blanco drove at a normal rate of speed up to a short time prior to the accident. Drag-na did testify that he had told Banks and Marino, “Y’all watch Harley. He don’t look like he’s acting right tonight.” However, from the record, it can be concluded that the comment was made in reference to Blanco’s problems with his girlfriend.

Plaintiffs contend that their son’s death was caused by Blanco’s negligence. It is contended by defendant that the driver was intoxicated, the accident was caused by his intoxication, and Prestenbach assumed the risk as he knew or should have known of the driver’s intoxication.

Legal Principles Applicable

The law is well settled that a guest passenger riding with a driver who has been drinking excessively assumes the risk of injuries received in an accident caused in whole or in part by the driver’s negligence, if the alcohol-induced impairment of the driver’s ability is a substantial contributory cause of the driver’s negligence and if the guest passenger knows or should have known of the driver’s condition and nevertheless voluntarily rides with him. Marcotte v. Travelers Ins. Co., 258 La. 989, 249 So.2d 105 (1971); Jones v. Continental Casualty Co., 246 La. 921, 169 So.2d 50 (1964).

As with other affirmative defenses, the defendant who pleads contributory negligence or assumption of the risk bears the burden of proving it. La.C.Civ.P. art. 1005; McInnis v. Firemen’s Fund Insurance Company, 322 So.2d 155 (La.1975); Marcotte v. Travelers Ins. Co., cited above. In the present case, this means that, to defeat recovery for damages caused by the driver’s undoubted negligence, the defendant must prove by a preponderance of the evidence that: (1) the driver was intoxicated; (2) his intoxication was a cause of the accident; and (3) the plaintiffs’ decedent knew or should have known of the driver’s condition. Proof by a preponderance of the evidence simply means that, taking the evidence as a whole, such proof shows that the fact or cause sought to be proved is more probable than not. Marcotte v. Travelers Ins. Co., supra; Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971).

The driver’s intoxication and its cause of the accident

The evidence preponderates that the driver of the automobile had been drinking intermittently for approximately six hours prior to the accident. The scientific evidence produced at trial reveals that the blood-alcohol content of the driver when taken produced a reading of .124.

Expert testimony was adduced at trial that a person’s driving ability and judgment is impaired at that level of blood-alcohol. This evidence reasonably shows that this degree of intoxication could account for the driver’s sudden acceleration in speed and subsequent loss of control of the vehicle.

Under this evidence and the testimony as to the accident, the defendant has adequately proved the driver’s intoxication and its causal contribution to the accident.

Passenger's knowledge of the driver’s condition

As we stated in Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971), “the determination of whether a plaintiff has assumed a risk is made by subjective inquiry . . . .” See also McInnis v. Firemen’s Fund Ins. Co., 322 So.2d 155 (La.1975); Prosser on Torts, pp. 447-450 (4th ed., 1971).

In order for a plaintiff to assume a risk, he must knowingly and voluntarily encounter the risk which causes his injury. McInnis v. Firemen’s Fund Ins. Co., cited above. “Knowledge” is the mainstay of this defense, and it must be proved by a preponderance of the evidence.

Recovery is denied if the plaintiff knew or should have known of the risk involved. The defendant argues, and the court of appeal also held, that Prestenbach should have known of the driver’s condition, simply since he had spent most of the evening with him.

However, for purposes of a knowing assumption of risk, we impute knowledge to a plaintiff, not because he was in a position to make certain observations, but only when he actually makes those observations and, from them, should reasonably have known that a risk was involved.

In the instant case, all testimony adduced at trial indicates that Blanco did not appear intoxicated. The defendants have presented ho evidence that would indicate that Prestenbach had knowledge of the driver’s intoxicated condition or that, from his personal observations of the driver’s pri- or activities and condition, he should reasonably have known of this condition.

In Jones v. Continental Casualty Co., cited above, the evidence showed that the group of teenagers had been drinking together for a number of hours; at one time they had been seen parked on the side of the road engaged in a drinking party, “hollering and carrying on”. There, the evidence showed that the automobile had been driven at a terrific rate of speed and in the right lane of traffic for some distance. Although all participants were killed and it could not be ascertained that the passengers had actual knowledge of the driver’s condition, from the facts presented, we stated in Jones that the passengers should have known of his intoxication.

In summary, we find no error in the trial court’s conclusion that the defendant failed to prove the defense of assumption of risk, and in its factual finding that the evidence does not preponderately prove that Presten-bach knew or should have known of Blan-co’s intoxication: There is substantial evidence that Blanco did not exhibit such overt manifestations of intoxication as would have placed a guest passenger on notice of his condition and that, during the intermittent periods they were together over the course of the evening, Prestenbach’s observation of Blanco’s drinking and conduct was insufficient to put him on notice of Blanco’s possible intoxication. Marcotte v. Travelers Ins. Co., cited above; Jones v. Continental Casualty Co., cited above; Sutton v. Langley, 330 So.2d 321 (La.App. 2d Cir. 1976), certiorari denied, 332 So.2d 805 (La.1976); Galmiche v. Smith, 269 So.2d 490 (La.App. 4th Cir. 1972), certiorari denied, 263 La. 995, 270 So.2d 126 (1972); Johnson v. Allstate Ins. Co., 254 So.2d 91 (La.App. 3d Cir. 1971).

Conclusion

The damages awarded by the district court were within the “much discretion” of the trier of fact. Civil Code Article 1934.

For the reasons assigned, the judgment of the court of appeal is reversed, and the judgment of the trial court in favor of the plaintiffs is reinstated. The defendant to pay all costs of these proceedings.

COURT OF APPEAL JUDGMENT REVERSED, AND TRIAL COURT JUDGMENT REINSTATED.

SANDERS, C. J., dissents for the reasons assigned by SUMMERS, J.

SUMMERS, J., dissents and assigns reasons.

MARCUS, J., dissents for reasons assigned by SUMMERS, J.

SUMMERS, Justice

(dissenting).

Clarence and Inez Prestenbach brought this direct action for damages for the wrongful death of their son, Michael James Prestenbach. The suit is against Sentry Insurance, A Mutual Company, the automobile liability insurer of Harley A. Blanco, Jr. A judgment in favor of plaintiffs in the trial court was reversed by the Court of Appeal, 329 So.2d 840, and certiorari was granted by this Court on plaintiffs’ application. La., 332 So.2d 860. Because the trial judge made no finding of fact and gave no reasons for judgment, I am unable to determine the basis of his judgment and must rely upon the record.

About eight o’clock on the evening of June 15, 1973 Harley A. Blanco, Jr., and Mark Joseph Banks, aged 18 and 16, respectively, left their place of employment at Cannata’s Supermarket in Morgan City. They entered Blanco’s 1969 Mustang and rode around a short while, stopping at the Thrifty-Nifty store for two fifths of nine percent strawberry blend wine. They drank the wine as they continued to ride around, stopping after a while at Blanco’s house in order that he might change clothes.

When they stopped, according to Banks, Blanco had consumed about half of his bottle, and Banks had consumed all of his. While Blanco was in the house, Banks remained in the car and started drinking what remained of the wine in Blanco’s bottle. After a while Blanco called Banks into the house. When Banks entered, Blanco was talking to Michael Prestenbach on the telephone, inviting him to join them and offering to pick him up. He then called Joseph Marino, another friend, telling him he would pick him up shortly.

It was about nine o’clock when they drove by Prestenbach’s house, picked him up and then went for Marino. From this point they returned to the Thrifty-Nifty, and Prestenbach, Marino and Banks bought a fifth of wine apiece. While there they encountered Mike Dragna who was going to a movie with his date. Blanco told him they would meet him later during the evening. Blanco then drove around while the others drank the wine, occasionally passing a bottle to Blanco.

The four companions then drove to the Burger King and each ordered a hamburger, fried potatoes and something to drink. It was the first food Blanco and Banks had since lunch. Dragna had also arrived at the Burger King with his date, and, while he was inside, they left a note on his truck that they would pick him up after he brought his date home. By this time the three “jugs” of wine had been consumed.

In keeping with their plan they drove by Dragna’s and picked him up. From there they drove to Bayou Vista, about five miles away, to attend a party at the home of Susan Goff. Approximately fifty people were in attendance at the Goff party, and, while the evidence of what transpired there is contradictory and vague, it does appear that beer, wine and whiskey were available, and the probabilities are that Blanco had more to drink.

During their stay at the party Dragna decided to go home. He borrowed Blanco’s car, and Marino and Banks accompanied him to his grandmother’s house where he was spending the night. As he relinquished the car to Marino at his destination, Dragna warned Marino and Banks, “Y’all watch Harley. He don’t look like he’s acting right tonight.” Marino then drove Blanco’s car back to the party at Bayou Vista where they rejoined their friends.

In the meantime Juanita Green, who was at the party, had asked Prestenbach if he would get her a ride home. He agreed, and all five embarked in Blanco’s car and headed for Morgan City. It was then about 11:30. On the way they stopped at the Minit Mart in Berwick where they purchased two six-packs of beer. Drinking continued as they rode through Morgan City, deciding to go to Houma, thirty-six miles away. As they traveled along, Blanco was speeding and Juanita Green asked him to slow down. She believed that others in the car also admonished Blanco about his fast driving, and she does not believe that Blanco heeded their protestations. At that time one member of the party, Banks, was admittedly intoxicated. While driving to Houma, Blanco joined the others in drinking the twelve cans of beer they had obtained in Berwick, though the quantity he imbibed is uncertain.

Upon arrival in Houma they sought direction to a club they were interested in, but when they were told that it was on the other side of town, they decided to stop instead at Mickey’s Lounge, a bar tended by friends and fraternity brothers of Blanco’s whom he had known at Nichols State University. All except Juanita Green entered the bar, and all drank beer again. Blanco left the bar first to be with Juanita Green. Her stomach was upset, and she did not feel well enough to join the others in the bar. Shortly thereafter the others rejoined Blan-co in the Mustang and they headed for Morgan City. Blanco was driving, Juanita Green was in the right front seat, Marino was in the left rear seat, Prestenbach in the middle and Banks in the right rear.

As they traveled toward Morgan City, Prestenbach leaned forward and talked to Blanco. Finally Blanco accelerated the speed of the car to 100 to 110 miles per hour, according to Marino’s reading of the speedometer. Prestenbach warned Blanco that “the engine wouldn’t take the strain”, and a bump at a bridge in the road ahead could not be negotiated at these high speeds. Notwithstanding, Blanco drove on heedlessly, crossed the bridge at this high speed and lost control of the car which left the highway and hurtled three hundred feet into a canal. As a result at 2:30 that morning Blanco and Prestenbach met a tragic death by drowning.

The highway patrolman who investigated the scene of the accident ascertained from the survivors that Blanco was speeding and would not heed their pleas to slow down. The bodies were brought to a Morgan City funeral home where the Assistant Coroner performed an alcohol blood test, soon after his arrival at 6:30 that morning. The tests disclosed .124 percent by weight of alcohol in Blanco’s blood and .044 percent in Pres-tenbaeh’s.

Plaintiffs claim that the death of their son was caused by the negligence of Blanco without mentioning that his negligent driving was due to intoxication. Defendant pleads the defense of contributory negligence and assumption of risk.

A passenger riding with a driver who has been drinking excessively assumes the risk of drunk driving, that is, of accidents resulting from drunk driving. Thus, when an accident occurs involving a driver whose mental or physical faculties have been materially impaired due to the influence of intoxicants, a guest passenger who knows or should know of the driver’s condition and, nevertheless, voluntarily rides with him cannot recover for injuries received in an accident caused in whole or in part by the driver’s negligence, if the impairment of the driver’s ability is a substantial cause of the driver’s negligence. Marcotte v. Travelers Insurance Co., 258 La. 989, 249 So.2d 105 (1971); Jones v. Continental Casualty Co., 246 La. 921, 169 So.2d 50 (1964).

Further, the defendant, who bears the burden of proving contributory negligence, must prove by a preponderance of the evidence that the driver’s intoxication was a substantial factor contributing to the accident. Jones v. Continental Casualty Co., supra. Proof by a preponderance of the evidence simply means that, taking the evidence as a whole, such proof shows that the facts or cause sought to be proved is more probable than not. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971).

The foregoing principles were restated in Marcotte v. Travelers Insurance Co., supra, in 1971. As stated they are applicable to the case at bar.

A first inquiry under the foregoing rules involves the intoxication of the driver. A prime factor in this consideration is the blood alcohol analysis. Here it is .124 percent. A driver whose blood analysis makes such a showing is generally considered to be under the influence of alcoholic beverages. La.Rev.Stat. 32:662.

Although Louisiana’s legislation relating to tests for suspected drunken drivers considers a test result of .10 percent to create a presumption that the person is under the influence of intoxicating beverages, the statute declares that it has no application to a civil action or proceeding. Id. at § 662(C); see generally La.Rev.Stat. 32:661-68. The act is referred to here, not for the purpose of creating the presumption it affords, but as one of several factors to be considered pertinent to the issue before the Court.

Three medical experts, all pathologists, agreed with this statement made by the House of Delegates of the American Medical Association in the Manual on Alcoholism it published in the fall of 1967:

“The House of Delegates of the American Medical Association has recommended that a blood alcohol level of 0.10 percent (100 milligrams — 100 ml.) or more be considered as rendering the person too intoxicated to drive. Levels as low as 0.05 percent (50 mgm. — 100 ml.) may seriously impair the driving skills of a number of persons. Levels below 0.05 percent are ordinarily regarded as inconsequential. As they increase to 0.10 percent proportionately more persons are affected adversely, and as they reach that point or exceed it, the degree of intoxication is such that the driving skills of everyone are dangerously altered.” -

As the factual narrative at the beginning of this dissent discloses, the driver Blanco had imbibed an indefinite quantity of wine and beer during a period of drinking with his companions which extended from eight o’clock in the evening of June 15, 1973 to the time of his death at 2:30 the following morning. Understandably, his companions who survived the tragic episode were reluctant to incriminate him, and the high spirit of the occasion gave little opportunity for fine observations. The state of euphoria or intoxication of all those in the party was another impediment to accurate recall. There is, however, one criterion by which a more reliable judgment may be made of the alcohol Blanco consumed on that fateful occasion.

According to the medical experts, in order for an individual of Blanco’s weight to accumulate a blood alcohol content of .124 percent over a period of six hours (from eight o’clock in the evening to 2:30 the following morning), it was necessary to consume seven ounces of 85 proof liquor. This would mean that during that period Blanco had consumed a minimum of seven beers, each containing one ounce of alcohol, or their equivalent in wine. This result would have to be adjusted by the known fact that alcohol consumed by such a person is dissipated or excreted through the lungs and urine at the rate of .015 percent per hour. Therefore, in six hours .09 percent of the blood alcohol would be lost. Thus, in order to produce a final result of .124 percent, it would be necessary to consume an additional 3 or 4 cans of beer. Hence, for Blanco’s blood test to result in .124 percent, at least ten beers or their equivalent must have been consumed during the six hours preceding the accident. It should also be noted here that approximately four hours elapsed after Blanco’s death before his blood was withdrawn for testing. This delay, according to one expert, involved further dissipation of the alcohol in the blood, the conclusion being that if the blood had been tested sooner, a higher concentration of alcohol would have been present. From these facts the evidence preponderates that Blanco was intoxicated prior to and at the time of the mishap.

The next step in the solution of the problem this case presents is to determine whether Blanco’s intoxication caused Pres-tenbaeh’s death. In my view the intoxication of the driver was the primary and proximate cause of the accident. Recognizing, as I do, that the level of alcohol in Blanco’s system was such that his ability to drive was seriously impaired, that the speed of the car he was driving exceeded 100 miles per hour and that he disregarded the warning Prestenbach gave of the bump in the bridge they were approaching, the resultant loss of control of the vehicle and the ensuing mishap was necessarily the direct consequence of his intoxicated condition. No rational, sober individual would hazard the consequence of such conduct, and without intoxication Blanco would not.

With these conclusions reached, the critical question then becomes whether Pres-tenbach knew or should have known of the driver’s condition and, nevertheless, voluntarily joined him and remained with him. There is no evidence to indicate that Pres-tenbach's presence in the Mustang was anything but voluntary. At no time was he subjected by force, compulsion or deception to remain with Blanco. On several occasions opportunities were presented to withdraw — when the second stop at the Thrifty-Nifty was made to get three fifths of wine; while they drank the last of the wine at the Burger King; at Susan Goff’s party; when the stop was made in Berwick to buy two six-packs of beer; and, finally, in Houma at Mickey’s Lounge. Also, Prestenbach could have asked Blanco to take him home as Dragna had earlier in the evening. At no time did Prestenbach make this important decision.

Finally, the conclusion is inescapable that Blanco drank much more than his friends out with him that night were willing or able to recall. The physical facts, in my view, outweigh the uncertain recall of the witnesses. Prestenbach either knew or should have known of Blanco’s intoxication. I find it difficult to believe that he could have remained in Blanco’s company for six hours without being aware that his driving skills were “dangerously altered”. The best evidence of this was the alcohol level in Blanco’s blood, a scientific finding that he must have had at least ten ounces of alcohol. And Prestenbach, who had not consumed nearly as much alcohol, his blood test disclosing only .044 percent, should have been alert enough to make the important and rational decision he apparently rejected. The circumstances indicate strongly that he assumed the risk of continuing on this venture with his intoxicated friend.

I respectfully dissent.


source: Caselaw Access Project

author: SUMMERS, Justice. DIXON, Justice DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana, v. Aaron LEE.
    No. 58153.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Rehearing Denied Jan. 21, 1977.

      Dennis, J., concurred with reasons.
    Dixon, J., joined by Tate and Calogero, JJ., dissented with reasons.
    Tate, Dixon and Calogero, JJ., were all of the opinion that a rehearing should be granted.

      S. Michael Henry, Stone, Pigman, Walther, Wittmann & Hutchinson, 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.
   SUMMERS, Justice.

Aaron Lee and Wilfred Young were jointly charged by bill of information filed on December 6, 1974 with the armed robbery of Delwood Rodi on November 15, 1974. La.Rev.Stat. 14:64. They were jointly tried and found guilty as charged. Lee was sentenced to serve 25 years at hard labor. This appeal by Lee relies on five assignments of error for reversal of his conviction.

Assignment 1

In a motion for bill of particulars defense counsel asked the District Attorney to state the offenses, felonies or misdemeanors, listed on any prior arrest record data of defendants in the possession of the State; also, a) any offense for which defendants Lee or Young were arrested or convicted before November 15, 1974, b) the date of the arrest or conviction, and c) the parish (or county) and state where the offense occurred.

The District Attorney answered that “the defense is not entitled to this information.” The trial judge agreed.

It is the defense contention that this ruling violated Lee’s right to due process guaranteed by the Fourteenth Amendment to the United States Constitution. Knowledge of defendant’s prior criminal record, the defense argues, is indispensable to proper preparation for trial, and defendant has the right to examine and correct entries in his criminal record.

Arrest and conviction records are public records and are available to the defense. La.Rev.Stat. 44:1 and 3 (1973).

In brief, the defense seeks an expansion of the rule of pretrial discovery in criminal cases to include defendant’s criminal record in the State’s possession. No authority or argument has been advanced to warrant such an extension. State v. Baker, 288 So.2d 52 (La.1975).

Assignment 2

On January 6, 1975 defense counsel filed a motion to sever on behalf of appellant Lee. The motion alleged that Lee was innocent of the charge against him and had never been imprisoned for any offense, while Young, his codefendant, did have an extensive record of convictions. Lee intended to call Young as a witness to exculpate and clear Lee of wrongdoing, which he could not do without Young’s consent, for Young’s prior record of convictions would not permit him to consent to testify and subject himself to cross-examination. The result would be that Lee would lose the benefit of Young’s exculpating testimony. Under these circumstances, according to the motion, it would be prejudicial to Lee to be tried with Young.

The motion to sever was denied.

Article 704 of the Code of Criminal Procedure sets forth that “Jointly indicted defendants shall be tried jointly unless: (1) The state elects to try them separately; or (2)The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.”

Since the State has not elected to try the defendants separately, it is only necessary to consider whether the trial judge abused his discretion in deciding that justice did not require a severance. State v. Frierson, 302 So.2d 605 (La.1974).

Lee argues that Young had a record of prior convictions, which would prevent Young from taking the witness stand to testify and exculpate Lee, but it is not shown that the jury was aware of Young’s record. Young’s failure to take the stand does not, therefore, lead to the conclusion that the jury would infer that the reason for his failure to testify was his record of prior convictions. State v. Medlock, 297 So.2d 190 (La.1974); State v. Smith, 283 So.2d 470 (La.1973).

Lee’s contention that severance should have been granted because he could not compel Young to take the stand is answered by the decision in State v. Baker, 288 So.2d 52 (La.1973):

“. . . [T]his court has squarely held that an accused is not entitled to severance simply because he alleges that he wishes to call his codefendant as a witness, which he cannot do when the codefendant is on trial with him for it was contrary to a defendant’s constitutional right against self-incrimination to compel him to take the stand. In holding this contention to be without merit, we have observed that separate trials would not assure this right. Both defendants were involved in this crime which involved only one transaction. Therefore, even if severance were granted, the code-fendant not being tried could not be compelled to testify. He could claim his Fifth Amendment rights. . . .’’at page 57.

Defense counsel asserts that, because Lee took the stand in his own behalf, the jury’s attention was called to the fact that Young’s failure to take the stand was because of his guilt. Thus, it is argued, the jury would infer that because Lee was being tried with Young he too was guilty. The argument seems repetitive but because it is based upon the decision in DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962) it will be considered in that light.

The DeLuna rule applies only when counsel’s duty to his client requires him to draw the jury’s attention to a possible inference of guilt from his codefendant’s silence. A duty to do so arises only when the defenses of the codefendants are antagonistic. No antagonistic defenses have been shown or argued here; whereas, in DeLuna true antagonistic defenses were involved. Gurleski v. United States, 405 F.2d 253 (5th Cir. 1969).

Lee’s defense at the trial was alibi. He claimed that he had been in a bar about the time of the robbery and had only met with Young after the offense occurred. A few minutes later they were arrested. According to his defense, Lee was unable to state that Young was the robber or to testify to the facts surrounding the offense. His defense was not antagonistic to Young’s.

Assignment 3

A motion to suppress the identification of Lee by the victim Delwood Rodi was denied.

Rodi was robbed by two black males at approximately 9:30 on the night of November 15, 1974 in the 2100 block of Burgundy Street. During the encounter he was cut and stabbed by one of the robbers. When the robbers fled on foot he returned home and his mother called the police. They obtained a description of the assailants and departed. Lee and Young were arrested shortly thereafter, at approximately 9:45, at St. Bernard Avenue and Marais Street. After the arrest, Officers Reed and Gavin handcuffed Lee and Young and transported them to the 2100 block of Burgundy Street, arriving in 2 or 3 minutes. On arrival, the police told Rodi, “We think we caught them.” Although he was distraught from his experience and on the way to the hospital, Rodi positively identified Lee and Young as the robbers.

Considering the time and place and the absence of intentionally suggestive conduct by the police the trial judge was convinced that the motion to suppress should be denied. There is no error in the ruling.

In-field identifications are permissible when they are “closely associated in time with the criminal transaction.” State v. Maduell, 326 So.2d 820 (La.1976). Prompt confrontation promotes fairness by supporting reliability of identification or the expeditious release of innocent suspects. The totality of circumstances must be considered in determining whether the in-field identification is fairly conducted or unduly suggestive. State v. Bland, 310 So.2d 622 (La.1975).

Insofar as the in-court identification is concerned, the trial judge correctly points out in his per curiam that Rodi’s in-court identification had a source independent of the in-field identification. Although Rodi had no prior acquaintance with Lee and Young, the robbery lasted from 5 to 10 minutes, during which time both assailants stood in full view of Rodi, giving him the opportunity to observe their faces in close proximity for 3 to 5 minutes. The lighting was adequate, coming from a street light directly across the street. Rodi was 22 years old at the time and in the National Guard. And, while he was not questioned about physical infirmities which might impair his observation or recall, the logical inference is that he had no impairment. The trial judge who saw and heard Rodi on the witness stand found him to be entirely capable of making the positive identification he did make.

Except for an absence of Rodi’s prior acquaintance with the accused, all factors designed to establish the reliability of the independent source of the in-court identification were satisfactorily fulfilled. State v. Peevy, 321 So.2d 324 (La.1975). No one of these factors is sacramental. They are merely standards designed to assist the Court in arriving at a proper result.

Assignment 4

Lee contends the trial judge erred in allowing state evidence of another armed robbery to prove system, knowledge and intent. The extraneous offense objected to occurred approximately an hour and fifteen minutes before Rodi’s robbery. David J. Peltier was alone and walking near his house on Dauphine Street about 8:30 when he was accosted by two black men. One of them pulled a knife covered by a handkerchief and demanded Peltier’s wallet. Peltier surrendered his money clip. When he reached for money in another pocket the assailant tried to stab him in the stomach and in warding off the thrust, Peltier’s hand was cut. They also took his coat and a class ring. The incident lasted about ten minutes, after which the assailants fled on foot.

It has been consistently held that Sections 445 and 446 of Title 15 of the Revised Statutes permit the introduction of evidence of other offenses, where almost identical tactics are employed, to prove knowledge, system and intent. The test of admissibility is whether the evidence is relevant and whether its probative value outweighs its prejudicial effect. Here the relevancy of the extraneous evidence is to show system or modus operandi and to corroborate evidence of the offense charged.

In the instant case each victim—in the extraneous offense and in the case at bar—was approached on the street while in front of or near his house. Both victims were cut with a large knife; each victim was on foot and alone; the two offenses were committed within a one-hour and fifteen-minute time span and within a mile of each other. Each victim was attacked by more than one black male. On both occasions the assailants left the scene in the same fashion—running on foot.

The trial judge found the factual situation here to be strikingly similar to the facts in State v. Grant, 295 So.2d 168 (La. 1973). He was governed by that authority in his ruling. Here, as in State v. Grant, the methods used in both robberies were similar and a close connexity in both time and distance existed. Under the defense contention, it was unnecessary to prove knowledge and intent in this offense, and, therefore, evidence of the extraneous offense should not have been allowed. However, similarity by clear and convincing evidence did establish the relevancy of the extraneous offense to the method or system the robbers employed.

Even though Peltier was unable to positively identify his assailants because of darkness at the scene, the fact that Lee and Young were his assailants was presented by clear and convincing evidence when it was shown that the coat and class ring belonging to Peltier were found in their possession.

There is no merit in this assignment.

Assignment 5

Defense counsel objected to the testimony of various witnesses that stains on clothing, money and other objects were bloodstains. It is the defense contention that these lay witnesses were not competent to testify that the stains were bloodstains, because the stains were small and no chemical analysis had been made to prove that they were bloodstains. The effect of the argument is that only experts could give such opinion testimony.

The contention is answered in State v. Skipper, 284 So.2d 590 (La.1973) and State v. Garner, 255 La. 115, 229 So.2d 719 (1969). The teaching of these cases is that blood is a common thing a lay witness may recognize, and testimony that an object is stained with blood is not opinion testimony. If the recital of the fact is within the knowledge of the witness, a mistake affects the weight of his testimony and not its admissibility.

This assignment is without merit.

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

DENNIS, J., concurs with reasons.

DIXON, J., dissents with reasons.

TATE and CALOGERO, JJ., dissent for the reasons assigned by DIXON, J.

DIXON, Justice

(dissenting).

I respectfully dissent.

As the majority seems to admit, the evidence of the other offense (the robbery of Mr. Peltier) could not be used in this prosecution to show guilty knowledge or intent because guilty knowledge and intent were not in issue in this case. State v. Harrison, 291 So.2d 782 (La.1974); State v. Moore, 278 So.2d 781 (La.1973). In addition, evidence of the other offense is not admissible to show “system” as contemplated by the drafters of R.S. 15:446. That article provides:

“When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.” (Emphasis added).

System in the above statute refers to the continuity of two or more activities for the completion of an offense. State v. Gaines, 340 So.2d 1294 (La.1976); State v. Hicks, 301 So.2d 357 (La.1974).

However, the jurisprudence of this State has permitted the introduction of evidence of other offenses for the purposes of showing the identity of the perpetrators under a “modus operandi” or “similar method” exception to the prohibition of introduction of evidence of other crimes. However, that “modus operandi” or method must be so similar in the two crimes that proof of one leads logically to the conclusion that the perpetrator of one offense is the perpetrator of the other. Stated otherwise, both crimes must exhibit such peculiar modes of operation to distinguish them as the work of the same person(s). State v. Gaines, supra. An example of such a striking similarity in method would be the recently reported incident of the alleged rapist who sucks the toes of his rape victims. Another example would be the case in which the defendant staged a series of armed robberies, in broad daylight, of Zetz 7-Up beverage trucks. All of the robberies were during the day, a sawed-off shotgun was used in each case, only Zetz 7-Up trucks were robbed, and all were robbed while en route making deliveries. State v. Price, 325 So.2d 780 (La.1975).

Although the two armed robberies in the case before us do exhibit similar characteristics (as do many armed robberies), the method employed, or “modus operandi”, is not so peculiarly distinctive such that one must logically say that they are the work of the same person(s). (For example, although a knife was used in both crimes, in the Peltier robbery, the perpetrators had the knife wrapped in a Western style handkerchief, which was not present in the Rodi robbery. Peltier was robbed at his front door while Rodi was robbed in the street. In the Peltier robbery the perpetrators attempted to force Mr. Peltier into his house and no such attempt was made in the Rodi robbery). The methods employed in these two crimes are not so similar and distinctive to fit within the “method” or “modus oper-andi” exception. State v. Gaines, supra; State v. Hicks, supra; State v. Harrison, supra.

DENNIS, Justice,

concurring.

I agree with the statement of law set forth by Justice Dixon in his dissenting opinion. However, in my view the modus operandi employed by the defendant in both the charged and the uncharged offenses, considering the context within which they occurred, are so peculiarly distinctive that one must logically say they are the work of the same person. I do not reach this conclusion merely because the two offenses occurred within one and one-half hours and within six or seven city blocks of one another, were committed by two perpetrators of the same race and sex, and involved the stabbing of each victim. These common features alone are not sufficiently distinctive to raise a logical inference that the perpetrators of the prior offense bearing such marks were the perpetrators of the charged offense. However, there is an additional similarity or common mark present in this case which renders evidence of the other crime admissible. That mark is the very presence of Wilfred Young with the defendant as one of the perpetrators of both the charged and the uncharged offenses.

In People v. Haston, 69 Cal.App.2d 233, 70 Cal.Rptr. 419, 444 P.2d 91 (1968), a case involving somewhat similar facts, the Supreme Court of California stated:

“ * * * There is only one Donald McDowell, and his conjunction with defendant in earlier robberies, together with his admitted participation in the robberies charged, supports the inference that defendant and not some other person was his accomplice in those charged offenses. It thus appears that evidence of the uncharged-offenses has some probative value on the issue of identity.
“It remains to be determined, however, whether the common mark of McDowell’s presence, considered in combination with the other common marks to which we have adverted, invests the evidence of other crimes with probative value sufficient to outweigh its clear prejudicial effect. We think that it does. Although, as we have stated, the other common marks are so lacking in distinctiveness that even considered in combination they would be insufficient to warrant admission, the addition of McDowell’s presence — a significantly distinctive mark— into the combination yields a different result.
“The issue in this case is the identity of McDowell’s crime partner in the three charged robberies. The prosecution’s identification evidence says that that crime . partner was defendant. On the other hand, defendant and his alibi witnesses and McDowell himself say that that crime partner was not defendant. It is in this context that we assess the probative value of the other-crime evidence. That evidence tends to show that on at least two other occasions defendant had been McDowell’s crime partner in robberies bearing other marks of similarity to the charged offenses. It is clear that in this context the other-crimes evidence has great probative value on the issue of identity. (See People v. Roach, supra, 148 Cal.App.2d 364, 367-368, 306 P.2d 523.) We hold that that probative value was sufficient to outweigh the prejudicial effect of the evidence, and that therefore the admission of such evidence was proper * * 70 Cal.Rptr. at 430, 444 P.2d at 102.

I reach the same conclusion as that of the California supreme court in Haston. The clear and convincing evidence that defendant accompanied by the identical crime partner, Wilfred Young, committed two armed robberies in the same vicinity, separated only briefly in time, upon victims who were cut with a knife during the offenses, renders the defendant’s modus operandi particularly distinctive. Because of Lee’s alibi defense the probative value of the other-crime evidence on the issue of Lee’s identity was sufficient to outweigh its prejudicial effect so as to prevent it from being inadmissible. See also, 2 Wigmore on Evidence, § 411 (3d ed. 1940); McCormick on Evidence, § 190, p. 449 (1972).

I respectfully concur.

      . It is also my belief that the introduction of the evidence of the Peltier robbery was error because the test stated in State v. Moore, supra, has not been complied with. In Moore this court held that even if evidence of other offenses is otherwise admissible under one of the exceptions provided in R.S. 15:445-46, its introduction is error if the probative value of that evidence is outweighed by its prejudicial effect. 278 So.2d 781, 786. An examination of the record in this case reveals that over 40% of the State’s case-in-chief (direct examination, redirect and the introduction of physical evidence) involved reference to or evidence of the “other offense.” Under these circumstances, the probability that the prejudicial effect of the evidence of the “other offense” outweighed its probative value is evident.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Nathaniel GLOVER.
    No. 58095.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Nathaniel Glover, was charged by bill of information with possession of heroin, a controlled dangerous substance, with intent to distribute. La.R.S. 40:966(A). On February 21, 1975, a jury found him guilty as charged and he was sentenced to life imprisonment at hard labor. On appeal, he urges a single assignment of error.

On the afternoon of March 7, 1974, two officers of the New Orleans Police Department observed defendant engaging in conversation with a known heroin addict and suspected drug dealer beneath an on-ramp to the Mississippi River Bridge. As the officers approached, defendant threw down a match box which they retrieved and found to contain ten foil packets of a brownish powder, later identified as heroin. Defendant was arrested for possession of heroin.

On cross-examination of one of the arresting officers, defense counsel asked:

“If Glover had handled the match box, or if his fingerprints appear on the matchbox, there would be no question that he handled it?”

The State objected that the question called for a conclusion from the witness, and the court sustained the objection. Defendant assigns this ruling as error.

Generally, a witness may testify only as to facts within his knowledge, and opinion testimony will only be accepted from an expert. La.R.S. 15:463-464. A lay witness may, however, state a natural inference from something he has observed. State v. Neal, 321 So.2d 497 (La.1975). Defendant argues that the question at issue addressed a matter of common knowledge or alternatively, that it required only a natural inference from facts observed. The latter argument is without merit because the question did not call for an inference drawn from the witness’ observations or from other facts as to which he had testified but drew upon his general knowledge. The issue which defendant would then put before us is whether the question involved “a knowledge obtained only by means of a special training or experience,” which thus could be answered only by an expert. La. R.S. 15:464.

Such a formulation of the issue indicates a misapprehension of the full purpose behind the rule restricting lay testimony to “facts within [the layman’s] knowledge.” La.R.S. 15:463 (emphasis supplied). The rule is intended not only to promote the integrity of the factfinding process by insuring that a witness does not testify as to matters beyond the scope of his experience, but also to avoid encumbering the trial with superfluous testimony. If a witness’ opinion is based upon common knowledge and is not grounded in some special training or experience, he has nothing to contribute to the jury which is equipped with the same information. His testimony merely involves an unnecessary consumption of time and a cumbersome addition to the mass of testimony. 2 Wigmore, Evidence, § 557 (3d ed. 1940).

Thus, defendant’s argument that the opinion solicited of the officer involved common knowledge is self-defeating. If defendant is correct, the officer’s testimony was useless to the jury and properly excluded; if he is incorrect, the officer’s opinion was inadmissible because defendant did not establish that he was qualified to give it, La.R.S. 15:466. We think it is appropriate to designate as common knowledge the principle that the presence of a person’s fingerprints on an object indicates that at some point that person handled the object. But for the reasons stated above, we find opinion testimony on this matter superfluous and properly excludable by a trial judge in the exercise of his discretion.

Additionally, we note that by rephrasing his question in more general terms, defense counsel succeeded in placing the desired testimony before the jury:

“Q. And if you lifted the prints off of a match box, the prints that you lifted would be the prints of a person who handled the match box, is that true?
“A. At one time or another.”

The assignment of error is without merit.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

SANDERS, C. J., and SUMMERS, J., concur.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Carl DUHON and Jessie Williams.
    No. 58295.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Fred C. Jackson, St. Francisville, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., Cynthia Picou, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendants were indicted by the Grand Jury of the Parish of West Feliciana for violating R.S. 14:89, crime against nature. They were jointly tried before a jury in the Twentieth Judicial District Court which unanimously returned a verdict of guilty as charged. Each defendant was sentenced to serve two and one-half years to run consecutively with any sentences the defendants then presently serving.

The defendants were alleged to have committed an act of sodomy. This act was witnessed by Carrol E. Moreau, a correctional officer at Angola prison, to have occurred in the prisoners’ dormitory at about 11:00 p. m. on July 3, 1975. The sole assignment of error relates to the trial court’s denial of the defendants’ motion for a new trial based on an allegation that the verdict is contrary to the law and the evidence. On appeal the defendants argue that there is a total lack of evidence of the offense charged. We are limited to reviewing whether there was a total lack of evidence to prove the crime or an essential element thereof. State v. Williams, 310 So.2d 513 (La.1975). Since an eyewitness, Moreau, testified to seeing the defendants commit the act of anal intercourse, there is at least some evidence of the crime, and this assignment lacks merit.

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


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Sheila SPOT.
    No. 58342.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Milton P. Masinter, 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.
   CALOGERO, Justice.

Sheila Spot was charged with violating La.R.S. 14:118 by committing public bribery of a New Orleans police officer. After waiving jury trial she was found guilty as charged by the trial judge and sentenced to serve six months in Orleans Parish Prison. Inasmuch as the permissible punishment for violation of La.R.S. 14:118 includes confinement at hard labor she has properly appealed her conviction and sentence to this Court. She relies upon two assignments of error.

ASSIGNMENT OF ERROR NO. 1.

In this bench trial, the state “waived” opening statement, and the defendant did not enter an objection. Defendant assigns as error this waiver by the state of opening statement. She contends that an opening statement by the prosecutor is mandatory under Louisiana law.

An irregularity or error cannot be availed of after a verdict unless' it was objected to at the time of occurrence. C.Cr.P. art. 841. Furthermore the alleged error is not one “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” C.Cr.P. art. 920(2). Accordingly, the alleged error is not properly before us.

In any event, the assignment does not have merit. In the recent case of State v. Bolen, 338 So.2d 97 (La.1976), which also involved prosecution for a relative felony (negligent homicide) and a bench trial, we held that the trial judge did not err in refusing to order the state to make an opening statement. Citing cases which had held that in misdemeanor trials an opening statement is not required (State v. Layssard, 310 So.2d 107 (La.1975); State v. Himel, 260 La. 949, 257 So.2d 670 (1972); State v. Didier, 259 La. 967, 254 So.2d 262 (1971)), we went on to say, in effect, that absent an element of unfair surprise defendant is not prejudiced by the state’s declining via opening statement to inform defendant of the nature of the charge and the evidence upon which the state intends to rely. In the case at bar defendant neither alleges nor shows that she was unfairly surprised.

Accordingly assignment of error number one, for the dual reasons above stated, does not have merit.

ASSIGNMENT OF ERROR NO. 2.

Defendant complains that the trial court erred in refusing to grant her motion for a directed verdict. That motion, actually designated a motion for judgment of acquittal in a bench trial (C.Cr.P. art. 778), properly raises the question of sufficiency of the evidence, in the sense only of whether the prosecution has produced any evidence or some evidence to prove the crime or an essential element thereof. State v. Douglas, 278 So.2d 485 (La.1973). And, of course, a motion for a judgment of acquittal in a bench trial is still procedurally available notwithstanding the recent amendment to Article 778.

We are therefore limited in our review of the record in this case to determining whether the state failed to present any evidence at all to prove the crime charged or an essential element thereof. Defendant does not assert that the state failed to prove a particular element, but according to La.R.S. 14:118 the elements of the crime of public bribery in this case are the giving or offering to give anything of value to a police officer with the specific intent to influence his conduct in relation to his position.

The state established through the testimony of two New Orleans police officers, Patrolman Foster and Sergeant Keys-er, that defendant Spot was arrested in the early morning hours of December 4, 1974 for violating the municipal ordinance proscribing loitering in public for the purpose of inducing another to commit an indecent sexual act. When Officer Foster arrested defendant, Sergeant Keyser was sitting in a police car nearby and defendant requested that she be allowed to speak to him. Officer Foster took her to the car and she got in the rear of the vehicle. She asked Sergeant Keyser if she could get in “the union.” When questioned by the two officers what she meant by “the union,” she said that she had heard other prostitutes say that if you paid fifty dollars a week, the police officers would allow the girls to solicit men for prostitution without being arrested. These officers testified that defendant then gave Sergeant Keyser five dollars and promised to give him the balance later.

The record, therefore, reveals that there was before the trial judge some evidence of each element of the crime charged, and that he correctly denied defendant’s motion for acquittal.

Accordingly, the conviction and sentence are affirmed.

      . La.R.S. 14:118 provides in pertinent part that:
      “Public bribery is the giving or offering to give, directly or indirectly, anything of apparent present or prospective value to any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty:
      (1) Public officer or public employee;
      ******
      Whoever commits the crime of public bribery shall be fined not more than one thousand dollars, or imprisoned, with or without hard labor, for not more than five years, or both.”

      . Defendant Spot was sentenced to exactly six months imprisonment, a term which does not cause her case to fall under this Court’s appellate jurisdiction which extends to cases where “imprisonment exceeding six months actually has been imposed.” La.Const. art. V, § 5 (1974). However, our appellate jurisdiction extends to any case where “the defendant has been convicted of a felony” (Art. V, § 5) and defendant here was convicted of a felony.

      . By Acts 1975, No. 527, § 1, Article 778 was amended so as to delete the provision allowing motion for directed verdict in a jury trial.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Edwin MOORE.
    Nos. 58446, 58485 and 58588.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Harold Douglas, New Orleans, for defendant-appellee-respondent.
    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-appellant-relator.
   SANDERS, Chief Justice.

The Orleans Parish Grand Jury indicted Edwin Moore on November 29,1973, for the first degree murder of George Dominick in violation of LSA-R.S. 14:30, a capital offense. On February 2, 1974, Moore, then a juvenile, withdrew his former plea of not guilty and pleaded guilty to second degree murder, a non-capital offense, for which he was sentenced to life imprisonment. By post conviction relief, his plea and sentence were annulled, and the case was remanded for further proceedings. State ex rel. Moore v. Warden of Louisiana St. Pen., La., 308 So.2d 749 (1975).

Moore filed a motion to quash the first degree murder indictment, alleging that Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), declared the statute under which Moore was charged, LSA-R.S. 14:30, unconstitutional. The district court judge granted the motion and ordered the indictment quashed. The State then applied for supervisory review in writ application No. 58,485. In addition, the State appealed the ruling quashing the indictment in No. 58,588. Upon Moore’s habeas corpus application, the district court ordered him released. The State applied for writs, and we granted its application (No. 58,446) and issued a stay order. La., 336 So.2d 515 (1976).

The sole issue presented is whether Edwin Moore, a juvenile indicted for committing a capital offense, can be tried in criminal district court in light of Roberts v. Louisiana, supra, invalidating the death sentence.

At the time of the offense, LSA-R.S. 13:1570 provided in pertinent part:

“Except as otherwise provided herein, the [juvenile] court shall have exclusive original jurisdiction in proceedings:
“A. Concerning any child whose domicile is within the parish or who is found within the parish:
* * * * * *
“(5) Who violates any law or ordinance, except a child charged with having committed a capital crime or a crime defined by any law defining attempted aggravated rape after having become fifteen years of age. . . . ” (Italics ours.)

Moore contends that as he was a fifteen-year-old juvenile at the time of the crime, he cannot now be tried in criminal district court for the crime because it is no longer a “capital offense.” LSA-C.Cr.P. Art. 933(2).

He argues that because Roberts left the first degree murder statute without a penalty when the death penalty was declared unconstitutional, first degree murder lost its status as a capital crime and, therefore, he should be remanded to the custody of the juvenile court.

When the same issue was raised recently in State v. Smith, La., 339 So.2d 829 (1976), we held:

“Defendant maintains that when the death penalty was declared unconstitutional, first degree murder lost its status as a capital crime, and he should have been remanded to the custody of the juvenile court. (Cf. La.C.Cr.P. art. 933(2): ‘ “Capital offense” means an offense that may be punished by death’). The identical issue was raised after Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), struck down the death penalty provision of our prior first degree murder statute, La.R.S. 14:30 (1950). State v. Whatley, 320 So.2d 123 (La.1975). Whatley held that the district court retained jurisdiction over a juvenile charged with first degree murder because ‘as enacted, La.R.S. 14:30 (1950) constituted a legislative classification that the crime of murder constituted a capital offense, and that conduct punishable by this statute remained a “capital” crime for purposes of Louisiana law (even though Furman held that the death sentence could not actually be imposed or executed).’ 320 So.2d at 125. Defendant was charged, tried and convicted for an offense which the legislature classified as ‘capital,’ and Roberts has no bearing upon the jurisdiction of the district court in this matter.”

That holding is dispositive of the present case. First degree murder under LSA-R.S. 14:30 is still classified as a capital offense for purposes of a district court’s jurisdiction over a juvenile offender.

For the reasons assigned, we reverse the rulings of the district court, overrule the motion to quash the indictment, and remand the case to the district court for further proceedings according to law and consistent with the views herein expressed.

      . The State applied for both writs and appealed because it was uncertain of the proper procedural vehicle. We held in State v. James, La., 329 So.2d 713 (1976) that the State may not appeal from a judgment ordering an indictment quashed; LSA-C.Cr.P. Art. 912(B) insofar as it conflicts with La.Const. Art. XIV, § 18(B) (1974) which precludes the State’s appeal of a pre-conviction final adverse judgment or ruling. The State, however, submits that its appeal is proper as it reviews the trial court’s ruling that LSA-R.S. 14:30 is unconstitutional. Although the record is unclear whether the trial court judge actually declared LSA-R.S. 14:30 unconstitutional or merely attempted to give effect to Roberts, as the State raises the identical issue in its writ application which we have granted, the substantive issue is considered in the consolidation. Writ No. 58,485 granted at La., 336 So.2d 515 (1976).


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Roger FREDERICK, Appellant.
    No. 58220.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Sue Fontenot, Abbeville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Richard J. Putnam, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Frederick was convicted of distribution of marijuana (hashish), La. R.S. 40:966, and sentenced to eight years at hard labor. Upon the defendant’s appeal, we find reversible merit presented by his assignment of error no. 1, relating to admission into evidence of unrelated other crimes. See also assignments 5 and 8, insofar as relating to this issue.

Facts

Frederick is charged with the unlawful distribution of marijuana on August 5, 1975. Kelly, an undercover agent, testified that at 11:45 a. m. that date he went to a residence where Frederick was staying, told Frederick he wished to buy a gram of hashish, waited while Frederick went upstairs, and then went outside with Frederick. There, beside Kelly’s vehicle, Frederick sold him a tinfoil package for $7.00.

The remainder of the state’s evidence as to this transaction was: The testimony of Officer Vice, to whom Kelly reported and transferred the package; and the testimony of laboratory witnesses identifying receipt of the package and analysis of its contents as hashish.

After this evidence was introduced, pursuant to a chambers conference formally notifying the defendant’s counsel of the state’s decision to use other-evidence testimony (pursuant to a pre-trial Prieur notice and full and commendable disclosure by the state of the circumstances of the other offenses which the state might use), the state over, objection of the defense, sought to prove through the testimony of Kelly, recalled on redirect, three other unwitnessed transactions whereby Kelly had acquired marijuana from the defendant Frederick:

(1) An incident of June 3, 1975, at a record shop, where Kelly first met Frederick (who was giving or selling a bag of marijuana to a third person): Upon Kelly’s statement that he himself wanted two bags, Frederick told him to step outside and get into Frederick’s automobile. There, Kelly obtained two bags of marijuana from a paper bag under the seat and paid Frederick $30.00 for them.

(2) An incident of June 13, in the Pub Lounge (part of the downstairs of the building housing the residence where the present August 5 offense charged allegedly took place): Kelly sat with Frederick drinking together at the bar for two and a half hours, after which Frederick gave him a marijuana joint (cigarette).

(3)An incident of July 31, at the Pub Lounge: While Kelly was drinking there, Frederick came into the bar and asked Kelly if he was interested in some hashish. They walked outside to the front door of the adjacent residence (where the August 5 offense is alleged to have taken place), where Kelly bought a tinfoil packet of hashish for $7.00.

The only other evidence offered by the state was the testimony of Officer Vice that the respective items had been given to him by Kelly, and the testimony of laboratory witnesses as to the chain of custody and analysis of the contents as marijuana or hashish respectively.

The Defense

The defendant’s essential defense, by cross-examination and argument of counsel, was to attack the credibility and credentials of Kelly and, by these means, to contend that no such August 5 transaction took place, unwitnessed as it was and depending for proof solely upon Kelly’s credibility.

The defendant himself did not take the stand. (In brief, his counsel points out that, if he was innocent of the August 5 offense (the only one for which on trial) but possibly guilty of one or more of the other incidents, he could not take the stand to defend his innocence without subjecting himself to questioning as to these other offenses.)

However, the defendant did produce as witness on his behalf an experienced police officer, conceded to be an expert in police procedures. This officer testified that the undercover narcotics operation represented by the state’s evidence was not in accord with proper police procedure. The alleged defects included: the use of an undercover police agent with a police record (albeit, concerning only a misdemeanor) to make an unwitnessed (and thus uncorroborated) one-on-one purchase; the lack of supervision and controls over the reliability of the evidence, such as: the failure to require before- (as well as after-) reports to the supervisor; the failure to verify the absence of any possession of an illegal drug by the undercover agent prior to the alleged transaction; etc.

Legal Principles

The state must prove beyond a reasonable doubt the accused’s guilt of the specific crime charged. La.Const. of 1974, Art. 1, Section 16. Proof of present guilt may not properly be made by evidence of general bad character or of prior criminal record or of other criminal activity independent of the present offense. State v. Prieur, 277 So.2d 126 (La.1973).

Therefore, evidence of other crimes is inadmissible except under limited special exceptions, such as when they form part of the res gestae, are convictions admissible solely for impeachment purposes, or (pertinent to the present issue) are acts relevant to prove intent, knowledge, or system with regard to the specific offense charge under La.R.S. 15:445, 446. Even then, evidence of other crimes may be introduced for the limited permissible purposes only with procedural safeguards set forth by Prieur, and then only if the probative value of such testimony outweighs its prejudicial effect.

See: State v. Moore, 278 So.2d 781 (La.1973); State v. Prieur, 277 So.2d 126 (La.1973). See also: State v. Slayton, 338 So.2d 694 (La.1976) (docket no. 58,054, November 8, 1976); State v. Gaines, 340 So.2d 1294 (La.1976); State v. Clark, 338 So.2d 690 (La.1976); State v. Waddles, 336 So.2d 810 (La.1976).

As these decisions indicate, because of the grave risk of substantial impairment .of the constitutional presumption of innocence, evidence of other crimes to prove knowledge, intent, or system under La.R.S. 15:445, 446 is admissible only under these specific exceptions, strictly construed so as to require a “showing by the State that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting the defendant’s bad character or his propensity for bad behavior, and that it serves the actual purpose for which it is offered.”- State v. Prieur, cited above, at 277 So.2d 130.

Application of Legal Principles to Present Facts

Under these principles, the evidence of the only-somewhat similar other drug offenses was not admissible to prove either intent or guilty knowledge with regard to the present offense, the only purposes for which offered.

The unambiguous eyewitness testimony offered by the state is to the effect that the offender sold hashish to the state undercover agent, fully knowing that the substance sold was an illegal drug. The requisite general criminal intent is established by mere proof of the voluntary distribution. State v. Banks, 307 So.2d 594 (La.1975).

Thus, in the absence of a defense that the act was done without knowledge of the illegality of the substance, “intent” or “knowledge” were not genuine matters at issue. State v. Slayton, State v. Gaines, and State v. Clark, cited above.

Nor did defendant’s plea of “not guilty”, without more, make evidence of extraneous offenses admissible to prove “intent” or “guilty knowledge”. State v. Clark and State v. Moore, cited above. To permit the exceptionally-permitted evidence of extraneous offenses, the evidence must indicate that these are real and genuine matters at issue, independent of the defendant’s general claim of innocence posed by his plea of not guilty. “ ‘The mere theory that a plea of not guilty puts everything material at issue is not enough for this purpose. The prosecution cannot credit the accused with fancy defenses in order to rebut them at the outset with some damning piece of evidence.’ ” State v. Moore, cited above, at 278 So.2d 785-86.

The defendant’s defense was not that the act was done without intent or guilty knowledge. It was that no act at all had occurred.

The effect of the state’s evidence of other crimes was not to prove the prerequisite intent or knowledge for the offense. It was instead to prove that the offense itself occurred, because: If the defendant had dealt in marijuana on three other occasions, then the undercover’s uncorroborated testimony that he dealt in it on the present occasion (the only offense charged) must be true.

The evidence is inadmissible for such purpose. As we stated in State v. Gaines, cited above, at 340 So.2d 1294:

“These statutes [La.R.S. 15:445, 446] and the jurisprudence construing them rest on the proposition that if the sole relevance of other acts is to prove the defendant’s criminal disposition, then the evidence is inadmissible character evidence. Although it can be effectively argued that evidence of other offenses is inadmissible because it is irrelevant to any issue in the trial for the crime charged, it can also be argued that this character evidence is relevant to guilt generally, because, having committed this kind of crime before, the defendant is at least capable of the criminal activity charged. Under either analysis, however, the evidence has been uniformly excluded due to the fact that the evidence presents an inordinate risk of prejudice. The prejudice results from various factors, among which are: (1) the strong possibility that the jury will be unduly swayed in its determination of guilt merely because the defendant is a ‘bad man’, (2) the possibility that the evidence may confuse the jury in collateral issues and detract their attention from the main issue of the defendant’s guilt for the crime charged, * * *.

“Therefore, accepting the argument that this evidence is highly relevant, the evidence is nonetheless excluded, not because it fails to tend to prove the defendant’s guilt, but because it does it too well and thereby deprives the ‘bad man’ of the fair trial and benefit of the presumption of innocence and the State’s burden of proof. * *

Authorities Cited in State’s Supplemental Brief

The scholarly and persuasive supplemental brief of the state contends that the cited Louisiana decisions have unduly narrowed the admissibility of other-crimes evidence. Cited to us are 2 Weinstein’s Evidence, 404[8]-[10] (1975) and McCormick on Evidence, Section 190 (2d ed. 1972).

Nevertheless, in our opinion, these authorities support the exclusion in the instant case of the evidence of the other crimes.

Weinstein, for instance, notes that other-crime evidence is never admissible to prove the evidential hypothesis that “a man with such a defect of character is more likely than men generally to have committed the act in question.” p. 404-40. To prove criminal intent, it is true, “evidence of another crime which tends to undermine defendant’s innocent explanation for his act will be admitted” p. 404-50 — but here, the defendant does not defend by an innocent explanation for an act, he denies any act at all occurred. Again, “Knowledge is properly in issue [only] when defendant’s claim is that he was unaware that a criminal act was being perpetrated”, p. 404-52 — but the examples illustrated by the footnote citation all concern instances where by way of affirmative defense the defendant claimed an innocent explanation for an undoubtedly unlawful act (see our decision in State v. Slayton, cited above, for this distinction); unlike the present, where the defendant denies any act at all took place.

In short, the other-crime evidence is not admissible unless it tends to prove or disprove “a proper consequential fact” at issue in the case. 2 Weinstein, p. 404-42. Even then, “the probative force of the other-crime evidence must be assessed”, p. 404-46, with the evidence to be excluded if unfairly prejudicial with relation to its probative value, Id. at Section 404[10].

The threshold issue posed by Weinstein is whether the other-crime evidence is probative to “the existence of any fact that is of consequence to the determination of the action.” Federal Rule of Evidence 401. Here, the only fact sought to be proved by the other-crime evidence is that Frederick indeed committed the present crime — however skillfully the prosecutor in brief attempts to characterize the evidence as probative of Kelly’s credibility or of the police competence in securing evidence by an un-witnessed buy or of the “necessity” of such other evidence due to the lack of corroborating witnesses.

The other-crime evidence was thus not admissible for any recognized purpose, such as the ten illustrative examples set forth by McCormick, pp. 448-50. Indeed, it falls within the prohibited inadmissible evidence described by McCormick, p. 447:

“The rule is that the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character”. Evidence of other crimes is thus inadmissible where, as here, it is introduced to prove that the accused committed the present crime because he had committed similar or other crimes in the past.

Conclusion

We therefore find reversible error presented by Assignment No. 1, because the evidence of other crimes committed by the accused was probative of no other fact at issue than one prohibited by our constitution, laws, and jurisprudence: That, by reason of his past guilt of other offenses, the accused is also guilty of the present crime for which (alone) he is charged and was tried.

Accordingly, we reverse the conviction and sentence, and we remand for a new trial in accordance with law.

REVERSED AND REMANDED.

      . In rebuttal, the state offered testimony of a narcotics officer to the effect that a substantial number of drug-cases were in fact “made” with procedures similar to the present.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Michael T. SIMMONS.
    No. 58241.
    Supreme Court of Louisiana.
    Dec. 13, 1976.

      Charles R. Chesnutt, III, Law Offices of Charles R. Chesnutt, III, 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.
   MARCUS, Justice.

Michael T. Simmons was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury, he was found guilty as charged and sentenced to serve thirty years at hard labor. Defendant appealed to this court for reversal of his conviction and sentence relying on five assignments of error. In Assignment of Error No. 2, defendant contended that the trial judge erred in denying his motion to suppress a written confessioh and in admitting it in evidence against him at trial. He argued that the state had not borne its burden of affirmatively proving that the confession was freely and voluntarily made. At the suppression hearing, defendant alleged that his confession was obtained through physical abuse inflicted on him by police officers both enroute to the detective bureau and while he was awaiting interrogation in a holding cell. Defendant’s attorney stated that, when he visited defendant four days later in parish prison, defendant had a swollen lip and bruised leg. The state adduced testimony contradicting defendant’s claims of physical abuse only from the two officers who took defendant’s statement at the interrogation room. Other officers involved in the handling of defendant just prior to his confession were not called to testify. Nor did the state introduce evidence as to whether the key to the holding cell was available to the other officers who defendant claimed beat him. After reviewing the testimony adduced at the suppression hearing, we held that the state had not sustained its burden of proving defendant’s confession free and voluntary in that the state had failed to call witnesses to contradict testimony of abuse by the defendant. State v. Simmons, 328 So.2d 149 (La.1976).

Finding no merit in defendant’s other assignments of error, we declined to reverse the conviction. Instead, we remanded the case to the district court for a second hearing on the motion to suppress, reserving defendant’s right to appeal in the event the confession was ruled free and voluntary on remand. After a second suppression hearing, the trial judge ruled the confession admissible. From this judgment, defendant now appeals relying on two assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in ruling, after a second suppression hearing, that his confession was freely and voluntarily given.

The testimony at the hearing on remand reflects in essence the following facts. Officers Steven Furst and Larry Leslie picked up the defendant at central lockup at about 7:10 p. m. on July 30,1974 and escorted him to the nearby detective bureau where he was locked in a holding cell while his accomplice was being questioned. Five or six policemen who had participated in the investigation were in this area. Officer Vil-lar testified that he locked defendant in the holding cell as soon as defendant reached the detective bureau and that he was the only officer in possession of a key to the cell. He stated that defendant was removed from the holding cell and brought to an interrogation room a few doors away at about 8:40 p. m. There, defendant was read his Miranda rights from a Department of Police Rights Form which he thereafter signed, acknowledging his understanding of these rights, in the presence of Officers Villar and Hurban. Officer Villar then asked defendant a series of questions concerning the armed robbery under investigation, recording on a typewriter the questions and defendant’s answers thereto as each answer was completed. This process took approximately one half hour, at the conclusion of which defendant examined the statement, presumably read it, and then signed it. Officer Villar clearly maintained that at no time was defendant threatened, beaten, or promised anything in order to induce the confession.

Defendant testified that during the short trip from central lockup to the detective bureau, he was kicked, beaten and hit over the head with a flashlight in an elevator. He further claimed that, while he was confined in the holding cell for approximately one hour, five or six policemen entered the cell periodically, singly or in pairs, and beat, kicked and punched him. Defendant alleged that, after he was taken to the interrogation room, his Miranda rights were never read to him and that Officers Villar and Hurban held his hand and forced him to sign a confession that they had already prepared. On cross-examination, defendant, at the request of the state, identified five police officers as the ones he claimed to have physically abused him: Officers Merlin Villar, Steven Furst, George Hurban, Charles Vicknair and Wayne Tamborella.

Each of these officers were called to testify for the state on rebuttal. Without exception, they swore that neither they nor anyone in their presence had beaten, kicked, punched or hit the defendant over the head with a flashlight. Moreover, all of the officers confirmed Officer Villar’s previous testimony that he alone possessed a key to the holding cell in which defendant was confined awaiting interrogation. The officers all stated that there was no opportunity for anyone else to enter the cell and abuse the defendant. Officer Steven Furst specifically testified that he stood guard outside the holding cell throughout the time that defendant was confined therein and that no one entered the cell, although he periodically cheeked on defendant by peering through the glass on the cell door and others came “in” and out of the hallway to do likewise.

Before a written confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La.Code Crim.P. art. 703(C). It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 15:453. We have held that, when the defendant testifies to a specific incident of coercion, the state may not rely simply upon general testimony of voluntariness, but instead, to satisfy its heavy burden of proof, is required to offer evidence to contradict the particular testimony tending to show that a confession was not freely and voluntarily made. State v. Carson, 336 So.2d 844 (La.1976); State v. Simmons, 328 So.2d 149 (La.1976); State v. Peters, 315 So.2d 678 (La.1975); State v. Monroe, 305 So.2d 902 (La.1974); State v. Simien, 248 La. 323, 178 So.2d 266 (1965); State v. Honeycutt, 216 La. 610, 44 So.2d 313 (1950). We have recognized, however, that the admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Hollingsworth, 337 So.2d 461 (La. 1976); State v. Sims, 310 So.2d 587 (La. 1975); State v. Monroe, 305 So.2d 902 (La. 1974).

Our review of the record convinces us that the state satisfied its burden of affirmatively proving that the written confession was freely and voluntarily made after defendant had been fully advised of his Miranda rights. Consequently, the trial judge correctly denied the motion to suppress and admitted the confession in evidence.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in refusing to allow him to recall Officer Merlin Villar to the stand at the conclusion of the suppression hearing for the purpose of questioning him as to when or whether defendant had announced that he desired to make a statement.

Officer Villar had already been extensively cross-examined by defense counsel during his direct and rebuttal testimony for the state. Defendant had ample opportunity on those occasions to propound the question he now complains he was prevented from asking.

Moreover, we note that however the witness might have responded to this question, it would not have affected the outcome of the suppression hearing. In order that a confession be properly admissible in evidence, it need only be given freely and voluntarily after the accused is duly advised of his Miranda rights. There is no requirement of a preliminary verbal announcement by the person making the statement that he in fact desires to do so. Accordingly, under these circumstances, we do not find that the trial judge abused his discretion in refusing to allow defendant to recall Officer Merlin Villar. There is no merit to this assignment of error.

DECREE

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


text:
    STATE of Louisiana, Appellee, v. Percy J. TENNESSEE, Appellant.
    No. 58288.
    Supreme Court of Louisiana.
    Dec. 13, 1976.

      Edgar Perkins, Jr., De Quincy, 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.
   TATE, Justice.

The defendant Tennessee was convicted of armed robbery, La.R.S. 14:64, and sentenced to twenty years at hard labor. Upon his appeal, he relies upon two assignments. Finding no error, we affirm.

The original bill of information jointly charged the defendant Tennessee and another, Phillips, with the crime. Prior to trial, Phillips died. Both assignments of error relate to the circumstance that, following Phillips’ death, no new bill of information was filed charging only Tennessee, the present defendant.

Assignment of Error No. 1 is based on the contention that Phillips’ death had the effect of a court-ordered severance. When the court orders a severance, La.C.Cr.P. art. 705 provides that the district attorney “shall” file separate indictments.

However, if indeed in such instance a new bill of information must be filed, the present case does not involve a court-ordered severance. We find and are cited to no authority which requires the filing of a new indictment when one of two jointly charged defendants dies.

Nor can we find any prejudice to the defendant resulting from trial under the present indictment (information), which is valid as to him despite any surplus language: It alleges the essential facts informing the accused of the nature and cause of the accusation against him. La.Const. Art. 1, Section 13 (1974); La.C.Cr.P. art. 462.

Assignment No. 2 complains that prejudice resulted because the indictment (information) went to the jury containing the name of Phillips, since allegedly the district attorney had asserted that the defendant was a participant in a shoot-out which led to Phillips’ death.

We find no merit to this contention. In the first place, the record indicates that the defendant himself, in replying to a non-related question under proper cross-examination, interjected that Phillips had been killed in a shoot-out in connection with a kidnapping in north Louisiana. (Subsequent cross-examination clarified that the defendant himself was then in Houston.)

In the second place, both the trial court’s per curiam and its charge to the jury indicate that, when read to the jury, the bill of information contained no reference to Phillips. Further, the defendant waived complaint to whatever writings went into the room with the jury by failing to object at that time. La.C.Cr.P. art. 841. (Actually, the charge to the jury indicates that only the written list of responsive verdicts was given to the jury.)

DECREE

For the reasons assigned, we affirm the conviction and sentence.

AFFIRMED.