author: SANDERS, Chief Justice. TATE, Justice

text:
    STATE of Louisiana v. Doyle LUNEAU.
    No. 56771.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    J. Michael Small, Gravel, Roy & Burnes, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., R. Raymond Arthur, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Doyle Luneau, charged with possession of marijuana with intent to distribute, was convicted of possession of marijuana, a violation of LSA-R.S. 40:966. The trial judge sentenced defendant to pay a fine of five hundred dollars and to serve six months in the parish jail, provided that the jail sentence was to be suspended upon the payment of fine and costs. Additionally, defendant was placed on probation for one year.

Possession of Marijuana, the crime of which defendant was convicted is a misdemeanor. The sentence imposed is such that the case is not appealable. See LSA-Const. (1974) Art. 5, § 5(D). However, under our rules, we are authorized to treat the appeal as a writ application. See Rule 1, § -10, Rules of the Supreme Court of Louisiana (effective January 1, 1974). We shall do so.

Assignment of Error No. 2 having been abandoned during oral argument, defendant relies upon the two remaining assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant alleges that the trial court erred in denying his motion to suppress evidence seized pursuant to a search warrant. He contends that the affidavit upon which it was issued was insufficient.

The affidavit reads as follows:

“APPLICATION FOR AND SWORN PROOF OF PROBABLE CAUSE FOR THE ISSUANCE OF A SEARCH WARRANT HEREIN
“PERSONALLY CAME AND APPEARED BEFORE ME, the undersigned judge of the 10th Jud. Court, Parish of Natchitoches, State of Louisiana, _Robert_Self, of the Natchitoches Parish Sheriff’s Office, who, upon being duly by me sworn, depose (s) and say(s):
“THAT A SEARCH WARRANT SHOULD BE ISSUED FOR THE SEARCH OF a blue over white trailer, located the next to the last trailer on Cane River Ave., Cooper’s Trailer Park. This trailer being occupied by two white males, one being Mark Ny-vall.
“FOR THE FOLLOWING REASONS:
“Nyvall has been observed often in the company of known drug pushers and users. This subject has also been observed frequenting places where illicit drug activities have been performed.
“INFORMANT # 1 states that Ny-vall has, for quite some time, been involved in distribution of drugs. This Informant has been very effective and accurate in past drug case investigations.
“INFORMANT #2 states that Ny-vall will have Marijuana in his trailer for sale some time Wednesday evening, but he is not sure how much he will have.
“INFORMANT # 3 states that Ny-vall approached him today to buy some Marijuana. This Informant states that he has seen this Marijuana in this trailer on Cane River Ave., Cooper’s Trailer Park. This Informant has supplied information that has led to previous drug arrests.”

Article 162 of the Louisiana Code of Criminal Procedure sets forth the requirements for issuing a search warrant:

“A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.
“A search warrant shall include a reasonable description of the things to be seized. When a warrant authorizes the search of a place, it shall designate the place to be searched. When a warrant authorizes the search of a person, it shall name or describe the person to be searched.”

We agree with defendant’s argument that a magistrate — not the affiant— must determine probable cause for issuing a warrant, and that the affidavit must contain specific facts to support a determination of probable cause. LSA-C.Cr.P. Art. 162; State v. Paciera, La., 290 So.2d 681 (1974); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Nathanson v. U. S., 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933).

We are also aware of the United States Supreme Court’s pronouncement in V. S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965):

“ . . . the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law leadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.”

See also, U. S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), and Jones v. U. S., 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

In the present case, the affidavit was made by Deputy Sheriff Robert Self, head of the Narcotics Squad in Natchi-toches Parish. His competence and reliability were known to the district judge. Deputy Self attested to information received from three informants, two of whom had furnished reliable information in the past. The information was to the effect that marijuana was being distributed by one Nyvall, who occupied a described trailer with another unnamed man. One informant stated that he had seen marijuana in the trailer. Another stated that there would be marijuana in the trailer “some time Wednesday evening.” Only later was it ascertained that the second man in the trailer was the defendant Luneau.

In our opinion, the factual information in the affidavit is sufficiently specific to support the issuance of a search warrant. See State v. Paciera, supra.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant alleges that the trial court erred in allowing Deputy Self, over timely objection to testify regarding the manner in which marijuana is imported into the United States, the manner in which it is subdivided, and the manner in which it is sold.

Defendant contends that the reference, in the following testimony by Deputy Self, to marijuana commonly being shipped in from Mexico is irrelevant and excessively inflammatory:

“Q. How does marijuana normally come into this area? In what form?
“A. Marijuana usually comes into this country, and into this area, if it is brought in by a supplier, in a kilo, which is 2.2 pounds. This is a common weight used by dealers
“MR. SMALL: Your Honor, I am going to object to that, because there is nothing in the trial to support the relevancy of that type evidence.
“THE COURT: Objection overruled.
“MR. SMALL: To which ruling I would object.
“WITNESS: (Continuing)
“A. It is commonly shipped in from Mexico and foreign countries in what we refer to as a brick. It appears as a brick. It is 2.2 pounds, in an oblong shape, pressed, formed almost into a solid 2.2 pounds. This is carried in, broken up, crumbled, and then it is broken into one ounce quantities and placed into plastic bags and rolled up. This is commonly called a lid. Then it is sold to the users, the people who buy it.”

[Defense counsel did not renew his objection.]

At the trial, one of the factual issues was whether the marijuana was possessed with the intent to distribute. (Ultimately, the verdict returned was simple possession.) Testimony established that the law enforcement officers found thirty-eight one-lid plastic bags of marijuana at the trailer. The purpose of the foregoing expert testimony was to show that the marijuana was subdivided for sale in accordance with the prevailing practice.

The question to which defense counsel objected (In what form does marijuana come into this area?) was relevant and admissible. That it came in a 2.2 pound brick, but was in one ounce plastic bags when seized is circumstantial evidence of the intent to distribute. Intent “may be inferred from the circumstances of the transaction.” LSA-R.S. 15:445; State v. Triplett, La., 285 So.2d 532 (1973).

The reference to the foreign source of marijuana was not responsive to the District Attorney’s question. This information was apparently volunteered by the witness. That portion of the testimony was inadmissible. It is well established, however, that unresponsive or volunteered testimony is not chargeable against the State as a basis for upsetting a conviction. State v. Howard, La., 283 So.2d 197 (1973); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971); State v. Graves, 259 La. 526, 250 So.2d 727 (1971); State v. Donaldson, 238 La. 265, 115 So.2d 345 (1959).

In the event, however, that the admission of the evidence is chargeable against the State, the error is insufficient on the basis of the record as a whole to warrant a reversal of the conviction. The defendant was convicted, not of possession with the intent to distribute, but of simple possession. In our opinion, the error complained of resulted in no miscarriage of justice, nor did it prejudice the substantial rights of the defendant. See LSA-C.Cr.P. Art. 921.

Assignment of Error No. 3 is without merit.

For the reasons assigned, the application for writs is denied.

TATE, J., dissents and assigns reasons.

DIXON, J., concurs in the writ denial.

CALOGERO, J., concurs.

TATE, Justice

(dissenting).

I respectfully dissent. The second-hand hearsay information set forth by the affidavit did not meet the constitutional standards of reliability required before a warrant may be issued to search a home.

So far as I know, until this case no court has held that the reliability of the af-fiant, the esteemed deputy sheriff in this instance, satisfies the constitutional requirement that second-hand hearsay reports (anonymous insofar as the magistrate to whom the application for a search warrant is presented) demonstrate on their face both the reliability of the information contained and the reliability of the informants. See State v. Paciera, La., 290 So.2d 681 (1974).

In the present instance, permission was sought to search a residence on a given evening-. The affidavit of the deputy informed the magistrate (1) that one of the occupants of the residence had frequently been in the company of drug users and had frequented places where illicit drug activities were concerned (Informant # 1, identified as accurate on the basis of past performance) and (2) that the occupant had approached an informant today “to buy” some marijuana (and that, in the past, the informant has seen marijuana in this residence), (Informant # 2, also identified as reliable on the basis of past performance). (It seems conceded by all except the majority opinion that the information given by informant # 2 cannot be accepted; for the basis for his information and his reliability is not shown — mere conjecture and gossip by an anonymous tipster does not justify the invasion of a home.)

The circumstance that a given person had hung around with drug users and that he had sought today to buy some marijuana does not constitute probable cause to search his home on the possibility that he might have bought some and might have it at his home.

The fundamental constitutional protection of homes against arbitrary searches and seizures is too important to permit gossip and conjecture to serve as a basis, or mere suspicion even by reliable police officers as the present affiant.

The bill of individual rights must be enforced even against well-intentioned officers of government. Its very purpose is to limit the power of any governmental official to, among other things, conduct unreasonable searches of the homes of the people of our state and nation. The courts cannot distinguish between unconstitutional searches by well-intentioned officers and those by officials who deliberately ignore constitutional mandates. In either event, the unconstitutional search must be disallowed.


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    Leonard CHABERT, Individually and as Administrator of the Estate of the minor, Leonard Charles Chabert v. LOUISIANA HIGH SCHOOL ATHLETIC ASSOCIATION and Vandebilt Catholic High School.
    No. 56455.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      Charles Gary Blaize, Gerald A. Bos-worth, Bosworth & Samanie, Houma, for plaintif f s-applicants.
    Charles M. Hughes, Talley, Anthony, Hughes & Knight, Bogalusa, for defendant-respondent.
   DIXON, Justice.

We granted writs in this case because of plaintiff-relator’s claim of discrimination and infringement upon the right to freedom of religion.

Individually and on behalf of his minor son, Leonard Charles Chabert, plaintiff, Leonard Chabert, brought this action against the Louisiana High School Athletic Association (hereafter LHSAA) and Van-debilt Catholic High School, to enjoin the defendants from declaring that Leonard Charles Chabert had forfeited one year’s athletic eligibility pursuant to the LHSAA’s “transfer rule.”

Terrebonne Parish has been divided into three high school districts by the Terre-bonne Parish School Board: Terrebonne, South Terrebonne and H. L. Bourgeois. Leonard Charles Chabert attended La-Cache, a public middle school, during the 1973-1974 school year. Upon completion of the eighth grade at LaCache, which is in the South Terrebonne High School district, Chabert enrolled in Vandebilt, which is in the Terrebonne High School district. Van-debilt is the only Catholic high school in Terrebonne Parish.

Upon his enrollment at Vanderbilt, Leonard Chabert attempted to participate in the school’s interscholastic athletic program as a member of the school’s football team. Vandebilt ruled Chabert ineligible for his first year, because of section 9 (the transfer rule) of the by-laws of the LHSAA of which Vandebilt is a member. It is stipulated that if Chabert had gone to a public high school he would have been assigned to South Terrebonne High School, and would have been immediately eligible for athletic competition. It is also conceded that had the Chaberts lived in the Terre-bonne school district, in which Vandebilt Catholic High is located, he would have been immediately eligible for athletic competition.

The trial court overruled the LHSAA’s exceptions of no cause or right of action, and, on the merits, held that the application of the transfer rule to Chabert and others similarly situated (i. e., those who live outside Terrebonne’s school district, but wish to send their children to a Catholic high school) operates as a deprivation of rights secured by the First and Fourteenth Amendments to the United States Constitution. Specifically, the trial court found that the transfer rule forces only those persons who reside outside Terre-bonne’s school district to forfeit a year’s athletic eligibility, while those who live within Terrebonne’s district and wish to get a Catholic education at Vandebilt do not forfeit any athletic eligibility. Thus, an injunction issued against Vanderbilt Catholic High School and LHSAA prohibiting the enforcement of the transfer rule against Chabert and others similarly situated. Vandebilt Catholic High School did not appeal from this judgment.

On appeal, the First Circuit reversed. Chabert v. Louisiana High School Athletic Association, 312 So.2d 343 (La.App. 1st Cir. 1978). The appellate court found no abridgement of Chabert’s religious freedom nor any deprivation of equal protection. The court found a rational basis between the application of the transfer rule to the evil it was intended to protect against, namely, recruiting. Since the rule had a rational basis, the appellate court found no constitutional infirmity.

Before reaching the merits, several threshold issues must be addressed. First, is the LHSAA and its activities subject to court scrutiny? Secondly, does the LHSAA’s transfer rule apply under the facts of the instant case?

In Louisiana High School Athletic Association v. St. Augustine High School, 396 F.2d 224, 227 (5th Cir. 1968), that court held:

“There can be no substantial doubt that conduct of the affairs of LHSAA is state action in the constitutional sense. The evidence is more than adequate to support the conclusion of the district court that the Association amounts to an agency and instrumentality of the State of Louisiana. Membership of the Association is relevant — 85 per cent of the members are state public schools. The public school principals, who nominally are members, are state officers, state paid and state supervised, and together are the heads of all the white public high schools in Louisiana that participate in interscholastic athletics.”

However, the LHSAA argues that, since it is a private organization, voluntary in nature, this court should not invoke its jurisdiction to inquire into its internal affairs. In Marino v. Waters, 220 So.2d 802, 805 (La.App. 1st Cir. 1969), the court said:

“A basic and widely accepted general rule is ‘that courts will not interfere with the internal affairs of voluntary associations, except in such cases as fraud, lack of jurisdiction, or the invasion of property or pecuniary rights or interests.’ ”

See also Sanders v. Louisiana High School Athletic Association, 242 So.2d 19 (La.App. 3rd Cir. 1970); David v. Louisiana High School Athletic Association, 244 So.2d 292 (La.App. 1st Cir. 1971); Watkins v. Lou isiana High School Athletic Association, 301 So.2d 695 (La.App. 3rd Cir. 1974).

The LHSAA is a voluntary organization of some 450 high schools in the State, 85% of which are public schools. However, the students, coaches and principals are not members of the organization. Marino v. Waters, supra. Therefore, Leonard Charles Chabert is not a member of the LHSAA. This suit is not between the LHSAA and a member school, nor has a member school been penalized as in Sanders, supra. Therefore, while the operation of the transfer rule is called into question in the instant case, this suit is not, contrary to the defendant’s contention, involved solely with the internal affairs of a voluntary organization.

Defendant insists that the plaintiff’s son has no constitutionally protected right to play football, since the participation in extracurricular activities is a privilege, not a right. Mitchell v. Louisiana High School Athletic Association, 430 F.2d 1155 (5th Cir. 1970).

However, in Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29 L.Ed. 2d 534 (1971), the United States Supreme Court abandoned the right-privilege distinction :

. . . But this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a ‘right’ or as a ‘privilege.’ ”

Thus, in Baltic Independent School District No. 115 v. South Dakota High School Activities Association, 362 F.Supp. 780, 785 (S.D.1973), the court stated:

“Defendants raise the issue that participation in extra-curricular activities is outside the protection of due process and thus is not a constitutionally protected right, citing Mitchell v. Louisiana High School Athletic Association, 430 F.2d 1155, 1158 (5th Cir. 1970) and Paschal v. Perdue, 320 F.Supp. 1274, 1276 (D.C. Fla.1970), cases which involved students attempting to get waivers of athletic eligibility requirements. First of all, the decision in this case is made on equal protection grounds, not on grounds of denial of due process. Second, the issue of ‘right’ versus ‘privilege’ was discarded by the Supreme Court in the welfare entitlement case of Graham, v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 .. . ”

In Brenden v. Independent School District 742, 477 F.2d 1292, 1297 (8th Cir. 1973), a contention similar to the LHSAA’s was advanced by the Minnesota State High School League. In rejecting the league’s position, the court stated:

“The High School League contends that relief under the Civil Rights Act is inappropriate because participation in interscholastic sports is a privilege and not a right. We disagree. The Supreme Court has rejected ‘the concept that constitutional rights turn upon whether a governmental benefit is characterized as a “right” or as a “privilege.” * * * ’. Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct 1848, 1853, 29 L.Ed.2d 534 (1971). The question in this case is not whether the plaintiffs have an absolute right to participate in interscholastic athletics, but whether the plaintiffs can be denied the benefits of activities provided by the state for male students.”

Therefore, it is clear to us that the LHSAA’s transfer rule cannot escape judicial review merely because extracurricular activities might be classified as a privilege, not a right. For, as pointed out in Bren-den, supra, the inquiry is not whether Leonard Charles Chabert has the absolute right to participate in interscholastic activities, but whether he can be denied the benefits that other Catholic children similarly situated are provided.

R.S. 17:221 (1966), states in applicable part:

“Every parent, tutor, or other person residing within the State of Louisiana, having control or charge of any child between the ages of seven and fifteen, both inclusive (i. e., from the seventh to the sixteenth birthday), shall send such child to a public or private day school provided that any child below the age of seven who legally enrolls in school shall also be subject to the provisions of this Sub-part. Every parent, tutor, or other person responsible for sending a child to a public or private day school under provisions of this Sub-part shall also assure the attendance of such child in regularly assigned classes during regular school hours established by the school board.”

The Louisiana legislature has declared that education is compulsory between the ages of seven and sixteen. Given such a policy, the Montana district court’s language in Moran v. School District #7, Yellowstone County, 350 F.Supp. 1180, 1184 (Mont.1972), is appropriate:

“In relying on this case the present Montana Supreme Court has recognized the importance of extracurricular activities as an integral part of the total education process. Courts have begun to recognize that extracurricular activities such as football are ‘generally recognized as a fundamental ingredient of the educational process.’ Kelley v. Metropolitan County Board of Education of Nashville, etc., 293 F.Supp. 485, 493 (D.C.1968). See also Lee v. Macon County Board of Education, 283 F.Supp. 194 (D.C.1968). Thus it is apparent that the right to attend school includes the right to participate in extracurricular activities.”

Therefore, LHSAA’s activities are subject to court scrutiny when a litigant contends he is denied equal protection or religious liberty by the enforcement of LHSAA rules.

Next, we must examine the rule involved to determine whether it is applicable here.

Section 9 of Article 1 of LHSAA’s bylaws states, in applicable part:

“Section 9. Transfer Rule.
“Rule 1 — No student who enrolls in one high school and later transfers to, or enrolls in another, shall be eligible to represent the latter school in any athletic contest.
“A student shall be considered as enrolled in a high school when he has enrolled and attended any class in that school. Attendance in any class constitutes enrollment.
“EXCEPTION I — A student who has attended a one, two or three-year high school at the high school level may, upon completion of all grades offered by that school, become eligible at once to participate in athletics upon transferring to a senior high school in his district.
“A student may transfer upon the completion of the seventh or eighth grade to any high school in his home district and be eligible immediately.”

Clearly, Rule 1 of Section 9 does not apply, since Leonard Charles Chabert did not transfer from one high school to another. However, the LHSAA takes the position that the second paragraph of Exception I applies, because Chabert transferred (i. e., graduated) from LaCache, which is in South Terrebonne’s district, to Vandebilt, which is in Terrebonne’s district. By negative inference, therefore, he is not eligible immediately, and Exception II is applicable:

“EXCEPTION II — Any student after completing one year’s attendance from date of enrollment in a high school, and fulfilling all other requirements, becomes eligible.”

Thus, the LHSAA argues, Chabert forfeits one year’s athletic eligibility. (It was stipulated that LHSAA has from the beginning treated all students coming out of an elementary school into a high school as subject to the transfer rule).

While it could be argued that the transfer rule does not require young Chabert to forfeit a year’s eligibility, it is also possible to construe it as has LHSAA. In view of the stipulation concerning the uniform and consistent interpretation of its rule, we find that it is applicable to Chabert and others situated like him.

Having decided that the transfer rule is applicable, we move to the determination of whether its application in the instant case violates any rights secured by the state or federal constitutions.

When the application of a rule or statute is attacked, and- if the rule or statute in question creates a “suspect classification,” then the rule is subject to strict judicial scrutiny and the state (or proponent) must show a compelling state interest if it is to be upheld. Race (Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886)), alienage (Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948)) and religion (Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963)), are “suspect classifications.”

Furthermore, if the classification affects fundamental rights, such as marriage (Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967)), then the strict scrutiny test applies. However, education is not such a fundamental right. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

Otherwise, traditional equal protection analysis sustains a classification if it is not arbitrary and hears a rational relationship to a legitimate state interest. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).

Interscholastic activities, especially such competitive ones as football, require some regulation to prevent obvious abuses. We agree with the LHSAA’s position that the seriousness of recruiting of high school athletes, and even grade school athletes, cannot he overemphasized. Thus, the application of the transfer rule in the instant case must be scrutinized in light of its avowed purpose — preventing the evils of recruiting.

We first consider the applicable standard of review. In Parish v. National Collegiate Athletic Association, 506 F.2d 1028, 1033 (5th Cir.1975), that court held:

“The district court held that ‘[ojbviously, the challenged action by the NCAA is not subject to strict judicial scrutiny.’ 361 F.Supp. 1220 at 1226. We agree. Strict scrutiny is required only when the challenged classification either impinges upon a fundamental right or discriminates against a ‘suspect class.’
“It follows that appellants are entitled to have the NCAA’s challenged classification tested only under the traditional ‘minimum rationality’ standard. Using this test a classification will be upheld if it bears some rational relationship to legitimate state purposes . . . ”

We agree. Applying the traditional equal protection analysis, i. e., whether the transfer rule has a rational relationship to a legitimate governmental interest, we conclude that LHSAA’s transfer rule is not constitutionally infirm.

To discourage unethical recruiting practices, the LHSAA has adopted as district boundaries, across which no student can cross without forfeiting one year’s athletic eligibility, school lines (or attendance areas) designated by the parish school board for the parish’s public high schools. Catholic and other non-public high schools are deemed to be in the same district as the public high school in their school attend-anee area, and therefore bound by its district lines. Rule 2 of Section 9 of LHSAA’s by-laws states, in part:

“Private schools shall be bound by the same school districts or attendance areas designated by the school board for the public school physically located in their area.”

The LHSAA’s transfer rule is not arbitrary: rather, as stated in Marino v. Waters, supra, 220 So.2d at 806:

“The transfer rule of the Louisiana High School Athletic Association has been in effect since around 1920 when the youthful association moved to eliminate the recruiting of high school athletes. The transfer rule, in emphasizing the residence of the parents of the student, is by no means capricious and arbitrary. While it is a rational rule which has apparently produced good results, it is not for this Court to pass upon the merits of this particular rule. This is a matter to be determined by the members of the Association, and it is beyond the power of this Court to impose its ideas of what the rules of the Association should be.”

Nor can it be said that Leonard Charles Chabert’s religious freedom has been abridged. He has not been denied the right to practice his Catholic faith nor has he been denied the right to attend a parochial school. He is, just as all other students, Catholic and non-Catholic alike, whose parents live outside Terrebonne’s school district are, subject to a reasonable, nondiscriminatory rule of athletic eligibility should he choose to attend any school in Terrebonne’s district.

However, plaintiff argues that Terre-bonne Parish presents a unique situation, because Vandebilt is the only Catholic high school in the entire parish. Students whose parents live in Terrebonne’s district can attend Vandebilt and immediately participate in athletics, while students whose parents live outside Terrebonne’s district can attend Vandebilt but must forego one year of eligibility.

We recognize that the application of the transfer rule may work a hardship on plaintiff and others similarly situated. However, that fact does not make the rule unconstitutional. For, as stated by the district court in Parish v. National Collegiate Athletic Association, 361 F.Supp. 1220, 1226 (W.D.La.1973):

“ . . . Although application of the Rule may produce seemingly unreasonable results in certain situations, this is not unusual for use of generalized rules frequently produces irrational results in isolated circumstances. Such results do not condemn those rules under traditional equal protection scrutiny. Here, NCAA has advanced one step at a time, addressing itself to the phase of the problem which then seems most acute to it. . ”

It must be remembered that the transfer rule, applied in this case to Leonard Charles Chabert and Vandebilt, has been uniformly applied to all schools, public and private, throughout the State of Louisiana for over forty years, including religious schools of the Presbyterian, Baptist, Episcopal, Luthern and Catholic faiths that are LHSAA members. As long as the rule is uniformly applied and not arbitrary, and related rationally to a legitimate governmental interest, that rule cannot be said to violate the guarantee of equal protection of the law. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). Such is the case with the LHSAA’s transfer rule.

Accordingly, the judgment of the Court of Appeal is affirmed. Costs attributable to this appeal to be borne by the plaintiff.

SUMMERS, J., concurs in the result only-


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. George Ray LYNCH.
    No. 56701.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Donald Soileau, Mamou, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., for plaintiff-ap-pellee.
   SANDERS, Chief Justice.

The Sabine Parish Grand Jury indicted George Ray Lynch for the second degree murder of Austin Foster. After the trial court overruled several preliminary motions, including a motion to quash the jury venire, the case was tried. The jury returned a verdict of guilty, and the trial judge sentenced the defendant to life imprisonment, without benefit of parole for a period of twenty years.

The defendant appeals, relying upon four assignments of error. Assignments of Error Nos. 5 and 6 were neither briefed nor argued and are, therefore, considered abandoned. See, e. g., State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

ASSIGNMENT OF ERROR NO. 1

The defendant reserved Assignment of Error No. 1 to the overruling of his motion to quash the jury venire. The motion alleged the grand jury venire and petit jury venire did not “fairly represent” the population of Sabine Parish.

Although these allegations are general in nature, the evidentiary record discloses defendant’s main contention is the system used by the Jury Commission for selecting names for the general venire is discriminatory and is not designed to reasonably assure the selection of a fair cross-section of the population.

Two witnesses, The Registrar of Voters and the Clerk of Court, testified on the motion. The parties stipulated that the testimony of the other Jury Commissioners would be substantially the same as the Clerk of Court’s testimony.

The testimony shows that the 1970 parish-wide voter registration list was the last list furnished by the Registrar of Voters to the Jury Commission. The Clerk of Court, however, testified that he received later registration lists from several candidates for public office. In selecting the general venire, the Commissioners used the voter registration list, telephone directories, and their personal knowledge. Each Commissioner had the duty of maintaining a thorough knowledge of two wards.

The Clerk of Court testified that, there was' no discrimination because of race, sex, or other illegal factors in the selection of the general venire.

Article 419 of the Louisiana Code of Criminal Procedure provides:

“A general venire, grand jury venire, or petit jury venire shall not be set aside for any reason unless fraud has been practiced or some great wrong committed that would work irreparable injury to the-defendant.”

From our examination of the testimony, we are convinced that the Jury Commissioners relied substantially upon their personal knowledge of the parish residents. They were able to do so because the parish has a relatively small population. We are equally convinced that the Commissioners made a legitimate effort to provide a fair cross-section of the parish for the jury list. Certainly, there has been no showing of fraud or great wrong required by the above article to set aside the jury venire.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

In Assignment of Error No. 2, defendant complains of the denial of his motion to suppress a confession. He confessed to law enforcement officers a few hours after the homicide occurred.

At the hearing on the motion, defendant testified that he is a 26-year-old former pulpwood hauler with only a fifth grade education; that he could not read; that the officers asked him if he knew his rights, and he responded “What rights ?”; that one officer then threw a piece of paper upon a counter and said “sign .it”; that defendant was afraid, and thus he signed the piece of paper without knowing what it was; that no one advised him of his Miranda rights.

State Trooper Isgitt testified that he arrested defendant in the town of Florien and transported him to the Sheriff’s office in Many. He did not inform defendant of his rights at the time of the arrest but did not question him during the trip to Many. When defendant and Trooper Isgitt arrived at the Sheriff’s office, they were joined by Deputy Wayne Turner.

Officer Isgitt testified to the following: that he read defendant his rights from the Waiver of Rights form; that defendant wanted to sign the form immediately, saying he knew what his rights were and that he just wanted to get it over; that both he and Deputy Turner, nevertheless, went over the rights with defendant; that he told defendant the matter was serious, and that a lawyer could be appointed.

Isgitt stated that he could smell alcohol upon defendant’s breath, but that defendant did not appear to be intoxicated Isgitt decided to run an intoxication test before taking the statement. Defendant was thus informed about the test, and he consented to take it. The test disclosed that he was not intoxicated. A statement was then taken.

Deputy Wayne Turner testified that the waiver of rights form was given to defendant to read. After defendant said he had read it, Turner then read the rights aloud to him. He explained that defendant could have a lawyer if he wanted one. He asked defendant if he understood and defendant said “yes, there’s nothing to it” and signed the form. According to Turner, the intoxication test was not given until after the statement was obtained.

Turner stated that defendant talked freely about the incident. Turner made handwritten notes on a paper pad while defendant was talking. He then typed up these notes and defendant signed the typewritten statement. Turner did not keep the handwritten notes, and they were not available at the hearing or the trial.

The testimony is conflicting as* to whether the intoxication test was given before or after the statement was taken. The time, however, is not crucial. The gist of the testimony is that he was duly advised of his rights and voluntarily gave the statement. We conclude that the State discharged its burden of proof that the confession was free and voluntary.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

Defendant objected during the trial to the introduction into evidence of the signed waiver of rights form and the signed typewritten confession. Defendant asserts that the documents should have been excluded from evidence because Deputy Turner destroyed his handwritten notes recording defendant’s statement. Defendant argues, that the handwritten notes may have differed from the typewritten statement and that there was a suppression of favorable evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Deputy Turner testified that he never keeps the notes he makes in preparation for typing a statement or confession. He stated that he read the statement to defendant after it was typed, and defendant voluntarily signed it.

In our opinion, the holding of Brady v. Maryland, supra, is inapplicable here. That decision applies only when the prosecution knowingly suppresses evidence that will either exculpate the defendant or reduce his sentence. No such suppression occurred in the present case.

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

      . By stipulation, the evidence is the same as that taken in State v. Hopkins, in which a writ was denied by this Court on March 6, 1975. We stated: “Relator has an adequate remedy by appeal in the event of conviction. Because of the absence of a clear showing of error and the time element, the court does not rule on the matter at this time.” See State v. Hopkins, La., 309 So.2d 337 (1975).


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Sylvester LUCIEN and Gregory Marino.
    No. 56522.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Tilden H. Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for defendant-appellant Gregory Marino.
    Lyall G. Shiell, Jr., New Orleans, for defendant-appellant Sylvester Lucien.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Sylvester William Lucien and Gregory Marino were charged jointly in a bill of information with the armed robbery of Frank Matulo in violation of La.R.S. 14:64. A trial by jury resulted in a verdict of guilty as charged. Each defendant was sentenced to serve thirty-five years at hard labor. On appeal, defendants rely upon a single assignment of error for reversal of their convictions and sentences.

FACTS

On October 16, 1972 at about 12:50 p. m., Frank Matulo, manager of the Tenneco food store and gas station located at 7200 Downman Road in the City of New Orleans, was robbed at gunpoint by two black males. They sought to escape in their car, a white Mustang, but because of an apparent breakdown, were forced to abandon the car within the immediate vicinity of the station. The perpetrators were picked up by an accomplice in another car. A cab driver, who was passing at this time, saw these men alight from the parked Mustang and enter and drive off in the other car. The cab driver became suspicious when he noticed that one of these men was carrying a white money bag similar to that used in banks. Because of his suspicions, the cab driver radioed to his dispatcher the license number of the car used by the men to leave the scene. This information, together with a description of the robbers given by the victim and the name and address of the owner of the Mustang, was broadcast over the police radio. About forty-five minutes later, a police officer who had received this information over the radio was cruising in the area of the address of the owner of the Mustang when he was approached by a young lady in the company of two men. She reported that her white Mustang had been stolen and identified herself as Verna Conaler. Her description of the car matched that of the abandoned Mustang. The physical characteristics of the two men fit the description of the persons involved in the armed robbery of the Tenneco station. The two men, Sylvester Lucien and Gregory Marino, were immediately placed under arrest and transported to the scene of the crime where they were identified by the victim. Later at the police station, after being advised of their rights, defendants related to the officers the events of the robbery and furnished information that the gun used, the clothing worn and the money taken during the robbery could be found at the house of Lucien’s sister, Verna Conaler, located at 3715 Pleasure Street, apartment A, in New Orleans. A search warrant issued for a search of these premises. A gun, clothing and money were recovered there.

ASSIGNMENT OF ERROR NO. 1

The sole assignment of error is based upon the admission of confessions and/or inculpatory statements of defendants into evidence without requiring the state to lay a proper foundation. In order to evaluate the merit of this contention, we must consider the facts surrounding their admission in evidence.

The search warrant in this case issued for the search of the premises 3715 Pleasure Street, apartment A, the residence of Lucien’s sister, Verna Conaler, where there was allegedly concealed a sawed-off shotgun, clothing and money. The application for the search warrant, a two-page document, was made by Detective Rhett Mag-non. It contains the following recital of facts on the second page of the instrument:

On 10-16-72 at 12:50 P.M. an armed robbery occurred at 7200 Downman Rd.
The perpitrators [sic] car broke down in front of the gas station as .they attempted to leave. The perpitrators [sic] then got into another car and made good their escape. About an hour later the registered owner of the vehicle left on the scene called tht police to report the car stolen. When the police went to her house they observed that the victim of the car theft brother and his friend fit the description of the perpitrators [sic] of the armed robbery. At this time the officers taking the theft report took the two negro males back to the scene of the armed robbery. At the scene the two subjects were positively identified as the perpetrators of the armed robbery. These two subject were Sylvester Lu-den 3715 Pleasure St. Apt. A and Gregory Marino staying at the same address. After being read their rights and the two subjects signed their rights forms waivering [sic] their rights and gave the officers a verbal account of the armed 'robbery. The two arrested subjects told officers that the sawed off shot gun the clothing and the money were in the residence located at 3715 Pleasnure St. Apt. A.

(Emphasis added.) Additionally, a return indicates that the said search warrant was executed by Detective Emmett Dupas. It contains an inventory of the property seized (gun, clothing and money) and gives a description of said property. The return further states that a copy of the warrant was left with Verna Conaler together with a receipt of the items seized.

Prior to trial, pursuant to article 768 of the Code of Criminal Procedure, the state gave notice of its intention to introduce confessions and/or inculpatory statements of defendants in evidence. At trial, Officer Dupas testified that he was the officer who executed the search warrant and described the gun, clothing and money which he seized. He further stated that he left a copy of the search warrant with Verna Conaler and on the reverse side wrote down the items which he had removed from the apartment. On cross-examination, he was examined as to the items contained in the search warrant. Thereafter, he was asked if he had given a receipt for that which he had taken on the back of the search warrant, to which he replied: “As I recall, I did.” The question that followed was: “Is there anything written on the back of the search warrant?” Dupas replied: “No sir.” The state then offered the gun, clothing and money in evidence without objection. At this point, defense counsel made an offer in evidence of a copy of the search warrant which had been identified by Officer Dupas (D-l). The state objected on the ground that it was not admissible “unless the entire warrant goes with it,” making reference to the application for the search warrant and the return. Defense counsel stated that his purpose in offering D-l was that this was the “copy which had the alleged receipt on the back.” The trial judge ruled that the application for the search warrant, the search warrant and the return must all be introduced “in its entirety.” Counsel for defendant and the state then approached the bench and, out of the hearing of the reporter, argued the matter. Defense counsel" then renewed the offer of D-l (search warrant). It was ruled admissible. The state then offered the other documents, i. e., the application for the search warrant and the return (S-6). Objection was made by defendants that the application contained hearsay evidence. The objection was overruled, and S-6 (application and, return) was received in evidence and exhibited to the jury. Defendants reserved a bill of exceptions (assignment of error).

The state argues in support of the court’s ruling that the application for the search warrant and the return were properly admitted in evidence under the general rule that, where a party introduces in evidence a part of the document to show inconsistencies between the document and the testimony of a witness, the other party, in order to prevent a false impression in the minds of the jurors, may introduce the remaining portion of the document as long as it is relevant and material to the part previously introduced, citing as authority Corpus Juris Secundum:

Evidence otherwise inadmissible is frequently admitted because of the fact that similar evidence has been introduced by the adverse party; and accordingly the introduction by one party of part of a conversation, writing, or transaction may entitle the adverse party to introduce the whole thereof, provided it is relevant and material to the portion previously introduced, and explanatory thereof.

31A C.J.S. Evidence § 190. We do not agree that this rule is applicable here. Defendants make no complaint regarding the introduction of the return in evidence. Therefore, we will address ourselves solely to the introduction in evidence of the application for the search warrant. While an application for a search warrant containing the affidavit upon which the search warrant is used is closely related to the search warrant, we are unable to say that it is a part of the search warrant itself. Not forming part of the same document, the general rule advanced by the state does not support its admission in evidence. Furthermore, we seriously doubt that the recital of facts contained in the application is relevant and material to the purpose for which the search warrant was here introduced. Hence, the trial judge erred in receiving the application for the search warrant in evidence on this ground.

We note at the outset that the objection contained in the transcript is that the application for the search warrant contains hearsay evidence. This objection was correct in that the recital of facts contained in the application is primarily based upon hearsay evidence. Nevertheless, we do not consider the admission of this objectionable hearsay evidence reversible error in view of the fact that the record reflects that all of the admitted hearsay evidence contained in the application had been previously received through competent evidence. See State v. Brown, 288 So.2d 339 (La.1974); State v. Maiden, 258 La. 417, 246 So.2d 810 (1971). Hence, the hearsay evidence was merely cumulative and non-prejudicial. Furthermore, defendants no longer urge this ground on appeal. What defendants argue and what concerns us is the admission in evidence of that portion of the application that contains the confessions and/or inculpatory statements of defendants without requiring the state to lay a proper foundation as to the free and voluntary nature of these statements.

The state does not contend that any foundation was laid. Unlike our previous dispositions of the admission of objectionable hearsay evidence, no other confessions and/or inculpatory statements ■ of defendants were introduced in evidence during the trial. There can be no serious doubt that admission of confessions and/or inculpatory statements of defendants without foundation over defendants’ objection would constitute reversible error. However, we must initially direct our attention to whether defendants made known to the trial judge the ground for their objection at the time it was made. See La.Code Crim.P. art. 841 (1966). As previously noted, the transcript only reflects that the objection was based on hearsay evidence. A confession is received in evidence as a time-honored exception to the hearsay rule. Therefore, it might be argued that defendants did not properly inform the trial judge as to the basis for their objection, i. e., that no foundation had been laid for the introduction of the confessions. The transcript reflects that at the time the objection was argued, counsel for defendant and the state approached the bench and a discussion followed outside the hearing of the reporter. In the bill of exceptions submitted to and signed by the trial judge, it is stated that the court allowed in evidence over defendants’ objection the search warrant containing “hearsay affidavits by the police and a summation of alleged confessions by the defendants for which confessions no predicate had ever been laid.” Further, the trial judge’s per curiam indicates that defendants’ objection was predicated on the fact that the state’s offer contained an “admission by them that they had committed the robbery and had hidden the gun used therein in the defendant Lucien’s sister’s house.” Also, applications for a new trial filed by defendants allege the trial judge erred in “allowing the State to introduce into evidence the application for the search warrant, when no predicate . had been made.” In view of the foregoing, we are satisfied that defendants stated the proper ground for their objection at the time it was made. Furthermore, the state does not argue to the contrary.

Accordingly, we conclude that the trial judge committed reversible error in receiving in evidence the application for the search warrant which contained the confessions and/or inculpatory statements of defendants without requiring the state to lay a proper foundation over defendants’ objection.

DECREE

For the reasons assigned, the convictions and sentences of defendants are reversed and set aside. The matter is remanded for a new trial.

SUMMERS and BOLIN, JJ., dissent.

      . La.B.S. 15:451 (1966) recites:
      Before what purposes 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.
      Article I, Section 11 of the Louisiana Constitution of 1921 (applicable at the time of the trial) provides in part: “ . . . nor shall any confession be used against any person accused of crime unless freely and voluntarily made.”

      . La.Code Crim.P. art. 841, as amended by La.Acts 1974, No. 297, § 1 provides in pertinent part:
      It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes 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.


author: CALOGERO, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. George Henry ALFORD and Gayle Baker a/k/a Gayle Alford.
    No. 56226.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Dissenting Opinion Dec. 19, 1975.

      Joseph D. Guerriero, Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiffs-respondents.
   CALOGERO, Justice.

Defendants George Henry Alford and Gayle Baker were charged in a bill of information with possession of marijuana, a violation of La.R.S. 40:966. On April 1, 1975, they were tried by a judge and found guilty. George Alford was sentenced to pay a fine of $300 and court costs and to serve thirty days in jail, or, in default of the payment of the fine, to serve an additional sixty days. Gayle Baker was sentenced to pay a fine of $150 and costs, or in default, thirty days. We granted certio-rari to review the correctness of the trial judge’s denial of defendants’ motion for a directed verdict. We now reverse.

In the early morning hours of January 8, 1975, members of the Ouachita-Morehouse Narcotics Strike Force raided a home in West Monroe to execute a previously-issued search warrant. Named in the warrant was Charles Morgan, who rented and occupied the house in question. The oath in support of the search warrant recited that an informant had made a purchase of the illegal substance from Mr. Morgan at his house. Neither the search warrant nor the affidavit mentioned either of the defendants herein. The officer who conducted the search, Detective Pickens, testified that he had never heard of these two defendants before the search. When the officers arrived at the house, it was unoccupied. The search commenced and a small amount of marijuana was found hidden in several locations throughout the house. Also two prescription bottles, in the names of “Gayle Alford” and George Alford, respectively, were found in one of several cardboard boxes in a kitchen closet. No illegal drugs were found in the bottles.

After the search was completed, officers heard a car pull into and out of the driveway. They pursued the car but were not able to stop it until it was three-fourths of a mile from the house, because, as Detective Bougere testified,

“We had some difficulty. We had to move some [police] cars out of the way so we could pursue it in a marked unit where we could stop the vehicle.”

He testified that he had no difficulty apprehending the vehicle and that when he arrested the two defendants who were in the car that they were “very cooperative.” They volunteered, he said, that they had been staying at the Morgan home “for approximately three weeks and that was all, no more than three weeks.” The defendants and their vehicle were searched.

It is undisputed that no marijuana was found on the persons of the two defendants or in their car. No evidence was introduced to prove that any of the belongings in the house were owned by defendants. They were not at the house at the time it was searched. They were not arrested at the house. They were not seen in the house at any time by any witness. The state did not attempt to prove that they knew, or were in any way associated with Charles Morgan, who rented the house. Only two scraps of evidence were even introduced to link defendants to the house: the two prescription bottles which bore the names of Gayle and George Alford, respectively; and the uncorroborated statement by a policeman that defendants had volunteered that they had lived in the Morgan home for an undesignated three-week period.

The plastic bags containing the microscopic gleanings produced by the search were so well hidden in the house that their presence probably would not have been known to a continuous resident of the house, much less a temporary guest. The marijuana gleanings (along with cigarette papers, pipes, and other smoking paraphernalia) were in these locations: in a sealed coffee can on top of the refrigerator in the kitchen; in an aspirin bottle and bags in a closed metal file box which was on the top of a chest of drawers in a bedroom closet; in a pipe found in the kitchen in a cardboard box which was piled beside several other cardboard boxes. A “larger” amount of marijuana, weighing nine grams (approximately one-third of an ounce), was found in a plastic sack on a shelf of a serving tray inside a kitchen cabinet under the sink.

The state contends that it had presented evidence of constructive possession, making proper the judge’s denial of defendants’ motion for a directed verdict.

Under our law, an individual need not personally possess a drug to violate a law against its illegal possession, because constructive possession is sufficient. But for a person to constructively possess a drug it must be subject to his dominion and control, and he must have knowledge of its existence. If the state has presented some evidence of these elements, then this Court will not reverse a trial court’s denial of defendants’ motion for a directed verdict. State v. Ford, 315 So.2d 276 (La.1975); State v. Douglas, 278 So.2d 485 (La.1973).

In our recent unanimous opinion in State v. Cann, 319 So.2d 396 (La.1975), we reversed a defendant’s conviction for constructive possession of marijuana in a similar case. Defendant Cann was in the apartment of another person when police came to execute a search warrant. The officers found six bags of marijuana in plain view and a pound of marijuana and eight bags in a box in the kitchen, as well as gleanings in the garbage outside the apartment. However, no marijuana was found on the person of the defendant or in the bedroom where he was found. This Court held that defendant did not constructively possess the marijuana which was in the apartment because “the mere presence of someone in the area where the controlled dangerous substance is found, or the mere fact that someone knows the person who is in actual possession of the controlled dangerous substance is insufficient to constitute constructive possession by that person.” 319 So.2d at 397. Again, we stated that “[i]n order to convict a person on the • basis of constructive possession, something more than mere presence in the area where the drug is found or mere association with the person in actual custody of the drug must be shown.” 319 So.2d at 397-98. In that opinion, this Court reviewed federal and state jurisprudence in this area to determine what facts have been found to support findings of constructive possession.

In the case before us now, the state presented evidence tending to prove that 1) less than an ounce of marijuana was found in a house rented by someone other than defendants; 2) that defendants had stayed in the house for several weeks; and 3) that defendants drove into the driveway of the-house, pulled out, and continued down the street.

However, the state offered no evidence of the following: 1) that these defendants knew or had reason to know there was marijuana in the house; 2) that these defendants knew or were associated with Charles Morgan, who rented the house; 3) that defendants had been in the home on the morning of or the day preceeding the search; 4) that anyone other than Charles Morgan had access to the home and its contents; 5) that any drugs were found on the persons of these defendants, in their automobile, in the suitcases in the bedroom (assuming what is unproven, that those suitcases belonged to defendants), or in the two prescription bottles bearing the names Gayle and George Alford, respectively; 6) that these defendants in any way had any control over the marijuana that was found in the apartment.

We find that the state presented no evidence that either defendant had or shared dominion or control of the marijuana found in the house which would constitute their constructive possession of the illegal drug. The motion for a directed verdict should have been granted.

For the reasons assigned, the convictions and sentences of these two defendants are reversed and set aside, and the case is remanded to the trial court for proceedings consistent with this opinion.

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

SUMMERS, J., dissents and will assign reasons,

SUMMERS, Justice

(dissenting).

Defendant George Henry Alford and Gayle Baker, also known as Gayle Alford, were charged by bill of information with possession of marijuana contrary to Section 966 of Title 40 of the Revised Statutes. They were found guilty in a bench trial. George Alford was sentenced to pay a fine of $300 and costs and to serve 30 days in jail. Gayle Alford was sentenced to pay a fine of $150 and costs, and in default of the payment of the fine to serve 30 days in jail.

The defendants applied for writs which this Court granted.

The sole issue for our determination is the correctness of the trial judge’s denial of the defendant’s motion for a directed verdict. There is no evidence in this record except that presented on behalf of the State.

Detective Kelly of the Ouachita-More-house Parish Strike Force made oath on January 2, 1975 that within 48 hours prior to that date he had received information from a confidential informant that Charles Morgan was “dealing marijuana.” At that time the informant and his vehicle were searched and no drugs were found. By prior arrangement, while the informant went to Morgan’s residence, he was kept under surveillance by Detective Kelly. The informant entered the house and immediately returned with a quantity of marijuana which he said he had purchased from Morgan.

Based upon this affidavit, the district judge issued a warrant to search for marijuana the premises of “A grey siding house located at 1015 Dean Chapel Road in Ouachita Parish outside of West Monroe, Louisiana and occupied by a white male known as Charles Morgan.”

Armed with the search warrant Detectives Dan Pickens and Frank Bougere, assigned to the Ouachita-Morehouse Parish Strike Force, searched the premises at 1015 Dean Chapel Road in the early morning hours of January 8, 1975. The house, which was then rented to Morgan, was unoccupied at the time.

In rapid succession they jointly searched for and found a one-pound size Folger coffee can on top of the kitchen refrigerator in plain view. The can contained two cigarette rolling devices, three packages of cigarette papers and one clear plastic bag containing marijuana seeds.

On a chest of drawers in a walk-in dos-, et between two bedrooms they found a metal box containing six empty clear plastic bags, one aspirin bottle containing marijuana seeds, one brown paper bag containing three clear plastic bags in which marijuana was present, and a large plastic bag enclosing smaller plastic bags with marijuana seeds and Top Bond cigarette papers in them.

A serving tray was discovered in a lower kitchen cabinet. A plastic bag with marijuana, a cigarette rolling device and one package of Job Brand cigarette papers were in plain view on the tray.

In a closet off the kitchen in a cardboard box they found pipes and two bottles with prescription labels bearing the names of Gayle and George Alford, respectively. On'e of the pipes contained gleanings of marijuana. Two open suitcases were found in a bedroom, one containing a woman’s clothes.

Expert testimony was presented by the State to establish that the substances seized were marijuana.

While the search was being conducted police in two marked police cars joined the detectives. These cars were parked near the house" which was set back some distance from the public street. Toward the end of the search, one of the officers noticed an orange Volkswagen entered the driveway and approach the house. Before reaching the house, the occupants of the Volkswagen apparently observed the marked police cars for the first time. They then came to an abrupt stop, backed rapidly into the street and headed south at a high rate of speed.

Detective Bougere and Trooper Warner got into a State police vehicle parked nearby and drove in pursuit of the Volkswagen. After a chase of about three-fourths of a mile, the Volkswagen was stopped and the defendants were identified and arrested. They were then given the Miranda warnings.

In a conversation between the officers and defendants which followed, the officers noted that their search revealed open suitcases present in one of the bedrooms of the house at 1015 Dean Chapel Road indicating that someone had been staying there for a short length of time. They also remarked that one of the suitcases contained a woman’s clothes. Defendants then acknowledged to Detective Bougere that they had been living at the house for approximately three weeks.

The pervading presence of marijuana and marijuana paraphernalia in the house; the bottles with prescription labels in their names; the fact that only one woman resided there; the presence of the opened suitcases, one containing a woman’s clothes, confirming the transient character of their residence within the house where the marijuana and marijuana paraphernalia were found; the significant fact that upon observing the police cars at the house defendants fled the scene prior to their apprehension; and their admission that they had been staying in the house for three weeks presents incriminating facts which, though circumstantial, furnished adequate evidence upon which the trial judge could infer that defendants knew of the presence of marijuana and shared the control over the substance with Morgan. From these unrefuted and unrebutted facts the trial judge could properly conclude that defendants were placed “within such close juxtaposition to the narcotic drugs as to justify the jury (trial judge) in concluding that the [drug] was in [the(ir)] possession.” Hunt v. State, 158 Tex.Cr.R. 618, 258 S.W.2d 320.

This Court has consistently read Article 778 of the Code of Criminal Procedure to mean that on review of the denial of a directed verdict this Court cannot upset the findings of the trier of fact on issues bearing upon guilt or innocence, unless there is no evidence at all to prove the crime charged or an essential element thereof. Thus, if there is some evidence, no matter how little, the determination of the trier of fact must stand. State v. Douglas, 278 So.2d 485 (La.1973) and cases following.

Defendants were charged under Section 966(C) making it unlawful “. . . for any person knowingly or intentionally to possess a controlled dangerous substance,” in this case marijuana.

By repeated decisions of this Court it has been held that guilty knowledge is an essential element of the crime of possession. State v. Knight, 298 So.2d 726 (La.1974); State v. Porter, 296 So.2d 302 (La.1974); State v. Smith, 257 La. 896, 244 So.2d 824 (1971); State v. Kreller, 255 La. 982, 233 So.2d 906 (1970); State v. Williams, 250 La. 64, 193 So.2d 787 (1967). Guilty knowledge and intent, though a question of fact, need not be proven as a fact, it may be inferred from the circumstances of the transaction. La.R.S. 15:445. “When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent . . . .” La. R.S. 15:446.

And one need not personally, actually and physically possess the controlled dangerous substance to violate the prohibition against possession; constructive possession is sufficient. The rule is set forth in State v. Smith, 257 La. 1109, 245 So.2d 327 (1971);

“A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Also, a person may be deemed to be in joint possesion of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control of it.” State v. Smith, 257 La. 1109, 245 So.2d 327 (1971). See also State v. Knight, 298 So.2d 726 (La.1974); State v. Porter, 296 So.2d 302 (La.1974); State v. Williams, supra; Spataro v. State, 179 So.2d 873 (Fla.1965).

The law in this State, and generally elsewhere, recognizes that flight is a legitimate ground for the inference of guilt; Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); State v. Johnson, 249 La. 950, 192 So.2d 135 (1966). And evidence to show that the accused fled the scene of the crime to avoid apprehension after commission of the crime is admissible to show consciousness of guilt, and it is immaterial whether flight occurs before formal charges are filed, before arrest, after arrest and admission to bail, or after arrest and escape from jail or from the custody of law enforcement officers. State v. Neal, 231 La. 1048, 93 So.2d 554 (1957). See also State v. Lane, 292 So.2d 711 (La.1974); State v. Nelson, 261 La. 153, 259 So.2d 46 (1972).

Upon these facts and principles of law, the trial judge correctly denied the motion for a directed verdict.

I cannot agree that there was no evidence at all upon which the trial judge could conclude that these defendants constructively possessed marijuana. This Court cannot constitutionally decide the guilt or innocence of persons charged with crime. Only questions of law are reviewable. La.Const. art. V, § 5(C) (1974).

I respectfully dissent.

      . There was some conflict in the evidence as to whether any marijuana was found in the cardboard box in which the prescription bottles were found but, looking at the evidence in the manner most helpful to the state, four smoking pipes were found in the same box. Only one of the pipes contained marijuana, and it contained, according to the state’s expert, “not over two hundred milligrams” of marijuana, an amount which was “microscopic in nature.”

      . It might be noted that in brief defendants contend that, as part of their case, they took the stand to say that they had never lived at the Morgan home and had never said that they had lived there. For purposes of consideration of the motion for a directed verdict, however, we must accept as true all of the state’s evidence including the police officer’s testimony that defendants admitted living in the house.


text:
    WALLACE STEVENS, INC. v. LAFOURCHE PARISH HOSPITAL DISTRICT NO. 3 and South Central Bell Telephone Company.
    No. 56165.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    John E. Conery, Lippman, Hunter & Rawls, Franklin, for plaintiff-applicant.
    Victor A. Sachse, Breazeale, Sachse & Wilson, Baton Rouge, M. Robert Sutherland, Slidell, for South Central Bell Telephone Co.
    Francis Dugas, Dist. Atty., Walter Na-quin, Jr., Asst. Dist. Atty., for Lafourche Parish Hospital Dist. No. 3.
   SANDERS, Chief Justice.

Wallace Stevens, Inc. brought this suit to enjoin Lafourche Parish Hospital District No. 3 from subscribing for telecommunications services from South Central Bell Telephone Company without first receiving public bids on the telephone equipment to be placed in the hospital. The district court dismissed plaintiff’s suit. Plaintiff appealed, and the Court of Appeal affirmed. La.App., 308 So.2d 299 (1975). On plaintiff’s application, we granted cer-tiorari to review the judgment of the Court of Appeal. La., 313 So.2d 246 (1975). Now concluding that the judgment of the Court of Appeal was correct, we affirm.

The Lafourche Parish Hospital District No. 3, a public body, was constructing a new hospital. Wallace Stevens, Inc. sells, distributes, leases, rents, and maintains telephone equipment. Stevens’ agent contacted representatives of the hospital district, requesting an opportunity to bid on the purchase or lease and installation of the hospital’s telephone equipment. The hospital district representatives contacted South Central Bell, a regulated public utility, for telephone service information. Subsequently, the hospital district agreed to subscribe for telephone services from South Central Bell. Plaintiff then filed this suit seeking to enjoin the hospital district from subscribing for telephone services without first receiving public bids, in accordance with the Louisiana Public Bid Law.

At trial, the hospital district officials testified that, after consideration, the Board of Commissioners of the hospital district decided to obtain complete telephone services from South Central Bell, including the incidental use of its telephone equipment, rather than purchasing or leasing equipment from an independent telephone equipment company. The Board of Commissioners apparently arrived at this decision because of the high initial cost of purchasing or leasing the equipment from a telephone equipment company. Thus, the primary issue is whether the hospital district’s contracting for total telephone services without receiving bids is in violation of the Public Bid Law, LSA-R.S. 38:2211.

At that time, LSA-R.S. 38:2211 provided, in pertinent part:

“All public work to be done, exceeding the sum of two thousand five hundred dollars, including both labor and materials, by any public corporation or political subdivision of the state and all purchases of materials or supplies exceeding the sum of one thousand dollars to be paid out of public funds shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans and specifications as advertised; and no such public work shall be done and no such purchase shall be made except as provided in this Part. The advertisement shall be published once a week for three different weeks in a newspaper in the locality, the first advertisement to appear at least fifteen days before the opening of bids; provided that when the advertisement is published in a daily newspaper in the locality, the advertisement shall be published three times within ten days, the first advertisement to appear at least ten days before the opening of bids.” (Italics ours.)

The Public Bid Law is a salutary provision designed to protect the public fisc from favoritism and exorbitant costs. Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627 (1943). The statute, however, does not apply to every contract of a governmental agency.

To fall within the above statute, a public corporation or political subdivision must either have a “public work” to be done exceeding $2500, including both labor and materials, or purchase “materials or supplies” exceeding the sum of $1000. Otherwise, there is no requirement for public bids. The amount of the expenditure here is not in dispute, as the parties have stipulated that the cost of telephone service exceeds the amounts set forth in the statute. The plaintiff strongly contends that the contract involves either a purchase of materials or a public work.

Initially, we note that the hospital district contacted South Central Bell requesting telephone service. The hospital district bought no equipment, nor did it agree to buy any as part of the service contract. South Central Bell owns the equipment installed for service to a subscriber. We readily conclude, therefore, that the transaction was not a purchase of materials or supplies within the terms of the statute.

The remaining question is whether this acquisition of telephone service constitutes a “public work” within the intendment of LSA-R.S. 38:2211.

Black’s Law Dictionary, p. 1781 (4th Ed. 1968) defines “public work” as:

“Worlcs, whether of construction or adoption, undertaken and carried out by the national, state or municipal authorities, and designed to subserve some purpose of public necessity, use, or convenience; such as public buildings, roads, aqueducts, parks, etc. . . . All fixed works constructed for public use . . . ”

In construing the Texas Public Bid Law in Employers’ Casualty Co. v. Stewart Abstract Co., 17 S.W.2d 781 (1929), the Commission of Appeals stated:

“Now every contract entered into, and every work undertaken by the state, county, municipality, or other agency enumerated in the statute is necessarily, in the broadest sense, a ‘public work’, for such agencies are public agencies and act only for the public. But obviously the words ‘public work’ were not used in that broad sense, for that would make the statute applicable to every contract of whatsoever character, a conclusion at once unreasonable. The ‘public work’ contemplated was meant to embrace those contracts akin to building contracts. This intention is not alone supported by the doctrine of ejusdem gener-is, but other language of the statute itself accentuates that construction, for it gives the right of intervention and recovery upon the bond to those persons who have furnished labor or materials ‘used in the construction or repair of any public building or public work.’ ” (Italics ours.)

In State v. A. H. Read Co., 33 Wyo. 387, 240 P. 208 (1925), the Supreme Court of Wyoming stated:

“The term ‘public works’ is said to be defined as ‘all fixed works constructed for public use, as railways, docks, canals, waterworks, roads,’ etc. Ellis v. Grand Rapids, 123 Mich. 567, 82 N.W. 244; Winters v. Duluth, 82 Minn. 127, 84 N.W. 788.”

Finally, in Ellis v. Common Council of the City of Grand Rapids, 123 Mich. 567, 82 N.W. 244 (1900), the Supreme Court of Michigan defined the term as follows :

“The term ‘public works’ is defined as ‘all fixed works constructed for public use, as railways, docks, canals, waterworks, roads, etc.’ ”

While the courts of other jurisdictions have thus defined the term public work, this Court has not as yet spoken on the subject. From the statutory language, however, it appears that the term means a building, physical improvement, or other fixed construction. It does not include telecommunications services that may be provided in a building or in connection with its use.

By the great weight of authority, public utility service contracts are not within the intendment of statutory bid requirements. Better Home Heat Council, Inc. v. Housing Authority, 148 Conn. 536, 172 A.2d 610 (1961); City of Vincennes v. Citizens’ Gaslight Co., 132 Ind. 114, 31 N.E. 573 (1892); Arnhold v. Klug, 97 Kan. 576, 155 P. 805 (1916); Reid v. Trowbridge, 78 Miss. 542, 29 So. 167 (1901); Atlantic Gas and Water Co. v. Atlantic City, 73 N.J.L. 360, 63 A. 997 (1906); William L. Black Implement Co. v. Blair, 104 N.J.L. 229, 140 A. 679 (1928); Harlem Gaslight Co. v. New York, 33 N.Y. 309 (1865); Gleason v. Dalton, 28 App.Div. 555, 51 N.Y.S. 337 (1898); Mutual Electric Co. v. Village of Pomeroy, 99 Ohio St. 75, 124 N.E. 58 (1918); Tanner v. Auburn, 37 Wash. 38, 79 P. 494 (1905); Washington Fruit and Produce Co. v. City of Yakima, 3 Wash.2d 152, 100 P.2d 8 (1940); State v. Oconto Electric Co., 165 Wis. 467, 161 N.W. 789 (1917); Annot. 128 A.L.R. 168; 64 Am.Jur.2d, Public Works and Contracts, § 47, p. 899.

Plaintiff contends that LSA-R.S. 38:2211 does not exempt regulated public utilities. It, therefore, concludes that holding the statute inapplicable to the present case would create a special exemption contrary to the legislative intent.

The Court of Appeal noted that the Louisiana Public Service Commission fixes the utility’s rates and charges; that the utility cannot legally discriminate between subscribers for the same service; and that the regulation is designed to protect all customers, including governmental agencies, against exorbitant prices. The Court, however, considered the telephone company’s status only as an additional reason for its judgment.

The Court of Appeal primarily held that a telephone service contract did not fall within the terms of the Public Bid Law. We agree with this rationale. We hold, as did the Court of Appeal, that the telephone service contract is neither a public work nor a purchase of materials or supplies within the intendment of LSA-R. S. 38:2211.

For the reasons assigned, the judgment of the Court of Appeal is affirmed.

DIXON, J., concurs.

SUMMERS, J., dissents.


author: DIXON, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. Simon SMITH, Jr. STATE of Louisiana ex rel. Simon SMITH, Jr. v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    Nos. 56638 and 56792.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Dissenting Opinion Dec. 23, 1975.

      Samuel T. Singer, Winnsboro, for defendant-appellant in No. 56638 and for defendant-relator in 56792.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., S. E. Lee, Jr., Asst. Dist. Atty., for plaintiff-appellee in No. 56638 and for plaintiff-respondent in 56792.
   DIXON, Justice.

This is an out-of-time appeal, consolidated with an application for a writ of ha-beas corpus, from the defendant’s conviction on April 8, 1974 for simple kidnapping. On June 2, 1973 the defendant allegedly forced one Shirley Ann White to accompany him from Winnsboro to Clayton by force of arms and without her consent. No bills of exceptions were taken or perfected during the trial; we are limited to a review for errors discoverable by a mere inspection of the pleadings and proceedings. State v. Donnell, 318 So.2d 3 (La.1975). We find none.

The application for a writ of ha-beas corpus, filed here on August 28, 1975, was based on the contention that the trial in district court on the kidnapping charge constituted double jeopardy, since defendant had been previously charged, tried and convicted in municipal court for aggravated assault, displaying a dangerous weapon in a place of business and disturbing the peace, all arising out of the same incident. The trial judge denied the writ, believing the writ application failed to state a cause of action. We cannot agree.

C.Cr.P. 362 provides:

“If the person in custody is being held by virtue of a court order, he shall be discharged if:
“(6) He is in custody by virtue of a sentence for an offense for which he could have successfully pleaded double jeopardy and failed to do so;

The plea of double jeopardy may be raised at any time. C.Cr.P. 594. Since the plea of double jeopardy was not raised be-for or during the trial, it is properly before us on the denial of the application for a writ of habeas corpus.

The Fifth Amendment to the United States Constitution guarantees that no person shall be twice put in jeopardy of life or limb for the same offense. This guarantee is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

Article 1, § 9 of the 1921 Louisiana Constitution, and its counterpart in the 1974 Constitution, Article 1, § 15, provide that no defendant may be twice placed in jeopardy for the same offense. Article 591 of the Code of Criminal Procedure restates this guarantee. C.Cr.P. 596 sets forth the requisites for double jeopardy:

“Double jeopardy exists in a second trial only when the charge in that trial is:
“(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
“(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.”

Louisiana applies the “same evidence” test in determining if a second trial constitutes double jeopardy. City of Baton Rouge v. Jackson, 310 So.2d 596 (La.1975). Briefly, this test holds that offenses are the same if the elements required to support a conviction upon one of the offenses would have been sufficient to warrant a conviction upon another of them. Stated differently, where the gravamen of the second offense is essentially included within the offense for which first tried, the second prosecution is barred because of former jeopardy. State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974).

In the instant case, the defendant confronted Shirley Ann White, his “common law” wife, in a T G & Y Store in Winnsboro. He allegedly pulled a gun in the store, pointed it at Shirley’s head, dragged her into his car and drove away with her. Several persons who were in the parking lot of the store and witnessed the incident panicked at the sight of the gun pointed to her head.

On June 25, 1973 the defendant was tried and convicted in municipal court for the town of Winnsboro for aggravated assault, displaying a dangerous weapon in a place of business and disturbing the peace. On April 8, 1974 he was tried and convicted in district court for simple kidnapping.

In Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), Waller and others removed a canvas mural from the St. Petersburg City Hall. They carried it through the streets, until confronted by the police. A scuffle ensued, the police eventually recovering the mural in a damaged condition. Waller was charged by the City of St. Petersburg with violation of two municipal ordinances, destruction of city property and disturbing the peace. He was convicted on both counts and sentenced to one hundred eighty days in jail. The State then filed an information charging grand larceny. The Florida court, while assuming that the municipal charges were lesser included offenses of the grand larceny charge, held that there was no double jeopardy, adhering to a dual sovereignty theory. In reversing the Florida court, the United States Supreme Court held:

“Thus Grafton, [Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084] not Fox v. Ohio [5 How. 410, 12 L.Ed. 213] supra, or its progeny, Bartkus v. Illinois [359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684] supra, or Abbate v. United States [359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729] supra, controls, and we hold that on the basis of the facts upon which the Florida District Court of Appeal relied petitioner could not lawfully be tried both by the municipal government and by the State of Florida. In this context a ‘dual sovereignty’ theory is an anachronism, and the second trial constituted double jeopardy violative of the Fifth and Fourteenth Amendments to the United States Constitution.” 397 U. S. 387, at 394-395, 90 S.Ct. 1184, at 1188-1189.

Louisiana recognized the import of Waller v. Florida, supra, amending C.Cr.P. 597 to delete the provision that double jeopardy does not apply if the prior prosecution was under a municipal or parochial ordinance.

In State v. Didier, 262 La. 364, 263 So.2d 322 (1972), defendant, already convicted of malfeasance in office, was prosecuted for theft and simple robbery. The basis of the malfeasance charge was that the defendant, a sheriff, knew of a theft and did nothing to prevent it or apprehend those involved. Subsequently, he himself was charged with theft and robbery, because he was a principal in the theft scheme. In upholding a dismissal of the theft and robbery prosecution because they constituted double jeopardy, this court stated:

“Under the present evidence, conceded to be the same for the malfeasance and for the felony (robbery-theft) prosecutions, the identical conduct of the sheriff— withholding information of the Golden crime, failing to prevent it, failing to arrest those who committed it or to report the crime to the district attorney — is essentially the basis for charging him as a principal in the Golden theft or robbery. His malfeasance acts were the principal method by which he committed as a principal the theft or robbery with which now charged.” 263 So.2d 322, at 326.

Furthermore, State v. Didier, supra, recognized that the Waller holding is applicable to the states through the Fourteenth Amendment:

“. . . The same alleged crime cannot be twice punished by the same State by making identical conduct a criminal violation of the law of both the State and one of its subdivisions. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). . . .” 263 So.2d 322, at 325.

In the instant case, the trial judge denied the application for a writ of habeas corpus without an evidentiary hearing, stating that the trial in municipal court for assault, displaying a dangerous weapon and disturbing the peace had nothing to do with the district court trial for kidnapping, and that the evidence, issues and testimony were not the same. The record from the municipal court is not before us, and the trial judge, in his reasons for denial of the writ, did not explain how he knew the evidence, issues and testimony were not the same.

Simple kidnapping is the intentional and forcible seizing and carrying of any person from one place to another without his consent. R.S. 14:45A(1). The assault may have been the essential element of the kidnapping; without the record before us, we cannot say. If it was, then the same evidence that supported a conviction in the second trial would have supported a conviction in the first. Therefore, to determine whether the defendant is being twice punished for the same conduct, we remand the case to the district court for an eviden-tiary hearing on the defendant’s application for a writ of habeas corpus.

Accordingly, the conviction and sentence are affirmed on the appeal, but the case is remanded to the district court for an evi-dentiary hearing, consistent with this opinion, on the defendant’s application for a writ of habeas corpus. If defendant is unable to employ counsel, the trial court should appoint counsel for defendant.

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

BOLIN and MARCUS, JJ., dissent.

SANDERS, Chief Justice

(dissenting).

Simon Smith, Jr. was convicted in municipal court of aggravated assault, displaying a dangerous weapon in a place of business, and disturbing the peace.

The question presented is whether these convictions, as a matter of double jeopardy, bar his subsequent prosecution for simple kidnapping.

The test is whether the gravamen of the simple kidnapping charge is essentially included in the first offenses, assault, displaying a dangerous weapon, and disturbing the peace. City of Baton Rouge v. Jackson, La., 310 So.2d 596 (1975); State v. Fettle, La., 286 So.2d 625 (1973); 35 La. L.Rev. 505. I think not.

Simple kidnapping is the intentional and forcible seizing and carrying of any person from one place to another without his consent. LSA-R.S. 14:45 A(l). The gravamen of the offense is the seizure and as-portation of a person. This gravamen is not essentially included in any of the three minor offenses of which defendant was convicted. Factual connexity of the offenses actually makes no difference. See City of Baton Rouge v. Jackson, supra; State v. Pettle, supra.

For the reasons assigned, I respectfully dissent.

      . State of Louisiana ex rel. Smith v. Henderson, 313 So.2d 843 (La.1975). A post-conviction application was filed in this court June 10, 1975, and the out-of-time appeal was ordered June 23, 1975.

      . C.Cr.P. 597 read before the 1972 amendment :
      “Double jeopardy does not apply to a prosecution under a law enacted by the Louisiana Legislature if the prior jeopardy was in a prosecution under the laws of another state, the United States, or under a municipal or parochial ordinance.”


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Ollie WILLIAMS, Appellant.
    No. 56588.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      J. Marc Lampert, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Ralph W. Kennedy, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of theft of over five hundred dollars value, La.R.S. 14:67 and sentenced to ten years at hard labor. He appeals.

His single assignment of error urges that no evidence at all proves a theft. The assignment is based upon the denial of a new trial sought on this contention. The accused contends that, at the most, the evidence indicates a failure to pay the purchase price of an automobile he had purchased.

The factual context of this prosecution is as follows:

The defendant Williams obtained a used car from a sales lot. One morning, he appeared there as a prospective buyer. He took a 1970 Buick to test drive it. He later called the sales manager to say he was going to buy it and would be back shortly, although still undecided whether to pay cash or finance the purchase.

He and the Buick never returned. He checked out of his local motel and left town. The defendant and the Buick were located a month later in Indiana. During the interval, he never communicated with the sales lot.

The defendant essentially contends that the evidence shows there was a completed sale, not a theft. He relies upon Civil Code Article 2456, which provides that a sale is completed as soon as there is an agreement between the buyer and the seller on the object and the price, even though the price is not paid and the object not delivered. The evidence does show that the seller offered the vehicle for $1,595 and that (by the telephone conversation) the buyer stated he accepted the offer.

The argument overlooks that, even if there were a completed sale, the statutory crime of theft may be committed.

La.R.S. 14:67 defines the offense as follows: “Theft is the misappropriation or taking of anyting of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may by the subject of the misappropriation or taking is essential.” (Italics ours.)

As thus defined by the 1942 criminal code, (now La.R.S. 14:67), the crime of theft includes not only a taking without consent, but also both a fraudulent conversion of property of another by one lawfully in possession of it with the consent of the owner (i. e., the former crime of “embezzlement”, see LaFave and Scott, Criminal Law, Section 89 (1972)), as well as the obtaining of title to property of another by knowingly false representations or practices (i. e., the former crime of “obtaining property by false pretenses”, see Id, Section 90), with the intent to deprive the victim permanently of his property. See also Reporter’s Comments, Article 67 of the Louisiana Criminal Code, enacted by Act 43 of 1942.

Under the facts shown, there was evidence from which the jury could reasonably find that, with the intent to deprive the seller permanently of the Buick offered for sale, the defendant obtained possession of the Buick by knowingly false and fraudulent representations of his intention to purchase it.

The evidence of the essential elements of the crime includes:

After obtaining possession of the vehicle through the negotiations, the defendant failed to return to complete them but instead disappeared from the vicinity without further communication. The car and the defendant were only located a month later at a distant place in another state after investigation.

Thus, there was some evidence which the jury could reasonably accept as proving each of the essential elements of the crime charged, including the intent to deprive the owner permanently of his property. See, e. g., State v. White, 301 So.2d 321 (La.1974). The motion for a new trial does not lie unless there is no evidence of the offense or of any of its essential elements. It was properly denied. Accordingly, we do not find merit to the assignment of error. The conviction and sentence are affirmed.

Conviction and sentence affirmed.


text:
    STATE of Louisiana v. James Earl BROOKS.
    No. 57339.
    Supreme Court of Louisiana.
    Jan. 6, 1976.
   In re: James Earl Brooks applying for writs of certiorari, prohibition and mandamus and a stay order.

Writ denied. The petitioner is not entitled to the relief sought.


text:
    STATE of Louisiana v. Egbert J. PENNISON. STATE of Louisiana v. Woodrow T. BAGWELL.
    No. 57173.
    Supreme Court of Louisiana.
    Jan. 7, 1976.
   In re: Egbert J. Pennison and Woodrow T. Bagwell, applying for writ of review and for stay order.

Writ granted. The sentencing conditions may not be set aside ex parte. The sentence as originally imposed in minute entry, which was to be served on Saturdays and Sundays or off-work days, remains in effect until validly amended. See La. Code of Criminal Procedure, Arts. 881, 882, 896.


text:
    Stephen L. CARTER et al. v. SUCCESSION of Orlando B. CARTER.
    No. 57212.
    Supreme Court of Louisiana.
    Jan. 7, 1976.
   In re: Mrs. Tavia Rutherford Carter, surviving widow of the late Orlando B. Carter, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Cameron. 321 So.2d 370.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Bruce MEADOR and Gretchen Meador v. TOYOTA OF JEFFERSON, INC., et al.
    No. 57218.
    Supreme Court of Louisiana.
    Jan. 7, 1976.
   In re: Bruce Meador and Gretchen Meador, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 322 So.2d 802.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana ex rel. Dan E. ROBERTSON v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57155.
    Supreme Court of Louisiana.
    Jan. 7, 1976.
   In re: Dan E. Robertson applying for writ of habeas corpus.

Application denied. The trial court has ruled upon applicant’s petitions in both docket #31,501 and #31,502. We find no error in either ruling with respect to the multiple offender charge, #31,502, but we do not see how applicant has .suffered any prejudice even though one of the two underlying convictions, being uncounseled, was later annulled and set aside.


text:
    JAHNCKE SERVICE, INC. v. POWER CORPORATION and Insurance Company of North America.
    No. 57211.
    Supreme Court of Louisiana.
    Jan. 7, 1976.
   In re: Jahncke Service, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 320 So.2d 601.

Writ refused. On the facts found by the court of appeal, the result is correct.

CALOGERO, J., recused.