author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Thomas E. CASE.
    No. 60413.
    Supreme Court of Louisiana.
    April 10, 1978.

      D. Bert Garraway, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yo-kum, Dist. Atty., Joseph H. Simpson, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The defendant, Case, was charged with committing a lewd and lascivious act upon a girl under the age of seventeen “during 1972, 1973, and 1974,” in violation of LSA-R.S. 14:81. The jury returned a verdict of guilty, and the trial judge sentenced him to imprisonment in the Parish Jail for two years and to pay a fine of $1,000. On appeal, he relies upon five assignments of error.

The background facts may be briefly stated. The defendant was originally charged with aggravated rape. On June 2, 1975, in a plea agreement, he pled guilty to contributing to the delinquency of a juvenile in violation of LSA-R.S. 14:29 A(7). Later, over the State’s objection, he was allowed to withdraw the plea. He was then charged with indecent behavior with a juvenile on December 21, 1974. The case came on for trial on October 26, 1976. During the State’s opening statement to the jury, the Assistant District Attorney stated that he would prove that the crime was a continuous one occurring during 1972, 1973, and 1974. Ultimately, the trial judge ordered a mistrial.

The State later amended the bill of information to allege that the indecent conduct occurred “during 1972, 1973, and 1974.”

ASSIGNMENT OF ERROR NO. 1: • MOTION TO QUASH

Defendant filed a motion to quash the amended bill of information, which the trial judge overruled. The motion was founded upon several grounds.

The first contention is that the amendment added new crimes. Our interpretation of the amendment is that it was designed to allege that the offense was a continuing one growing out of a sexual relationship between defendant and the young victim extending over at least three years. We find no merit in the contention.

Defendant argues that the bill of information is so vague and indefinite that it fails to inform the defendant of the nature and cause of the accusation against him in violation of both the state and federal constitutions.

Article 468 of the Louisiana Code of Criminal Procedure specifically states that the date and time of the offense need not be alleged in an indictment unless the crime is contingent upon the date or time, thus making the date or time an essential element of the offense. LSA-C.Cr.P. art. 468, Official Revision Comment (b); State v. Glover, La., 304 So.2d 348 (1974).

In response to a motion for a bill of particular, the State advised that the lascivious conduct occurred at the defendant’s home and that it occurred numerous times during the three year period. In a continuing sexual relationship of this type, exact dates often cannot be supplied. The record reflects that the State furnished the defendant as much information as was available.

In our opinion, the defense contention lacks merit.

Defense also contends that the bill of information should be quashed because it added prescribed criminal conduct. The amendment was made on October 26, 1976. Defendant argues that any criminal conduct occurring prior to October 26, 1972, had prescribed. See LSA-C.Cr.P. art. 572. This contention is untenable because the amendment relates back to the filing of the original bill of information. See State v. Sciortino, 245 La. 587, 159 So.2d 685 (1964).

Finally, defense contends that the amendment violates a stipulated agreement that it had with the State that the case would be tried in the “same posture” as it was on June 8, 1976. The trial judge did not construe the stipulation as barring the amendment. According to the State’s explanation, accepted by the trial judge, the agreement precluded the use of a Prieur notice and evidence of other offenses in the forthcoming trial. See State v. Prieur, La., 277 So.2d 126 (1973). In a matter of this nature, the ruling of the trial judge is entitled to great weight. We find no reason to disturb it.

ASSIGNMENT OF ERROR NO. 2

The defense complains that the trial judge erred in denying the defendant the right to have an independent medical examination of the young girl. Significant here, we think is that the defendant was charged with indecent behavior, not rape.

The trial judge’s Per Curiam correctly disposes of the contention:

“Page 14, 15 and 16 of the transcript shows that the District Attorney offered to give the defense attorney a copy of the report, did give him the contents of the report, offered to either use the doctor in question or not use the doctor giving the defense counsel the choice. Defense counsel chose to call the doctor.”

ASSIGNMENT OF ERROR NO. 3

The defendant alleges that the trial court erred in refusing to grant defendant’s motion for exculpatory evidence, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Based upon the representations of the State, the trial judge found no exculpatory evidence to be produced. The trial evidence did not alter his conclusion. Hence, this assignment of error lacks merit.

ASSIGNMENTS OF ERRORS NOS. 4 AND 5

These assignments relate to the prosecutor reading from a medical treatise and the trial court allowing the State to recall the young victim on rebuttal. We have examined these assignments and find no reversible error in either of them.

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

DIXON and DENNIS, JJ., dissent.


source: Caselaw Access Project

author: TATE, Justice. SUMMERS, Justice

license: Public Domain

text:
    STATE of Louisiana, Respondent, v. Lloyd LINDINGER, Relator.
    No. 60621.
    Supreme Court of Louisiana.
    April 10, 1978.

      T. Gerald Henderson, Gravel, Roy & Burnes, Alexandria, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Bara-bara Rutledge, Asst. Atty. Gen., J. Eddie Knoll, Dist. Atty., Darrel D. Ryland, Asst. Dist. Atty., for plaintiff-respondent.
   TATE, Justice.

We granted certiorari, 351 So.2d 1208 (1977), to review the trial court’s denial of a motion to acquit. The defendant is charged with driving while intoxicated. By the motion, the defendant contends that no evidence whatsoever proved an essential element of the crime: that the defendant was “operating” a motor vehicle while intoxicated.

The defendant was convicted of driving while intoxicated. La.R.S. 14:98. Pertinent to the present charge, the statute defines the crime as “the operating of any motor vehicle . . . while under the influence of alcoholic beverages.”

The defendant did not offer any evidence. At the close of the state’s case, the defendant (who was tried before a judge without a jury) filed the motion for acquittal. La.C. Cr.P. art. 778. The trial court agreed with the state’s contention that circumstantial evidence proves the defendant’s intoxication while operating a vehicle.

La.R.S. 15:438 provides: “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

For purposes of appellate review, the issue of whether there is total lack of circumstantial evidence to prove the crime (or an essential element of it) is decided by whether or not there is some evidence from which the trier of fact could reasonably conclude that beyond a reasonable doubt the accused had committed every element of the crime with which charged. Stated another way, the issue before us is: Did the evidence before the trier of fact exclude every other reasonable hypothesis than that the accused, admittedly found later to be intoxicated, had “operated ” the motor vehicle while so intoxicated.

See: State v. Elzie, 343 So.2d 712 (La.1977); State v. Willis, 325 So.2d 227 (La.1976); State v. Linkletter (and Soldani), 239 La. 1000, 120 So.2d 835 (1960); State v. Nomey, 204 La. 667, 16 So.2d 226 (1943).

In the present instance, the state’s case shows (it is the only evidence, since the defendant rested at its close):

Acting upon a report, a city policeman went to a scene just outside the city limits. There, he found the defendant Lindinger resting against a pickup truck some 50 to 100 feet out in the field off the highway.

The officer testified that Lindinger was hardly able to stand and appeared to be intoxicated. The officer found in the pickup truck a fifth of whiskey “three quarters gone, three quarters of it had been dranked or poured out.” Lindinger seemed unable to respond to the officer’s questions. The officer did not know how long Lindinger had been in the field before he arrived.

A state trooper arrived fifteen minutes later. He found skidmarks which indicated that the vehicle had skidded off the highway into the field after its brakes had been applied. He found no damage to the vehicle. His observations concurred with the city policeman’s that Lindinger appeared to be intoxicated and smelled of whiskey.

The state’s evidence thus might be said to show: (a) that Lindinger was intoxicated; and (b) that he was found standing by a pickup truck which had (at some undetermined time earlier) skidded off the highway into a field.

The evidence does not show: (a) how long Lindinger or the pickup truck had been in the field before the officers found him; (b) that Lindinger had been driving the pickup truck at the time it left the highway; or (c) most important, even if (b) could be inferred, that Lindinger was intoxicated at the time the vehicle left the highway.

In view of the lack of proof as to how long Lindinger had been in the field, for instance, the hypothesis may have been just as reasonable that he consumed whiskey after the vehicle skidded off the highway instead of before it had done so.

We conclude, therefore, that there was no evidence from which the trier of fact could reasonably conclude that beyond a reasonable doubt the accused had been intoxicated while (if) operating the vehicle on the highway, merely before he was found at some undetermined interval after the truck had left the highway.

Under similar circumstances, the high courts of Maryland and Iowa reversed driving-while-intoxicated convictions. Thomas v. State, 277 Md. 314, 353 A.2d 256 (1976); State v. Creighton, 201 N.W.2d 471 (Iowa, 1972). The observations of these courts, in so reversing, are indicative of the reasons for our similar conclusion.

In Creighton, the court stated, 201 N.W.2d 473: “The accident was a one-car event. There were no witnesses. We have no way of knowing when it occurred; how much later the highway patrolman arrived (he refused to say); or what transpired between the time of the accident and the time of arrest. This hardly meets the State’s burden of proof . . . [T]he fact that a defendant was under the influence of an alcoholic beverage at the time of his arrest, without a showing of more, will not support a finding he was in that condition when driving a motor vehicle at some earlier time.”

And in Thomas the court stated, 353 A.2d 262: “All the evidence in this case proves is that Thomas was in a vehicle by the side of a road, possibly intoxicated, at an early hour in the morning. Left to conjecture is whether he drove the vehicle to that location after imbibing alcohol When the day arrives, however, when a person may be convicted on the basis of suspicion alone, liberty will have vanished from the land. Under our system of justice it was incumbent upon the State to prove the elements of the crime. In this instance it has utterly failed to prove . . . that Thomas drove the vehicle on a public highway while his driving ability was impaired by alcohol.”

For the reasons assigned, therefore, we reverse the conviction, and we order that the motion for acquittal be granted and the defendant be discharged.

REVERSED AND RENDERED.

SANDERS, C. J., concurs.

SUMMERS, J., dissents with reasons.

SUMMERS, Justice

(dissenting).

I suppose this Court would say that un-contradicted, reliable evidence of a man discovered standing over a bloody wounded corpse with a bloody knife in hand did not present “some evidence” that the man in possession of the knife was the assailant.

On review of a conviction by this Court only questions of law are involved. La. Const. art. V, § 5(C). By its plain language the Constitution denies this Court the authority to consider the guilt or innocence of the accused. It is only when there is no evidence whatever of an essential element of a crime that a question of law is presented. In that instance it has been held as a matter of law that one cannot be convicted on no evidence. But where there is some evidence, no matter how little, this Court cannot judge its sufficiency. State v. Abney, 347 So.2d 498 (1977); State v. Madison, 345 So.2d 485 (1977); State v. de la Beckwith, 344 So.2d 360 (1977); State v. Buckley, 344 So.2d 980 (1977); State v. Williams, 339 So.2d 728 (1976).

In my view there was “some evidence” that the defendant was driving while intoxicated.

I would affirm the conviction.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Kaldon YOUNG.
    No. 60702.
    Supreme Court of Louisiana.
    April 10, 1978.
    Brian M. Begue, Orleans Indigent Defender Program, New Orleans, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lindsay Larson, III, Asst. Dist. Atty., for plaintiff-relator.
   DIXON, Justice.

Defendant was charged by bill of information as an accessory after the fact in violation of R.S. 14:25. He waived trial by jury, was tried before a judge, and was found guilty of attempt, accessory after the fact. (R.S. 14:27, 25). Thereafter the State filed a bill of information charging the defendant as a fourth offender. Defendant filed a motion to quash the multiple bill contending that the penalty provision of R.S. 14:25 prohibits the use of the habitual offender law (R.S. 15:529.1) to enhance the penalty. The trial court agreed and quashed the multiple bill. We granted the State’s application for certiorari in order to review that ruling.

R.S. 14:25 provides:

“An accessory after the fact is any person who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment.
An accessory after the fact may be tried and punished, notwithstanding the fact that the principal felon may not have been arrested, tried, convicted, or amenable to justice.
Whoever becomes an accessory after the fact shall be fined not more than five hundred dollars, or imprisoned, with or without hard labor, for not more than five years, or both; provided that in no case shall his punishment be greater than one-half of the maximum provided by law for a principal offender.” (Emphasis added).

The defendant contends that the trial court was correct in ruling that the penalty provision of R.S. 14:25, specifically that part which reads “. . . provided that in no case shall his punishment be greater than one-half of the maximum provided by law for a principal offender,” should be applied literally and thus prevent the enhancement of the penalty through the habitual offender law. The State argues that the above quoted provision was designed only to prevent the imposition of a greater sentence on the accessory than on the principal in those cases in which the maximum sentence for the principal offense is less than five years, and was not intended to limit the application of the sentence enhancement provisions of R.S. 15:529.1.

Criminal provisions, according to the mandate of R.S. 14:3, are to be “. given a genuine construction, according to the fair import of their words, taken in their usual senses, in connection with the' context and with reference to the purpose of the provision.” (Emphasis added). When such a construction does not dispel doubt as to the proper interpretation of the statute, it is to be construed strictly in favor of the defendant and lenity. See State v. Cox, 344 So.2d 1024 (La.1977), and cases cited therein.

In the present case we have little difficulty in concluding that the penalty provision for accessories after the fact, when taken in context, was not intended to prevent the application of the habitual offender law. When the legislature enacted R.S. 14:25, it evidently concluded that the offense is relatively serious and accordingly provided that, upon conviction, the offender may be punished with up to five years imprisonment or a fine of five hundred dollars. But the legislature also felt that the seriousness of harboring a felon had a direct relationship to the seriousness of the harbored felon’s crime. It is for that reason that the article provides that the maximum sentence imposed on the accessory shall be no more than one-half the maximum penalty provided for a principal, offender. When the statute is viewed in this, the proper context, it does not appear that there was a legislative intent to prohibit the use of this offense in sentence enhancement ' under R.S. 15:529.1.

On two prior occasions we have held the habitual offender law inapplicable to certain offenses. Both cases are distinguishable from the present case. In State v. Sanders, 337 So.2d 1131 (La.1976) the defendant was convicted under R.S. 14:95.1 of being a convicted felon who carried a concealed weapon.' We held that the legislature did not contemplate the multiple billing of a defendant convicted under R.S. 14:95.1 because it had already used the status as a felon in proscribing the activity and determining the punishment for that activity. Similarly, in State v. Cox, supra, a felon pleaded guilty to simple escape in violation of R.S. 14:110(A). We held that because the severity of the penalty for the escape depends upon the nature of the conviction causing the imprisonment, the escape conviction may not be used together with the original offense in habitual offender proceedings.

Central to both of the above decisions is the fact that the statutes involved provided already enhanced penalties because of a prior felony conviction, and therefore the conviction should not be further enhanced through multiple billing. Such is not the case with the accessory offense. Instead, the limiting proviso of the article serves to gauge the penalty according to the severity of the crime committed by the principal offender. Though equally culpable, an accessory who harbors a principal guilty of criminal mischief has not injured society to the same extent as an accessory who harbors a principal to murder. The legislature has recognized this fact and has provided the means of adjusting the penalty according to the seriousness of the principal offense.

Accordingly, the ruling of the trial court quashing the bill of information charging the defendant as a multiple offender is reversed and the case is remanded for further proceedings in accordance with law.


author: DIXON, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Louis SMITH and James Campbell.
    No. 60720.
    Supreme Court of Louisiana.
    April 10, 1978.
    C. Frank Holthaus, Baton Rouge, for defendants-relators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Roy, Marilyn Castle, Asst. Dist. Attys., for plaintiff-respondent.
   DIXON, Justice.

Louis Smith and James Campbell, employees of Community Advancement, Inc. (CAI hereafter), were indicted for malfeasance in office, in violation of R.S. 14:134(1) and (2). The indictment specifically alleged that defendants “intentionally failed and refused to perform duties lawfully required of them being public officers & employees, by authorizing and approving the payment of traveling expenses of employees of Community Advancement, Inc. without verifying said expenses when in fact, such expenses were not warranted nor due . ."

Defendants filed motions to quash the indictment, alleging, among other things, that defendants are not “public officers” or “public employees” within the contemplation of R.S. 14:134, and, alternatively, if defendants are covered by the statute, that it is unconstitutionally vague. Upon defendant Louis Smith’s application for supervisory jurisdiction from the trial court’s denial of the motion to quash, we granted writs. 351 So.2d 1214 (La.1977). Due to our treatment of defendant’s first assignment of error, we pretermit comment on the alleged unconstitutionality of R.S. 14:134, which provides:

“Malfeasance in office is committed when any public officer or public employee shall:
(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
(2) Intentionally perform any such duty in an unlawful manner; or
(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.
. . ” (Emphasis added).

The terms “public officer” and “public employee” are defined in R.S. 14:2(9) as follows:

“ ‘Public officer,’ ‘public office,’ ‘public employee’ or ‘position of public authority’ means and applies to any executive, ministerial, administrative, judicial, or legislative officer, office, employee or position of authority respectively, of the state of Louisiana or any parish, municipality, district, or other political subdivision thereof, or of any agency, board, commission, department or institution of said state, parish, municipality, district, or other political subdivision.”

In order for defendant to be affected by the provisions of R.S. 14:134, he must be a “public employee,” which the statute defines as an “employee ... of any agency ... of said state, . .- .” “Whatever is not plainly within the provisions of a penal statute must be regarded as without its intendment.” State v. Dardar, 257 La. 191, 241 So.2d 905, 908 (1970).

CAI was formed in 1965 as a private nonprofit corporation under the authority of Title 12 of the Revised Statutes. Articles of incorporation were executed and filed with the Secretary of State, wherein the corporate objects and purposes were described as:

“The promotion and development of economic opportunity in the Parish of East Baton Rouge and the State of Louisiana; the provision of services, directly and indirectly, to those in need of increased economic opportunity; to promote the education and welfare of the people of East Baton Rouge Parish and State of Louisiana; to mobilize such human and financial resources as may be available to combat poverty and economic instability in East Baton Rouge Parish and the State of Louisiana; and to avail itself and the community of the benefits conferred by Public Law 88-452, 78 Stat. 508, as the same may from time to time be amended and supplemented by other statutes and by appropriate rules and regulations of any administrative body.”

The Economic Opportunity .Act, of which CAI intended to avail itself, Public Law 88-452, 78 Stat. 508, 42 U.S.C. § 2781, et seq., authorizes federal financial assistance for community action programs developed and conducted at the community level to combat poverty. The statute requires that:

“(a) A community action agency shall be a State or political subdivision of a State (having elected or duly appointed governing officials), or a combination of such political subdivisions, or a public or private nonprofit agency or organization which has been designated by a State or such a political subdivision or combination of such subdivisions, which—
(1) has the power and authority and will perform the functions set forth in section 2795 of this title, including the power to enter into contracts with public and private nonprofit agencies and organizations to assist in fulfilling the purposes of this subchapter, and
(2) is determined to be capable of planning, conducting, administering and evaluating a community action program and is currently designated as a community action agency by the Director.
...” 42 U.S.C. § 2790(a). (Emphasis added).

Although the statute recognizes that a public entity could perform the intended functions, it also contemplates the performance of those functions by a private nonprofit organization. By resolution of the City-Parish Council of East Baton Rouge, CAI was designated as a community action agency. It was stipulated that CAI received funds from several federal agencies, state agencies and the local government to operate approximately thirty antipoverty programs. In a number of cases, funds received by CAI from the local government are not local funds, but rather federal funds passed from the federal government through the local government to CAI.

The State argues that since CAI’s sole function was the disbursement of public monies and was designated by the City-Parish government for that purpose, it was an “agency” of the parish. Clearly CAI had to comply with the provisions of the federal statute in order to qualify for federal funds, such as conducting public hearings and providing access to its books and records, 42 U.S.C. § 2796(a), following the rules and regulations of the Director of the Office of Economic Opportunity, Id. § 2796(b), and electing a board of directors, one-third of which were elected public officials or their representatives, Id. § 2791(b). We do not agree, however, that these factors necessitate a finding that CAI was an “agency” of the Parish of East Baton Rouge or of the State.

The courts of this State have been confronted with the question of whether a certain entity was a state office or agency, or a certain individual a state or public officer, in many instances. For example, it has been determined that police jurors are state and public officers, State v. Melerine, 236 La. 881, 109 So.2d 454 (1959); the Board of Commissioners of the Port of New Orleans is a state agency, Miller v. Board of Com’rs of Port of New Orleans, 199 La. 1071, 7 So.2d 355 (1942); State ex rel. Tallant v. Board of Com’rs of the Port of New Orleans, 161 La. 361, 108 So. 770 (1926); the Louisiana Highway Commission is a state agency, Jarnagin v. Louisiana Highway Commission, 5 So.2d 660 (La.App. 2d Cir. 1942); a parish school board is a state agency, State ex rel. Golson v. Winn Parish Sch. Bd., 9 So.2d 342 (La.App. 2d Cir. 1942); Andrews v. Claiborne Parish Sch. Bd., 189 So. 355 (La.App. 2d Cir. 1939); a member of the State Central Committee of a political party is a public and state officer, State ex rel. Tuttle v. Republican State Central Committee, 192 So. 740 (La.App. 1st Cir. 1939), and a deputy sheriff is a state officer, State ex rel. Porterie v. Jones, 181 La. 390, 159 So. 594 (1935); State v. Titus, 152 La. 1011, 95 So. 106 (1922). The following factors were considered in finding an entity to be a state or public agency or an individual a state or public officer: (1) the entity was created by the legislature, State ex rel. Golson v. Winn Parish Sch. Bd., supra; (2) the powers were specifically defined by the legislature, State v. Melerine, supra; (3) the property of the entity belonged to the public, State ex rel. Tallant v. Board of Com’rs, supra; and (4) the entity’s functions were exclusively of a public character and performed solely for the public benefit, Andrews v. Claiborne Parish Sch. Bd., supra.

A consistent theme running throughout these cases is that the entity was created by the legislature or established in the first instance by the Constitution. See State ex rel. Porterie v. Jones, supra, at 399, 159 So. at 597; State v. Titus, supra, at 1015, 95 So. at 107. CAI, on the other hand, was established by corporate charter, in compliance with state law, but was not created by special act of the legislature or by resolution of the City-Parish Council. Absent a more specific provision in the malfeasance statute, it would not be reasonable to consider that it covers officers and employees of all corporations formed pursuant to general statutory authority. Except for the receipt of certain public funds for certain purposes, CAI did not differ from other private nonprofit corporations. The relationship CAI had with the East Baton Rouge Parish government was one of contract. The presence of public funds flowing through this private nonprofit corporation was not enough to transform it into an agency of the parish.

Our attention has been directed to the Reporter’s Comment to R.S. 14:2(9) defining “public officer” and “public employee” which stated:

“These terms have been defined in a very broad and inclusive manner. By so doing, it has been possible to avoid the lengthy enumerations presently used in stating the scope of a number of offenses . . ."

We do not interpret this to mean that the statutes defining criminal behavior by public officers or employees should have a broad construction. The “broad and inclusive manner” with which the terms have been defined do not have the effect of bringing defendants within their sweep; those who are not clearly included by the terms of a criminal statute are excluded.

Hence, we conclude that CAI was not a state or parish agency and, therefore, defendants were not “public officers” or “public employees” within the purview of R.S. 14:134. Thus, the trial court erred in denying defendants’ motions to quash.

For the foregoing reasons, the trial judge’s ruling denying defendants’ motions to quash is reversed and the motion to quash is sustained.

SUMMERS, J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I consider that defendants are employees of an agency (Community Advancement, Inc.) of a political subdivision (Parish of East Baton Rouge) of the state (Louisiana). Hence, they are public employees as defined in La.R.S. 14:2(9) and as such are subject to prosecution for malfeasance in office under La.R.S. 14:134. Accordingly, I respectfully dissent.


author: SUMMERS, Justice.

text:
    In re Allen PARKER.
    No. 60746.
    Supreme Court of Louisiana.
    April 10, 1978.

      R. James Kellogg, Howell & Kellogg, New Orleans, for relator Allen Parker.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Donald Giglio, Norman J. Robinson, Asst. Dist. Attys., New Orleans, for respondent State.
   SUMMERS, Justice.

Allen Parker was called as a witness in the trial of his brother Gerald Parker on September 27, 1977. During the course of the trial Allen asserted the constitutional privilege against self-incrimination guaranteed by the Fifth Amendment to the Federal Constitution and Section 16 of Article I of the Louisiana Constitution. The trial judge held that his claim was not well-founded, and when he refused to answer a question propounded by the State’s attorney Allen was held in contempt of Court. Sentence was deferred to allow him to apply to this Court for a review of the trial judge’s finding. We ordered that the sentence be imposed and stayed its execution pending determination of the issue presented.

In the meantime Gerald was convicted on two counts of first degree murder and sentenced to death. His appeal is pending in this Court.

Testimony adduced at the trial before Allen was called to the stand as a witness established that Popeye’s Fried Chicken, a fast food outlet in New Orleans, was robbed on October 1,1976. Two employees, Leath-ea Woodward and Joseph Morgan, were robbed and forced at gun-point into a large walk-in cooler. They were made to kneel and both were shot in the head and killed. Subsequently three spent .38-caliber pellets were recovered, two from the bodies of the victims and the third from the cooler wall. Gerald’s fingerprints were found at the scene of the crime.

Thereafter a Winn-Dixie Supermarket in Donaldsonville, Louisiana, was robbed of $9,696 by three Negro males on October 18, 1976. The manager and another employee were forced into a rear walk-in cooler and ordered to kneel. Three Negroes were observed fleeing from the scene and local police were alerted. Following a high speed chase, two of the three suspects were captured and identified as Gerald Parker and Frazier Parker, Gerald’s cousin. Money and other effects taken during the robbery were recovered, together with a .38-caliber revolver. A subsequent examination and test determined that the revolver was the gun which fired the fatal shots in the robbery at Popeye’s.

Further investigation disclosed that the revolver was sold to Delores Wilson on July 2,1974 by Delort Hardware Company. The gun was thereafter used for protection by her husband, who was a driver for a day care center. Allen’s three children were being driven to the Day Care Center by Wilson on December 15, 1975 when he was in an accident on Valence Street in New Orleans. Allen was called to the scene of the accident to pick up his children. While there he saw the revolver in Wilson’s car and stole it.

When questioned by police on November 1, 1976 Allen stated that he had stolen the revolver from Wilson’s wrecked car and it remained in his possession until the latter part of September 1976. At that time he loaned it to his brother, Gerald, who said he needed it for protection. On these admissions Allen was arrested on November 11, 1976 and charged with theft of the gun valued at $100.

Gerald’s fingerprints matched the one lifted by police from the scene of the October 1 killing at Popeye’s Fried Chicken outlet. With this and other evidence the grand jury of Orleans Parish indicted Gerald Parker and Frazier Parker for the first degree murders of Leathea Woodward and Joseph Morgan. A severance was granted and Gerald Parker was tried alone. Allen Parker was subpoenaed by the State as a material witness.

On the day set for Gerald’s trial the Attorney General and the District Attorney filed a grant of immunity to Allen pursuant to Article 439.1 of the Code of Criminal Procedure “protecting him from prosecution with regard only to the arrest of Allen Parker on November 11, 1976 relative to theft of property valued at $100.00 (La.R.S. 14:67).”

At the trial the State called Allen as a witness. When questioned concerning the involvement of his children in the December 15 accident while in Wilson’s car, Allen refused to answer on the ground of self-incrimination. Outside the presence of the jury defense counsel stated that, since the District Attorney announced he intended to ask questions relating to possession of the gun at the time of its theft and thereafter, the defense objected to any questions touching upon possession of the murder weapon by Allen after it was stolen from the wrecked car on December 15. Asserting that testimony by Allen that he possessed the murder weapon before and after the October 1 murder would implicate him, not only in the theft of that gun, but in the murder of October 1, 1976 as well, Allen therefore refused to answer questions to that effect. Furthermore, defense counsel stated that he would challenge the authenticity of Allen’s prior statements to the police. It was the defense position that if he testified he would say that he gave the weapon to his brother after the October 1 murders instead of the latter part of September, prior to the murders, as the police statements represented. Therefore, unless the State was prepared to grant immunity from prosecution for the murders also Allen would not testify concerning when he possessed the murder weapon. But the prosecution would not accede to this request, stating that if it did Allen would testify that he committed the murders, thereby creating doubt as to the guilt of his brother Gerald. And, by reason of the grant of immunity, Allen would walk out of the courtroom immune from prosecution.

The trial judge was of the opinion that if Allen testified that he was in possession of the gun on the date of the murders, without more, that testimony would not incriminate him in the murders. According to the trial judge, other testimony directly incriminating the witness in the murders would be necessary, such as participation in the crime or furnishing the weapon to the actors with knowledge that it would be used for an armed robbery or murder.

Questioning was resumed when the jury was returned to the courtroom. Allen was then asked if he gave the stolen gun to his brother Gerald in the latter part of September 1976. He refused to answer on the ground that the answer would tend to incriminate him. Under pain of contempt of court the trial judge ordered him to answer with only the limited immunity from prosecution for theft which had been tendered by the State. Again the witness refused to answer on the ground that the testimony would tend to incriminate him; whereupon he was held in contempt of court.

Allen’s position is that Article 439.1 of the Code of Criminal Procedure does not authorize a limited grant of immunity. Instead, it is contended, the Article provides that when immunity is granted “no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case,” except a prosecution for perjury, giving a false statement or otherwise failing to comply with the order, (emphasis added.)

“No person . . . shall be compelled in any criminal case to be a witness against himself.” This Fifth Amendment privilege against self-incrimination in the Federal Constitution is embodied in Louisiana’s Constitution in the clause, “No person shall be compelled to give evidence against himself.” La.Const. art. I, § 16. A privilege against self-incrimination is an outgrowth of resentment to the inquisition and Star Chamber proceedings, where compelling an admission of guilt from the lips of the accused was a feature of that ancient form of prosecution. The privilege is an expression of America’s sense of fair play which requires the government to honor the presumption of innocence. 3 Wharton’s Criminal Procedure § 391 (12 ed 1975). This guarantee against testimonial compulsion, like other provisions of the Bill of Rights, was added to the Constitution with the conviction that too high a price may be paid even for the unhampered enforcement of criminal law to the prejudice of other objectives indispensible to freedom in a civilized society. Cf. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). The principle expressed in the Federal Constitution was made applicable to the States in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), where the United States Supreme Court declared:

“. . . The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will.
“. . . What is accorded is a privilege of refusing to incriminate one’s self, and the feared prosecution may be by either federal or state authorities . It would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in a state or federal court. Therefore, the same standards must determine whether an accused’s silence in either a federal or state proceeding is justified.”

A privilege against self-incrimination must be liberally construed in favor of the accused or witness. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). While the accused may assert the privilege as an excuse for refusing to take the stand, a witness may assert the privilege only with respect to particular questions. Because the privilege is personal to the witness who may be incriminated, a defendant in a criminal trial cannot claim the privilege for the witness. State v. Evans, 249 La. 861, 192 So.2d 103 (1966), cert. denied, 389 U.S. 887, 88 S.Ct. 110, 19 L.Ed.2d 187 (1967).

Claiming this privilege sometimes impedes investigations and prevents prosecutions for crimes. For these reasons the administration of justice supports the proposition that an individual can be compelled to give testimony incriminating himself if he is granted immunity from prosecution and punishment as a quid pro quo for compelled testimony. State v. Rodrigues, 219 La. 217, 52 So.2d 756 (1951). Article 439.1 of the Code of Criminal Procedure confers upon the Attorney General and the District Attorney, acting together, the authority to grant such immunity. Implicit in such a grant of immunity, however, is the requirement that the immunity granted be coextensive with the constitutional privilege against self-incrimination. Stevens v. Marks, 383 U.S. 234, 86 S.Ct. 788, 15 L.Ed.2d 724 (1966). State v. Ford, 233 La. 992, 99 So.2d 320 (1958).

When the statutory requirements are complied with a grant of immunity under Article 439.1 is a broad grant against the use of the testimony which the witness refuses to give on the basis of his privilege against self-incrimination “in any criminal case” if the testimony is compelled “under the order.”

The problem this case presents, therefore, is whether the testimony which Allen Parker refused to give is protected by the immunity order. The Court is of the view that it is not and, consequently, it was error for the trial judge to order Allen to testify beyond the scope of the grant of immunity about facts which would tend to incriminate him.

The grant of immunity protected Allen Parker from prosecution “with regard only to the arrest of Allen Parker on November 11,1976 . . . relative to theft of property valued at $100.00 (La.R.S. 14:67).” On its face the document contained no grant of protection against prosecution and punishment for possible implication in the double murder of October 1 at Popeye’s Fried Chicken outlet.

Because of his declared intention to testify that he was in possession of the murder weapon before and after the October 1 murders, and the announcement of the District Attorney that the grant of immunity would not apply to evidence implicating him in the murders, Allen was justified in refusing to comply with the judge’s order to answer the questions relating to his possession of the murder weapon shortly before October 1, the date of the murder.

Allen stated that he would recant the statement given to police just prior to his arrest and would testify that he retained possession of the weapon until after October 1. Such a contradictory statement in the context of the facts and circumstances in the instant case appears to lack credibility. However, there remains a rational connection between the possible answers to the District Attorney’s question (asking Allen if he gave the gun to his brother Gerald in the latter part of September 1976) and Allen’s implication in the murders shortly thereafter, either as a participant or a conspirator in the crime.

Testimony which tends to incriminate may be direct or indirect, or it may form a link in a chain of circumstances that might result in prosecution and punishment. People v. Rockola, 346 Ill. 27, 178 N.E. 384 (1931). It is this fear which is protected by the privilege against self-incrimination. McPhaul v. United States, 364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136 (1960); State v. Williams, 301 So.2d 587 (La.1974). To sustain the privilege, it need only be evident from the implication of the question, in the setting in which it is asked, that a responsive answer would disclose facts which could be used against the witness in a future prosecution for crime. The answer need not be the full case against the witness. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

Based on these principles, it was not necessary that Allen’s possession of the murder weapon at the time of the murder be supported by other evidence that he participated in the crime or gave the gun to his brother knowing that it would be used in a robbery and murder. Possession of the murder weapon at a time closely related to the crime was itself incriminating.

For the reasons assigned, the conviction of contempt of court for failure to testify is reversed and set aside, and Allen Parker is released from the obligation on his bond.

      . La.Code Crim.Pro. art. 439.1:
      “A. In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a grand jury of the state, at any proceeding before a court of this state, or in response to any subpoena by the attorney general or district attorney, the judicial district court of the district in which the proceeding is or may be held shall issue, in accordance with Subsection B of this article, upon the request of the attorney general together with the district attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in Subsection C of this article.
      “B. The attorney general together with the district attorney may request an order under Subsection A of this article when in his judgment
      (1) the testimony or other information from such individual may be necessary to the public interest; and
      (2) such individual has refused or is likely to refuse to testify or provide other information on' the basis of his privilege against self incrimination.
      “C. The witness may not refuse to comply with the order on the basis of his privilege against self incrimination, but no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement or otherwise failing to comply with the order.
      “D. Whoever refuses to comply with an order as hereinabove provided shall be adjudged in contempt of court and punished as provided by law.”


author: TATE, Justice.

text:
    STATE of Louisiana, Respondent, v. Joe Nathan GAUT, Relator.
    No. 60748.
    Supreme Court of Louisiana.
    April 10, 1978.

      Frank E. Brown, Jr., Piper & Brown, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Tommy J. Johnson, Dale G. Cox, Asst. Dist. Attys., Shreveport, for plaintiff-respondent.
   TATE, Justice.

We granted certiorari, 351 So.2d 1210 (1977), to review the trial court’s denial of a motion to suppress certain evidence seized as the result of an illegal search.

The defendant Gaut is charged with possession of marijuana, La.R.S. 40:966 D (1973), and with possession of heroin with intent to distribute, La.R.S. 40:967 B(l). The marijuana and heroin were seized as the result of a search of Gaut’s automobile after he was stopped and arrested for driving while intoxicated, La.R.S. 14:98.

(1)

The issue before us thus concerns the warrantless search of the vehicle of a motorist stopped for a traffic violation. The motorist did not consent to the search but instead requested that his passenger be permitted to drive the vehicle away aftér the motorist’s arrest. The arresting officer nevertheless persisted in making an intensive search of the vehicle.

For reasons to be elaborated below, we find that the search so conducted does not fall within the limited “inventory” searches, which for adequate justification and limited purpose, are sometimes held to be reasonable, although without a warrant.

(2)

In the instance before us, the “inventory” search was allegedly conducted pursuant to a standard policy of the state police. The departmental regulation was not introduced into evidence.

However, according to the testimony of the officers, the policy requires a state trooper to make an inventory search at the scene, before releasing the vehicle to a non-police wrecker, when its operator is arrested or when the vehicle is found abandoned. The purpose of the inventory, for which standard forms are used, is to protect the owner or custodian of the vehicle against loss of valuables stored therein, and to protect the state police against claim for such loss.

In the instant case, prior to the stop of the vehicle at about 2:30 a. m., the arresting trooper had noticed Gaut’s vehicle, proceeding at 45 m. p. h. on an interstate highway, weaving somewhat onto the shoulder. The trooper used his flashing lights and stopped Gaut’s vehicle when it was halfway down an exit ramp from the interstate. As stopped, it was well on the shoulder and did not obstruct traffic.

The trooper noticed Gaut’s unsteadiness as he left the vehicle, as well as the smell of alcohol about his person. Upon conducting a “field sobriety test”, the trooper determined that he had probable cause to arrest Gaut for driving while intoxicated. He did so, handcuffing Gaut and placing him in the rear of the police vehicle.

The policeman admitted that he did not ask for Gaut’s consent to make the subsequent search of the vehicle. He admitted, further, that Gaut had asked him to turn the car over to his passenger, Stancell, and then (when the trooper refused this request) to leave the automobile where it was, parked on the shoulder out of the way of traffic.

At the hearing on the motion to suppress, the police officer ascribed his reason for refusing the passenger Stancell permission to drive the car to his belief that Stancell also smelled of whiskey. No bottles were found in the interior of the car, and there is no testimony as to indicia of Stancell’s intoxication other than the officer’s trial testimony as to the alleged smell. The officer did not conduct any field sobriety test of Stancell, for instance, nor did he at the time inform Gaut or Stancell of this alleged reason for not turning the vehicle over to Stancell.

Stancell himself testified that, due to a stomach condition, he had not been drinking alcohol for several months. He had accompanied Gaut, his partner in a discotheque, to a night club for business purposes; but (he testified) he had drunk only soft drinks during the conversations there.

In any event, the trooper told Stancell to sit in the police vehicle while he searched the vehicle. He found a pistol (which Gaut was entitled to possess) and, then, some marijuana in an ashtray. Although the ashtray was apparently on the driver’s side, the officer then arrested and handcuffed Stancell also (for constructive possession'of marijuana). No charges were ever filed against Stancell as a result of this arrest.

The officer then went back to Gaut’s vehicle “to complete my inventory.” He testified, in explanation: “I was sure there was something in there. ... I looked underneath the seat on the driver’s side. . [By chance,] my knee hit the dash right there by the steering wheel, and I heard something rattle and it sounded unnatural.” The officer then searched underneath the dashboard and found a plastic flap, which contained a brown medicine bottle. In the bottle were some pills, which upon subsequent chemical analysis turned out to be heroin.

(3)

Under the circumstances shown, the search was conducted in violation of Article 1, Section 5, Louisiana Constitution of 1974. This provides: “Every person shall be secure in his person, property, communications, houses, papers and effects against unreasonable searches, seizures, or invasions of privacy * * Within the prohibition of this article are all searches without probable cause; as well as warrant-less searches, in general, except in limited and exigent circumstances established by well-recognized traditional exceptions. State v. Breaux, 329 So.2d 696 (La.1976).

Nevertheless, in the crowded and mobile society of today, the practical exigencies of law-enforcement have sometimes been held to justify limited invasions of privacy, restricted to their limited purpose, even though based on something less than probable cause to believe that a crime has actually been or is about to be committed. The so-called “inventory” search of motor vehicles necessarily and lawfully impounded by the police, when the inventory is necessary under the exigencies of the situation, is an instance. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); State v. Jewell, 338 So.2d 633 (La.1976).

However, in these exceptional cases, the searches so conducted must be strictly scrutinized and limited to the exceptional restricted purpose for which narrowly authorized, see State v. Rome, 354 So.2d 504 (La.1978) (inventory search); and State v. Smith, 347 So.2d 1127 (La.1977) (stop and frisk), lest they be used as a subterfuge by governmental agents to conduct a warrant-less search without probable cause.

(4)

Guided by these constitutional injunctions, and by the above-stated principles with regard to inventory searches, we find that the “inventory” search herein conducted was unreasonable and that it represents an unconstitutional invasion of individual right. As outlined above, the arresting officer, claiming justification by a departmental regulation, over the protest of a motorist arrested for a misdemeanor, proceeded to make an intensive search of his vehicle, making little if any effort at the time to permit the vehicle to be safeguarded by the motorist’s private efforts (such as through the assistance of his passenger) rather than by instead officially impounding it (seemingly for the primary purpose of conducting an “inventory” search of it).

The justification for the inventory search of the vehicle is ostensibly to protect the occupant of the vehicle against loss of his property or the law enforcement agency against the occupant’s claim for failure to guard against such loss. This justification has a very hollow basis indeed, if the occupant disclaims that any valuables are involved and is willing to consent to the agency’s failure to afford him such protection by an inventory search.

(5)

Having determined that this search did not qualify as a permissible “true inventory search”, we turn now to two alternative contentions of its validity.

The trial judge ruled that the search was valid as incident to a lawful arrest. A search incident to an arrest is authorized for the purpose of protecting the arresting officer and is limited to a search of the person of the defendant and the area within his immediate control. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chime1 v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). See, e. g., State v. Robinson, 342 So.2d 183 (La.1977). At the time of this search, the defendant Gaut was handcuffed and in the back seat of the trooper’s patrol car. His automobile cannot be considered, at this time, to have been within his control, nor did the arresting officer assert any non-inventory justification for the search, such as to protect himself.

The second contention concerns the state’s claim that, after the trooper discovered the marijuana, he had probable cause to search the vehicle for other contraband without a search warrant. The marijuana was found in the ashtray as the result of an unconstitutional and intended rather than inadvertent search. The first illegal search cannot be used as a bootstrap to justify an even further intrusion into the individual’s privacy.

Decree

We therefore conclude that the evidence seized from the defendant Gaut’s vehicle was the product of an unreasonable search in violation of our state constitution. The trial court erred in overruling the defendant’s motion to suppress such evidence. Accordingly, its judgment is reversed, and the defendant’s motion to suppress the evidence is granted. The case is remanded for further proceedings in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., and SUMMERS, J., dissent.

      . Here, the state argues that such consent by an intoxicated individual might be ineffective. The intoxicated individual’s consent to take a PEI test, for instance, the voluntariness of his consent to a search of his vehicle or of any statement ’he gives through his consent to waive Miranda rights, have withstood repeated attacks under circumstances similar to the present. See, e. g., State v. Taylor, 336 So.2d 855 (La.1976) and State v. Strange, 334 So.2d 182 (La.1976). The departmental regulation apparently does not contemplate that, instead of the forms required for an inventory search, its purposes might be avoided by similar alternate forms to be executed by the motorist consenting that his vehicle be left unsearched and parked; or thát, instead of waiting for the wrecker to arrive and remove the vehicle, the police wait for a reasonable time for the arrival of a member of the occupant’s family or a friend to remove the vehicle.


text:
    STATE of Louisiana v. Vincent SIMMONS.
    No. 60833.
    Supreme Court of Louisiana.
    April 10, 1978.
    Steven Young, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eddie Knoll, Dist. Atty., Jeannette Theriot Knoll, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

On the 10th day of June 1977 the grand jury of Avoyelles Parish returned an indictment charging Vincent Simmons with two counts of aggravated rape of two females on May 9, 1977. La.Rev.Stat. 14:42. The indictment was later amended to charge Simmons with two counts of attempted aggravated rape. He was tried on July 19, 1977.

As the trial progressed, and prior to the judge’s charge to the jury, defense counsel requested that the jury be instructed that attempted forcible rape was a responsive verdict to a charge of attempted aggravated rape. The requested instruction was denied and the trial judge instructed the jury that the responsive verdicts for a charge of attempted aggravated rape were “guilty”, “guilty of attempted simple rape” and “not guilty” as prescribed by Subpara-graph 9 of Article 814 of the Code of Criminal Procedure in effect at the time of the trial. The ruling of the trial judge is assigned as error.

Simmons was found guilty as charged on each count. A sentence of fifty years imprisonment on each count was imposed on July 28, 1977, the sentences to run consecutively. Defense counsel’s objection to the sentences was overruled, and the ruling is assigned as error.

I.

It is the defense contention that attempted forcible rape was a responsive verdict to a charge of attempted aggravated rape even though it was not declared to be such by Article 814 of the Code of Criminal Procedure in effect at the time.

Forcible rape was made a crime by Act 333 of 1975 and incorporated into the Criminal Code as Article 43.1. Act 334 of 1975 amended Subparagraph 8 of Article 814 of the Louisiana Code of Criminal Procedure, the responsive verdict statute, by adding thereto responsive verdicts for the crime of aggravated rape. By this amendment “guilty of forcible rape” and “guilty of attempted forcible rape” became additional responsive verdicts for the crime of aggravated rape. The amendment, however, made no change in the responsive verdicts for attempted aggravated rape, which remain “guilty”, “guilty of attempted simple rape” and “not guilty”.

Responsive verdicts prescribed by Article 814 are by the express terms of that article the “only responsive verdicts which may be rendered” where the indictment charges the crimes set forth in Article 814. Attempted aggravated rape is one of the crimes for which responsive verdicts are prescribed by Article 814. Because the responsive verdicts given by the trial judge are mandated by Article 814 he was without authority to vary or add to those prescribed. He properly charged the jury in accordance with Sub-paragraph 9 of Article 814.

II.

To support the contention that the sentences of fifty years imprisonment on each count were not valid the defense argues that no death penalty for the crime of aggravated rape was in effect when defendant was convicted; therefore it was improper for the trial judge to base the sentences in this case on Subparagraph D(l) of Article 27 of the Criminal Code. This subparagraph of the attempt statute provides that whoever attempts to commit a crime punishable by death or life imprisonment “shall be imprisoned at hard labor for not more than fifty years.”

After the commission of this offense on May 9, 1977 the United States Supreme Court rendered its decision in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982, on June 29, 1977, holding that a sentence of death is grossly excessive punishment for the crime of rape and is forbidden by the Eighth Amendment as cruel and unusual punishment. Nevertheless, Louisiana’s aggravated rape statute prescribing the death penalty remained classified as a capital crime. La.Rev.Stat. 14:42 as amended by Act 612 of 1975. See State v. Davies, 350 So.2d 586 (La.1977) and the cases cited there. In Davies, a case involving a sentence of 45 years for attempted aggravated rape, a unanimous court reasoned that a sentence of fifty years or less could be imposed upon one convicted of an attempt to commit a capital offense. That decision and a number of others were based upon the proposition that because of the nature of the crime of aggravated rape the legislature undoubtedly intended that the most serious penalty available under the law should be imposed and courts should not assume that no penalty existed for such crimes. The theory thus adopted had its genesis in a line of cases beginning with State v. Lee, 340 So.2d 180 (La.1976). Guided by this authority the trial judge sentenced defendant within permissible limits.

For the reasons assigned the convictions and sentences are affirmed.


author: CALOGERO, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Roslyn DAVIS.
    No. 60838.
    Supreme Court of Louisiana.
    April 10, 1978.
    Jacques F. Bezou, Garon, Brener & McNeely, New Orleans, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Michael T. Stone, Asst. Dist. Attys., for plaintiff-relator.
   CALOGERO, Justice.

Roslyn Davis was charged with possession of two controlled dangerous substances, cocaine and methaqualone, in violation of La. Rev.Stat. 40:967. Defense counsel filed a motion to suppress the drugs seized, alleging that a warrantless seizure was illegal. After a hearing the trial court granted defendant’s motion to suppress. We granted the state’s application for writ of review in connection with this ruling. 352 So.2d 1029 (La.1977).

The only witnesses at the hearing on the motion to suppress were two of the police officers who participated in all of the events leading up to Ms. Davis’ arrest. They testified that on August 10,1977 they went to an address on North Carrollton Avenue in New Orleans to purchase drugs. At that address, the officers purchased some drugs and then disclosed that they were policemen. After this disclosure, in order to help the police, and presumably the vendor-informant as well, the vendor revealed the name of defendant Roslyn Davis and stated that she (Davis) was dealing in drugs. The vendor-informant gave the police the name, address and description of defendant Davis and a description of her car, and placed a phone call presumably to Ms. Davis to arrange a drug buy. The police listened on an extension as the informant asked for defendant Roslyn Davis, whom she referred to as “Roz,” and discussed cocaine with her. In response to the informant’s inquiry about the availability of cocaine for purchase, Ms. Davis agreed to call back, then did so, and stated that she would have some cocaine in about forty-five minutes. During this second call the officer was again on the extension phone. Believing it probable that Ms. Davis would be leaving her residence to acquire cocaine and would be returning there within about a forty-five minute period with cocaine in her possession, the police decided to go immediately to Ms. Davis’ apartment to follow her to her source. On arriving at the address given them by the informant at about 6:15 p. m., the officers looked for the car described to them as Ms. Davis’. The car was not there, but it was seen to return to the parking lot of the residence (an apartment complex) at about 7:00 p. m., shortly after the anticipated 6:45 p. m. arrival. A person meeting the informant’s description of Roslyn Davis approached the residence address given as Ms. Davis’ address. The police officers identified themselves as such, exhibited their identification, and Ms. Davis reacted by running away, up the stairs, toward the apartment stated to be that of Roslyn Davis. The officers gave chase and caught up with her at the top of the stairs, where they announced that she was under arrest. The woman was trying to put her hand inside her purse. The police grabbed the purse and found inside it the narcotics, possession of which is charged, and a gun. The arrestee turned out to be Roslyn Davis, the defendant herein.

The state argues that defendant Davis’ arrest for possession of two controlled dangerous substances was made on the basis of probable cause and that the warrantless search of her purse was properly conducted as incident to that arrest.

When an arrest is lawfully made, the suspect can properly be searched by police for weapons and contraband. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); State v. Clift, 339 So.2d 755 (La.1976). The question before us in this case is whether the arrest of defendant Davis was made on the basis of probable cause.

The state argues that there was probable cause to arrest defendant at the time they first approached her. Admitting that because the informant had not previously given reliable information she may not be properly designated a reliable confidential informant, the state urges that the information given to police was reinforced by the intervening occurrences between receipt of information and arrest, and that any reservations concerning sufficiency of the probable cause was erased when defendant fled at their approach. The state relies on the case of Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) wherein a government agent was told by a reliable informant that defendant, who was unknown to the agent, would alight from a certain train on either of two days, would be wearing certain clothing and carrying a tan zipper bag, and would be carrying narcotics. When the defendant who fit the given description alighted from one of the named trains, he was arrested and searched. The United States Supreme Court held that there was probable cause for the warrant-less arrest and that the search was legal because incident to a lawful arrest.

Probable cause to arrest exists when the facts and circumstances within the officers’ knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Robinson, 342 So.2d 183 (La.1977); State v. Marks, 337 So.2d 1177 (La.1976). In this case, the officers had listened on the telephone while arrangements were made between the informant and defendant for a cocaine buy. They knew of their own knowledge, without reliance upon information given them by the informant, that a person called “Roz” said that she would have some cocaine in about forty-five minutes and said that she would be willing to sell that substance.

The informant, who admittedly had never previously given reliable information to police, gave the officers Roz’s full name, a physical description of her, her address, and a description of her car, a maroon Camero. Armed with this information the officers went to the address which had been given them and waited until “Roz’s” anticipated arrival time of 6:45 p. m., and for a short time thereafter. At about 7:00 p. m., a woman meeting the given description and driving the described type of automobile, a maroon Camero, arrived and approached the apartment building. Her arrival at that location near the anticipated time along with the matching descriptions of “Roz” and her car confirmed the information given to the officers by the informant. When the officers approached defendant Davis on the basis of information personally gleaned from the two telephone conversations and information given to them which had been confirmed by their own observations, they had probable cause to arrest her for possession of contraband drugs. When the officers called out to her and she began to run into the building and up the stairs, her reaction further confirmed their belief that she possessed cocaine and added to the extant probable cause. Under these circumstances, the arrest of defendant Davis was lawfully made on the basis of probable cause and the search effected pursuant to that arrest did not violate defendant’s federal or state constitutional guarantees. State v. Robinson, supra.

Decree

Accordingly, we reverse the ruling of the trial court which granted defendant’s motion to suppress, and we remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

DENNIS, J., dissents and assigns reasons.

DENNIS, Justice,

dissenting.

On very close questions of this nature depending upon the weight of the evidence and credibility of witnesses, this Court should not disturb a reasonable determination by the trial judge.

I respectfully dissent.

      . Roslyn Davis did not take the stand at the motion to suppress hearing. She did, however, file an affidavit with the court stating that, after she had arrived at her apartment building and was in front of her door reaching in her purse for her keys, she heard several car doors slam just before three men rushed up the stairs toward her. One of them arrested her and the other grabbed her purse and searched it. She said that she did not run from the policemen. Whatever the legal efficacy of this affidavit, it was not a part of the motion hearing and bears no weight in our consideration of this case.


text:
    STATE of Louisiana, Appellee, v. Malcolm FRAZIER, Appellant.
    No. 60842.
    Supreme Court of Louisiana.
    April 10, 1978.
    M. H. Gertler, Gertler & Gertler, New Orleans, for 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 appellee.
   TATE, Justice.

The defendant was convicted of aggravated rape, La.R.S. 14:42 (1950), then a capital crime; but, due to the unconstitutionality of the death penalty provided by that statute, he received a prison sentence instead, State v. Jones, 332 So.2d 466 (La.1976).

Upon his appeal, he urges eight assignments of error. We find that none of them possess reversible merit and consequently affirm.

The context facts show: The defendant Frazier and another man, dressed as security guards, forced themselves into a motel room occupied by two couples. They ransacked the room and robbed the couples. The evidence further shows that both men raped both girls.

The assignments (discussed as numbered by the appellant’s brief) are without merit, for the following reasons:

Assignment 1: As filed in the district court, the assignment complains of evidence admitted as to the rape of the other girl, since the present indictment charges the accused only with the rape of one victim. Pretermitting that no objection was made to the evidence’s admission on this ground, La.C.Cr.P. art. 841, the evidence of both offenses was admissible as part of the res gestae. La.R.S. 15:447. See La.R.S. 15:448: “To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

Assignment 2: For similar reasons, there is no merit to the defendant’s objection to the jury’s learning of the portion of his confession in which he was informed by the police that he was under arrest for the rapes of both girls.

Assignment 3: We are unable to find error in the trial court’s finding that the accused’s confession was voluntarily made, without inducement or coercion, after informed waiver of Miranda rights to have an attorney.

The accused points out that, initially, upon being informed of his Miranda rights, the accused stated he would retain an attorney. Questioning was immediately stopped, and the accused was returned to his cell.

About six hours later, he sent for the detectives and told them he had been thinking about the subject and wanted to make a statement. During the interval, the accused had not made any effort to retain an attorney or to request the appointment of one (to which, he had been informed, he was entitled). His Miranda rights were again explained, and he executed a form to this effect before questioning resumed and a confession was secured.

The trial court ruling which admitted the confession was proper under the circumstances. The law is well settled to the effect that a defendant may change his mind and give a voluntary confession after initially asserting one of his Miranda rights. State v. Guillory, La., 340 So.2d 568 (1976); State v. Stewart, La., 325 So.2d 819 (1976); Michigan v. Mosely, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1974). There is no showing that the confession was involuntary.

Assignments 4 and 5: The defendant complains that he was not permitted to cross-examine the investigating detectives as to statements initially made to them by the victim. The statements were not within the res gestae exception to the hearsay rule, since they were rather the subsequent “words of the participant when narrating the events”, La.R.S. 15:447, in the course of a police investigation. Nor did they constitute proper impeachment of the victim’s testimony, since no proper prior foundation was made (i. e., by questioning the victim herself as to any alleged discrepancy). La. R.S. 15:493.

Assignment 6: The defense objected to a question as leading; it was then withdrawn. Subsequently, further questioning clarified that the victim did see both men who had intercourse with her. Then, the victim was again asked, in summary or repetition: “Did you see this man have intercourse with you?” Over defense objection that the question was leading, the victim was permitted to reply in the affirmative. Even if leading as contended (which we doubt), neither the question nor the answer caused prejudice under the circumstances.

Assignment 7: There was some evidence that the defendant had raped (penetrated) the victim. We are unable to review the sufficiency of the evidence, insofar as this assignment questions the trial court’s denial of a motion for a directed verdict.

Assignment 8: Since the appeal has been lodged, the state has filed in the record, and has furnished the accused, a copy of a polygraph examination, in accordance with a pre-trial agreement. The polygraph examination shows results unfavorable to the defendant’s contention of innocence. The defendant’s allegation that the state withheld information favorable to the defense is thus without merit.

Decree '

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Frank SMITH and Marvin Miller.
    No. 60915.
    Supreme Court of Louisiana.
    April 10, 1978.
    Douglas P. Wilson, New Orleans, for Frank Smith.
    Ronald J. Favre, New Orleans, for Marvin Miller.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Henry Julien, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Frank Smith and Marvin Miller were jointly charged by bill of information with the armed robbery of Mrs. Joseph Santopa-dre in violation of R.S. 14:64. Following a trial by jury defendants were found guilty as charged and were sentenced. On appeal defendants rely on seven assignments of error. Finding merit in assignment five we reverse defendants’ convictions and sentences.

ASSIGNMENT OF ERROR NO. 5

In this assignment defendants allege that the trial court erred in admitting into evidence over defendants’ objections a transcript of a witness’ testimony at a prior trial.

During the state’s case it called to the witness stand David Singleton. The purpose of this witness’ testimony was to establish that the witness had loaned to defendant Miller on the day of the armed robbery the car which had been identified as being used in the crime. The witness Singleton opted to take the fifth amendment and refused to testify. Consequently, the state requested that a transcript of the witness’ prior testimony at his own trial for a different and unrelated crime be admitted in lieu thereof as the witness was technically unavailable to testify. The trial judge admitted the transcribed testimony over defendants’ objection.

In State v. Sylvester, 343 So.2d 1020, 1022 (La.1977) this Court made the following observation concerning the introduction of recorded testimony of a witness at a prior hearing:

When the state wishes to introduce the recorded testimony of a witness at a prior hearing, there must be an examination into whether the constitutional safeguards, particularly the right of confrontation, embodied in the federal and state constitution are violated. U.S.Const. Amend. VI; La.Const. art. I, § 16 (1974). As we have stated in State v. Pearson, supra, at 835 “One reason that this right is so fundamental to our law is that it guarantees that the witnesses who participate in the deprivation of a person’s freedom present themselves in person before the jury so that the jurors can observe their demeanor and decide whether they should be believed.” cited above; Barber v. Page, cited above. 304 So.2d at 304.

In a footnote to this same decision we reiterated the test for the use of prior recorded testimony as established by State v. Kaufman, 304 So.2d 300 (La.1974). That test was stated in Kaufman as follows:

In order that the transcribed testimony of a witness at a former hearing be held admissible at a subsequent trial, the federal cases require the following: 1. The defendant must have been represented by counsel at the earlier hearing. California v. Green, [399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489] cited above; Barber v. Page, [390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255] cited above; Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); 2. The witness testified under oath; 3. The witness was cross-examined, or else there was a valid waiver of the right to cross-examination. Barber v. Page, cited above; 4. At the time of the trial, the witness (whether out-of-state or not) is unavailable or unable to testify. Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969); Barber v. Page, cited above; and 5. The state has made a good-faith diligent effort to obtain the presence of the witness, including by its out-of-state subpoena powers where appropriate. Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Berger v. California,

A review of the circumstances in the present case reveals a clear violation of defendants’ constitutional rights. The transcript offered into evidence by the state, containing testimony substantially detrimental to defendants, should not have been admitted as defendants were neither present nor represented by counsel at the earlier hearing. Thus, each defendant was denied his right to confront the witness against him, a substantial violation of a constitutional right. U.S.Const. amend. VI; La.Const. Art. I, § 16 (1974).

The state’s reliance on our decision in State v. Dotch, 298 So.2d 742 (La.1974) is misplaced. In Dotch the recorded testimony introduced at the defendant’s trial was recorded at an earlier trial and in the presence of that same defendant. The witness on the earlier occasion had been subjected to cross-examination by the very defendant against whom in a subsequent trial the transcribed testimony was used. In the case at bar the transcription was of testimony of a witness (David Singleton) at that witness’ own trial for an armed robbery unrelated to the crime for which these defendants were on trial. The only cross-examination to which David Singleton was exposed was conducted by the state, these defendants necessarily being unrepresented at Singleton’s unrelated trial.

Finding a substantial violation of defendants’ constitutional right to confrontation we are required to reverse defendants’ convictions and sentences. La. C.Cr.P. art. 921.

OTHER ASSIGNMENTS OF ERROR

Having found reversible error in defendants’ assignment of error number five we need not address each of the additional assignments of error urged by defendants. However, as defendant Smith’s assignment of error number one may arise in the defendants’ new trial we will treat that issue now. In this assignment defendant contends that the trial court erred in denying his motion to suppress the in-court identifications as such were tainted by the imper-missibly suggestive nature of the pretrial photographic identification and pretrial line-up. We find no merit to this contention. Furthermore, even if the pretrial identifications of defendants were found to be impermissibly suggestive there was an ample independent basis for the witnesses’ in court identifications, State v. Demouchet, 353 So.2d 1025 (La.1977). This assignment lacks merit.

Therefore, finding a substantial violation of defendants’ constitutional rights in the introduction of the prior recorded testimony we reverse the convictions and sentences of defendants Frank Smith and Marvin Miller.

Decree

REVERSED AND REMANDED.

      . In State v. Dotch, 298 So.2d 742 (La.1974) we upheld a trial judge’s determination that a witness who took the fifth amendment was unavailable to testify. State v. Pearson, 336 So.2d 833 (La.1976).

      . Defense Counsel appropriately noted his objection to the use of the transcribed testimony as follows: “My objection is this, Your Honor, what you have is a transcript. You have a witness who’s present on the stand, although he’s invoking his Fifth Amendment right, we have no way in the world to cross examine this piece of paper.”

      . The armed robbery for which defendants Smith and Miller were convicted took place in the 3600 block of Carrollton Avenue in the City of New Orleans on October 9, 1975 at approximately 1:15 p. m. A yellow Volkswagen bearing Texas license plate number HZR 710 issued to Singleton’s wife was seen by one of the witnesses leaving the robbery scene. Singleton was arrested about an hour later between 2:00 and 2:30 p. m. in that same vehicle in Algiers. A gun was found beneath the seat of the Volkswagen which was later identified as being much like that used in the October 9th robbery. At Singleton’s trial for an armed robbery which had purportedly occurred on October 2, 1975, he testified that at about noon on October 9th he had loaned his wife’s yellow Volkswagen to defendant Miller who returned the vehicle to him shortly before 2:00 p. m. At that time Miller was in the company of a second person, a male, whose identity Singleton did not take note of.


text:
    STATE of Louisiana v. Kelly CRUMHOLT.
    No. 60853.
    Supreme Court of Louisiana.
    April 10, 1978.

      Lewis 0. Unglesby, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Lennie F. Perez, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   CALOGERO, Justice.

Kelly Crumholt was indicted by the Grand Jury for the Parish of East Baton Rouge for the second degree murder and armed robbery of Mac Crumholt. (R.S. 14:30.1 and R.S. 14:64, respectively). Following a trial by jury defendant was found guilty of manslaughter and simple robbery. Defendant was sentenced to serve ten (10) years at hard labor for the manslaughter conviction and three (3) years at hard labor for the robbery conviction, the sentences to run concurrently. On appeal defendant relies on four assignments of error, having abandoned four other assignments filed in the trial court.

ASSIGNMENT OF ERROR NO. 1

In this assignment defendant contends that the trial court erred in allowing the prosecution to cross-examine defendant concerning other crimes and criminal activity of defendant allegedly unrelated to the crimes for which defendant was being tried. Defendant alleges that the trial court erred in overruling his objection to this testimony and in denying his request for a mistrial.

During direct examination defendant admitted shooting Mac Crumholt, his uncle, but alleged that he did so only in self defense. He testified that just prior to the shooting he and the victim had argued over some money allegedly owed to him and over a gun which he had borrowed from the victim but had not yet returned. Defendant further testified that during this argument Mac Crumholt attempted to strike him but failed, and stated “I’ll take care of you.” The victim then allegedly turned toward a nearby table and was reaching for something (possibly a knife) when defendant shot him with a shotgun. Defendant also testified during direct examination that he had experienced several unfriendly incidents with Mac Crumholt and had even been chased by his uncle on one occasion with a knife. To further support his contention that the victim, and not he, was the aggressor in the conflict which resulted in the uncle’s death, defendant had introduced several witnesses who testified to the victim’s violent tendencies and previous threats against defendant and other family members. One such witness specifically testified in response to a question by defense counsel that certain earlier incidents involving defendant and the victim had not been provoked by defendant.

In an attempt to refute the testimony offered by these witnesses and by defendant himself, the state attempted to show (through cross-examination of defendant) that the previous threats of violence by the victim toward defendant were all provoked by defendant. Defendants objected to these questions when it was disclosed that the alleged acts by defendant which had arguably provoked the victim constituted criminal activity. The trial judge overruled defendant’s objection, denied his motion for a mistrial and allowed the defendant to be cross-examined concerning the prior acts. Thereafter, defendant admitted committing several of the acts which provoked the victim but arguably denied at least one. The state made no attempt to prove that the alleged offenses had been committed other than through the testimony of defendant himself.

Defendant argued that the state’s questioning him concerning alleged criminal acts should have been precluded because irrelevant to the crime for which he was being tried, and because the questions were designed simply to depict defendant as possessing a criminal disposition. The state argued that they are permitted wide latitude on cross examination and that the queries were properly designed to elicit admissions which would tend to rebut defendant’s claim of self defense.

The trial judge ruled that while he would not allow questions concerning, or proof relative to, unrelated criminal activity on defendant’s part, he would permit these questions in light of defendant’s own extensive exploration of the victim’s propensity for violence and prior threats upon defendant and the matter of these earlier incidents not being provoked by the defendant.

Generally evidence of criminal activity by a defendant which is unrelated to the crime for which he is being tried is excluded at trial because of the tendency of such evidence to lead a jury to convict an accused of one crime merely because of his participation in others. Exceptions to this general rule, however, have been established through statutes and jurisprudence. In State v. Sutfield, 354 So.2d 1334 (La.1978) (Docket No. 60520) this Court briefly listed many of the major exceptions to the exclusionary rule as follows:

Aside from related offenses admissible as part of the res gestae, and convictions admissible for impeachment purposes, Louisiana’s statutes provide for only three “other purposes” for which evidence of other criminal acts may be offered — evidence of acts relevant to show intent, knowledge or system. State v Prieur, 277 So.2d 126 (La.1973); See La.R.S. 15:445, 446. In accord with general authority, See, McCormick § 190, Louisiana courts also have admitted such evidence for purposes other than those listed in the statutes, e. g., identity, State v. Moore, 278 So.2d 781 (La.1973); motive, State v. Dowdy, 217 La. 773, 47 So.2d 496 (1950); evidence of criminal acts of the accused, constituting admissions by conduct, intended to obstruct justice or avoid punishment for the present crime, State v. Burnette and Granger, 353 So.2d 989 (La.1978) (Docket No. 60,053). See, Comment, Other Crimes Evidence in Louisiana — To Show Knowledge, Intent, System, etc. in the Case in Chief, 33 La.L.Rev. 614 (1973).

In the present case we find that the circumstances surrounding defendant’s cross-examination justified the inquisition into defendant’s purported criminal activity.

Several factors lead us to rule as we do in this case. Initially we note the special relevance of the evidence. To support his claim of self-defense defendant first introduced the testimony of several witnesses, and then testified himself, to establish the aggressive character of the victim and the absence of provocation on the part of defendant in the earlier conflicts. In response the state attempted to rebut this evidence by showing that the victim’s threats and violence on prior occasions had indeed been provoked by defendant. Thus, as rebuttal the evidence of defendant’s criminal eon-duct was highly relevant to establish who was the aggressor in the fatal conflict and whether defendant reasonably apprehended danger of death or great bodily injury at the hands of an ostensibly unprovoked victim. The interrogation was not designed to prove defendant guilty by showing that he was a bad man who had committed crimes in the past.

Secondly we note that the probative value of the evidence clearly outweighed any prejudicial effect it may have had. State v. Sutfield, 354 So.2d 1334 (La.1978) (Docket No. 60520). A review of the record indicates that the focus on defendant’s prior conduct was not to establish criminal wrongdoing but rather to prove provocation. The evidence was presented in such a manner that it gave the impression of antisocial inter-family conflict rather than criminal activity.

In view of all of these circumstances we do not feel that the state’s arguable failure to prove clearly and convincingly one of the provoking incidents (theft of a color television set) is of any real consequence. Had the state questioned defendant relative to defendant’s having provoked the victim on a specific previous occasion by punching him, we would surely not find reversible error because of a reference to the criminal act of battery. So too the law is not offended here by allowing the state to ask if provocation had been supplied by defendant’s taking the victim’s television set, particularly since defendant himself had presented evidence that he had not provoked the earlier conflicts.

Accordingly we conclude that the trial judge was correct in allowing cross-examination of the defendant concerning purportedly criminal provocative acts in connection with the earlier conflicts between defendant and the victim. The assignment lacks merit.

ASSIGNMENT OP ERROR NO. 2

In this assignment defendant alleges that the trial court erred in allowing cross-examination of defendant as to other offenses despite the state’s failure to comply with the notice requirements of State v. Prieur, 277 So.2d 126 (La.1973). Defendant admits that he mistakenly labeled this assignment in the trial court as a failure to provide the notice required by La.C.Cr.Pr. art. 768 (dealing with notice of the state’s intention to introduce confessions or incul-patory statements) but requests this Court to interpret his assignment as a complaint against the state’s failure to provide the notice required by Prieur. Under proper circumstances this Court would certainly construe a defendant’s assignment in accordance with its true intent disregarding the label employed. However, we need not address this issue in the present case for here defendant objected to the propriety of the cross-examination only on the basis of its irrelevance, prejudice, and inadmissibility without objecting that notice of the State’s intent to make such inquiry had not been provided. Hence, under C.Cr.P. 841 the question is not properly before this Court for review.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 5

At the close of defendant’s trial defendant submitted several special charges to the trial court to be given to the jury. The trial court refused to give the suggested charges. Defendant contends that the trial court erred in refusing to do so. We find no merit in this contention.

A requested charge must be given by the trial court if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. However, the charge need not be given if it is included in the general charge or in another special charge that is to be given. C.Cr.P. 807.

Defendant’s requested special charges were adequately covered in the trial judge’s general jury charge. Defendant’s charge emphasized that only defendant’s reasonable belief of danger was necessary to justify the killing and that it was not necessary that there have been actual danger. The judge’s charge, in essence, included the substance of defendant’s requested charge when it stated that justifiable homicide in self defense is by one who “reasonably believes” that he is in imminent danger. That language intimates that the belief of danger is essential rather than the existence of actual danger.

This assignment has no merit.

ASSIGNMENT OF ERROR NO. 6

In his final assignment defendant contends that the trial court erred in refusing to sustain his objections to several alleged prejudicial statements made by the prosecutor in closing and rebuttal arguments. We have reviewed each of the allegedly prejudicial comments by the state and do not find that they are of the character which would warrant a reversal of defendant’s conviction. As this Court has consistently held, a verdict will not be overturned on the basis of improper argument unless the Court is thoroughly convinced that the jury was influenced by the remarks and that they contributed to the verdict. See, State v. Davis, 353 So.2d 275 (La.1977); State v. Owens, 338 So.2d 645 (La.1976); State v. Chaffin, 324 So.2d 369 (La.1975); State v. Dennis, 250 La. 125, 194 So.2d 720 (1967).

This assignment is without merit.

For the above reasons we hereby affirm defendant’s conviction and sentence.

Decree

AFFIRMED.

      . During his testimony defendant admitted committing such acts as cutting the wires to his uncle’s stereo and selling a black and white television set which belonged to his grandparents. Defendant’s testimony concerning the alleged burglary of his uncle’s house and theft of a color television is unclear, however. Defendant originally denied any participation in the incident. Subsequent testimony by defendant, however, could arguably be interpreted as an admission of these improprieties, also.

      . We characterize the actions as such due to the nature of the relationship between defendant and victim. The record discloses that victim and defendant had lived together on several previous occasions in the house which belonged to defendant’s grandparents, who were also the victim’s parents. In fact, it appears that the victim invited defendant to reside with him in the house just prior to the killing.


text:
    STATE of Louisiana v. Gerald HATCHER.
    No. 60857.
    Supreme Court of Louisiana.
    April 10, 1978.
    Louis A. Heyd, Jr., W. Miriam G. Waltzer, John M. Standridge, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Mark S. McTernan, Asst. Dist. Atty., New Orleans, for plaintiff-respondent.
   SUMMERS, Justice.

Certiorari was granted on December 2, 1977 to review a ruling of the trial judge granting a jury trial on one count of a four-count indictment and a judge trial on the remaining three counts, and his refusal to conduct the judge trial out of the presence of the jury.

On December 19, 1977 before the case was heard in this Court the State elected to sever the offenses against the defendant pursuant to Article 495.1 of the Code of Criminal Procedure and relevant principles announced in State v. Carter, 352 So.2d 607 (La.1977), and State v. Holstead, 354 So.2d 493 (La.1977). The issues presented by the defense application for writs is therefore moot. If the defendant still so desires, he may, in each case, be tried by the judge or jury.

For the reasons assigned, the writ is recalled and the matter is declared moot.