author: SUMMERS, J.,

text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. W. D. ATKINS, Jr., Respondent.
    No. 60881.
    Supreme Court of Louisiana.
    Oct. 25, 1977.
    Order Nov. 11, 1977.
    Rehearing Denied Dec. 5, 1977.
   ORDER

Based upon the Court’s concurrence with the opinion of the Committee on Professional Responsibility that the crime of which W. D. Atkins, Jr. has been convicted constitutes a serious crime, the necessary element of which reflects upon said attorney’s moral fitness to practice law:

IT IS ORDERED BY THE COURT, that W. D. Atkins, Jr. be and he is hereby suspended from the practice of law and said attorney’s license to practice is hereby suspended.

It is further ordered that the Committee institute the necessary disciplinary proceedings against W. D. Atkins, Jr., seeking his disbarment or other remedy deemed appropriate, all in keeping with Article XV of the Articles of Incorporation of the Louisiana State Bar Association, provided however, that the disciplinary proceedings so instituted will not, unless requested by the accused, be brought to a hearing until all appeals from the conviction are concluded.

REHEARING DENIED.

SUMMERS, J.,

was of the opinion a rehearing should be granted. In re Ming, 7 Cir., 469 F.2d 1352.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Wayne J. CARTER.
    No. 59831.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      Peter W. Arbour, Lake Charles, Cordell H. Haymon, Ltd., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Warren Hebert, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Wayne J. Carter was charged in a single bill of information with two counts of armed robbery. He was tried and convicted on both counts, and was thereafter sentenced to serve a term of thirty years imprisonment with credit for time served on each count, the sentences to run concurrently. Defendant appeals, relying upon seventeen assignments of error.

The most significant of his assignments deal with the fact that he was charged and tried in a single trial for committing two unrelated armed robberies. In assignment of error number one, he urges that the trial court erred in failing to grant his motion to quash on the basis that the charge contained a misjoinder of offenses in violation of Article 493 of the Code of Criminal Procedure, and of his right to due process under the state and federal constitutions. In assignment of error number two, he urges that the trial court erred in denying his motion for a severance of the two counts as provided in Article 495.1 of the Code of Criminal Procedure.

In order to fully appreciate defendant’s arguments, it is necessary to provide some background in the area of joinder and severance. Joinder of offenses is the charging of an accused with two or more crimes as multiple counts in a single indictment. Unless these offenses are later severed, and hence, split for separate trials, all offenses joined in one charge will be tried together at a single trial.

Until very recently, Louisiana had very restrictive provisions on joinder of offenses. The law generally prohibited a prosecutor from joining more than one offense in one indictment. C.Cr.P. art. 493 (1966); see, generally, 37 La.L.Rev. 203 (1967). The stated reasons for this rule were that a cumulation of offenses could create prejudice against the accused, and would increase the likelihood that a jury might use

“evidence adduced in support of one charge to convict the accused of another charge not independently nor adequately proved. The jury, from the very nature of the human intellect, would unconsciously permit the two sets of facts to merge or blend together.” Official Revision Comment to C.Cr.P. art. 493 (1966).

In that rare case when a prosecutor improperly joined offenses, a defendant could have the error corrected by filing a motion to quash on the basis of misjoinder (charging in the same indictment two or more offenses which may not properly be included in one indictment) or duplicity (charging in the same count of an indictment two or more separate offenses). See C.Cr.P. arts. 491, 493, 495 (1966). Because almost no joinder of offenses was allowed under Louisiana law, no motion for severance of offenses was necessary or available under the 1966 Code.

Unlike these earlier restrictive Louisiana joinder rules, the federal rules of criminal procedure generally allow a prosecutor the option of charging an accused with one or more offenses in the same indictment when the offenses are of the same or a similar character, are based on the same transaction, or are parts of a common scheme or plan. Likewise, the American Bar Association Standards for Joinder and Severance [hereinafter ABA Standards] suggest a rule allowing joinder in these circumstances.

Although the federal rules and the ABA Standards are very similar in terms of join-der of offenses, they offer very different rules for severance of offenses. The federal rule allows a trial judge the discretion to order, on motion of defendant or the government, a variety of remedies, including a severance of the offenses, upon a showing of prejudice. The ABA Standard for severance is quite different. It offers a defendant an absolute right to sever, any time the offenses with which he has been charged were joined solely for the reason that they are of “the same or similar character,” and it provides that in other types of joined offenses the court on pre-trial motion, “[should] grant a severance of offenses whenever . . . it is deemed appropriate to promote a fair determination of each offense.” (emphasis supplied).

In 1975, the Louisiana legislature, apparently responding to a need for increased efficiency in the handling of criminal trials, liberalized the restrictive state rule on join-der of offenses and adopted, basically, the federal rule on joinder of offenses. Code of Criminal Procedure Article 493 now allows a prosecutor the option of charging a defendant with one or more offenses, triable by the same mode of trial, so long as the offenses 1) are “of the same or similar character,” 2) are “based on the same act or transaction or on two or more acts or transactions connected together”, or 3) constitute “parts of a common scheme or plan.” The legislature also added to our law a provision for severance of joined offenses, but rather than following the federal rule as it had for the joinder, the legislature adopted most of the ABA Standard on severance. Article 495.1 provides in full that:

“The court, on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever:
(a) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(b) if during the trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The Court shall consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of the fact will be able to distinguish the evidence and apply the law intelligently as to each offense.”

In summary, we recognize that the federal rules allow joinder of offenses of the same or similar character but-provide that the trial court may, in its discretion, sever the offenses for separate trials upon a showing of prejudice by either party. The ABA Standards likewise allow joinder of the same or similar offenses but offer defendant an absolute right to severance when offenses have been joined solely on that ground. Our newly-adopted Louisiana provision is a cross between these two. Although the prosecutor has the option to join into one indictment offenses of the same or similar character, on application of the defendant or the state, the court “shall grant” a severance of offenses whenever “it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.”

In the context of this case we must interpret for the first time just what that statutory language means.

ASSIGNMENT OF ERROR NO. 1

Defendant argues that the judge erred in failing to grant his motion to quash which urged that the two offenses were wrongly joined in a single indictment.

As we have previously stated, joinder of offenses is now regulated by Article 493 of the Code of Criminal Procedure which allows a single indictment to charge an accused with multiple offenses “if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.” Since it has been conceded that the robberies with which defendant Carter was charged were neither “based on the same transaction” nor “parts of a common plan,” the issue before us is whether these two unrelated armed robberies were offenses “of the same or similar character.” Defendant argues that the disparate facts of these two robberies preclude their being crimes of the “same or similar character” because the robberies were not committed in a similar manner nor under similar circumstances. On the other hand, the state contends that there was a sufficient similarity to permit joinder as offenses of “the same or similar character” because both offenses were armed robberies committed within the space of five days and because both are subject to the same mode of trial. Both the state arid defense agree that because our state legislature substantially adopted the federal rule on the subject of joinder of offenses, this Court, faced with this issue of first impression under state law, should look to the federal jurisprudence as persuasive authority for interpretation of our state statute.

Under federal jurisprudence, joinder of these two armed robberies would have been proper. In Chambers v. United States, 112 U.S.App.D.C. 240, 301 F.2d 564 (1962), defendant was convicted in an indictment containing six counts of housebreaking and larceny which occurred over a nine-day period. The court held that joinder of these offenses was appropriate. In a case with very similar facts, joinder of two incidents of housebreaking of the same apartment within a nine-day period was upheld in Bradley v. United States, 140 U.S.App.D.C. 7, 433 F.2d 1113 (1969). In Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964), the court held that one count of robbery and one count of attempted robbery were properly joined under the federal rule because they were similar offenses (even though the court went on to determine that a requested severance should have been granted).

Defendant argues that certain limitations on joinder are implicitly recognized in Daly v. United States, 119 U.S.App.D.C. 353, 342 F.2d 932 (1965) and Gray v. United States, 123 U.S.App.D.C. 39, 356 F.2d 792 (1966). Specifically, he argues that the courts there approved of joinder only because the offenses were of a similar or recurring pattern which made them of a similar character. We find in these cases no such limitations. In Daly, defendant had falsely held himself out to the public as a licensed physician and was charged with various offenses relating to that criminal activity, such as false pretenses and unlawful practice of the healing arts. The court held joinder proper as either “same or similar character” join-der or “common scheme or plan” joinder. In Gray, defendant was convicted on two counts of robbery where the modus operan-di was the same in each case. The Court found no plain error prejudicing defendant in the single trial of these offenses. In both cases joinder was found to be proper. These cases are consistent with the other federal case law to the effect that joinder of offenses is ordinarily appropriate where the respective counts refer to the same type of offenses which occurred over a relatively short period of time. United States v. Hoog, 504 F.2d 45 (8th Cir. 1974); Bradley v. United States, supra; Hill v. United States, 135 U.S.App.D.C. 233, 418 F.2d 449 (1968); Johnson v. United States, 356 F.2d 680 (8th Cir. 1966); United States, supra; Chambers v. United States, supra.

It is clear to us that under federal jurisprudence joinder of the armed robbery which occurred at the Hollywood Cleaners and the armed robbery which occurred at the Bonanza Steak House five days later was permissible. Analogizing to this jurisprudence, we find as a matter of state law that these two offenses, both armed robberies, were properly consolidated as counts in a single indictment pursuant to Code of Criminal Procedure Article 493 because they were offenses of the same or similar character. For this reason, defendant’s assignment of error complaining that the trial judge erred in failing to grant his motion to quash because of misjoinder of offenses lacks merit.

ASSIGNMENT OF ERROR NO. 2

That the offenses were legally joined is not fully dispositive of defendant’s complaints, for he argues that he moved for, and was entitled to, a severance, and that the judge erred in refusing to grant his motion therefor.

As earlier noted, a trial court, when faced with a pre-trial motion to sever offenses legally joined “shall grant severance” when “it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.” See C.Cr.P. art. 495.1, quoted fully hereinabove. This severance provision does not follow the discretionary rule of its counterpart federal severance provision (“the court may order”). Nor did the legislature adopt the language of the Louisiana article providing for severance of co-defendants (“justice requires a severance”), a standard which has consistently been interpreted to place the severance decision in the trial judge’s discretion. C.Cr.P. art. 704; State v. Thibodeaux, 305 So.2d 769 (La.1975); State v. Medlock, 297 So.2d 190 (La.1974); State v. Smith, 283 So.2d 470 (La.1973). Instead, the legislature adopted the mandatory language of the ABA Standard which states the court “shall grant a severance,” admittedly not at defendant’s option (a choice the ABA Standard allows when offenses of the same or similar character are involved) but rather under the “appropriate to promote” circumstance.

The commentary to the ABA Standards points out that “appropriate to promote . ” does not require a finding that a defendant will be prejudiced before severance is required “inasmuch as it is often difficult for the court to determine in advance of trial (when most severance motions will be presented) that the defendant will in fact be prejudiced.” ABA Standards, § 2.2(b), p. 33. The ABA commentary also points up the difference between pre-trial severance (see our Art. 495.1(a)) and during-trial severance (see our Art. 495.1(b)). It explains that the test

“differs somewhat, depending upon whether the court is deciding the question before or during trial. The somewhat broader, ‘appropriate to promote’ test is applicable before trial, when the decision often must be made by speculating on what will occur during the trial. By contrast, the ‘necessary to achieve’ test is applicable when the court is confronted with a severance motion during the trial.” Id.

The pre-trial severance standard adopted by the Louisiana legislature, therefore, is one which requires a severance, in both the same or similar character offenses and related offense situations, on motion of defendant or the state, when under the circumstances it is “appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.” At the pretrial hearing, the court is not required to determine that defendant will necessarily be prejudiced by a single trial. Rather, the focus is on the respective separate offenses, and according to the ABA commentary quoted above, the test is broader than the test used during trial because the nature of the trial evidence is still a matter of speculation.

Even with this background, the meaning of Article 495.1(a) is not clear. We are nonetheless required to interpret it. What is clear is that Article 495.1(a) requires a severance before trial if appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense. If, and under what circumstances, severance is to be deemed appropriate to promote this fairness determination, somewhat like considerations of due process, addresses itself more to this Court’s construction, at least to the extent of our having to fix its parameters, than to the discretion of the trial judge. Although we believe that there remains with the trial judge some discretion in a severance grant or refusal, it is a discretion within limits drawn by this Court. It is therefore proper in this our first review of the 1975 statute that we fix those boundaries as they are pertinent to this case.

It is settled law that evidence of commission of a crime is not admissible to prove an accused’s disposition to commit crime, from which the jury may infer that he committed a second crime, the crime charged. R.S. 15:446; State v. Gaines, 340 So.2d 1294 (La.1976); State v. Moore, 278 So.2d 781 (La.1973). Evidence tending to reveal an accused’s disposition to commit crime although in a general sense relevant (i.e. isn’t a “bad” man more likely to have committed the charged crime than another person?) is nonetheless excluded from a trial unless it can be shown that the evidence serves an independent legitimate purpose. Where evidence of more than one crime is offered to the jury because more than one crime is charged in the indictment, the evidence as to all crimes charged tends to cumulate to prove each, thus prejudicing the defendant in his right to a separate consideration of his guilt or innocence on each charge. C.Cr.P. art. 493 (1966), official revision comment. For this reason, the likelihood of “criminal disposition” prejudice is no less in a situation where defendant is being tried for multiple offenses which have been joined in one indictment than it is if evidence as to another offenses were admitted during trial of a single offense.

Notwithstanding the general exclusion of other crimes, they may be introduced for certain statutorily defined purposes. If, for example, several crimes were committed by a defendant as part of a continuing criminal transaction, evidence as to each crime is admissible at trial of the others because it is part of the res gestae. R.S. 15:447, 448; State v. Kaufman, 331 So.2d 16 (La.1976); State v. Brown, 321 So.2d 516 (La.1975). Additionally, evidence of crimes other than the one for which defendant is on trial is admissible as “other crimes” evidence when the two incidents “exhibit such peculiar modes of operation to distinguish them as the work of one person” and when they are relevant to a material issue in the case. State v. Gaines, supra at 1297. Also: R.S. 15:446; State v. Ledet, 345 So.2d 474 (La. 1977); State v. Frederick, 340 So.2d 1353 (La.1976); State v. Lee, 340 So.2d 1339 (La.1976); State v. Slayton, 338 So.2d 694 (La.1976); State v. Waddles, 336 So.2d 810 (La.1976); State v. Moore, supra; State v. Prieur, 277 So.2d 126 (La. 1973). However, even if relevant as a “signature” crime under R.S. 15:446, the other crime may still be excluded if its probative value is outweighed by its prejudicial effect.

“nonetheless excluded, not because it fails to tend to prove the defendant’s guilt, but because it does it too well and thereby deprives the ‘bad man’ of the fair trial and benefit of the presumption of innocence and the State’s burden of proof. However, when the extraneous offense is logically relevant to prove a material issue before the jury and is not merely offered to prove that on this occasion the accused probably acted in conformity with his ‘criminal disposition,’ then the evidence should not be excluded merely because it shows that the accused has committed other offenses.”

Consequently, in a case where evidence as to extraneous crimes is admissible, either because they are part of the “res gestae” (R.S. 15:447, 448) or are legitimate “other crimes” (R.S. 15:446), the possibility of “criminal disposition” prejudice would in no way be enlarged by the fact of joinder of offenses. This is so because defendant could be no more prejudiced in having two juries hear evidence of two crimes in separate trials than by having one jury hear evidence of both crimes in a joint trial. Therefore, if evidence of the two robberies of which defendant Carter stands convicted would have been respectively admissible at separate trials as “res gestae” or “other crimes,” such evidence in support of the two crimes in a single trial would be equally permissible. In such a situation a severance would not be appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense. In this conclusion, we agree with the reasoning of federal courts which look to the mutual admissibility of evidence to decide on the appropriateness of severance. United States v. Riley, 530 F.2d 767 (8th Cir. 1976); United States v. Bussey, 139 U.S.App.D.C. 268, 432 F.2d 1330 (1970); Bradley v. United States, supra; Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185 (1966); Drew v. United States, supra; see 8 Moore’s Federal Practice § 8.05[2] (2nd edition).

For this reason we hold that when crimes, which have been joined simply because they are the same or similar character offenses, are indeed legitimate “other crimes” under Prieur and its progeny (the offenses are sufficiently similar, the evidence is relevant to a real issue in each case, and the prejudicial effect of the evidence does not outweigh its probative value), a decision not to sever the crimes will normally be proper. Conversely, we hold that when offenses, which have been joined solely because they are same or similar character offenses, are not legitimate “other crimes” under Prieur and its progeny, they should normally be severed upon pretrial motion of the accused or the state. We desist, however, from setting out absolute rules as to same of similar character offense joinder because we cannot say that there will never arise compelling reasons to grant a severance when the offenses are admissible under Prieur, nor to deny a severance when the offenses are not admissible under Prieur.

We now consider whether under the facts and circumstances of this case the judge properly refused to grant the requested severance under Article 495.1(a).

At the outset we should note that in making the pre-trial ruling the judge was not left to speculate concerning the facts surrounding the respective crimes because he had the benefit of a preliminary hearing at which those facts were brought out. The first robbery took place on March 16, 1973 at eleven-thirty in the morning at the Hollywood Cleaners in Baton Rouge, Louisiana. A man wearing a blue leisure suit with an open-neck shirt and blue cap entered the cleaners. He asked Ms. Grace, who was behind the counter, for “Carter’s clothes.” When she told him there were no clothes for anyone named Carter, he took out a small handgun and ordered her to open the cash register. He removed about sixty dollars in bills from the register and took some cash, checks and credit cards from Mrs. Ellison's purse. He left the establishment on foot.

The other robbery took place five days later on March 21st at the Bonanza Steak House at 9:15 a.m., before the restaurant was open for business. Two men appeared at the door and told Clyde McCormick that they had a package for Mr. Dominick. When McCormick unlocked the door, they entered, pulled out a long-barreled revolver, and asked for money. Upon being told that McCormick had no access to money, they put him in a small room where cleaning equipment was kept and then rummaged through the offices and the cash register. Apparently finding no money, they took the keys to McCormick’s truck and left the premises in it. McCormick testified that the robber he identified as defendant Carter wore a red jacket and matching hat, blue pants, and platform shoes.

In the case at hand evidence of the two crimes would not have been respectively admissible in separate trials under State v. Prieur and its progeny. Although both of the robberies occurred within five days of each other in the same general area of Baton Rouge, they were otherwise dissimilar. One man robbed the cleaners during business hours; two men robbed the restaurant while it was closed. The woman robbed at the cleaners was not tied or locked up; the janitor at the restaurant was kept in a storage area during the robbery. A small gun was utilized in the cleaners incident; the restaurant robbery was effected with a long-barrelled gun. The clothes worn by the perpetrators bore no similarity. Money, checks and credit cards were stolen in the first robbery, while truck keys and a truck were taken in the second. In short, the crimes themselves are extremely dissimilar, and would not have been respectively admissible at separate trials as “other crimes” evidence. R.S. 15:446; State v. Gaines, supra; State v. Slayton, supra; State v. Waddles, supra,

Therefore, since the offenses joined against defendant Carter were joined solely because they were the same or similar character offenses and since they were not respectively admissible as “other crimes” evidence under R.S. 15:446, it would have been appropriate to a fair determination of defendant’s guilt or innocence on each charge to sever the trials. The case presents no compelling reason to deviate from the normal rule. Therefore, the district judge should have under Article 495.1 of the Code of Criminal Procedure granted a severance of these offenses on defendant’s pre-trial motion. This assignment has merit.

Decree

For these reasons, defendant’s convictions and sentences are reversed, and the cases are remanded to the district court for further action not inconsistent with the views expressed herein.

REVERSED AND REMANDED.

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

      . Under the former Article 493 the rule was this: “No indictment shall charge more than one offense, except as otherwise provided in this Title, but the same offense may be charged in different ways in several counts.” C.Cr.P. art. 493 (1966).

      . Code of Criminal Procedure Article 704 provides for severance of jointly indicted defendants, but not for severance of offenses charged against one defendant.

      . Rule 8(a) of the Federal Rules of Criminal Procedure provides:
      “Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”

      . American Bar Association Standard 1.1 provides in full that:
      “Two or more offenses may be joined in one charge, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both:
      (a) are of the same or similar character, even if not part of a single scheme or plan; or
      (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.” American Bar Association Project in Minimum Standards for Criminal Justice relating to Joinder and Severance, Approved Draft, 1968.

      . The federal severance provision is Rule 14 of the Federal Rules of Criminal Procedure which reads:
      “If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.”

      .American Bar Association Standard 2.2 provides in full that:
      “(a) Whenever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses.
      (b) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (a), should grant a severance of offenses whenever:
      (i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
      (ii) if during trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The court should consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.”
      American Bar Association Project, on Minimum Standards for Criminal Justice relating to Joinder and Severance, Approved Draft, 1968.

      . Article 493 of the Code of Criminal Procedure now provides in full that:
      “Two or more offenses may be charged in the same indictment or information in a separate 'count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.”

      . The judge who ruled on defendant Carter’s motions to quash and to sever was a different judge than the one who later conducted his trial.

      . In a related assignment of error (assignment number 10), defendant argues that the trial court erred in overruling his objection lodged during the trial at the taking of evidence of the second offense. Because of our decision herein, we find it unnecessary to deal with this assignment or the other errors defendant alleges on appeal.

      . The commentary admittedly concerns “same transaction” or “common plan” situations, and not the “same or similar character” crimes.

      . In State v. Gaines, supra at p. 1296 we noted that other crimes are always relevant but evidence thereof is

      . Although we cannot and should not here list every such instance that we can envision, we do note that no single trial should be had on so many offenses, albeit Prieur -related, that an accused is confounded in his defense or that the jury may not be able to compartmentalize the respective proof as to each crime.

      . We can conceive, for example, of a situation in which the state’s evidence as to several crimes is so overlapping and totally singular that trial should be had on all the joined crimes at one time.

      . In other cases hearing on the motion for severance affords a trial judge a similar opportunity to entertain facts concerning the respective offenses. See State v. Ledet, 345 So.2d 474 (La. 1977).

      . Since we find that these crimes were not sufficiently similar in their facts to have been admissible under Prieur and its progeny, we find it unnecessary to decide whether in this case the evidence of each “other crime” was relevant to a material issue in the respective cases, or whether this evidence was more probative than prejudicial.


author: SUMMERS, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Marvin R. RHEAMS.
    No. 59638.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      William J. Doran, Jr., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Douglas Moreau, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   SUMMERS, Justice.

In an eleven count bill of information defendant Marvin R. Rheams was charged with nine counts of armed robbery, one count of attempted armed robbery and one count of attempted first degree murder. He was tried by a jury and convicted of four counts of armed robbery, the charge of attempted armed robbery and the attempted first degree murder charge. Defendant was acquitted of the five remaining armed robbery counts. After sentence he lodged this appeal relying upon three assignments of error.

Assignment 1

Evidence of an oral confession was improperly admitted for several reasons the defendant contends. He did not sign any statement or form indicating that he understood the Miranda warnings read to him by the police officer until some time after the warnings were given. Nor did he make a statement at that time. However, later he did make an oral statement but refused to reduce it to writing.

These delays, defendant argues, indicate that he was not sure of his rights or of the effect of unwritten statements by him, the implication being that he may have felt a statement could not be used against him unless written. He asserts that his indecision and his refusal to reduce the statement to writing illustrate his failure to appreciate his legal rights. Thus, the argument concludes, it was error to admit the oral confession.

Police officers testified that defendant was advised of his Miranda rights and that he originally refused to make a statement. However, later when they were assembled for a lineup, defendant confessed voluntarily and without coercion at a time when no effort was being made to elicit such an admission. No testimony was offered to rebut the free and voluntary character of the confession, only the argument is made that the delays involved indicated his lack of appreciation for the consequences of his action.

Based upon the testimony of two officers that defendant’s confession was free and voluntary, and the lack of evidence to the contrary, the trial judge found the confession admissible.

It is noted at the outset that there is no requirement in law that a person sign a statement to the effect that he has been advised of his rights before making a statement. While such a practice may be considered advisable to support proof that the Miranda warning was given, failure to obtain such a written statement does not deny the accused any legal right.

Undoubtedly, as the defense contends, the State is obliged to demonstrate affirmatively the free and voluntary character of the confession it seeks to introduce in evidence. La.Rev.Stat. 15:451. The burden is a heavy one which must be fully discharged. La.Code Crim.Pro. art. 703(C); State v. Taylor, 336 So.2d 855 (La.1976).

In factual determinations where the evidence in support of admissibility is positive, and only inferences to be drawn from delays by the confessor are urged by the defense to support its position that the accused did not understand his rights, the ruling of the trial judge finding the confession admissible will not be disturbed on review. State v. McSpaddin, 341 So.2d 868 (La.1977) and cases cited there.

The case of State v. Bray, 292 So.2d 697 (La.1974) is somewhat analogous to the situation here. There defendant first availed himself of the right to remain silent after receiving his Miranda warnings, but later changed his mind and gave a statement to the police. The Court drew an opposite conclusion then saying defendant’s decision to remain silent immediately after arrest indicated an understanding of his rights.

Under the facts and circumstances of this case the decision to remain silent was not irreversible, and a later change of mind induced by a voluntary decision to confess does not require a conclusion that the delayed confession was involuntary or made without understanding of the confessor’s legal rights in the matter.

Assignment 4

Defendant was charged with these multiple offenses under authority of Article 493 of the Code of Criminal Procedure providing that

“[t]wo or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.”

After the State had presented the bulk of its case, defense counsel verbally moved in open court to quash the indictment on the ground that Article 493 of the Code of Criminal Procedure was unconstitutional. In brief it is asserted that after listening to the State’s evidence, the defense observed that the prosecutor had failed to show that the offenses occurred in the same transaction, or that the offenses were so connected together as to constitute part of a common scheme or plan.

Article 495 of the Code of Criminal Procedure specifically covers this situation; it states that “[t]he objections of mis-joinder of defendants or misjoinder of offenses may be urged only by a motion to quash the indictment.” And Article 535 of the Code states that a motion to quash may be filed “at any time before commencement of the trial.” The “motion to quash shall be in writing, signed by the defendant or his attorney, and filed in open court or in the office of the clerk of court.” La.Code Crim. Pro. art. 536. The statutory formalities were not complied with in this case.

These legislative requirements for the orderly conduct of trials are not meaningless. They are reasonable, based upon experience, and designed to promote the efficient administration of justice. Compliance imposes no undue burden on the defense. Failure to satisfy these formalities results in a waiver of the rights sought to be asserted otherwise. Gueldner v. Heyd, 311 F.Supp. 1168 (E.D.La.1970), aff’d, 434 F.2d 1307 (5th Cir. 1970); City of Baton Rouge v. Norman, 290 So.2d 865 (La.1974); State v. Richard, 245 La. 465, 158 So.2d 828 (1963); State v. Turner, 178 La. 927, 152 So. 567 (1934).

This assignment has no merit.

Assignment 8

In its written assignment of error filed in the record, the defense alleges that the trial court erred in failing to grant defendant’s motion for a directed verdict. In brief, however, the argument is made that the conviction should be overturned for error patent on the face of the record. The alleged error is the failure of the State to prove venue — that any of the offenses charged were committed in East Baton Rouge Parish where he was tried.

Although no motion for a directed verdict on this basis has been found in reading the record, since venue is basic to any criminal prosecution, the contention has been considered and found to be without merit.

Article I, Section 16 of the 1974 Constitution guarantees every person charged with a crime the right to an impartial trial in the parish where the offense occurred. Venue must be proved by the State during the course of the trial in order for a conviction to stand. State v. Hollingsworth, 292 So.2d 516 (La.1974).

To sustain this proof we have held that a trial court may take judicial notice of the fact that geographical locations mentioned by witnesses are within a particular parish, even if the parish is never specifically mentioned in the testimony. La.Rev. Stat. 15:422; State v. Batiste, 327 So.2d 420 (La.1976). Because venue is a factual question, the scope of appellate review on that question is limited to determining whether there was some evidence, no matter how little, submitted to the jury to establish venue. State v. West, 319 So.2d 901 (La. 1975).

Defendant was convicted of six counts of an eleven count bill of information. In testimony relating to each of these six counts, witnesses testified that the crimes were committed at various street addresses which the trial judge apparently recognized as being within East Baton Rouge Parish. Examples are: “One Hour Martinizing on Acadian” (a cleaning establishment on Acadian Thruway, a principal traffic artery); “Kean’s Laundry on Foster Drive”; “The Fish Market on Green well Springs Road”; “7682 Airline Highway.” The rule observed in State v. Batiste, supra, is applicable, therefore, and this assignment of error is without merit.

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

CALOGERO, Justice,

concurring.

I disagree with the majority’s assertion in assignment of error number four that a motion to quash is not timely filed after commencement of trial. Although a motion to quash may be filed of right only “within ten days after arraignment or before commencement of trial, whichever is earlier,” C.Cr.P. art. 535, it may be filed through leave of the trial court after that time. In this case, the trial judge entertained defendant’s motion to quash, heard arguments as to its merit, and then denied the motion. No complaint was made that the motion was untimely.

Nevertheless, I concur in the majority opinion because I believe that the trial court properly overruled defendant’s motion to quash. The prosecutor in argument on the motion revealed that defendant Rheams had confessed to committing this series of armed robberies to effectuate his plan to get money to pay a fine currently pending against him in district court. The state was prepared to corroborate defendant’s statement through court records which revealed the dates of defendant’s court appearances on the extraneous matter, and his extension in paying the fine. These dates coincided exactly with the dates of the crimes which were joined.

I am satisfied that under these circumstances the offenses joined in one indictment against defendant Rheams were properly cumulated because they were “part of a common scheme or plan.” C.Cr.P. art. 493; see State v. Carter, 352 So.2d 607 (La.1977). For this reason, I concur in the majority opinion.


author: SANDERS, Chief Justice. TATE, Justice

text:
    STATE of Louisiana v. A. R. LeJEUNE.
    No. 59864.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      Leslie J. Schiff, Sandoz, Sandoz & Schiff, Opelousas, Paul C. Tate, Sr., Tate, Tate & Tate, Mamou, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert Brinkman, First Asst. Dist. Atty., for plaintiff-appel-lee.
   SANDERS, Chief Justice.

The State charged A. R. LeJeune with receiving stolen things valued in excess of $500, a violation of LSA-R.S. 14:69. After a trial, the jury found defendant guilty as charged. The court sentenced him to five-years’ imprisonment.

Defendant appeals his conviction and sentence, relying upon six assignments of error.

The context facts are that Robert Schnexneider, a foreman at a slaughter house, gave stolen carcasses and live animals to defendant, who credited Schnex-neider’s open account at defendant’s store, knowing that the merchandise was stolen.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

In these two assignments, defendant complains that the trial judge erred in admitting into evidence two statements made by him because they were not freely and voluntarily made.

We do not review the trial court’s ruling as to defendant’s first statement because defendant specifically waived his objection to its admission in stating at the hearing on the motion to suppress:

“If, Your Honor, please, I would like to object to reading this [first] statement, there is no contest as to this statement. Dr. LeJeune has indicated, as Mr. Brink-man has said, that this was a correct statement. We withdraw our objection to it from the Motion to Suppress.” (Emphasis added.)

Defendant objects to the admission of his second statement made to Chief Criminal Deputy, L. B. Carrier. He contends that the deputy and the victim, Jerome Moore, induced him to make the statement by assuring him that he would not be prosecuted for his involvement.

LSA-R.S. 15:451 provides:

“Before what purposes [purports] to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.”

The burden is on the State to establish affirmatively that the confession was free and voluntary and was given after the defendant was informed of his rights. State v. Callihan, La., 320 So.2d 155 (1975); State v. Monroe, La., 305 So.2d 902 (1974); State v. Bray, La., 292 So.2d 697 (1974); State v. Skiffer, 253 La. 405, 218 So.2d 313 (1969).

Deputy Carrier testified that defendant called him and volunteered to make a statement. Deputy Carrier stated that no one made any threats or promises to defendant in his presence. Defendant made his statement to Carrier after Carrier explained his rights to him.

Jerome Moore, the victim of the theft, stated emphatically that the defendant came to him and wanted to turn himself in to the authorities. He testified that he did not make any promises to defendant and never spoke to the district attorney on defendant’s behalf.

The factual determination of the voluntary nature of a confession made by a trial judge is given great weight and should not be disturbed on appeal unless it is not supported by the evidence or is clearly erroneous. State v. Adams, La., 296 So.2d 278 (1974); State v. Sellers, La., 292 So.2d 222 (1974).

In the instant case, the evidence amply supports that trial court’s finding that the defendant made the statement freely and voluntarily. The trial court, therefore, properly admitted defendant’s statement into evidence.

ASSIGNMENT OF ERROR NO. 4

In his motion in arrest of judgment, defendant complains that the bill of information is defective in that it did not describe the stolen property which he allegedly received. He argues that he was prejudiced because he was not adequately informed and thus could not defend against the charge.

The bill of information described the property received only as “stolen property . belonging to Jerome Moore.”

In State v. James, La., 305 So.2d 514, 517 (1974), we stated:

“ * * * [Wjhere in fact an accused has been fairly informed of the charge against him by the indictment and has not been prejudiced by surprise or lack of notice, the technical sufficiency of the indictment may not be questioned after conviction where, as here, no objection was raised to it prior to the verdict and where, without unfairness, the accused may be protected against further prosecution for any offense or offenses charged by it through examination of the pleadings and the evidence in the instant prosecution.”

We cited this language with approval in State v. Randolph, La., 334 So.2d 687 (1976).

Here, the State furnished LeJeune, on November 2, 1976, in response to the defendant’s bill of particulars, a specific description of the property he was charged with receiving. Defendant’s trial began on November 8, 1976. He, therefore, was not prejudiced by lack of notice. Defendant is adequately protected against further prosecution by an examination of the pleadings and evidence.

Accordingly, we find that the alleged deficiency in the bill of information is not reversible error.

ASSIGNMENT OF ERROR NO. 5

In defendant’s motion in arrest of judgment, he also alleges the unconstitutionality of LSA-R.S. 14:69, the statute under which he is charged and convicted. LSA-R.S. 14:69 provides in pertinent part:

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

Defendant contends that the portion of the statute emphasized is unconstitutional in that it relieves the State of its burden of proving beyond a reasonable doubt the intent to receive stolen property. He argues that the State may simply prove that the circumstances under which the thing is received indicate that the offender knew or had good reason to believe that the thing was the subject of theft.

In State v. Henderson, La., 296 So.2d 805, 807 (1974), the defendant contested the constitutionality of the same language arguing that it created an irrebuttable presumption. After finding that the language did not create a presumption, we stated:

“The State must prove that the accused actually knew or had good reason to believe that the property was stolen before a conviction under R.S. 14:69 can be obtained.
it * * *
“Nor do we believe that the section relieves the State of the burden of proving guilt beyond a reasonable doubt. The jury can properly infer that the accused knew the property was stolen only after the State proves beyond a reasonable doubt that the defendant had good reason to believe the property had been stolen.”

In State v. Walker, La., 350 So.2d 176 (1977), we stated:

“Thus, the crime consists of four elements, each of which the State has the burden of proving:
(1) the intentional procuring, receiving, or concealing
(2) of anything of value
(3) which has been the subject of any robbery or theft
(4) under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses." (Emphasis added.)

Thus, LSA-R.S. 14:69 is constitutional and the trial court properly denied defendant’s motion in arrest of judgment.

We have examined defendant’s remaining two assignments of error and find them to be without merit. Assignment of Error No. 3 complains of the failure of the trial judge to give a special instruction as to the effect of inducements on the voluntariness of the confession. In our opinion, the subject of voluntariness was adequately and correctly covered in the general charge. Assignment of Error No. 6 alleges that the trial judge erred in permitting the State to cross-examine the defendant beyond the issue of voluntariness at the hearing on the motion to suppress the confession. Specifically, defendant complains that the trial judge allowed the State to cross-examine him about the contents of his confession. Our review of the record discloses that when defendant testified on the motion to suppress, he denied having made certain portions of the statement. Hence, the trial judge properly permitted cross-examination as to the content for the testing of his credibility.

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

TATE, J., filed opinion dissenting from denial of rehearing.

CALOGERO, J., was on the opinion that rehearing should be granted.

On Application For Rehearing

TATE, Justice

(dissenting from denial).

The writer is of the opinion that rehearing should be granted to examine Assignment 3. This relates to the denial of an instruction that a statement may be involuntary by reason of the inducement of leniency by a private individual (the complaining witness), as well as by a public official. See State v. Mims, 43 La.Ann. 532, 9 So. 113 (1891) and Pugh, Louisiana Evidence Law 298 (1974).


author: SUMMERS, Justice. DENNIS, J., PER CURIAM.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Irwin L. TUNIS.
    No. 55434.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      John B. Scofield, Chairman, Lake Charles, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Leonard Führer, Alexandria, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, Henry A. Politz, Shreveport, John F. Pugh, Thibodaux, A. Russell Roberts, Metairie, Thomas 0. Collins, Jr., New Orleans, for petitioner, LSBA.
    Philippi P. St. Pee’, Harahan, curator ad hoc for absent respondent.
   DISCIPLINARY ACTION

SUMMERS, Justice.

Irwin L. Tunis, respondent, was indicted by the federal grand jury for the Eastern District of Louisiana on April 3, 1967. The indictment contained multiple counts charging respondent and others with violations of the conspiracy statute, 18 U.S.C. § 371, and multiple counts charging respondent with violating the mail fraud statute, 18 U.S.C. § 1341. He was arraigned and pled not guilty.

After a trial of almost two months, the matter was submitted to the jury on December 18, 1970. On that same day the jury returned a verdict of guilty as to counts 8, 9, 10 and 13. Respondent was sentenced to three years imprisonment on each of the four counts, the sentences on counts 8, 9 and 10 to run concurrently with the sentence on count 13.

Respondent’s appeal to the Fifth Circuit resulted in an affirmance on October 25, 1973. United States v. Perez, 489 F.2d 51 (5th Cir. 1973). The Supreme Court denied certiorari on June 10, 1974, and the conviction became final on July 6,1974. Rule 58, Rules of the Supreme Court of the United States (1970).

Based upon the finality of this conviction, the Louisiana State Bar Association, through its Committee on Professional Responsibility, acting pursuant to the provisions of Section 8, paragraph 7(a) through (d) of Article XV of the Articles of Incorporation of the Louisiana State Bar Association, filed a petition for disbarment with this Court on October 11, 1974.

On August 7, 1975 respondent in proper person filed exceptions which are asserted to be 1) an exception of vagueness, 2) lack of right or cause of action, and 3) lack of jurisdiction. These were referred to the merits. The Honorable James E. Diaz was then appointed as Commissioner on September 24,1975 to take the evidence and report to this Court his findings of fact and conclusions of law. Thereafter, unable to locate respondent, the Committee moved for the appointment of a curator to represent the absent respondent. Acting upon the representations in that motion, this Court on July 22, 1976 appointed Philippi St. Pee, Esquire, an attorney who had practiced in this State for more than ten years, as curator to represent respondent.

Respondent, through his curator, then excepted to the Committee’s charge alleging: 1) the unconstitutionality of Section 8 of Article XV of the Articles of Incorporation of the Louisiana State Bar Association in that Section 8(7)(c) denied a true hearing under the Committee’s rules which accept conviction as conclusive evidence of guilt; 2) the Committee’s rules prohibit evidence of respondent’s detachment from the truly responsible parties and peripheral involvement in the crime, thereby excluding evidence in mitigation; 3) this record fails to show the essential elements of guilt; 4) Section 8 deprives respondent of constitutional rights embodied in Section 3 of Article 15 of the Articles of Incorporation of the Louisiana State Bar Association; 5) the Committee seeks to apply the Articles of Incorporation of the Louisiana State Bar Association, which became effective September 1, 1971, retroactively to these 1965— 66 offenses for which respondent was convicted on December 18, 1970; 6) this action should recognize that respondent’s conviction only creates a rebuttable presumption of his guilt.

Issue was joined by a general denial filed by the curator on behalf of respondent, whereupon the Honorable James E. Diaz held a hearing on February 8,1977 at which respondent was represented by the curator. At the hearing the Committee introduced in evidence the entire record of these proceedings, including a certified copy of the certificate of conviction.

In his report to this Court the Commissioner noted that the curator’s six exceptions were not timely filed and were therefore waived. Nevertheless, the Commissioner found all exceptions to be without merit and assigned reasons. The Commissioner concluded:

“. . . that the crime of which Respondent was convicted is a serious crime which reflects upon the attorney’s moral fitness to practice law and as stated by this Court in the Shaheen decision [338 So.2d 1347], ‘the crime involved in this case strikes at the very heart of our legal profession’ and ‘reflects his lack of moral fitness for the practice of law’ and consequently, dictates disbarment.”

The case was then briefed and argued in this Court upon the record thus formed.

Disciplinary actions resulting in disbar-ments have heretofore been prosecuted against four attorneys jointly charged, tried and convicted under the same indictment which charges respondent in these proceedings. Louisiana State Bar Ass’n. v. Loridans, 338 So.2d 1338 (La.1976); Louisiana State Bar Ass’n. v. Shaheen, 338 So.2d 1347 (La.1976); Louisiana State Bar Ass’n. v. Hennigan, 340 So.2d 264 (La.1976); Louisiana State Bar Ass’n. v. Hamilton, 343 So.2d 985 (La.1977).

The federal crime on which these convictions were based arose out of a scheme whereby a group of lawyers, doctors and laymen staged accidents and faked injuries to defraud insurance companies through false claims. Their conspiracy and use of the United States mails supplied the grounds for their convictions in federal court. The sordid facts are set forth in some detail in United States v. Perez, 489 F.2d 51 (5th Cir. 1974).

The principal relevant facts of the instant proceeding are respondent’s conviction of felonies for violations of federal law, the fact that his conviction is final and the Committee’s determination that the felonies are “serious crimes” reflecting upon respondent’s “moral fitness to practice law.”

Inasmuch as the substance of the exceptions filed by respondent in proper person are included in the six exceptions filed by his curator, the latter exceptions are understood to represent respondent’s position in these proceedings. They are considered in the order presented by the curator at the hearing.

Exception 1

There is no merit to the contention that Section 8 of Article XV of the Articles of Incorporation of the Bar Association is unconstitutional in that Section 8(7)(c) denied a true hearing under the Committee’s rules which accept conviction as conclusive evidence of guilt.

Section 8(7)(c) provides:

“The following rules shall be applicable when a respondent has been convicted of a crime, to-wit;
(7) After the conviction has become final, that is, all appeals have been concluded or exhausted, the procedure shall be as follows:
(c) At the hearing before the Commissioner, the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.”

Louisiana’s Code of Professional Responsibility declares that a lawyer shall not “[e]ngage in illegal conduct involving moral turpitude” or conduct “involving dishonesty, fraud, deceit, or misrepresentation,” or conduct “that is prejudicial to the administration of justice.” Disciplinary Rule 1-102(A)(3)(4)(5); La.Rev.Stat. 37:Ch. 4 App. Art. 16. Nor shall a lawyer “[kjnowingly use perjured testimony or false evidence,” “make a false statement of law or fact,” “[participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false”, or “[cjounsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.” Disciplinary Rule 7-102(A)(4)(5)(6)(7); La.Rev.Stat. 37:Ch. 4 App. Art. 16.

A review of the opinion of the United States Fifth Circuit Court of Appeal affirming respondent’s conviction satisfies this Court that Louisiana’s Code of Professional Responsibility has been violated in a manner prejudicial to the administration of justice. The conduct and participation of the lawyers in the scheme “strike[s] at the very heart of our legal profession,” Louisiana State Bar Ass’n. v. Shaheen, 338 So.2d 1347 (La.1976), and reflects upon their lack of moral fitness for the practice of law. Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote such confidence in our system and in the legal profession. Ethical Consideration 9-1; La. Rev.Stat. 37:Ch. 4 App. Art. 16.

Section 8(7)(c), making evidence of conviction conclusive of guilt, is designed to avoid a retrial of the criminal charge of which the respondent has been convicted under constitutional safeguards in a court of competent jurisdiction where the protection of due process guarantees has been fully accorded. Questions of guilt or innocence have been adjudicated, and respondent was ably represented in those proceedings. His conviction has become final and is an accomplished fact.

It is the fact of conviction of a “serious crime” involving “moral turpitude” which renders a lawyer subject to disciplinary action. State v. Gowland, 189 La. 80, 179 So. 41 (1938). Conviction of a serious crime has long been the basis for disbarment in this State. See Section 12 of Article XIII of the Articles of Incorporation of the Louisiana State Bar Association in effect from 1941 to September 1971. Cf. Louisiana State Bar Ass’n. v. Cox, 250 La. 755, 199 So.2d 534 (1967); Louisiana State Bar Ass’n. v. Rayl, 208 La. 531, 23 So.2d 206 (1945); Louisiana State Bar Ass’n. v. Steiner, 204 La. 1073, 16 So.2d 843 (1944); Turner v. Walsh, 12 Rob. 383 (La.1845); Chevalon v. Schmidt, 11 Rob. 91 (La.1845).

Respondent cannot, therefore, demand a full hearing on the question of his guilt or innocence. Otherwise a hearing is provided with all due process guarantees as in civil proceedings. Section 8(8) so declares: “Except as provided hereinabove in this Section, the procedure with reference to proceedings based on a conviction of a crime, shall be conducted in the same manner as in ordinary proceedings.”

Exception 2

Respondent claims that the Committee’s rules prohibit evidence of his detachment from the truly responsible parties and his peripheral involvement in the crimes. Such a prohibition is said to exclude evidence on behalf of respondent in mitigation of the offenses.

Section 8(7)(d) of the Articles of Incorporation set forth the rules to be followed when a respondent has been convicted of a crime after the conviction has become final, that is, all appeals have been concluded or exhausted:

“(d) At the hearing based upon a respondent’s conviction of a crime, the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.”

A contention that respondent should be permitted to present evidence of his detachment from the truly responsible parties and his peripheral involvement in the crime is an offer of evidence which is inconsistent with the essential elements of the crime. It is implicit in his conviction that each element of the crime was established to the satisfaction of the jury beyond a reasonable doubt. Involvement in the crime, whether peripheral or not, was a question for the trier of fact having a direct bearing upon the extent to which respondent’s actions supplied the elements of the crime. Evidence of that character was therefore impermissible under Section 8(7)(d).

Evidence of mitigating circumstances which is permitted by Section 8(7)(d) contemplates evidence tending to support a finding by the Commissioner or this Court that the extent of the disciplinary action to be taken against respondent should be lessened. It necessarily implies the exercise of the judgment of the Court of what is proper under the facts of the particular case. Such evidence would involve circumstances which do not amount to a justification or excuse of the offense or actions of respondent giving rise to his conviction, but facts and circumstances which may properly be considered in mitigation or reduction, of the disciplinary action to be taken. In Louisiana State Bar Ass’n. v. Loridans, 338 So.2d 1338 (La.1976), evidence of mitigating circumstances not inconsistent with the essential elements of the crime was said to include the character of the misconduct on which the conviction was based and, in appropriate cases, the degree of respondent’s complicity, as well as evidence relative to his reputation, post-conviction conduct, the regard in which he is held by members of the legal profession and the community in which he resides, family circumstances and the like. See also Louisiana State Bar Ass’n. v. Shaheen, 338 So.2d 1347 (La.1976); In re Greiner, 61 Wash.2d 306, 378 P.2d 456 (1963).

Exception S

The contention that the record fails to show the essential elements of guilt is also without merit. Discussion of Exceptions 1 and 2 disposes of this contention with the conclusion that the certificate of the conviction is conclusive evidence of guilt of the crime and that only evidence of mitigating circumstances may be offered. These conclusions make it unnecessary to establish the “essential elements of guilt”; only the certificate of conviction and its finality are required.

Exception 4

Section 3 of Article XV of the Articles of Incorporation is general in its application. It prescribes the procedure for entertaining “all complaints” of alleged unprofessional conduct. Section 3 provides that when a formal investigative hearing is held respondent is notified of the detailed specifications of alleged misconduct and he is given a reasonable opportunity to defend himself before the Committee by compelling the attendance of witnesses, books and documents, cross-examining witnesses and representation of counsel.

As a result of that hearing the Committee may dismiss the complaint, issue a reprimand or institute in the Supreme Court a suit for disbarment or suspension of respondent.

Section 8, on the other hand, does not pertain to complaints or unprofessional conduct generally. Section 8 is applicable only when a respondent has been convicted of a crime. And while the question of guilt or innocence of respondent is not at issue in the hearing under this section, evidence of the conviction is required. At the hearing before the Commissioner respondent may offer evidence only of mitigating circumstances. With reference to procedure based on conviction of crimes, the proceedings are conducted in the same manner as ordinary proceedings, Section 8(8).

Thus, respondent’s claim that Section 8 deprives him of his constitutional rights embodied in Section 3 is unfounded. The hearing which respondent seeks on the question of guilt or innocence was accorded at the trial when he was prosecuted for violating federal criminal laws. Proof that the conviction is final ends that question and respondent is not entitled to another hearing to retry his case, only to mitigate the extent of the discipline to be imposed.

In the case of a Section 3 prosecution for disciplinary action, the situation is different. There the hearing is designed to establish the truth or falsity of the alleged unprofessional conduct, issues already determined by the trier of fact in the case of a criminal conviction. There is no deprivation of constitutional rights to a hearing therefore. Reference to the opinion of the Fifth Circuit Court of Appeals involving his conviction answers respondent’s contention. 489 F.2d 51.

Exception 5

Respondent argues that the Committee has based this proceeding upon the Articles of Incorporation of the Louisiana State Bar Association, which became effective September 1, 1971, and has applied those articles to offenses which occurred in 1965 and 1966. This retroactive application is said to offend both State and Federal Constitutions guarantees against ex post facto laws.

This contention has been answered in Louisiana State Bar Ass’n. v. Shaheen, 338 So.2d 1347 (La.1976) and Louisiana Bar Ass’n. v. Hamilton, 343 So.2d 985 (La.1977). Here we find that respondent’s conviction in the trial court was on December 18,1970. His appeal in the Federal Circuit Court was concluded on January 2, 1974, 489 F.2d 51, and became final on July 6, 1974, twenty-five days after the United States Supreme Court denied certiorari. 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664. Since it is the conviction which forms the basis for disciplinary action, and the finality of the conviction is determinative of respondent’s breach of discipline in this type proceeding, the transgression for the purpose of disciplinary action in this case under Section 8 did not occur until July 6, 1974. Dates of the occurrence of the offenses upon which the convictions were based are not a criterion to be considered in a claim of retroactive application of the Articles of Incorporation. Therefore, the Articles of Incorporation which became effective September 1, 1971 are applicable to these proceedings involving a conviction which became final on July 6,1974. Louisiana State Bar Ass’n. v. Hennigan, 340 So.2d 264 (La.1976). Louisiana State Bar Ass’n. v. Ponder, 263 La. 743, 269 So.2d 228 (La.1972), cert. denied, 411 U.S. 901, 93 S.Ct. 1532, 36 L.Ed.2d 303 (1973).

Exception 6

It is incorrect for respondent to assert that his conviction only creates a rebut-table presumption of guilt. While such a result may have followed the decisions in Louisiana State Bar Ass’n. v. Cawthorn, 223 La. 884, 67 So.2d 165 (1953); Louisiana State Bar Ass'n. v. Rayl, 208 La. 531, 23 So.2d 206 (1945); Louisiana State Bar Ass’n. v. Connolly, 201 La. 342, 9 So.2d 582 (1942); Louisiana State Bar Ass’n. v. Leche, 201 La. 293, 9 So.2d 566 (1942), where this Court held that evidence of conviction of a crime created only a rebuttable presumption of respondent’s guilt, Section 8(7)(c) of the present articles makes evidence of conviction “conclusive evidence” of respondent’s guilt of the crime for which he has been convicted. The validity of this provision has been upheld in Louisiana State Bar Ass’n. v. Shaheen, supra, and Louisiana State Bar Ass’n. v. Loridans, supra.

In conclusion, we agree with the Commissioner’s report and find respondent has been convicted of a serious crime which reflects upon his moral fitness to practice law. Under the circumstances of this case disbarment is the appropriate disciplinary action.

For the reasons assigned, it is ordered, adjudged and decreed that Irwin L. Tunis be and he is hereby disbarred from the practice of law in Louisiana and, accordingly, his license to practice is cancelled. Respondent is to bear all costs of this proceeding.

TATE, J., is recused, having appeared as a character witness in the federal proceeding.

DENNIS, J.,

dissents for the reasons assigned by him in Louisiana State Bar Ass’n. v. Shaheen, 358 So.2d 1347.

PER CURIAM.

In his application for a rehearing, respondent’s curator notes that an inference may be drawn that he was negligent from the following language of the Court:

“In his report to this Court the Commissioner noted that the curator’s six exceptions were not timely filed and were therefore waived. Nevertheless, the Commissioner found all exceptions to be without merit and assigned reasons.”

The Court intended no such inference. The record reflects that the exceptions were untimely because respondent, himself, did not file them at “one and the same time” as the remaining exceptions. See Article 15, § 6(a), Articles of Incorporation of the Louisiana State Bar Association.

The motion for rehearing is denied.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Granville TENNANT, Willard Clark, Calvin L. Wilson.
    No. 59450.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      Harold J. Brouillette, Marksville, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Eddie Knoll, Dist. Atty., Jeannette Theriot Knoll, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Granville Tennant, Willard Clark and Calvin L. Wilson were jointly charged by bill of information with two counts of simple burglary. La.Rev.Stat. 14:62. In a joint trial by jury defendants were all found guilty as charged. They were sentenced to serve nine years at hard labor on each count, the sentences to run consecutively. The trial judge also ordered that the sentences of Tennant and Wilson were to run consecutively with any other sentences they were serving. All three defendants rely upon the same five assignments of error for reversal of their convictions and sentences. A pro se brief by Tennant alleges five assignments of error relating to a habeas proceeding in another burglary conviction which was appealed and affirmed. State v. Tennant, 262 La. 941, 265 So.2d 230 (1972). Therefore that pro se brief will not be considered here.

Assignments 1 and 5

Defendants claim that the verdict of the jury is contrary to the law and the evidence in that it is based primarily on the testimony of an alleged accomplice, Donald Ray Caine, whose testimony, on its face, is patently unworthy of belief. His testimony is alleged to be replete with contradictions and changes, particularly from prior testimony at preliminary examinations. In addition, it is asserted that Caine is an admitted narcotic user who testified that he was under the influence of narcotics at the time of the alleged offenses. ,

While conceding that the issue presented by these assignments of error may be considered beyond the scope of appellate review, defense counsel nevertheless argues that the refusal to grant a new trial was an abuse of discretion, a question of law, which may be properly reviewed on appeal in this Court.

The cases relied upon by the defense do not support its position. While the proposition that a question of law is presented when the trial judge has abused his discretion in refusing to grant a new trial has been recognized by the cases relied upon, they do not support the defense position here. State v. Howard, 325 So.2d 812 (La. 1976); State v. Carruth, 311 So.2d 866 (La. 1975); State v. Landrum, 307 So.2d 345 (La.1975); State v. Hatch, 305 So.2d 497 (La.1974), cert. denied, 423 U.S. 842, 96 S.Ct. 76, 46 L.Ed.2d 63 (1975); and State v. Randolph, 275 So.2d 174 (La.1973). The issues considered in those cases did not involve the credibility of witnesses at the trial, the weight to be given to their testimony, or the sufficiency of the ordinance, factual matters within the province of the jury over which this Court has no jurisdiction.

The proper procedure for presenting a question of no evidence to sustain a conviction is to allege that ground as a basis for a new trial in a written motion after verdict and before sentence. La.Code Crim. Pro. 851-58.

Section 5(C) of Article V of the Constitution states: “In criminal matters, its [the Supreme Court’s] appellate jurisdiction extends only to questions of law.” The intent of this constitutional limitation of jurisdiction is reflected in Article 858 of the Code of Criminal Procedure, which implements the Constitution in these words: “Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial, except for error of law.”

The fact that there was some evidence of the essential elements of the crime, no matter how little, denies jurisdiction to this Court. It is only where there is no evidence at all to support an essential element of the crime that a question of law is presented because the law will not sanction conviction of a crime on no evidence. Under this doctrine this Court cannot review the sufficiency of the evidence. A clear case of usurping the jury’s fact-finding prerogative would be presented if this Court approved the defense contention. See State v. Buckley, 344 So.2d 980 (La. 1977); State v. Lewis, 343 So.2d 1056 (La. 1977); State v. Lee, 340 So.2d 180 (La. 1976); State v. Smith, 332 So.2d 773 (La. 1976); State v. Butler, 331 So.2d 425 (La. 1976); State v. Kaufman, 331 So.2d 16 (1976).

These assignments are without merit.

Assignment 2

Motions were filed prior to trial on behalf of defendants to suppress for use as evidence certain objects such as a hammer, an axe, a screwdriver, money and containers seized from Tennant’s automobile on March 29, 1976; the motions alleged that these objects were obtained as a result of an unconstitutional search and seizure.

According to the motions, the automobile was being detained by a deputy sheriff in order that he might question its occupants. No evidence of criminal activity by the occupants had been revealed. The officer searched the automobile, including the trunk, without permission to do so, and without knowing what he would find. There was ample time to secure a search warrant and the action of the officer amounted to an arrest based upon his findings, rather than information within his knowledge providing probable cause for the arrest and the accompanying search and seizure.

The State submits that the search of the vehicle was valid on two grounds: consent was given and probable cause and exigent circumstances were present to justify the warrantless search.

After a hearing the trial judge denied the motion to suppress. Because this ruling is based upon the credibility of witnesses and the weight of the evidence, it shoüld not be overturned in the absence of palpable abuse of discretion. Any other rule will involve this Court in the nearly impossible task of reviewing these factual issues on every motion to suppress. In any event, the following testimony supports a finding by the trial judge that the officer who conducted the search and seizure had permission to do so.

Deputy Sheriff Rick Juneau testified as follows at the motion to suppress:

“Q. Did you search the car in the meantime, sgt. Juneau?
A. Yes, mam.
Q. What point did you search the vehicle?
A. After the driver of the car gave me the consent.
Q. At what point did you ask him?
A. Immediately after he got out and I got his driver’s license. And, after I had patted him down.
Q. Was that immediately after you had patted him down?
A. Yes, mam.
BY THE COURT:
The question the court asked you, was, give us the conversation. You said, he gave you permission to search the car. The driver of the car said you could search the car. And I asked you to tell me the language that you used, if you asked him to search, or he said, look at my car, I’m just resting? I want to know what words were exchanged between you and the man, with reference to searching his automobile.
A. I asked him, may I look inside your car? And, he said, yes, go ahead. And, I did.
Q. Did he object at anytime of you searching the car?
A. No, mam.
Q. Did anyone try to stop you?
A. No, mam.
BY THE COURT:
Did he open the trunk for you to look?
A. No, sir, I opened the trunk myself.
Q. Did he gave you the key?
BY THE COURT:
Yes, did he give you the key?
A. No, sir, I had the keys.
Q. Where did you get the keys from?
A. From the ignition.”

On cross-examination Deputy Juneau testified:

“Q. All right. Now, you said that the driver told you that you could look inside the car, is that correct?
A. Yes, I did.
Q. You never asked them if you could look inside the trunk, did you?
A. Well, said look inside the car, and I assumed the whole car.”

In summarizing the Deputy’s testimony, the trial judge asked:

“BY THE COURT:
Did you ask him two different times to search, or when he told you yes, go ahead and look, you took the keys, and then you had the keys, and you looked through the window, and later you opened the trunk without asking anymore?
A. Correct, sir.
BY THE COURT:
That’s what it is? Okay. You get that?
A. I was by myself; I had the keys.
BY THE COURT:
But, when he came back, you opened the trunk?
A. Right.
BY THE COURT:
After Cal came back? But, you had the keys before, and he had given you permission, before?
A. Right.”
BY THE COURT:
. [H]e just asked, can I look into your car; and he said yes. And, I gather, he reached for the ignition keys. They were in the ignition switch.
A. Yes, sir.
BY THE COURT:
So, he reached . . . but he didn’t look except the main automobile, through the windows. And, when Cal came back, then he opened the trunk on his own. He didn’t ask any more permissions. Now, did he advise him of any further rights?
A. Yes, sir.”

Again on cross-examination, Deputy Juneau testified:

“Q. Okay, now, the consent that you received to search the car, is there any standard procedure that the Police Department has in obtaining the consent?
A. No.
Q. You just simply asked them?
A. In other words, if I asked him consent to search his car, and he says, yes, go ahead . . . He’s voluntarily given me permission to search his car. I need no form or nothing.”

There is no merit to this assignment. A search or inspection conducted with the consent of a defendant is an exception to both the warrant and probable cause requirements of the law. And the volun-tariness of the consent is a question of fact to be determined by all of the facts and circumstances of each case. In such a determination the trial judge’s conclusions on credibility are entitled to great weight. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Schouest, 351 So.2d 462 (La.1977) decided October 10, 1977. State v. Linkletter, 345 So.2d 452 (La.1977); State v. Strange, 334 So.2d 182 (La.1976); State v. Hubbs, 261 La. 173, 259 So.2d 53 (1972).

Assignment 3

Prejudical error is claimed because, over defense objections, the trial judge overruled the motion to sever the cases against the individual defendants.

At the hearing on the motion to sever, defendants Wilson and Clark presented no evidence. Under oath counsel for defendant Tennant testified that his defense strategy would require him to call codefendant Wilson to give testimony favorable to his client. He further stated that, even if Wilson was tried separately and yet refused to testify at defendant Tennant’s trial, he could be compelled to take the stand and assert his fifth amendment privilege, the effect of which would be beneficial to defendant Tennant. Counsel for defendant Wilson was also sworn as a witness and testified that, although he would not permit his client to testify at a joint trial, he would allow him to testify under certain circumstances if defendants were tried separately. In denying the motion, the trial judge explained that if a severance was granted defendant Wilson might nevertheless refuse to testify at Tennant’s trial and Wilson’s assertion of his fifth amendment privilege would raise at most a mere inference in favor of Tennant. The trial judge concluded that no prejudice had been shown warranting severance.

The ruling was correct. The fact that a defendant wishes to call his co-accused to the stand as a witness is not a sufficient ground for a severance since the co-accused may assert his fifth amendment privilege and refuse to testify at the defendant’s trial. State v. Perique, 340 So.2d 1369 (La.1976); State v. Lee, 340 So.2d 1339 (La.1976); State v. Hunter, 340 So.2d 226 (La.1976); State v. Medlock, 297 So.2d 190 (La.1974); State v. Baker, 288 So.2d 52 (La. 1973); State v. Kemp, 251 La. 592, 205 So.2d 411 (1968).

Jointly indicted defendants shall be tried jointly, unless the State elects to try them separately, or the court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance. La. Code of Crim.Pro. art. 704.

Louisiana courts interpreting Article 704 have stated that the granting of a severance rests in the sound discretion of the trial judge and his ruling will not be set aside unless it is manifestly erroneous and injurious to the defendant. State v. Mack, 243 La. 369, 144 So.2d 363 (1962), cert. denied, 373 U.S. 917, 83 S.Ct. 1306, 10 L.Ed.2d 416 (1963); State v. Progue, 243 La. 337, 144 So.2d 352 (1962); State v. Faciane, 233 La. 1028, 99 So.2d 333 (1958).

This assignment is without merit.

Assignment 4

In response to motions for bills of particulars, the State filed answers on May 13, 1976 stating that it did not intend to introduce evidence of other crimes. On October 14,1976, however, the State did file a notice of its intention to introduce evidence that all three defendants committed a burglary of the Deville Post Office in Rapides Parish on the same evening, allegedly, only minutes prior to the two burglaries with which they were charged.

Notice that evidence of the Deville Post Office burglary would be used was filed six days before the trial in ample time for defendants to adjust their defense to the State’s charge. Reasonable notice was given. There is no error in this respect.

The principal issue, however, concerns the defense contention that evidence of the De-ville Post Office burglary did not qualify as an exception to the general rule prohibiting evidence of other offenses.

At the trial Donald Ray Caine, an accomplice of defendants, testified on behalf of the State. Outside the presence of the jury Caine testified that shortly after midnight on March 29,1976 he drove with defendants to the settlement of Deville. Upon arrival they parked the car on the side of the road where defendants got out of the car, taking with them a maul and other tools to the post office.

At the time defendants were wearing gloves. They pried a side window open and entered the building. Fifteen minutes later defendants left the building carrying a money sack, a small round box containing coins, and the tools used in entering the building.

According to Caine’s testimony, they then drove to Cal’s Drive-In where he dropped them off. Once again defendants donned gloves and left the car with their tools. They pried open a side window and entered the building but left hurriedly when an alarm system was triggered. They embarked with Caine again and proceeded to Beauboeuf’s store a few blocks away.

For the third time, with gloves and tools, they ventured forth to burglarize another establishment. While they were at the store Caine noticed Calvin Hayes, Jr., pass by twice in his truck. Hayes was the owner of Cal’s Drive-In, who had been alerted by the burglar alarm. Caine notified Wilson and he and Caine drove away. They were subsequently stopped by Deputy Juneau about 1:30 that morning and the gloves, tools, money sack and box of coins were found in the vehicle they occupied. Ten-nant and Clark were captured later in Baton Rouge.

From this version of what transpired the trial judge admitted evidence of the Deville Post Office burglary to show knowledge, system and intent.

Section 445 of Title 15 of the Revised Statutes permits the introduction of such testimony, in order to show intent by similar acts, independent of the act charged as a crime in the indictment. Section 446 permits testimony of such acts, conduct or declaration of the accused as tend to establish knowledge, intent or system when these elements form an essential part of the inquiry.

Simple burglary requires not only the intentional breaking and entering of a building but also the intent to commit a felony or theft therein. State v. Green, 205 La. 439, 17 So.2d 620 (1944). In all three of these burglaries the actions and methods were strikingly similar, all three occurring within minutes of each other. In the case of Cal’s Drive-In, where no actual theft took place because of the burglar alarm, it was necessary for the State to establish by evidence that the defendants did intend to commit a theft there. This was done by showing an actual theft at the Deville Post Office minutes before involving the same actors using the same system with the same objective (money), the same automobile, the same burglary tools and the same gloves. Buildings in the same general area were entered each time, all three offenses being closely related in point of time, having been committed within less than 90 minutes. State v. Jones, 332 So.2d 466 (La. 1976); State v. Lawrence, 294 So.2d 476 (La.1974); State v. Roquemore, 292 So.2d 204 (La.1974).

There is no merit to this assignment.

Assignment 5

The defense relies upon the foregoing assignments of error to support its motion for a new trial. Since the assignments lack merit, no error was committed when the motion for a new trial was denied.

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

DIXON, J., concurs, disagreeing with the treatment of Assignments # 1 & 5 and Assignment # 4.


text:
    STATE of Louisiana v. Tyronne BARROW.
    No. 59514.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      William Noland, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Based on a charge of armed robbery Tyr-onne Barrow was tried before a jury and found guilty. La.Rev.Stat. 14:64. Before sentence the State filed a bill of information charging him as an habitual offender. La.Rev.Stat. 15:529.1. After a hearing the trial judge found him guilty on September 26, 1975 as a second offender, and he was sentenced to thirty-three years imprisonment at hard labor. Five assignments of error are urged on this appeal.

Assignments 1, 2, 3

During the habitual offender hearing the State offered, introduced and filed in evidence a machine copy of an arrest register and bill of information relating to appellant’s former conviction of simple burglary on July 15, 1974, together with a machine copy of the bill of information charging appellant with armed robbery and a copy of the record showing his conviction of that crime on September 26, 1975.

Defense counsel then said, “I will just offer a general objection to their introduction, Your Honor.” Whereupon, the trial judge admitted the exhibits into evidence, and ordered that defense counsel’s objection be noted.

The law is explicit on this subject. Article 841 of the Code of Criminal Procedure provides that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. At the time the ruling or order of court is made the party concerned must “make[s] known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor." (emphasis added).

A general objection does not satisfy these requirements. The court was not informed of the action the defense desired it to take in connection with the ruling, nor did defense counsel set forth the grounds for the objection. Consequently, if error had occurred, the trial judge was unable to employ the remedial action indicated by a valid objection and thereby avoid a reversal and a new trial with the resulting expense and time consumed to the detriment of judicial economy and the administration of justice. State v. Burnette, 337 So.2d 1096 (La.1976); State v. Sosa, 328 So.2d 889 (La. 1976).

Furthermore, no error is apparent. All of the documents introduced were part of the records of the court in matters involving appellant. The trial judge may take judicial cognizance of these documents under the authority of Section 422 of Title 15 of the Revised Statutes. See State v. O’Day, 191 La. 380, 185 So. 290 (1938) and State v. Schlessinger, 38 La.Ann. 564 (1886).

Assignment 5

Error is alleged to have occurred when the trial judge found appellant guilty as an habitual offender on the evidence presented by the State. Again it must be noted that no proper objection was made as required by Article 841 of the Code of Criminal Procedure.

Referring to Section 529.1(F) of Title 15 of the Revised Statutes, the contention in brief is that the State should have produced properly authenticated certificates of the warden or other chief officer of the prison in which appellant was confined for his first offense under the seal of his office containing appellant’s name, photographs, and fingerprints as they appear in the records of his office, a statement of the court in which the conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison.

Although by the terms of Section 529.-1(F) the properly authenticated certificates of the warden on these documents constitute prima facie evidence of the imprisonment and discharge of the person under the conviction set forth in the certificate, the necessary facts constituting proof that the accused is an habitual offender may be established by other competent evidence. The proof set forth in Section 529.1(F) is neither sacramental nor exclusive to such a showing. State v. Jones, 332 So.2d 461 (La.1976); State v. Montana, 332 So.2d 248 (La.1976).

Here defendant’s conviction of the prior felony was established by the court minutes reflecting a guilty plea on the true copy of the bill of information. His identity was proven by his fingerprints taken in open court and compared by an expert with those on the arrest record of the previous felony corresponding together with the bill of information forming the basis for that conviction.

There is no merit to this assignment.

Assignment 7

While examining Andrew Landos, a bus driver and a State witness in this armed robbery trial, the State established these facts: In the early morning hours of July 3, 1975, Landos stopped his bus at South White and Washington Streets. What appeared to be a toy pistol on the street caught his eye. He picked it up, and realized it was a real gun. Later on his route his supervisor advised him to turn the pistol over to the police, which he did when two policemen arrived. He identified it on the stand, and recognized Officer Miller as the policeman who recovered the pistol.

Previously, Officer Miller testified that he received a call that morning from Andrew Landos, who delivered the pistol to him which he marked with property and evidence tags. He then identified the same pistol Landos had identified as the pistol he found in the street. Officer Miller testified also that he apprehended appellant near the place where the gun was found after a pursuit in which appellant drove 90 miles per hour. During the chase they passed the corner of South White and Washington Streets.

The victim of the robbery had identified appellant as the robber, stated that he had a revolver, and identified the pistol as the robbery weapon. When the State offered the gun in evidence, the defense objected that the proper connexity had not been shown.

It is sufficient for the introduction of demonstrative evidence that the foundation show that it is more probable than not that the object is connected with the case. State v. Walker, 296 So.2d 310 (La.1974). Lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than its admissibility. The weight to be given to the evidence is ultimately a question for the jury. State v. Hunter, 343 So.2d 143 (La.1977). State v. Freeman, 306 So.2d 703 (La.1975); State v. Dotson, 260 La. 471, 256 So.2d 594 (1972). On the basis of these rules there is no merit to the defense objection.

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