author: CALOGERO, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. Darryl HARRIS.
    No. 58512.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    Dissenting Opinion Feb. 3, 1977.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-respondent.
   CALOGERO, Justice.

We granted writs in this case upon application of Darryl Harris who complains that his probation in connection with a September 30, 1970 conviction and sentence was improperly revoked by the trial judge and his suspended sentence made executory on August 17, 1976.

The pertinent facts are these: on September 30, 1970, defendant pled guilty to the crime of attempted simple robbery in violation of R.S. 14:27 and R.S. 14:65. He was sentenced to serve two and one half years in Orleans Parish prison; execution of that sentence was suspended and defendant was placed on active probation for three years. Harris apparently complied with the conditions of his probation until March 27, 1971 when he was arrested for carrying a concealed weapon, a violation of R.S. 14:95. He was released on bond and on May 14, 1971 failed to appear in court, thus forfeiting his bond. Thereafter, on June 7, 1971, his probation officer filed an arrest warrant for material violation of the terms of his probation and for absconding from supervision. Harris did not thereafter report to his probation officer as required, apparently because he shipped out to sea as a merchant seaman and spent some time in California.

Prom May 1971 until January 23, 1974, when defendant was arrested on traffic and narcotics charges in the City of New Orleans, he was considered by authorities as a fugitive from justice although no further effort was made to locate him. Following his arrest on January 23, 1974, defendant Harris was found guilty on the 1971 concealed weapon charge in the Criminal District Court for Orleans Parish. Harris asserts that he questioned the trial judge about the effect of this conviction on his 1970 probation, but that the judge assured him that the former probation period had already expired. Harris was sentenced to serve six months in Orleans Parish Prison with credit for time served, and served three months in that institution before being released. Although the state presented no direct evidence of his whereabouts after that time or of any effort they made to find him, it appears that Harris may have continued his occupation as a seaman.

On July 22, 1976 the state filed a Rule to Show Cause why defendant’s probation should not be revoked. After a hearing, Harris’ 1970 probation was revoked and his two and one-half year suspended sentence made executory.

The issue now before us is whether the revocation of Harris’ probation was timely made. It was on September 30, 1970 that Harris was placed on three years’ probation, a period which normally would have run on September 29, 1973, automatically terminating the probation. C.Cr.P. art. 898. During this period, however, on March 27, 1971, Harris was arrested for carrying a concealed weapon and a warrant was issued for violation of his probation. The charge against Harris was not prosecuted until January of 1974 when he was found guilty and served his sentence. It was not until July of 1976, almost three years after his probation would normally have terminated and over two years after his release from parish prison on the other charge, that any effort was made to revoke his probation.

Code of Criminal Procedure Articles 898 through 901 govern suspended sentences and probation. One of these provisions, Article 899, sets out that:

“A. At any time during probation and suspension of sentence the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation, or may issue a summons to appear to answer to a charge of violation or threatened violation.
# * * # * *
“D. When a warrant for a defendant’s arrest, issued under Paragraph A, cannot be executed, the defendant shall be deemed a fugitive from justice and the running of the period of probation shall cease as of the time the warrant was issued.”

The state relies on this article, arguing that the warrant for Harris’ arrest for probation violation had been issued on June 7, 1971 and could not be executed, a fact which made Harris a “fugitive” and caused the probationary period to stop running on the date the warrant was issued.

Defendant Harris, on the other hand, argues that the state has not established that the warrant could not be executed and alternatively that, even if Harris was a fugitive from June 7, 1971 (when the warrant was filed) to January 23,1974 (when he was arrested), his three year probation period had nevertheless run before the state filed its rule to show cause in July of 1976. Harris argues that the full three years would have run prior to June 1, 1976, taking into account the time which had run from sentence on September 30, 1970 to warrant issuance on June 7, 1971 (eight months and seven days) and the time which had run between his January 23,1974 arrest and June 1, 1976 (two years, four months, and seven days). According to defendant’s analysis, the state’s July 1976 attempt to revoke was therefore untimely.

This Court has recently faced the issue of timely revocation of probation and the effect of the issuance of a warrant on the running of a probationary period. In State v. Jones, 285 So.2d 231 (La.1973) we held that the fact that a probationer was in federal custody in another state at the issuance of the arrest warrant does not stop the running of the probation period because the warrant could have been executed. The Court found that the condition of Article 899 — that the warrant “cannot be executed” — had not been fulfilled under these circumstances, and that the revocation after the running of the probation period was untimely.

The issue of a timely revocation hearing and claimed suspension of the probation period was again faced in State v. Martens, 338 So.2d 95 (La.1976) wherein we reaffirmed the Jones holding by stating that “a warrant to revoke probation must be executed in order for such warrant to suspend the running of the probation period in a situation where the filing of the warrant and its execution could have taken place within the probationary period.” 338 So.2d at 96. In Martens, as in Jones, defendant was incarcerated for another offense during the time when warrants for revocation were outstanding. There we emphasized the fact that the state took no steps to execute the warrant during this period of time and held again that:

“[W]hen the state has grounds to revoke a probationer’s suspended sentence (see C.Cr.P. art. 899) and when it is able to file its warrant within the probation period and proceed by service thereof and hearing promptly thereafter, then the state delays in doing so to their prejudice in light of Article 898 and the limited exception for suspension of the running of the period of probation provided in Article 899(D).” 338 So.2d at 97.

The situation now before us is governed by Articles 898 and 899 as well as the Jones and Martens cases. Like probationers Jones and Martens, Darryl Harris violated the terms of his probation and a warrant was issued for the revocation of that probation. In all three cases the warrant was not executed during the probation period, but the state in each case argued that the issuance alone was sufficient to toll the running of the probation period because the warrant could not be executed.

In the case before us, the state argues specifically that defendant’s absence from the jurisdiction both before and after the 1974 trial and service of sentence made it impossible for the state to execute the warrant. Defendant concedes that he was absent from the jurisdiction for portions of the time between 1971 and 1974 but claims, nevertheless, that the rule to revoke probation was not timely because the state failed to execute the warrant and to hold a hearing during the time he was in parish prison on the weapons charge or shortly thereafter.

Defendant’s admission of periodic absence from the jurisdiction prior to 1974 as well as some other evidence as to his marriage and divorce in another state indicate that during at least part of the period from June of 1971 to January of 1974 the warrant could not be executed. But even if we assume that the probation period was suspended for the entire period from June 7, 1971 to January 23, 1974 (something that the state actually did not establish) then we nevertheless find, for reasons which follow, that the probationary period had run before the state acted in July of 1976 to revoke the probation.

Article 899 provides that when an arrest warrant “cannot be executed" the running of the probation shall cease. The official revision comment to this section explains that this provision applies “where the probationer has concealed himself or fled from the supervision locality, so that the warrant of arrest cannot be executed.” In order to trigger the operation of this provision, the state must establish that the probationer has concealed himself or fled the area so as to prove that the warrant could not be executed. Here, at best, the state has established that the probationer did not report to his probation officer after early 1971 and that at various times from 1971 to 1974 he did not remain within the supervision locality. But there has been no showing that probationer’s absence was the result of flight, nor that the warrant could not have been served during the periods of his presence within the jurisdiction or, more specifically, during the time of his incarceration in the very institution from which he was on probation. The state presented no evidence at all that it had attempted to execute the warrant, either before or after the 1974 incarceration, prior to July 1976. Harris’ probation officer testified that, although three agencies (the New Orleans Police Department, the Louisiana State Police, and the Federal Bureau of Investigation) had been notified of the revocation warrant in 1971, none of these agencies communicated to him that Harris was incarcerated in Orleans Parish in 1974. He stated that corrections department policy prevents his making independent inquiry about a probationer after the issuance of the arrest warrant.

It is clear from this evidence that the probation period did run without suspension from the time of its imposition on September 30, 1970 to the issuance of the warrant on June 7, 1971, a period of eight months and seven days. Even if we assume that the probation period was suspended on that date, it began to run again when, on January 23, 1974, defendant was arrested on the traffic and narcotics charges and was therefore available for the state to execute the arrest warrant. The probation period continued to run during the period of his incarceration. The state presented no evidence that the warrant could not be executed on or after January 23, 1974, and we find that the probation period continued to run during this time. Therefore, adding the eight month-seven day period to the time following January 23, 1974, we find that. Harris’ three year probation period was satisfied prior to June 1,1976, and that the state’s subsequent effort to revoke his probation was ineffective.

For the reasons stated above, we reverse the judgment of the district court and discharge Harris from his sentence on the 1970 charge of attempted simple robbery.

SANDERS, C. J., dissents and assigns reasons.

SANDERS, Chief Justice

(dissenting).

On September 30, 1970, Darryl Harris pled guilty to attempted simple robbery, and the trial judge placed him on supervised probation for three years.

Subsequent to his arrest on a concealed weapon charge, he absconded from supervision. On J une 7, 1971, the probation officer secured a warrant for his arrest as a probation violator. Notices of the warrant were transmitted to the New Orleans Police Department and to the Federal Bureau of Investigation for nation-wide use.

In 1974, he was apprehended by the New Orleans Police Department, convicted of the weapons charge, and served a three-months sentence in Parish Prison. The probation officer received no notice that the probationer was in custody. After the defendant was released, he remained at large until 1976, when he was apprehended under the outstanding warrant as a probation violat- or.

At the probation hearing, Harris admitted that he was aware that a condition of his probation required him to report to his probation officer monthly. He also admitted that he had absconded from probation, had left the state, and had failed to report to his probation officer since May 12, 1971.

The majority reverses the probation revocation because the probation period had expired. I disagree.

Article 899(D) of the Louisiana Code of Criminal Procedure provides:

“When a warrant for a defendant’s arrest, issued under Paragraph A, cannot be executed, the defendant shall be deemed a fugitive from justice and the running of the period of probation shall cease as of the time the warrant was issued.”

Thus, on June 7, 1971, when the arrest warrant was issued, the probation ceased to run. Unless the running of probation was resumed prior to defendant’s 1976 arrest as a probation violator, the revocation hearing is timely.

The defendant contends that the running of probation resumed when he served the three-months sentence in 1974. I think not.

Under Article 899 of the Louisiana Code of Criminal Procedure, the probation officer has the responsibility of notifying the court of a probation violation and submitting a report as a basis for a revocation hearing. Concededly, the probation officer had no knowledge of the 1974 incarceration. Moreover, I find no basis in law for fictitiously imputing knowledge of the incarceration to the probation officer. Hence, in my opinion, the revocation was timely.

The cases of State v. Jones, La., 285 So.2d 231 (1973) and State v. Martens, La., 338 So.2d 95 (1976), relied upon by the majority, are distinguishable. In both of them the probation authorities had knowledge of the whereabouts of the probationer, but failed to execute the warrant. In State v. Jones, supra, the probationer brought his incarceration to the attention of the proper authorities and requested a speedy hearing on his probation violation.

For the reasons assigned, I respectfully dissent.

      . The possession of heroin charge was refused by the district attorney’s office, and Harris paid a fifteen dollar fine on the charge of failure to stop at a stop sign.

      . The trial was before a different judge of the Criminal District Court, in Section “E.” While we are not sure that is precisely what he said to the judge, it is apparent from a portion of the transcript attached to the application that the district attorney interrogated Harris about the simple robbery conviction and the probation stemming from it.

      .A second argument is made that defendant’s right to due process was violated by lapse of a five year period between the time of the issuance of the arrest warrant for probation violation and the revocation hearing afforded probationer. We find no federal due process violation in this delay because Harris was afforded a hearing within one month after he was taken into custody for probation violation. Moody v. Daggett, - U.S. -, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976).


source: Caselaw Access Project

author: MARCUS, Justice. DENNIS, Justice, DIXON, Justice

license: Public Domain

text:
    STATE of Louisiana v. Tommy Ray ROBINSON.
    No. 58525.
    Supreme Court of Louisiana.
    Jan. 24, 1977.

      J. Michael Hart, Theus, Grisham, Davis & Leigh, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Tommy Ray Robinson was charged by bill of information with possession of a controlled dangerous substance, to-wit: heroin, in violation of La.R.S. 40:966. After trial by jury, he was found guilty as charged and sentenced to serve four years at hard labor. On appeal, defendant relies on six assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion filed on the day of trial for production of evidence favorable to defendant and more particularly for evidence of a post-arrest investigation demonstrating that portions of the tip supplied by the informant involved in this case were false. The minutes reflect and defendant concedes in brief that the state, in response to this request, informed the court that it had no evidence favorable to the defendant and specifically denied that any post-arrest investigation had, to its knowledge, been conducted. Subsequent testimony at trial confirmed the truth of the state’s response.

It is well settled that the prosecution may not suppress evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material to either guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). There is, however, no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of any or all police investigatory work on a case. United States v. Agurs, supra; Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). We have consistently held that the state is not required to open its files to the accused and allow him to search them and decide what is exculpatory. State v. Johnson, 324 So.2d 349 (La.1975); State v. Williams, 310 So.2d 528 (La.1975). Nor is defendant entitled to an in camera inspection by the court where, as here, the state denies possession of the specific information requested and defendant makes no showing to contradict the state’s answer. Hence, the trial judge did not err in overruling defendant’s motion for the production of favorable evidence.

Assignment of Error No. 1 lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in overruling his motion to suppress certain physical evidence on the ground that it was obtained as a result of an unconstitutional search.

The record of the suppression hearing reveals that on January 31,1976 at approximately 4:30 p. m. Detective Jerry Harper was contacted by a confidential informer who had previously supplied information which resulted in narcotics arrests and convictions. The informant advised Detective Harper that a black male named Tommy Ray Robinson (defendant) was distributing heroin and that he could then be found at the Friendship Bar. He further provided the detective with a description of defendant’s clothing and told him that Robinson was driving a black Buick Electra. Detective Harper testified that, based on his working relationship with the informant, he understood the information supplied to be first-hand. The detective immediately proceeded to the area of the Friendship Bar and set up a surveillance of the location with the help of Officer Otwell, whom he had radioed for assistance. Detective Harper quickly located the black Buick Electra described by the informant and noted that it was the only vehicle of its kind parked in the area. Moments later, he observed four black males leave the Friendship Bar, enter the black Buick and proceed to drive eastward. This information was relayed by police radio to Officer Otwell who followed the Buick and stopped the vehicle approximately one block away from the bar. Within seconds, Detective Harper pulled up at the scene just as the Buick’s occupants were beginning to exit at Officer Otwell’s request. At this point only about twenty minutes had elapsed since receipt of the informant’s tip. The officers then proceeded to check the identification of defendant and his companions. Detective Harper verified the informant’s tip as to defendant’s identity noting that Robinson’s clothing fit the description given by the informant and that he had, in fact, been the driver of the black Buick. While the officers were investigating one of the passengers, defendant, suddenly and without warning, moved his hand behind him and reached into his right rear pocket. When Detective Harper noticed this conduct, he immediately grabbed Robinson’s arm; in his hand defendant was clutching a cigarette package containing two tin foil packets of a powdered substance which he suspected to be heroin. A plastic bag containing a similar substance, several capsules, and a used hypodermic syringe were discovered in defendant’s rear pockets.

The fourth amendment to the federal constitution protects people against “unreasonable searches and seizures.” Measured by this standard, La.Code Crim.P. art. 215.1, as well as federal and state jurisprudence, recognizes the right of a law enforcement officer to temporarily detain and interrogate a person whom he reasonably suspects is committing, has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Perique & Merritt, 340 So.2d 1369 (La.1976); State v. Dixon, 337 So.2d 1165 (La.1976); State v. Cook, 332 So.2d 760 (La.1976); State v. Rogers, 324 So.2d 403 (La.1975); State v. Jefferson, 284 So.2d 882 (La.1973). We have held that reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from government interference. State v. Dixon, supra; State v. Cook, supra; State v. Weathers, 320 So.2d 892 (La.1975). In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the United States Supreme Court stated:

In Terry this Court recognized that ‘a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.’ [citation omitted] The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. [citation omitted] A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time, [citations omitted]

Moreover, it is recognized that an informant’s tip can provide a police officer with reasonable cause to detain and question a suspect. Adams v. Williams, supra; State v. Perique & Merritt, supra; State v. Dixon, supra.

In contrast, we have held that probable cause exists for a law enforcement officer to arrest a person without a warrant when the facts and circumstances known to him and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Marks, 337 So.2d 1177 (La.1976); State v. Wood, 262 La. 259, 263 So.2d 28 (1972). Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Sarrazin, 291 So.2d 393 (La.1974). Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Warren, 283 So.2d 740 (La.1973). When a lawful arrest is made on probable cause, a warrantless search incident thereto of the person and area in his immediate control is permissible as one of the well-defined exceptions to the rule that warrantless searches are per se unreasonable. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Marks, supra.

In the instant case, Detective Harper received from a reliable confidential informer the name of an individual distributing heroin, together with a description of his clothing, the vehicle he was driving and a location where he could then be found. Whether or not the officers may at that point have had probable cause to arrest the defendant, we are satisfied that the information given by the informant carried with it enough indicia of reliability to justify them in making an investigatory stop of the black Buick Electra. When, during the course of the investigation, defendant reached into his right rear pocket in what might have been an attempt to either destroy evidence or produce a weapon, Detective Harper grabbed defendant’s arm and physically restrained him. We are satisfied that this action on Detective Harper’s part was supported by sufficient probable cause to justify the defendant’s arrest. Defendant was conducting himself in a highly suspect manner and every bit of information supplied by the informant had been verified except Robinson’s actual possession of heroin. Although he was not at this point formally advised that he was under arrest, Detective Harper testified that the defendant was in detention and was not free to leave. It is the facts and circumstances indicating an intent to effect an extended restraint on the liberty of the accused rather than the precise timing of an officer’s statement, “You are under arrest,” that are determinative of when an arrest is made for- purposes of constitutional justification. Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); State v. Marks, supra ; State v. Warren, supra. Accordingly, we find that the defendant was lawfully arrested when Detective Harper grabbed his arm and curtailed his freedom on the basis of probable cause to believe that he was engaged in criminal activity. Since the arrest was constitutionally valid, the evidence seized from defendant’s pockets during the course of the search incident thereto was properly admissible at trial. The trial judge did not err in overruling defendant’s motion to suppress the evidence.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in denying his motion for a mistrial when Detective Harper, in response to a prosecution question, testified that a .32 caliber pistol had been found in the black Buick driven by defendant. Defendant argues that this information was irrelevant, prejudicial and constituted a reference to another crime as to which evidence was inadmissible. The trial judge overruled defendant’s motion but admonished the jury to disregard Detective Harper’s statement.

We note at the outset that the response objected to was not a reference to another crime inasmuch as the mere presence of a pistol in the automobile driven by the defendant does not necessarily constitute a criminal act defined by the laws of this state. No other evidence was adduced in reference to the pistol such as its location in the vehicle, etc.

This court has consistently maintained that a mistrial is a drastic remedy and, except in circumstances where a mistrial is mandatory, is warranted only when a trial error results in substantial prejudice to the defendant, depriving him of a reasonable expectation of a fair trial. State v. Redfud, 325 So.2d 595 (La.1976); State v. Whitley, 296 So.2d 820 (La.1974). Even assuming for the sake of argument the correctness of defendant’s claim regarding the irrelevance of evidence concerning the pistol, La.Code Crim.P. art. 771 prescribes that the trial judge need grant a mistrial in circumstances such as these only when satisfied that an admonition is insufficient to assure defendant a fair trial.

We consider that an admonition in the instant case was adequate to cure any possible prejudice caused by the brief factual response of Detective Harper particularly in view of the fact that testimony demonstrated that defendant did not own the car in which the pistol was found and no evidence was elicited to prove that he owned the firearm. Accordingly, we find no abuse of discretion in the trial judge’s denial of defendant’s motion for a mistrial.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in refusing to allow him to question Detective Harper concerning the identity of his confidential informer after defendant had testified that the informer, whom he believed to be James Brown, had given him the heroin to hold. He argues that he needed this information in order to complete his defense of entrapment.

The informer privilege is the privilege of withholding the identity of an informant who supplies information to law enforcement officials concerning crime. It is founded upon public policy and seeks to advance the public interest in effective law enforcement. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). This court has consistently held that a confidential informant’s identity will be revealed only under exceptional circumstances. State v. Russell, 334 So.2d 398 (La.1976); State v. Thorson, 302 So.2d 578 (La.1974). The general rule is that the burden is upon the defendant to demonstrate exceptional circumstances and much discretion is vested in the trial judge on the question of whether the circumstances warrant disclosure. State v. Russell, supra; State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972); State v. Greenbaum, 257 La. 917, 244 So.2d 832 (1971).

In State v. Dotson, supra, we faced the same issue presented for our review herein. In that case, as in the instant one, defendant claimed that the government informer had “set him up” and provided the illegal drugs found in his possession on arrest. The state presented no evidence that the informer participated in the crime. Rather, the informer did no more than furnish a tip that enabled the police to make an arrest. While working with the police, he took no part in the illegal transaction itself. We distinguished Roviaro where the prosecution’s evidence covered the transaction with the informer. The trial judge stated in his per curiam “[t]here must be some act shown, something more than speculation concerning frame or plant, before an informant’s identity should be revealed. Since there was no such showing in this case, the defendant is not entitled to this information.” We found that the trial judge was fully justified in concluding that the showing was insufficient to require disclosure of the informant’s identity.

In the instant case, defendant presented the trial judge with no more than a bare allegation that the police informer had given him heroin and set him up for an arrest. No claim is made that the state’s case shows that the informer participated in the crime. Defendant already knew the name of the person he suspected to be the informant, James Brown. As a matter of fact, Brown had previously testified at the suppression hearing and at the preliminary examination. Brown was available for testimony concerning how defendant came to possess the heroin and for examination concerning the claimed “set up.” Even had Brown denied defendant’s allegations, the trial judge would have been presented the opportunity to assess his credibility. As demonstrated in his per curiam, the trial judge may then have felt that disclosure of the informant’s identity was warranted. Yet, when Brown failed to appear at trial in response to a defense subpoena, no request was made for a continuance in order to secure his presence. Moreover, Detective Harper, who testified that he had spoken to his informant shortly after defendant’s arrest, denied any knowledge that defendant had been “set up.”

We are satisfied that, based on the evidence presented, the trial judge was fully justified in finding that the showing was inadequate to require the state to confirm whether or not James Brown was the informant in the case. As we stated in Dotson :

If a bare suggestion that the informer framed the defendant could effect a disclosure of the informer’s name, then the enforcement of our narcotics laws would be jeopardized. Effective law enforcement requires that the confidentiality of the names of crime-informers be safeguarded. In supplying information to a defendant in a criminal proceeding, this Court cannot sacrifice fairness to the public. Neither can it ignore the public’s interest in effective law enforcement.

We conclude that Assignment of Error No. 5 lacks merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in limiting on two occasions his cross-examination of Detective Harper concerning the reliability of the 'confidential informer involved in this case.

On the first occasion, defendant admitted outside the presence of the jury that he was attempting to show that the officer knew of a case in which information supplied by the same informant had been incorrect, thereby impeaching his previous testimony that the informant was reliable.

La.R.S. 15:494 provides that it is not competent to impeach a witness as to collateral facts or irrelevant matter. La.R.S. 15:275 further provides that in the discipline of his court, the trial judge is vested with a sound discretion to stop the prolonged, unnecessary and irrelevant examination of a witness, whether such examination be direct or cross.

In sustaining the state objection to defendant’s questions concerning this matter, the trial judge correctly pointed out that Detective Harper’s assessment of the reliability of the confidential informer was relevant only to the question of whether or not he had sufficient cause to stop and subsequently arrest the defendant. This question had already been ruled on at defendant’s pretrial suppression hearing and was no longer at issue at trial on the merits. State v. Dabon, 337 So.2d 502 (La.1976). Hence, defendant was attempting to impeach Detective Harper as to a matter which at that stage of the proceedings was irrelevant. We find no abuse of discretion in the trial judge’s ruling on this question.

On the second occasion defendant complains of, he was attempting to discover whether the police had conducted a post-arrest follow-up investigation. The state objected on the ground of relevancy, whereupon the jury was again excused. Defense counsel argued that, if an investigation demonstrated that the report of the informant concerning distribution of heroin was false, it would indirectly support his theory that the informer had been lying about the entire transaction and had set the defendant up. The trial judge reiterated his former ruling that the reliability of the informant and the accuracy of the information supplied was not relevant to any issue presented at trial on the merits. The judge did, however, instruct the defendant that he might question the witness about subsequent investigations which might have revealed that the defendant had been set up. This was precisely the information defendant claimed he was seeking to obtain. Hence, defendant was not prevented from effectively cross-examining Detective Harper on this point. We find no error in the ruling of the trial judge.

Assignment of Error No. 6 lacks merit.

DECREE

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

CALOGERO, J., concurs.

DIXON and DENNIS, JJ., concur with reasons.

DENNIS, Justice,

concurring.

The minutes do not, as the majority opinion suggests, reflect that the State’s response to defendant’s motion for production of the results of an alleged post-arrest investigation revealing that the informant’s tip was false contained a specific denial that such a post-arrest investigation had been conducted. All that the minutes reflect is that the State generally asserted that it had “no evidence favorable to the defendant.”

Assuming that the State’s sole response to defendant’s request for specific exculpatory data was a general denial that it possessed exculpatory material, I would remand the matter to the trial court for a determination of whether such exculpatory evidence existed and whether a substantial basis existed for claiming that it was material evidence, and if so, whether the information, evaluated in the context of the entire record, could have created a reasonable doubt as to the defendant’s guilt. See State v. May, 339 So.2d 764 (La.1976). See also, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

However, in the present case, counsel for the defendant, as the majority observes, conceded in brief that the State, in responding to defendant’s request for discovery of the results of the alleged post-arrest investigation, specifically denied that such an investigation had been made. Given this fact, I am willing to concur in the majority’s disposition of the case, finding State v. May, supra, factually distinguishable.

For the foregoing reasons I respectfully concur.

DIXON, Justice

(concurring).

There was, in this case, probable cause to arrest defendant, and the arrest (stopping defendant’s car, getting him out, demanding identification, etc.) met constitutional standards. Other discussion of the arrest is irrelevant.

      . Assignment of Error No. 4 has been neither briefed nor argued to this court. Hence, we consider it to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).


author: DIXON, Justice.

text:
    Goulding William SWIFT, Jr., et al. v. STATE of Louisiana.
    No. 59106.
    Supreme Court of Louisiana.
    Jan. 24, 1977.

      William J. Guste, Jr., Atty. Gen., Warren E. Moulédoux, First Asst. Atty. Gen., Barbara S. Bruckner, Donald C. Davis, Staff Atty., New Orleans, for defendant-applicant.
    Arthur G. Kingsmill, Gretna, for plaintiffs-applicants.
   DIXON, Justice.

Plaintiffs, five district judges, seek a declaratory judgment concerning their rights under R.S. 13:8 (Act 305 of 1974). The matter was tried in the district court on the pleadings, and judgment was rendered in favor of the plaintiffs declaring that R.S. 13:8 applies to them; that R.S. 13:8 constitutes retirement benefits and judicial service rights of a judge and is available to the plaintiffs by virtue of Article 5, § 23 of the Louisiana Constitution of 1974; that upon serving eighteen years as a judge of a court of record, plaintiffs will be entitled to retirement benefits under R.S. 13:8, by virtue of at least three years previous military service and the failure to qualify for retirement benefits under any other retirement plan for judges.

Both plaintiffs and defendant joined in an application to this court for writs under our supervisory jurisdiction, citing the urgency of the matter as sufficient reason for expediting a final determination of the issues and justifying the departure from the normal appellate review in such cases (which would require action by the Court of Appeal before application to this court). The urgency is occasioned by R.S. 13:14 which, the applicants allege, fixes January 29, 1977 as the final day on which judges may exercise the option given by the statute to become members of the Louisiana State Employees Retirement System (under Act 518 of 1976, which established a new judicial retirement system, pursuant to the mandate of Article 5, § 23 of the Constitution of 1974).

Prior to the effective date of the Constitution of 1974, judicial retirement was provided for by Article 7, § 8 of the Constitution of 1921, in addition to certain statutory provisions of the Revised Statutes Title 13. The Constitution of 1974 contained only the following provision for judicial retirement:

“Within two years after the effective date of this constitution, the legislature shall provide for a retirement system for judges which shall apply to a judge taking office after the effective date of the law enacting the system and in which a judge in office at that time may elect to become a member, with credit for all prior years of judicial service and without contribution therefor. The retirement benefits and judicial service rights of a judge in office or retired on the effective date of this constitution shall not be diminished, nor shall the benefits to which a surviving spouse is entitled be reduced.”

The statutory provisions under which plaintiffs seek a declaratory judgment are contained in R.S. LLS. That section of the Revised Statutes was enacted as Act 305 of 1974:

ACT No. 305
House Bill No. 738.
By: Mr. Brinkhaus.
AN ACT
To amend Title 13 of the Louisiana Revised Statutes of 1950, by adding thereto a new section, to be designated as R.S. 13:8, to provide a pension for any person who served as a judge of a court of record for at least eighteen years, who has three years of military service and who does not qualify for retirement benefits under the retirement plan for judges; to provide this pension shall equal two-thirds of the persons salary at the time he ceased to be a judge; to provide a survivor benefit; to provide the pension terminates if the person again assumes the office of judge; to provide another pension when this office ceases; to provide the pension shall be paid from the same source as his salary, and to provide with respect to matters related thereto.
Notice of intention to apply for the passage of this Act has been published and evidence of such publication exhibited to the legislature, both as required by Article XIX, Section 25 of the constitution of Louisiana.
Be it enacted by the Legislature of Louisiana;
Section 1. Section 8 of Title 13 of the Louisiana Revised Statutes of 1950 is hereby enacted to read as follows:
§ 8. Pension for former judges not eligible for retirement benefits
Any person who has served as the judge of a court of record in this state for a period of at least eighteen years and who has at least three years of military service in the armed forces of the United States and who does not, upon the effective date of the section, qualify for retirement benefits under the retirement plan for judges of this state, shall be paid a monthly pension equal to two-thirds of the monthly salary he was receiving at the time he ceased to be a judge. Upon the death , of any such person, his surviving spouse shall be entitled to receive the same pension for the remainder of her life. In the event any such person again assumes the office of judge of a court of record in this state, either by election or appointment, his pension authorized hereunder shall terminate. However, after he ceases to occupy such office of judge, he shall be entitled to receive a monthly pension equal to two-thirds of his monthly salary at the time he ceased to occupy such office. The payment of the pension herein authorized shall be made monthly on the warrant of the person and shall be paid from the same source from which the person received his salary as judge.
Section 2. All laws or parts of laws in conflict herewith are hereby repealed. Approved by the Governor: July 12,1974.
A true copy:
WADE 0. MARTIN, JR.
Secretary of State.

Plaintiffs argue that Act 305 of 1974 constituted “retirement benefits and judicial service rights of a judge in office . on the effective date” of the Constitution of 1974, which could not be diminished under the provisions of Article 5, § 23 of the Constitution of 1974. Plaintiffs further argue that they will be eligible for retirement under Act 305 of 1974 when they complete eighteen years of service, because they have already completed three years of military service, but did not, upon the effective date of Act 305 of 1974, qualify for retirement benefits under any other provisions of law.

The State argues that Act 305 of 1974 was unconstitutional, and, further, that it does not apply to the plaintiffs.

The sole argument concerning the constitutionality of Act 305 of 1974 is that it was not within the power of the legislature to enact a statute creating a judicial retirement system different from the one in the Constitution. The position is not well taken. There is no prohibition in the 1921 Constitution against enlarging the retirement benefits for judges. (The 1974 Constitution specifically requires legislation which does not diminish retirement rights of judges). Unless restricted by constitutional provisions, the Constitution of 1921 provided that the legislature was vested with full legislative power (Article 3, § 1, Louisiana Constitution of 1921; see also Article 3, § 1, Louisiana Constitution of 1974), which was limited only by the State and Federal Constitutions. Stovall v. City of Monroe, 199 La. 195, 5 So.2d 547 (1941); Ward v. Leche, 189 La. 113, 179 So. 52 (1938); State v. Toon, 172 La. 631, 135 So. 7 (1931). The historical interpretation of the powers of the legislature in this State is different from that of the legislative powers of the Congress of the United States, whose powers are derived from the United States Constitution. Unlike Congress, our State legislature has all powers of legislation not specifically denied it by the Louisiana Constitution. State v. Cusimano, 187 La. 269, 174 So. 352 (1937).

Consequently, since there is no constitutional provision restricting the power of the legislature to liberalize the judicial retirement system, the legislature possessed full legislative authority to enact R.S. 13:8. Possessing the authority, the legislature has acted, since 1954, to provide retirement benefits for the spouses of deceased judges (R.S. 13:5); for increased retirement pay to previously retired judges (R.S. 13:5.1); for increased retirement benefits to certain widows (R.S. 13:5.2); for supplementary retirement pay to retired judges who are subsequently assigned and who meet other qualifications (R.S. 13:7) and for the resumption of retirement pay for certain judges whose retirement is interrupted by assignment (R.S. 13:9).

The argument that Act 305 of 1974 was an effort to amend a constitutional provision by the legislature is without merit. The act neither amends nor changes the constitutional provisions, which remain intact. Nor is there a constitutional provision which prohibits the legislature from enacting a statute to liberalize certain provisions of the judicial retirement system.

Defendant’s most substantial argument is that since the plaintiffs did not possess the three qualifications for retirement under the act (eighteen years judicial service, three years military service, and ineligibility for any other retirement system) upon the effective date of that act, the act does not apply to them, and the plaintiffs are thus not entitled to any benefits under the act. Plaintiffs’ interpretation of the act is that, if they did not qualify for retirement benefits under another retirement plan on the effective date of the act, they would be entitled to the pension provided in R.S. 13:8 when they had three years of military service plus eighteen years of judicial service.

Plaintiffs’ first argument is syntactical: in R.S. 13:8, the phrase “upon the effective date of the section” separates, and is set off by commas from the clause “who does not qualify for retirement benefits under the retirement plan for judges of this state . ” Plaintiffs point out that it would have been easy for the legislature to effect the meaning sought by defendant by placing the phrase “upon the effective date of the section” at the beginning of the paragraph, in which case it would clearly appear that no one should be paid benefits under the act unless, upon its effective date, he possessed eighteen years judicial service, three years military service, and was ineligible under another system.

The State, however, argues that other language in the act indicates that it was not intended to apply to the plaintiffs, since they did not possess the required judicial service on the effective date of the act. The act provides: “§ 8. Pension for former judges not eligible for retirement benefits.” Thus, the State contends that only former judges have been granted benefits for military service by the legislature. The State argues that this quoted section is “the title” of the act. This heading is not the title; the title of the act does not appear in the Revised Statutes, but is only found in the act itself. Rather, the quoted lines constitute a convenient heading. Admittedly, in the Revised Statutes, the headnotes appear in black type, and, indeed, might be referred to as “the title” of each section in the Revised Statutes.

The Revised Statutes of 1950 anticipated such a possible construction of headnotes, and specifically provided that headings to sections did not constitute part of the law: “Headings to sections, source notes and cross references are given for the purpose of convenient reference and do not constitute part of the law.” R.S. 1:13. As noted in 11 La.L.Rev. 4, 5 (Bennett, Louisiana Revised Statutes of 1950), the headnotes were for convenience and not intended to govern the construction of the statutes:

“Sections 12 and 13 announce the rule that the classification and organization of the Revised Statutes and the headnotes provided for the various sections are purely ‘for the purpose of convenient reference,’ and are not at all intended to govern the construction of the provisions to which they are appended. The section headings will serve as a helpful guide in the use of the Revised Statutes . .”

A resort to the title of Act 305 of 1974 does not, therefore, improve the position of the State. To the contrary, it would seem to support the position of the plaintiffs. The title to the act expresses its purpose to amend Title 13 of the Revised Statutes “to provide a pension for any person who served as a judge of a court of record for at least eighteen years, who has three years of military service and who does not qualify for retirement benefits under the retirement plan for judges; to provide this pension shall equal two-thirds . .”

The State next argues that:
“. . . while no legislative history is available to support our contention, it is a matter of common knowledge that this statute was enacted to cover the situation of one judge, who had retired as of July 31, 1974, because he was defeated in his bid for re-election. At that time, the judge in question had three years of military service and eighteen years on the bench and did not qualify for benefits under Article VII, Section 8 of the 1921 Constitution. . . ”

While the record does not reflect this situation, it is possible that the defeat of a judge with the qualifications required by Act 305 of 1974 prompted the introduction of the act. However, nothing is available to this court from which we find that the act was drawn with the exclusive legislative intent to benefit one defeated judge. It would be more accurate to say that it is and was common knowledge that there are other judges in the State with three years military service, and that it is common among retirement systems to provide some advantage for members with military service not available for members without military service.

The State argues that its interpretation of the enactment would also be consistent with the State’s public policy to maintain its fiscal integrity. It cannot be argued that the legislature was profligate, or even careless in its obligation to the public fisc. There is nothing before us to show the probable, or even possible, cost to the State of Louisiana from the trial court’s interpretation of Act 305 of 1974, nor has it been demonstrated that the fiscal integrity of the State would be impaired by adopting the trial judge’s interpretation.

Neither the content of the act nor the record before us would support a conclusion that Act 305 of 1974 was not intended to apply to judges generally, but was special legislation to benefit one judge.

Nevertheless, even though the liberalized benefits will be of some cost to the State, that factor is not the only aid to statutory construction which the court must employ if ambiguity is present. Louisiana courts have consistently held that pension statutes must be liberally construed in favor of the intended beneficiaries. As stated in Groves v. Board of Trustees of the Teachers’ Retirement System, 324 So.2d 587, 594 (La.App. 1st Cir. 1975) writ denied 326 So.2d 380, La.:

“We commence our interpretation of subject statute by noting that legislation providing pension systems must be liberally construed in favor of the intended beneficiaries. Maillet v. Board of Trustees, Teachers’ Retirement System, 248 La. 964, 183 So.2d 321; Miller v. City of Shreveport, La.App., 90 So.2d 565. Accordingly, any ambiguity in such a statute must be resolved in favor of the persons intended to be benefited thereby.’’

(Emphasis added).

The liberal rule of construction was stated by this court in Maillet v. Board of Trustees, Teachers’ Retirement System of Louisiana, 248 La. 964, 183 So.2d 321 (1966). In three other cases the rule has been followed in the intermediate appellate courts; in each case this court denied writs. White v. Board of Trustees of the Teachers’ Retirement System of Louisiana, 276 So.2d 714 (La.App. 1st Cir. 1973); Hearn v. Board of Trustees of the Assessors’ Retirement Fund, 204 So.2d 123 (La.App. 2d Cir. 1967) and Miller v. City of Shreveport, 90 So.2d 565 (La.App. 2d Cir. 1956).

The construction of the statute urged by the State would require us to abandon the rule of liberal construction for remedial pension legislation. No compelling reasons are offered for us to adopt that stance.

Therefore, we find, as did the trial judge, that Act 305 of 1974 constitutes “retirement benefits and judicial service rights” of judges in office on the effective date of the Constitution of 1974, and by the provisions of Article 5, § 23, these benefits “shall not be diminished . .

The judgment of the district court is affirmed.

      . “Any person who has served as the judge of a court of record in this state for a period of at least eighteen years and who has at least three years of military service in the armed forces of the United States and who does not, upon July 31, 1974, qualify for retirement benefits under the retirement plan for judges of this state, shall be paid a monthly pension equal to two-thirds of the monthly salary he was receiving at the time he ceased to be a judge. Upon the death of any such person, his surviving spouse shall be entitled to receive the same pension for the remainder of her life. In the event any such person again assumes the office of judge of a court of record in this state, either by election or appointment, his pension authorized hereunder shall terminate. However, after he ceases to occupy such office of judge, he shall be entitled to receive a monthly pension equal to two-thirds of his monthly salary at the time he ceased to occupy such office. The payment of the pension herein authorized shall be made monthly on the warrant of the person and shall be paid from the same source from which the person received his salary as judge.”

      . “The section” obviously meant “this section.” Clerical errors are to be disregarded when the meaning is clear. R.S. 1:5. As it appears in West’s Revised Statutes 13:8, the phrase “upon the effective date of the section” becomes “upon July 31, 1974,” which was the effective date of Act 305 of 1974.

      . The act itself shows that notice of intention to pass the act was published in the official State journal on three separate days at least thirty days before the legislature convened, as required by Article 19, § 25 of the Constitution of 1921.


author: CALOGERO, Justice. DIXON, Justice MARCUS, Justice SANDERS, Chief Justice SUMMERS, Justice

text:
    CITY OF NEW ORLEANS v. Judy LYONS.
    No. 58277.
    Supreme Court of Louisiana.
    Jan. 25, 1977.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Philip S. Brooks, City Atty., Robert H. Belknap, Asst. City Atty., for plaintiff-respondent.
    Stanley B. Kieffer, New Orleans, for defendant-relator.
   CALOGERO, Justice.

The incident giving rise to relator’s conviction arose in the following manner. On the evening of Wednesday, 29 October 1975 in a French Quarter bar in New Orleans a New Orleans police officer approached Judy Lyons and requested she step outside of the bar so that he could question her. Apparently he wanted to ask her whether she had seen another woman who was under investigation and he wanted to quiz defendant relative to a complaint he had received that she, Lyons, was soliciting for prostitution. When the officer told her of a complaint against her of this nature, she replied with several epithets including “S_” and “F_you.” The officer thereupon told her she was under arrest for using obscenity toward the police. Upon being so informed, defendant threw a drink on the officer and a struggle ensued in which she struck one or two minor blows.

Defendant Lyons was charged with loitering with intent to commit prostitution, disturbing the peace by using obscenity toward the police, resisting arrest and battery, all four charges under New Orleans City ordinance. During the trial in Municipal Court for the City of New Orleans, the assistant city attorney nol pressed the loitering charge. However, defendant was found guilty of the other three charges and sentenced. On appeal to the Criminal District Court for the Parish of Orleans, following an earlier remand from that court and a second proceeding in the Municipal Court, defendant’s conviction for resisting arrest, arising as it did out of the identical battery incident, was overturned, the district court judge concluding that the double jeopardy proscription precluded conviction for both the battery and resisting arrest. Her remaining two convictions, for obscenity toward the police and battery, however, were affirmed, as were the respective sentences for those two offenses, namely, seventy-five dollars or twenty days in jail for obscenity toward the police, and thirty days for the battery.

Defendant thereupon applied for writs to this Court, which we granted. 337 So.2d 532 (La.1976).

Her assignments of error are three. One of them, having to do with whether the City may over defense objection amend its affidavit charging obscenity toward the police, so as to charge defendant under a different numerical section of the municipal code, we find it unnecessary to reach.

In her two other assignments, relator attacks as unconstitutional Section 42-24(5) of the Code of the City of New Orleans, which forbids obscenity toward the police, and she protests that her battery conviction should be overturned because she was resisting an unlawful arrest for violating the allegedly unconstitutional statute.

The constitutional attack is that on its face Section 42-24(5) is unconstitutionally overbroad. That ordinance provides that:

“Disturbing the peace is the intentional performance of any of the following acts:
sk $ * * * $
(5) Using obscene, abusive or insulting language directed to or in the presence of any police officer who is performing his duty in making an arrest, detaining, or questioning any person;”

In Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974) the United States Supreme Court held invalid, because violative of the first and fourteenth amendments of the United States Constitution, a very • similar ordinance which declared it unlawful and a breach of the peace for any person “wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of this duty.” Relying upon Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), the United States Supreme Court found that the statute under consideration, by its terms, was not limited to words which “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” 415 U.S. at 132, 94 S.Ct. at 972. Since the proscribed conduct was not limited to fighting words, it was found overly broad and constitutionally impermissible.

The statute now under consideration, Section 42-24(5) refers to “obscene, abusive [and] insulting” language which, similarly, is broad enough to cover words which do not “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The words uttered by defendant, when analyzed in context, were protected speech. There was no evidence to show, nor does the context herein suggest, that defendant’s remarks tended to incite the police officer to an immediate breach of the peace. In fact, when such words are addressed to an officer, one would normally contemplate the need for a stronger showing that the words tend to incite the addressee to an immediate breach of the peace. Thus there was lacking in this case the clear and present danger necessary in order to justify the state’s interference with defendant’s right to speak freely. Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919).

In the case at hand the only action of the defendant which prompted her arrest was her use of derogatory language toward the policeman when he attempted to question her. She was not prosecuted for public obscenity and there is no indication that her language had any tendency to cause a fight or public disturbance.

We are bound by the first amendment of the United States Constitution which prohibits “abridging the freedom of speech,” and by the specific jurisprudential precedent of Lewis v. City of New Orleans, supra. Thus we are required to declare unconstitutional because overly broad and facially invalid this ordinance, Section 42-24(5) of the Code of the City of New Orleans, which makes criminal simply using language, albeit obscene, abusive or insulting, to or in the presence of a police officer performing his duty. Independently, we reach the same result by interpreting Article I, section 7 of the Louisiana Constitution of 1974 which proclaims that “[n]o law shall curtail or restrain the freedom of speech

Having concluded that defendant was arrested for the unquestioned violation of an ordinance we now for the first time find unconstitutional, we turn now to whether we must let stand her conviction and sentence for a battery which the trial court found she committed. Our decision must turn upon whether or not a citizen may reasonably resist arrest for the violation of a criminal statute unconstitutional on its face but not yet then declared so. We find from the record that defendant did indeed commit a battery upon the police officer, but that same was done in a reasonable effort to resist arrest for violation of Section 42-24(5).

Louisiana has long held to the rule of law that a citizen has the right to resist an unlawful arrest. This Court declared in City of Monroe v. Ducas, 203 La. 971, 14 So.2d 781 (1943) that:

“The right of personal liberty is one of the fundamental rights guaranteed to every citizen, and any unlawful interference with it may be resisted. Every person has a right to resist an unlawful arrest; and, in preventing such illegal restraint of his liberty, he may use such force as may be necessary.”

Involved in Monroe v. Ducas, supra, however, was not an appropriate arrest for violating a suspect criminal statute, but a blatant arrest for conduct not criminal.

Efforts in this country to change that rule of law and deny the right to resist arrest which the person being arrested knows is being made by a peace officer, although the arrest is unlawful, have succeeded in a few states, but not in Louisiana. Instead, the right to resist an unlawful arrest is codified in the Louisiana Criminal Code and the Louisiana Code of Criminal Procedure. Article 108 of the Criminal Code, R.S. 14:108, makes a crime the resistance to an individual “acting in his official capacity and authorized by law to make a lawful arrest,” and Article 220 of the Code of Criminal Procedure requires that a “person . . submit peaceably to a lawful arrest.” [emphasis added]

This right to resist an unlawful arrest has not been accorded federal constitutional standing, the United States Supreme Court not yet having ever squarely decided whether there is a fourth amendment right to reasonably resist an unlawful arrest. As explained by Allan L. Durant in 31 La.L. Rev. 120, 125 (1970),

“The United States Supreme Court has said in dictum that, ‘one has an undoubted right to resist an unlawful arrest,’ [in United States v. DiRe, 332 U.S. 581, 594, 68 S.Ct. 222, 92 L.Ed. 210 (1948)] but unfortunately the court failed to reveal whether this statement rested on constitutional or common law authority. In Wainwright v. City of New Orleans [392 U.S. 598, 88 S.Ct. 2243, 20 L.Ed.2d 1322 (1967)], Mr. Chief Justice Warren fathered the phrase, ‘a Fourth Amendment right to resist,’ although he admitted that the constitutional issue of the right to resist an unlawful arrest was unnecessary in deciding that case. The issue of the existence of a Fourth Amendment right to reasonably resist an unlawful arrest has never been squarely raised or decided.”

The matter at issue here, however, is not resolved by resort to the “lawful arrest” language of Article 108 of the Criminal Code and Article 220 of the Code of Criminal Procedure, for it is entirely another matter to categorize as “unlawful” an arrest in the proper enforcement of a clearly applicable statute or ordinance by a police officer commanded to do so by a duly ordained legislative body, and prior to pronouncement by a constitutionally authorized court that the legislative enactment is unenforceable because unconstitutional.

In this latter instance we do not believe that such an arrest is “unlawful” under these two articles. It may have been illegal, of course, in the sense that through hindsight it was prompted by conduct violating an ordinance later determined invalid. It was not unlawful, however, when we focus upon the officer’s conduct in light of the prevailing ordinance which had not, at the time of the occurrence, been invalidated.

In this latter instance the right to personal liberty competes not with a police officer’s abusive and self-proclaimed power, but with society’s interest in orderly governmental process. Exposing officer and, perhaps, arrestee to retaliatory force may be a price we must pay to protect the personal liberty of a citizen whose conduct violates no law. It is not a price which we should impose upon officer and arrestee where that personal liberty is jeopardized by duly enacted statute, the constitutional test concerning which properly reposes in the courts.

We conclude that relator was not legally entitled to resist arrest nor to commit a battery coincident therewith, notwithstanding the fact that we have now determined that the ordinance which she was being arrested for violating is constitutionally null and void.

For the foregoing reasons Section 42-24(5) of the Code of the City of New Orleans is declared unconstitutional and relator’s conviction and sentence for violation of this ordinance are reversed and set aside. However, relator’s conviction and sentence for committing a battery upon the New Orleans police officer is affirmed.

SANDERS, C. J., concurs in the affirmance of the battery conviction, but dissents from the reversal and assigns written reasons.

SUMMERS, J., dissents in part and concurs in part with reasons.

DIXON, J., concurs in part and dissents in part, with reasons.

MARCUS, J., dissents in part and concurs in part and assigns reasons.

DENNIS, J., concurs in part and dissents in part for the reasons assigned by DIXON, J.

DIXON, Justice

(concurring/dissenting).

I agree that the obscenity ordinance is unconstitutional but respectfully dissent from that part of the opinion which affirms the conviction for battery. The majority denies the right to resist an unlawful arrest, as long as it is made under color of an unconstitutional statute or ordinance. The effect is to permit legislative bodies and police to ignore constitutional provisions and decisions. I would reverse both convictions.

MARCUS, Justice

(dissenting in part and concurring in part).

It is well recognized that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any constitutional problem. According to Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), these “include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The Chaplinsky court further stated that “[t]he test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.” Such utterances are not protected by the constitution. Statutes must be carefully drawn or be authoritatively construed to punish only unprotected speech and must not be susceptible of application to protected expressions. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). Accordingly, I consider that the ordinance in question could be authoritatively construed by this court to limit its application to “fighting” and “obscene” words as defined by the United States Supreme Court in Chaplinsky and Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304,1 L.Ed.2d 1498 (1957). If we were to do so, the ordinance under consideration would be constitutional. Moreover, I am unable to say that the limited scope of the ordinance as thus construed would contravene the constitutional right of free expression. It should be observed that in Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974), the United States Supreme Court noted that this court “did not refine or narrow” the words of the ordinance then in question on remand but rather “took them [words] as they stood.” It is obvious from this opinion that had we done so, the constitutionality of the ordinance would have been upheld.

Considering the facts and circumstances of the instant case under the authoritative limited construction hereinabove suggested, I find that the conviction should be upheld. In my view, the words of defendant addressed to the arresting officer under the circumstances here presented were such that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

With regard to defendant’s conviction for battery, I concur fully in the reasons and judgment affirming the conviction and sentence.

For the foregoing reasons, I respectfully dissent in part and concur in part.

SANDERS, Chief Justice

(concurring in part and dissenting in part).

I concur in the affirmance of defendant’s conviction for battery.

I dissent from the reversal of the conviction for disturbing the peace by the use of abusive language to the police officer for the reasons assigned by Mr. Justice MARCUS.

SUMMERS, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of defendant’s conviction for battery.

I dissent from the reversal of the conviction for disturbing the peace by the use of abusive language to the police officer for the reasons assigned by Mr. Justice MARCUS.

      . Defendant’s version of what happened was, of course, different. The trial judge apparently accepted the foregoing version offered by the police officer and we likewise do so for our present consideration.

      . Justice Brennan of the United States Supreme Court made a similar observation in Lewis v. City of New Orleans when he observed that a police officer is trained to exercise a higher degree of restraint than the average citizen. 415 U.S. at note 2, pp. 132-133, 94 S.Ct. 1103.

      . There, relators, members of a religious organization, were engaged in transporting a black family to church when their car was blocked by a plainclothes policeman who approached rela-tors, demanding to know what they were doing. When Ducas refused to answer and attempted to drive away, the officer interfered and was injured. Relators were arrested for resisting a police officer in the exercise of his duties. As Court noted in reversing their convictions, “at the time of their arrest neither of the relators was engaged in committing or attempting to commit any offense.” 14 So.2d at 784.

      . See 31 La.L.Rev. 120 (1970) wherein it is recounted that Sec. 302(2)(a)(i) of the Model Penal Code adopted by the American Law Institute in 1958 had in 1970 been adopted in New Hampshire, Delaware, and Rhode Island.


text:
    STATE of Louisiana v. Oran O’QUINN and Charles LaFleur.
    No. 57792.
    Supreme Court of Louisiana.
    Jan. 28, 1977.
    Rehearing Denied Feb. 25, 1977.

      Joe A. Brame, Gary A. Book, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., James L. Babin, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Oran O’Quinn and Charles LaFleur were charged with theft of guns and knives of a value of more than $1020.00. After verdicts of guilty, each was sentenced to six years at hard labor.

Marshall LaFleur, the brother of Charles, testified for the State to the effect that he and the two defendants had entered the residence of Lamuel Oliver, had broken the glass front of a gun case, and had taken guns and other property from the unoccupied house. Other testimony showed that the three young men had tried to sell two of the guns to an uncle on the same night, and were seen in a wooded area the next morning close to the spot where the guns were later found by police.

Charles LaFleur took the stand, denied the theft, and explained his possession of the stolen property: Richard Hopkins, whom he had visited in the Oliver house, had told him the guns belonged to Hopkins, had borrowed the LaFleur car and had put the guns in the back seat. Charles LaFleur testified that the guns were hidden in the woods the next day because he, LaFleur, was on parole and would have been jailed if he had been found in possession of the weapons. The defense attempted to explain the younger brother’s story of the theft as the result of a plea bargain.

Thirty-one bills of exception were reserved (this case was tried in 1973) and will be discussed as numbered in the record.

There is no error in Bill of Exception No. 1. Defendants object to the court’s permitting the State to amend the bill of information to omit certain articles originally included as having been stolen by the defendants. The amendment did not change the grade of the offense, which was a violation of R.S. 14:67, but only reduced the total value of the items stolen from $1516.00 to $1020.00. “Before the trial begins the court may order an indictment amended with respect to a defect of substance.” C.Cr.P. 487. There could have been no prejudice to the defendants by eliminating certain articles from those which the defendants were charged with stealing.

Nor was there error in Bill of Exception No. 2, when the trial court ruled that a district attorney’s investigator would be permitted to talk with the witnesses during the course of the trial. C.Cr.P. 764 permits the sequestration of witnesses and a prohibition against their discussing the facts of the case “with anyone other than the district attorney or defense counsel.” The article further permits the court to modify the order of sequestration “in the interest of justice.” The record discloses that the trial judge carefully instructed the investigator about conversation with the witnesses. There was no abuse of the court’s power in its order.

Bill of Exception No. 3 was reserved when the court overruled an objection to a prosecution question as “leading.” The question was: “. . . were you with him in Lake Charles or in Elton, Louisiana?” The question was asked in the alternative, and did not suggest an answer. R.S. 15:277. There was no error in Bill No. 3.

In Bill of Exception No. 4 defendants complain of the overruling of their objection to the question: “What were they (the guns) doing there?” The objection was that the question called for a conclusion of the witness. In context, the State was asking its witness, a participant in the crime, to relate how stolen property happened to be located in a wooded area. There is no error in Bill of Exception No. 4.

Bills of Exception Nos. 5 and 6 were taken when the court overruled defendants’ objections to certain of the prosecutor’s questions as being “repetitious and improper.” The questions were not “improper.” They were, indeed, to some extent, repetitious. However, the testimony of the witness had not been clear, and the prosecutor was justified in his effort to clarify the testimony. See Wharton’s Criminal Evidence § 413 at page 293:

“Ordinarily, the court should expedite proceedings by eliminating the unnecessary, repetitious, or prolonged examination of witnesses. However, the court may permit the repetition of a question in the same or another form, after an unexpectedly adverse answer, or after the witness was at first reluctant and evasive in his answers. Moreover, a question which substantially repeats testimony already given by the witness is nevertheless permissible when its purpose is to clarify and elucidate such earlier testimony.”

In Bills of Exception Nos. 7 and 8 the defendants complain that their cross-examination of the State’s principal witness was wrongly curtailed. Marshall LaFleur was the younger brother of one of the defendants. He testified that he participated in the theft for which the defendants were on trial. Defense lawyers sought to examine him concerning some previous “trouble” Marshall LaFleur had been in, related to marijuana, and had sought to read aloud the original bill of information, to which Marshall LaFleur had pleaded guilty.

The trial court was clearly in error in its reasons for denying the defendants the right to question the witness about the original bill of information. However, defense counsel never made clear the relevance of their effort to read to the jury the portion of the bill of information as it had been written, before it was amended. The witness admitted the theft. He admitted pleading guilty, and had received a suspended sentence.

It is a closer question with respect to the marijuana “trouble.” It is clear from the whole record and from the briefs that this cross-examination was designed to weaken the effect of inculpatory statements given by Marshall LaFleur to police officers at an early stage of the investigation, and therefore weakened the witness’ trial testimony which incriminated the defendants. Defense lawyers were attempting to demonstrate that an inculpatory statement had been given to a deputy named “Kotch” Guillory, either as a result of a threat to prosecute a marijuana conviction in another parish, or a promise not to prosecute.

However, we are not satisfied, as the trial judge was not, that there was any relationship between any inculpatory statement and the existence of a marijuana offense in another parish. The deputy mentioned was called by the State as a witness, was cross-examined, and testified to no in-culpatory statement, and was not asked about any promises or threats toward the witness Marshall LaFleur. The record does not demonstrate any prejudice to the defendants.

Bill of Exception No. 9 was reserved when the court overruled a defense objection to a question: “Did the other two people there know they were in possession of stolen property when they had those items in the car?” The question was asked for two reasons: the defense cross-examination seemed directed toward showing that the guns were taken during a drunken spree; the prosecution was attempting to demonstrate that the owner of the guns had not given permission for them to be taken from his house. Although the question might be characterized as “conclusion-ary,” it was a shorthand method of obtaining relevant information from the witness. There is no merit to the bill.

Bills of Exception Nos. 14, 15 and 18 through 24 are related to the introduction of certain real or demonstrative evidence, among which were pieces of glass, a piece of rug and an oil can found some twenty to thirty feet away from and across a path from where the stolen guns were found in the woods. Also introduced by the State were paint scrapings and pieces of glass taken from a gun cabinet in the victim’s home. The State further introduced pieces of glass and carpet samples taken from an automobile of one of the alleged perpetrators and photographs of the interior of the automobile. Several objections in connection with the introduction of this evidence are not clear.

In Exception No. 14 defense counsel argue that the pieces of glass, piece of rug and oil can found in the woods should not have been admissible because they were not shown to be connected with or relevant to the case.

The rule defining relevant evidence is set forth in R.S. 15:441:

“Relevant evidence is that tending to show the commission of the offense
“Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

The evidentiary fact offered does not need to have strong, full, representative value, or to produce persuasion by its role and intrinsic form, but it is sufficient if it is worth consideration by the jury. See State v. Freemen, 306 So.2d 703 (La.1975) and State v. Giles, 253 La. 533, 218 So.2d 585 (1969).

The State in the instant case needed to prove that the defendants had been in possession of the guns stolen from the victim’s house. Apparently the State sought to prove this fact in part by showing that fragments of glass from the victim’s gun cabinet were found with the guns in the woods, at the edge of the highway some twenty to thirty feet away from the guns, and in the car of one of the alleged perpetrators. The State apparently tried to show that the piece of carpet found with the glass beside the road was the same as that in the automobile. All of this real evidence was relevant under the test given above.

In Exceptions Nos. 15 and 24 defense counsel objected to introduction of the paint scrapings and glass from the victim’s gun cabinet on the ground a proper foundation had not been laid. The argument is that the deputy sheriff who collected the items could not say for certain that the house from which they were taken belonged to the victim. However, they were sufficiently identified to be admitted.

In Exceptions Nos. 21, 22 and 23 defendants argue that a proper foundation was not laid for the introduction of items found in the automobile. Defense counsel contend the State should have shown that the items in the car were not tampered with before they were photographed by the deputy sheriff and removed.

In Exceptions Nos. 18, 19 and 20 defendants object to the trial court’s refusal to allow defense counsel to question the State’s photographer about the possibility that items in the automobile were tampered with before the photographs were taken.

It is difficult to understand why the defendants were not permitted to cross-examine the State photographer about his knowledge of the objects photographed— that is, whether they had been moved or rearranged before the pictures were made. However, there was so much direct testimony about the objects, their identity, and their location that it is also difficult to perceive any prejudice to the defendants. No issue was.ever made, either during the trial or in brief later, that the photographs did not truly depict their subject matter. Although the defendants were entitled to a wider range of cross-examination than was allowed, no prejudice is shown and therefore these bills are without merit.

Bill of Exception No. 10 was taken because no “proper foundation” had been laid; no foundation was necessary, because the question called for relevant factual evidence.

Bill of Exception No. 11 was a hearsay objection, without merit, made when the State’s witness was asked to read aloud markings on a gun barrel.

Bill of Exception No. 12 is argued in brief as a hearsay objection. At trial the objection was made that “no foundation” had been laid for the testimony. No foundation was necessary; if the testimony was objectionable as hearsay, the reasons for the objection must have been made to the trial judge. C.Cr.P. 841.

Bill of Exception No. 13 complains that a State witness was allowed to comment on what was represented by certain photographs. We consider the testimony as supplying evidence that the photographs accurately depict their subject matter, and, consequently, the bill is without merit.

Bill of Exception No. 16 was reserved when the district attorney objected to an incomplete question. The objection was sustained by the trial judge, probably because of the prolonged cross-examination of the witness. Subsequently, however, the trial judge permitted the defense lawyer to complete his question. Again the district attorney objected, without giving any basis for his objection, and the trial judge again sustained. The question asked was whether the price for used guns at other places in the locality would be less than the price testified to by the expert witness. The record does not show a valid reason for not permitting the question. However, the record seems to disclose that the owners of the only two outlets for used guns in the area appeared and testified. Both witnesses were cross-examined, and no prejudice is demonstrated.

Bill of Exception No. 16A was taken when the court denied a motion to continue the hearing on a motion for a new trial. The request was made to obtain time to file an amended motion to include specific information about witnesses. That request was denied, because it appeared that there had been ample time to amend the motion before the day on which it was fixed for trial. Defense counsel further stated that “within the last sixty seconds” they had learned of additional information in the nature of newly discovered evidence, and acquired additional time to file an amended motion for a new trial.

The transcript of the motion for a new trial is not before us. In brief counsel for defendants simply state that the disposition of a motion for continuance was within the sound discretion of the trial court, but that good grounds had been established for granting the motion.

The record does not reflect, nor do the briefs, that the trial judge did not have before him all the information which defendants wished to put in an amended motion for a new trial. Nor has such an amended motion for new trial been filed to this date. See C.Cr.P. 853. We cannot say that the trial court abused its discretion in denying the motion.

In Bill of Exception No. 16B, on the motion for a new trial, the defendants complained, in addition to previously reserved bills of exception, that the verdict was not supported by the evidence. The basis of the contention is that the defendants were charged with the theft of property of a total value of not less than $1020.00; that the evidence showed the stolen property was worth a total of only $857.50; that the jury returned a verdict of “guilty.”

R.S. 14:67, the theft statute, provides for graduated penalties in the event of conviction. If the property taken is valued at less than $100.00, the penalty for a first conviction is imprisonment for not more than six months, or a fine. If the property taken is valued at $100.00 or more, but less than $500.00, the penalty is imprisonment with or without hard labor for not more than two years, and a fine. When the property taken is valued at $500.00 or more, the maximum penalty for a theft is provided as imprisonment with or without hard labor for not more than ten years, and a fine.

There is no question but that the stolen guns and knives were of a value of more than $500.00. As long as the jury found the value to be in excess of $500.00, the defendants were exposed to the same penalty. There was ample and undisputed evidence that the property taken was worth more than $500.00. Whether it was worth $1020.00 is of no significance as to the gravity of the offense with which defendants were charged. They were exposed to the maximum penalty as long as the guns and knives were worth more than $500.00. There is no substance to Bill of Exception No. 16B.

Bill of Exception No. 17 was reserved after a witness had been qualified as an expert in chemical analysis. There was no error in the judge’s ruling. The record establishes that the witness was qualified by education and experience.

Bill of Exception No. 25 was reserved when the defendants requested, but were denied, a continuance because of the absence of a defense witness. The witness had been in jail at the commencement of the trial, but had posted bond during the trial and was released. This became known during the progress of the trial. The court issued a bench warrant for the witness, and the record shows that the sheriff’s office made an effort to locate him. Before the trial ended, it was reported to the court that the witness had left the State and was then in Texas. The witness, whose name was Hopkins, was subsequently brought back to the State of Louisiana. There is, in the record before us, a minute entry of his conviction, after the trial, but before a decision on the motion for a new trial, for contempt of court for failure to respond to the summons. The record in the case makes it apparent that Hopkins would have been an unfriendly, if not a hostile, witness, because the defense was that Hopkins, not the defendants, was the one who placed the stolen guns in defendant LaFleur’s automobile. Since it developed during the trial that Hopkins was not within the jurisdiction of the State of Louisiana and would not be available to testify, it is clear that the ruling of the trial judge in denying the requested continuance (recess) was correct, and the bill is without merit.

Bill of Exception No. 26 was reserved when the district attorney was allowed to ask a witness the new price of a certain rifle. The ruling was correct; the new cost is relevant in determining the value of a used rifle.

Bill of Exception No. 27 was reserved when the trial court refused to order a subpoena duces tecum issued to the sheriff’s office for the production of records showing the date of the report of the theft of the property involved. There seems to be no reason why the defendants were denied the request for the subpoena. The correct date was desired, according to defense attorneys, to permit the defendants to produce a possible alibi defense. The trial judge denied the request for the reason that the date the theft was reported was not relevant to establish the date on which the offense occurred. There appears to be no satisfactory reason why the district attorney objected to the production of a document which might prove the date of the offense. Nevertheless, two of the participants in the crime testified that the guns were taken the night before they were found in the woods. That date was clearly established by numerous witnesses, without any confusion. Consequently, the defendants suffered no prejudice from the failure to obtain the police report showing the date the offense was reported.

Bill of Exception No. 28 was reserved when the trial court sustained an objection to defense counsel asking defendant whether his brother Marshall could read. The defendant had already testified that his brother could not read, and further testimony on the point was superfluous.

Bill of Exception No. 29 was reserved when the trial court sustained another objection by the prosecutor to “this line of questioning.” Defendant was being questioned about the contents of a note which he wrote while in jail. The content of the note was described in testimony taken while the jury was excused. Once again, it is difficult to understand the reason for excluding the evidence. On the other hand, however, no prejudice appears from the exclusion, because the content of the note was incriminating. In the note, the defendant LaFleur testified that he requested his younger brother Marshall to sign statements and “testify to other burglaries that have taken place in Moss Bluff. If you would, you would be guaranteed probation, and me and Oran would be cut loose.” The defendants suffered no prejudice from the failure to place this evidence before the jury.

Bill of Exception No. 30 was reserved to the court’s instruction to the jury that one in unexplained possession of stolen property is presumed to be the thief, but that the presumption may be overcome or destroyed by evidence to the contrary. The objection was that the charge constituted a comment on the evidence. This, of course, is not correct. The charge itself does not comment on the evidence, and the charge as a whole makes it clear that the trial judge did not refer to the evidence and did not express any opinion as to the evidence. The charge covered the presumption of innocence, the requirement that the State prove beyond a reasonable doubt every element of the offense, including specific criminal intent. The reference to unexplained possession of stolen property is found in the section of the charge which defines the crime of theft, listing ten elements of the offense which must be proved. The charge was not objectionable for the reason stated by the defense (but see, State v. Montoya, 340 So.2d 557 (La.1976). See also, State v. Searle, 339 So.2d 1194 (La.1976); State v. Wingerter, 339 So.2d 1 (La.1976).

In Bill of Exception No. 31 defendants objected to the charge concerning the lesser included crime of unauthorized use of movables. Apparently, the portion of the charge objected to was the court’s explanation that the crime of unauthorized use of movables does not require an intent to deprive the owner of the property permanently, but that “he may be guilty of this lesser offense even though he intended to take or use the property temporarily.” There was no error in the charge, and no merit to the bill.

The convictions and sentences are affirmed.


author: PER CURIAM.

text:
    STATE of Louisiana v. David WALKER, Sr.
    No. 58559.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
    Alexis A. St. Amant, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Richard E. Chaffin, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Jack E. LOTT.
    No. 58560.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
    Vincent Wilkins, Jr., Director, Vincent Wilkins, Jr., Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lee H. BULLOCK.
    No. 58568.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
    Charles C. Garretson, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., John N. Gallaspy, Second Asst. Dist. Atty., for plaintiff-appel-lee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Arthur JOHNSON.
    No. 58581.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
    Martin C. Schroeder, Jr., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Richard E. Chaffin, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lawrence YOUNG.
    No. 58582.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
    Larry P. Boudreaux, Thibodaux, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty., Gen., Francis Dugas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Josie LOWE and Barbara Hickerson.
    No. 58597.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
    Barry F. Viosca, Orleans Indigent Defender Program, C. Ellis Henican, Jr., Heni-can, James & Cleveland, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Reginald CRANSON.
    No. 58601.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
    Edward Larvadain, Jr., Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., William E. Tilley, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Leon GARRETT.
    No. 58603.
    Supreme Court of Louisiana.
    Feb. 2, 1977.

      Alan James Boudreaux, Greenberg & Da-llam, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Regina C. Cooper, Research Atty., Metairie, for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Nolan E. GRAY, Jr.
    No. 58620.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
    Wendell E. Tanner, Tanner & Lussen, Slidell, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Robert L. Bailey, III, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Ford WEBBER and Irvin Richardson.
    No. 58628.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. James E. STRICKLAND.
    No. 58648.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
    Rehearing Denied Feb. 25, 1977.
    James S. Gravel, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles B. Bice, Dist. Atty., Kermit M. Simmons, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.