text:
    Caesar Salanto SHACK, III, Appellant, v. STATE of Florida, Appellee.
    No. X-67.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1975.
   PER CURIAM.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Tony Marvin BROWN, Appellant, v. STATE of Florida, Appellee.
    No. X-66.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1975.
   PER CURIAM.

Affirmed.


text:
    Gary Lee JOHNSON, a/k/a Thomas Victor Varriale, Appellant, v. STATE of Florida, Appellee.
    No. 75-86.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 1975.
    Rehearing Denied Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Roosevelt SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1491.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 1975.
   PER CURIAM.

Affirmed.


text:
    Bobbie SHERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 74-1191.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 1975.
   PER CURIAM.

Affirmed.


text:
    Mary Elizabeth SPIRES, Appellant, v. STATE of Florida, Appellee.
    No. V-414.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1975.
   PER CURIAM.

Affirmed.


text:
    Maria M. TANNER, Appellant, v. STATE of Florida, Appellee.
    No. X-44.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1975.
   PER CURIAM.

Affirmed.


text:
    Donald WILSON, Appellant, v. STATE of Florida, Appellee.
    No. Y-298.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1975.
   PER CURIAM.

Affirmed.


text:
    Charles E. CARMEN, Petitioner, v. The JUDGES OF the THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, Florida, Respondents.
    No. 75-1129.
    District Court of Appeal of Florida, Second District.
    Aug. 14, 1975.
   Mandamus denied.


text:
    Kathryn M. EVERARD, Appellant, v. Allan V. EVERARD, Appellee.
    No. 75-448.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
   Appeal from Circuit Court, Palm Beach County; Lewis Kapner, Judge.

Appeal dismissed.


text:
    Lawrence E. EYRICH, Appellant, v. STATE of Florida, Appellee.
    No. 74-1114.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
   PER CURIAM.

Affirmed.


text:
    Lionel James HANNA, Appellant, v. STATE of Florida, Appellee.
    No. 74-981.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
   PER CURIAM.

Affirmed.


text:
    Donald Lee JONES, Appellant, v. STATE of Florida, Appellee.
    No. 75-685.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
   Appeal from Circuit Court, Broward County; John H. Moore, Judge.

Appeal dismissed.


text:
    Raymond Herschel KILPATRICK, Petitioner, v. Louie L. WAINWRIGHT, Director (Florida Division of Corrections), Respondent.
    No. 75-1371.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
   Habeas corpus denied.


text:
    Stephanie KNOWLES, a minor, by and through her father and next friend, James Knowles, Appellant, v. Jimmie ERSKINE, Appellee.
    No. 74-1727.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
   PER CURIAM.

Affirmed.


text:
    John Julius KUBE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-1029.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
   Appeal from Circuit Court, Palm Beach County; James R. Stewart, Jr., Judge.

Appeal dismissed.


text:
    Oliver LEE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 74-1165.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
   PER CURIAM.

Affirmed.


text:
    Bruce McKNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 74-1683.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
   PER CURIAM.

Affirmed.


text:
    In the Interest of R. W. F., a child.
    No. 75-1356.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
   Appeal from Circuit Court, Orange County; Richard H. Cooper, Judge.

Appeal dismissed.


text:
    Elizabeth A. PERRY, Appellant, v. Johnie Lee PERRY, Appellee.
    No. 75-1282.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
   Appeal from Circuit Court, Seminole County; Tom Waddell, Jr., Judge.

Appeal dismissed.


text:
    A. T. MARCHESE and F. E. Turner, Appellants, v. Joan D. PUMPHREY and Titusville Montessori School, Inc., a Florida Corporation, Appellees.
    No. 75-1072.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
   Appeal from Circuit Court, Brevard County; Virgil B. Conkling, Judge.

Appeal dismissed.


text:
    John Kenneth WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 74-1743.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
   Appeal from Circuit Court, Broward County; John H. Moore, Judge.

Appeal dismissed.


text:
    Ralph P. MENENDEZ, Appellant, v. B. M. R. ENTERPRISES, INC., Appellee.
    No. 75-1094.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    OBEE LEASING COMPANY, a Florida Corporation, Appellant, v. SIXTY SIX, INC., a Florida Corporation, d/b/a Sir John Hotel, Appellee.
    No. 75-229.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    STATE of Florida, Appellant, v. Levi CALHOUN, Jr., Appellee.
    No. X-485.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1975.
   PER CURIAM.

Interlocutory appeal dismissed.


text:
    Donnie M. BRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. 74-691.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1975.
   Appeal from Circuit Court, Okeechobee County; James E. Alderman, Judge.

Appeal dismissed.


text:
    Ephraim COLLINS, etc., Appellant, v. CITY OF MARGATE, a Municipal Corporation organized and existing under the laws of the State of Florida, Appellee.
    No. 74-1349.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1975.
   Appeal from Circuit Court, Broward County; James H. Minnett, Judge.

Appeal dismissed.


text:
    Hulan GRANT, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent.
    No. 75-1153.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1975.
   Habeas corpus denied.


text:
    Douglas F. MACKLE and Continental Casualty Company, Appellants, v. Mario COLON and Doris Colon, his wife, Appellees.
    No. 75-394.
    District Court of Appeal of Florida, Third District.
    Aug. 19, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Edward ORTEGA and Lumbermens Mutual Casualty Company, Appellants, v. George PINIERO and Joseph Vecchio et al., Appellees.
    No. 75-1220.
    District Court of Appeal of Florida, Third District.
    Aug. 19, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Willie FAULK, Appellant, v. ALLSTATE INSURANCE COMPANY, etc., Appellee.
    No. 75-708.
    District Court of Appeal of Florida, Third District.
    Aug. 20, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Clifford Kenneth CLAXTON, Appellant, v. Delores Elaine CLAXTON, Appellee.
    No. 75-868.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1975.
   Appeal dismissed.


text:
    William D. HIXON, Appellant, v. Erlynne Hixon HOLLEY, Appellee.
    No. 75-121.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1975.
   Appeal dismissed.


text:
    William D. HIXON, Appellant, v. STATE of Florida, Appellee.
    No. 75-122.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1975.
   Appeal dismissed.


text:
    C. Bette WIMBISH et al., Appellants, v. DIVISION OF ADMINISTRATION, State of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 75-348.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1975.
   Appeal dismissed.


text:
    LEADERSHIP HOMES OF WEST FLORIDA, INC., a Florida Corporation, Appellant, v. Gordon B. SCOTT and Janice L. Scott, his wife, Appellees.
    No. 75-1073.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 1975.
   Appeal dismissed.


text:
    Frances W. SLATER, Appellant, v. William L. SLATER et al., Appellees.
    No. 75-114.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 1975.
   Appeal dismissed.


text:
    Robert R. BLAES, Appellant, v. STATE of Florida, Appellee.
    No. 75-861.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
   Appeal dismissed.


text:
    Neal JOHNS, Appellant, v. STATE of Florida, Appellee.
    No. 75-404.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
   Appeal dismissed.


text:
    Robert T. WATT, Appellant, v. BILL BRANCH CHEVROLET, INC., Appellee.
    No. 75-593.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
   Appeal dismissed.


text:
    Verna L. ANSON et al., Appellants, v. Eugene D. ELKINS and Yvonne E. Elkins, his wife, Appellees.
    No. 75-805.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 1975.
   Appeal dismissed.


text:
    Sherry K. CASLER, Appellant, v. William F. CASLER, Appellee.
    No. 75-379.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 1975.
   Appeal dismissed.


text:
    Gregory D. WAYNO, Appellant, v. STATE of Florida, Appellee.
    No. 75-719.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 1975.
   Appeal dismissed.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Danny Joe EVANS.
    No. 56092.
    Supreme Court of Louisiana.
    July 25, 1975.
    D. G. Brunson, Holloway, Baker, Cul-pepper & Brunson, Jonesboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles B. Bice, Dist. Atty., Kermit M. Simmons, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant appeals from a conviction of attempted armed robbery. He was found guilty by a unanimous jury verdict and was sentenced to four years at hard labor with credit for time served. Defendant has reserved three bills of exception.

On July 3, 1973, defendant along with two friends, Jackson Banburg and Richard Tarver, and in the company of his wife, participated in a futile attempt to rob the clerk at the Winnfield Hotel in Winnfield, Louisiana. Defendant and his wife remained in the car while Bamburg and Tarver, armed with a shotgun, entered the hotel, demanded money from the clerk, and left after realizing the hotel clerk had no money in his control. Defendant drove the car which Bamburg and Tarver used to escape the vicinity.

Bill of Exceptions No. 1.

Defendant alleges that the lower court erred in finding that the defendant’s confession was voluntarily and intelligently given. He alleges that the fact that defendant was arrested and held in custody ten hours before he was questioned overcomes the state’s evidence that the statement was made voluntarily.

Defendant was taken into custody at 1:45 a. m. on July 6, 1973. He was not questioned at that time. Ten hours later in the presence of his wife and Detective Ray Shell, he was questioned by Chief Percy W. Roberts, Jr., of the Winnfield Police Department. Chief Roberts testified that before he questioned defendant he read defendant his rights from a prepared form and that .defendant himself read and signed the form. The form included the Miranda warnings and a waiver of rights. This document was also signed by Chief Roberts and Detective Shell as witnesses. Chief Roberts further testified that he did not influence the defendant through promise, duress, intimidation, menace, threats, or inducements; he testified that defendant understood he was making a statement. As the defendant was making the statement, Chief Roberts took notes and then typed Up the statement. It was then read to the defendant and he read it himself. One mistake was erased and initialed by defendant. It was stipulated that Detective Shell’s testimony would corroborate Chief Roberts’ testimony.

Defendant put on no evidence at all to rebut the state’s evidence that the written statement was given freely and voluntarily. Although the defendant did not take the stand, his wife did take the stand and was questioned about the statement she had given on July 6, 1973, at 11:00 a. m. Defense counsel asked her no questions about the circumstances surrounding her husband’s statement. Indeed, defense counsel put forth no evidence at all on the subject of the voluntariness of the confession or the intelligent waiver of rights by defendant.

The foundation demonstrating the admissibility of confessions and admissions must be laid by the state with affirmative proof. LSA-R.S. 15:451, 452. The state must establish by proof beyond a reasonable doubt that the requirements for voluntariness as set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), have been fulfilled. State v. Skiffer, 253 La. 405, 218 So.2d 313 (1969). Although this is a heavy burden for the state to carry, the state in this case has done so. The uncontroverted and detailed testimony of police officers that the statement was freely given, in addition to a written statement that defendant understood his rights and waived them, in the absence of any evidence to the contrary, indicate that defendant’s statement was voluntarily and intelligently given and was properly admitted into evidence. State v. Traylor, 311 So.2d 847 (La.1975); State v. Shelby, 308 So.2d 279 (La.1975); State v. Navarre, 302 So.2d 273 (La.1974); State v. Link, 301 So.2d 339 (La.1974); State v. Forman, 271 So.2d 523 (La.1973).

Bill of Exceptions No. 1 is without merit.

Bill of Exceptions No. 2.

Defendant asserts that the lower court erred in overruling defendant’s motion for a directed verdict. Defendant asserts that the state did not present any evidence of the guilt of the defendant as to essential elements of the crime charged.

La.C.Cr.P. Art. 778 provides the following:

“In a jury trial the court may direct a verdict of not guilty of one or more of the offenses charged, on its own motion or on that of a defendant, after the close of the state’s evidence or of all the ev-vidence, if the evidence is insufficient to sustain a conviction.
“In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of a defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
“If the- court denies a defendant’s motion for a directed verdict or judgment of acquittal at the close of the state’s case, the defendant may offer his evidence in defense.”

This Court in the case of State v. Douglas, 278 So.2d 485, 491 (La.1973) construed the phrase “insufficient to sustain a conviction” to mean that “the prosecution has produced no evidence to prove a crime or an essential element” thereof. It is only in cases where there is no evidence of the crime or of an element of the crime that this Court has the power to find meritorious a motion for directed verdict and reverse a conviction. If the only issue is the sufficiency of the evidence to prove guilt beyond a reasonable doubt, this Court cannot review the determination of the jury, because sufficiency is a question of fact and as such is within the province of the jury, not the Court. State v. Watson, La., 301 So.2d 653, 1974; State v. Occhipinti, 296 So.2d 283 (La.1974); State v. Frierson, 302 So.2d 605 (La.1974). If the record shows that any admissible evidence was introduced by the prosecution which could be understood by a jury to prove each element of the crime charged, the motion for a directed verdict should be denied. State v. Pryor, 306 So.2d 675 (La.1975); State v. Occhipinti, 296 So.2d 283 (La.1974); State v. Frierson, 302 So.2d 605 (La.1974).

The issue which the defendant evidently intended to raise in this appeal is whether any evidence was introduced to prove that defendant Evans did aid and abet Bamburg and Tarver in their attempted armed robbery of the clerk at the Winnfield Hotel.

This evidence was before the jury: de~ fendant was Bamburg’s cousin; defendant drove the car which brought Bamburg and Tarver to the hotel and which drove them away from the hotel after the attempted robbery; defendant suggested that the hotel clerk would be an easy victim for a robbery; defendant advanced the plan that he drive the car; defendant knew that Bamburg and Tarver had a gun and planned to rob the hotel clerk; defendant drove in a circular route after Bamburg and Tarver got out at the hotel; defendant and his wife were dropped off at her mother’s house after the robbery attempt had failed.

This testimony was evidence, as well as defendant’s statement to police which was only in minor particulars different from the implicating testimony of co-perpetrators Bamburg and Tarver. Both the testimony and the statement constitute evidence on which a jury could base a finding that the accused was guilty of attempted armed robbery. This is far from the total lack of evidence which would require this Court to reverse the trial court’s denial of a directed verdict.

This bill is without merit.

Bill of Exceptions No. 3.

This bill was reserved by defendant when the trial court refused to allow defense witness Ja Man Y. Bamburg to testify as to statements made to him by state’s witness Richard Tarver who was a participant in the attempted armed robbery. Tarver’s testimony was damaging to defendant, and defendant argues here that these previous statements made to Mr. Bamburg were inconsistent with the damaging testimony given in Court. The trial judge sustained the state’s objection to Mr. Bamburg’s testimony.

In order for testimony of a prior inconsistent statement of a witness to be admissible, a foundation for that testimony must be laid as required by R.S. 15:493. State v. Smith, La., 301 So.2d 594, decided October 11, 1974. During cross-examination of witness Tarver, the defense counsel made no attempt to question him about any prior inconsistent statements or any statements to Ja Man Y. Bamburg. Thus, no foundation was laid for the introduction of an inconsistent statement. In the case of State v. Lewis, 288 So.2d 348 (La.1974), a unanimous Court held that the trial court correctly sustained the state’s objection to testimony by a defense witness concerning statements allegedly made by a state’s witness. Because the defense counsel had made no attempt to impeach the witness’ testimony or to lay a foundation for the introduction of prior inconsistent statements, the Court upheld the trial court’s ruling.

This bill is without merit.

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

      . After the state laid its predicate for the introduction of the statement, defense counsel did ask Chief Roberts this question on cross-examination :
      “Q. Did he specifically and clearly and freely and unequivocally tell you that he didn’t want a lawyer under any circumstances?”
      The recorded answer was :
      “A. This was a, I read him these rights here, and what he liad a right to.”

      . There are three criminal statutes relevant to this case. They are the following:
      R..S. 14:64 Armed robbery
      A. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.
      R.S. 14:27 Attempt
      A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
      B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt ; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
      C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.
      D. Whoever attempts to commit any crime shall be punished as follows:
      (1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than twenty years;
      (2) If the offense so attempted is theft or receiving stolen things, and is not punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned for not more than six months, or both. If the offense so attempted is theft or receiving stolen things, and is punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned not more than one year, or both;
      (3)In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.
      R.S. 14:24 Principals
      All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

      . R.S. 15 :493 reads as follows :
      Whenever the' credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be ashed whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is. prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Richard STETSON.
    No. 55961.
    Supreme Court of Louisiana.
    July 25, 1975.

      George P. Vedros, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Keith S. May, Research Attorney, Research and Appeals Div., Gretna, for plaintiff-appellee.
   SUMMERS, Justice.

This is an appeal by Richard Stetson from a conviction for distribution of heroin. La.R.S. 40:966(A). He was sentenced to life imprisonment.

In a dual attack upon this prosecution, by motions to quash, Stetson alleges that he was denied due process of law and a fair trial because he was not arrested until seven months after the alleged sale of narcotics; and the mandatory life imprisonment prescribed by statute is cruel and unusual punishment.

I.

The due process contention is based upon the theory that the alleged narcotic sale was made on October 18, 1973, and Stetson was not arrested until May 10, 1974. Formal charges were promptly lodged by the District Attorney on May 21, 1974. This delay in arrest is said to be unusual and unnecessary, and Stetson was thereby hindered in the preparation and assertion of his defense.

Except for very serious crimes such as murder and rape, La.Code Crim.Proc. art. 571, the delay for bringing a criminal prosecution in Louisiana, as in most states, is barred by statute after the end of a definite period. Thus, Article 572 of the Code of Criminal Procedure fixes these time limitations for other than capital crimes:

“No person shall be prosecuted, tried, or punished for an offense not punishable by death unless the prosecution is instituted within the following periods of time after the offense has been committed :
“(1) Six years, for a felony necessarily punishable by imprisonment at hard labor;
“(2) Four years, for a felony not necessarily punishable by imprisonment at hard labor;
“(3) Two years, for a misdemeanor punishable by a fine or imprisonment or both; or
"(4) Six months, for a misdemeanor punishable only by a fine or forfeiture.”

Under this authority, since punishment in the instant case is necessarily by imprisonment at hard labor, the instant prosecution must be instituted within six years “after the offense has been committed.” La.R.S. 40:966, subd. B. Once instituted, the prosecution must proceed within established time limitations to assure a speedy trial. U.S.Const. 6th Amend.; La. Const. art. I, ¶¶ 6, 9 (1921); La.Const. art. I, ¶16 (1974); La.Code Crim.Proc. art. 578.

Louisiana law and recent interpretations of the federal constitution recognize that the guarantee of a speedy trial does not become applicable until the defendant in some way becomes an accused, which in the present case was the day of the arrest. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Moore, 300 So.2d 492 (La.1974); State v. Gladden, 260 La. 735, 257 So.2d 388 (1972); La.Code Crim.Proc. art. 578 (Comments). See also Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). No valid claim is made here that there was undue delay in the prosecution after arrest, or that -the right to a speedy trial as guaranteed by the National and State Constitutions is involved.

Where there is a claim of prejudice resulting from the passage of time between crime and árrest or charge, other provisions of law operate to guard against possible, as distinguished from actual, prejudice. Statutes of limitation are the primary guarantee against bringing overly stale criminal charges. La.Code Crim. Proc. arts. 571-72. Cf. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). The applicable statute here is Article 572 of the Code of Criminal Procedure quoted above, which, insofar as it is pertinent here, prescribes that no prosecution, trial or punishment may be had unless prosecution is instituted within six years after the offense has been committed.

The statute represents a legislative assessment of relative interests of the State and defendant in administering and receiving justice; it is enacted for the repose of society and the protection of those who may have lost their means of defense because of the passage of the prescribed time. The statute furnishes the desirable ingredient of predictability by specifying a limit beyond which there is an irrefutable presumption that a defendant’s right to a fair trial would be prejudiced. Its purpose is to limit exposure to criminal prosecution to a fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanction. By this limitation individuals are protected from having to defend themselves against charges when the basic facts may have become obscured by the passage of time. Danger of official punishment because of acts in the far-distant past are minimized. Law enforcement officials are encouraged by such a limitation to promptly investigate suspected criminal activity. United States v. Marion, supra; State v. Theard, 203 La. 1026, 14 So.2d 824 (1943).

The issue that a prosecution was not timely instituted may be raised at any time under this State law, La.Code Crim.Proc. art. S77, and the effect of maintaining that issue is to recognize repose as in civil matters. It amounts to an act of grace by the sovereign surrendering its right to prosecute, or as acts of amnesty declaring that the offender may cease to preserve his proof of innocence after the time limit has passed, or as a recognition by the State that time gradually wears out evidence of innocence. A further social motive justifying the existence of such statutes is that they curb the power of the State to hold over a person’s head the threat of prosecution for a longer period of time. Preliminary Statement, Title XVII, Time Limitations, La.Code Crim.Proc.

As the record makes clear, defendant did not testify; and no one was called to testify on his behalf. He asserts in brief, without other support from the record, that no one was called to testify for him because no one could accurately testify to his whereabouts seven months before his arrest. In effect, defendant is asking that prejudice to his defense should be presumed from the seven-month delay despite the statutory regulation of this issue to which reference has been made. This contention is based upon the Due Process Clauses of the Federal and State Constitutions. U.S.Const. 5th Amend.; La.Const. art. I, 1]6. It is contended that these constitutional principles would require dismissal of the indictment on account of the presumption, and the substantial prejudice which necessarily arises from the facts of this case, that defendant’s rights to a fair trial were jeopardized.

However, this Court is not warranted in making such a presumption from the bare facts before us in the face of the deliberate and explicit State policy established in Article 572 of the Code of Criminal Procedure regulating this specific situation. The tenuous basis advanced for such a presumption may not properly supersede unequivocal State policy.

Prejudice cannot be presumed merely because the accused has not taken the stand and has called no witnesses to testify on his behalf. The reasons for or against such a decision are so varied and motivated by such diverse considerations that no consistent conclusion may be drawn from this defense decision alone which would not amount to conjecture and speculation. United States v. Mallah, 503 F.2d 971 (2d Cir.1974).

This is not to say, however, that certain facts and circumstances may not establish actual prejudice because of an inordinate delay in the institution of prosecution. It is not necessary to determine here what those facts are, but when a claim of actual prejudice is asserted it would then be incumbent upon the Court to judge those facts and circumstances in the light of due process and fair trial guarantees. For all authority will recognize that legislative enactments prescribing time limitations for the institution of prosecutions cannot unreasonably implement or in any instance supersede or modify the fair import of constitutional due process.

Acutally, prejudice to the defense of a criminal case may result from the shortest and most necessary delay; yet, no one suggests that every delay causing detriment to a defendant’s case should abort a criminal prosecution. To accommodate the sound administration of justice to the defendant’s rights to due process and a fair trial will necessarily involve a deliberate judgment based on the facts and circumstances of each case. It would be unwise at this juncture to attempt to forecast those decisions. United States v. Marion, supra.

In this case, however, the seven-month time interval, without' showing more, is insufficient to hold that defendant has been denied the due process of fair trial guarantees of our law.

II.

At the conclusion of the trial, defense counsel filed a motion to quash the bill of information and moved for a new trial. In each he alleged that the mandatory life imprisonment sentence prescribed by the statute under which defendant was convicted and sentenced is cruel and unusual punishment proscribed by both the Federal and State Constitutions. U.S.Const. 8th Amend.; La.Const. Art. I, ¶12 (1921); La.Const. Art. I, ¶20 (1974); La.R.S. 40:966, subd. B.

A sentence shall not be set aside on the ground that it inflicts cruel or unusual punishment unless the statute under which it is imposed is found unconstitutional. La.Code Crim.Proc. art. 878.

The Legislature is vested with the constitutional power to define crimes and fix punishments. State v. Selman, 300 So.2d 467 (La.1974); State v. Crook, 253 La. 961, 221 So.2d 473 (1969). Courts are charged with applying these punishments unless they are found to be unconstitutional. Cruel and unusual punishments are those that are barbarous, extraordinary, or grossly disproportionate to the offense; they are punishments which shock the conscience of civilized man. State v. Selman, supra; State v. Miller, 263 La. 960, 269 So.2d 829 (1972).

In several cases involving punishments for violation of narcotic laws of this State, this Court has upheld the constitutionality of those laws against the contention that the punishments inflicted were cruel and unusual. State v. White, 254 La. 389, 223 So.2d 843 (1969); State v. Glantz, 254 La. 306, 223 So.2d 813 (1969); State v. Green, 244 La. 80, 150 So.2d 571 (1963); State v. Bellam, 225 La. 445, 73 So.2d 311 (1954); State v. Thomas, 224 La. 431, 69 So.2d 738 (1954).

It is well settled that the Eighth Amendment’s guarantee against cruel and unusual punishment is made applicable against the States through the due process clause of the Fourteenth Amendment of the United States Constitution. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Moreover, since adoption of the Federal Constitution, similar proscriptions have been written into virtually every state constitution, including our own. (La.Const. Art. I, ¶12 (1921); La.Const. Art. I, ¶20 (1974).

The Cruel and Unusual Clause like other great provisions of the Constitution is not susceptible to precise definition. Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, L.Ed.2d 630 (1958). Recently, the United States Supreme Court was called upon to test the ultimate form of punishment, the taking of human life, against the prohibition of that Clause. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). A review of the concurring opinions of the justices in the Furman Case reveals four generalized criteria for assessing the constitutional validity of punishments. The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings. In addition, the State must not arbitrarily inflict a severe punishment; the punishment must not be unacceptable to contemporary society; and the punishment must not be excessive. People v. McNair, 46 A.D.2d 476, 363 N.Y.S. 2d 151 (1975).

When subjected to this test, Section 966, subd. B of Title 40 of the Revised Statutes is found to be constitutionally valid.

The punishment imposed.is not so severe as to be degrading, nor is it arbitrarily inflicted or unacceptable to contemporary society, disproportionate to the crime or failing to serve a penal purpose more effectively than a less severe punishment. And no showing is made to the contrary.

The penalty imposed is not so grossly disproportionate to the crimes charged as to shock the sense of justice. Cf. Castle v. United States, 399 F.2d 642 (5th Cir.1968); Houle v. United States, 463 F.2d 1137 (5th Cir.1972). Narcotic traffic is but one phase of a large scale, well entrenched criminal activity that springs from human greed and preys on man’s weakness — one that turns buyers into sellers, makes addicts out of newborn infants and sets addicts to mugging, thievery, prostitution, robbery and murder to support an insatiable appetite. The punishment fits the crime. People v. Gardner, 78 Misc.2d 744, 359 N.Y.S.2d 196 (1974).

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


author: DIXON, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. Dannie Paul TRUSS.
    No. 55979.
    Supreme Court of Louisiana.
    July 25, 1975.
    Donald T. W. Phelps, Seale, Smith & Phelps, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., John Sinquefield, Asst. Dist. Atty., for plaintiff-respondent.
   DIXON, Justice.

Dannie Paul Truss was arrested May 25, 1974; on October 15, 1974 a bill of information was filed charging him with possession of heroin in violation of R.S. 40:966(C). A motion to suppress was denied. On defendant’s application, we granted writs because of what appeared to be palpable error in the ruling of the trial judge.

Three witnesses testified at the motion to suppress — a companion of the defendant and the two arresting officers. For the purposes of this opinion, we accept the version of the incident as related by the officers. At about 1:00 o’clock in the morning two young seamen alighted from a bus from New Orleans at the Baton Rouge bus station. They were observed by two uniformed patrolmen who were in the bus station, about to leave from the rear door. The patrolmen said that Truss saw the police through the glass door, “got a very startled look on his face,” moved back a little and “continued on down the platform of the bus station.” Truss and his companion, according to the police, were about to walk around the rear of the bus station and down the driveway when the police called to them and asked them to return. The police then demanded identification, which was produced. At that point, one officer “patted down” the defendant, and noted what the officer described as a “bulge” in the right hand pocket of defendant’s cardigan sweater. The officer removed the object from the pocket. It turned out to be a penny match box with a hypodermic syringe taped to it. The match box contained heroin, and defendant’s arrest followed. One officer added that the defendant “appeared to be as being . a foreigner . . .” One officer described the defendant’s actions as “darting to the right,” a movement which he explained as “sort of walking sort of fast.”

The policemen seemed to attempt to justify the warrantless search under the Louisiana “stop and frisk” statute. In brief before us, the State attempts to support its position with State v. Scott, 307 So.2d 291 (La.1975) and State v. Williams, 304 So.2d 311 (La.1974).

State v. Scott, supra, is inapplicable. In that case, we found adequate and reasonable grounds to support an investigatory stop (an armed robbery by persons whose descriptions fit some of the occupants of an automobile) and a subsequent seizure of evidence which was either in plain view or found in the course of a consent search. The officers in the case before us had no information about the commission of any offense which might have justified stopping the defendant.

Neither is State v. Williams, supra, applicable. There, police observed the defendant deposit a cardboard box containing fourteen packages of stolen weiners on the sidewalk and walk away startled, as the police drove up. Here, there was nothing in the actions of defendant to indicate the commission of an offense.

Nor does the “stop and frisk” statute validate this warrantless search. That statute, C.Cr.P. 215.1, only gives a law enforcement officer the right to stop a person in a public place when the officer has reasonable grounds to believe that the person stopped is committing a crime, has committed a crime, or is about to commit a crime. The statute further grants the police the right to “search the outer clothing” only when the officer “reasonably suspects that he is in danger of life or limb.” See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); State v. Saia, 302 So.2d 869 (La.1974).

In Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), one of the Terry (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) trio of cases, the court stated:

“. . . deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.” (Emphasis added). 392 U.S. 40, at 66, 67, 88 S.Ct. 1889 at 1904.

In Peters, the arresting officer reasonably concluded that someone was breaking into his apartment; he then observed the defendants in the hall immediately after the attempted break in fleeing for the stairs. The flight of the suspects was reasonably connected with the criminal activity reasonably known to have happened. To the contrary, in the case before us, the officers observed only what they thought to be suspicious activity. There was no reasonable connection between this activity and known criminal conduct. Mere suspicious activity, without any relationship to law violation, is not sufficient basis for police interference with the freedom of an individual.

The officers’ testimony in this case show= that they did not have reasonable grounds to stop and search the defendant. A startled look at the sight of a police officer is not a sufficient indication of criminal activity to justify an investigatory stop or arrest.

Accordingly, the district court judgment on the motion to suppress is reversed, the motion to suppress is sustained, and the case is remanded to the district court.

SANDERS, C. J., dissents with written reasons.

SUMMERS, J., dissents and assigns reasons.

SANDERS, Chief Justice

(dissenting).

Under the restrictive rule announced in the recent decision of this Court in State v. Saia, La., 302 So.2d 869 (1974), this conviction has to be reversed. However, I dissented in that case. T am still of the view that the decision is erroneous and imposes a greater restriction on Louisiana law enforcement officers in making an investigatory stop than that prevailing in other states under federal and state decisions.

The test under the Lousiana “stop and frisk” statute, LSA-C.Cr.P. Art. 215.1, is whether an officer “reasonably suspects” that a crime has been committed or is about to be committed. State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970). In my opinion, the circumstances here were such as to give rise to a reasonable suspicion. Hence, the stop and frisk were valid.

For the reasons assigned, I respectfully dissent.


author: MARCUS, Justice.

text:
    TEACHERS’ RETIREMENT SYSTEM OF LOUISIANA v. Mrs. Susan Gueydan VIAL et al.
    No. 55765.
    Supreme Court of Louisiana.
    June 23, 1975.
    Rehearing Denied Sept. 5, 1975.

      Darrell D. White, White & May, Baton Rouge, for defendant-applicant.
    William J. Guste, Jr., Atty. Gen., William T. Reeves, Jr., Staff Atty., Baton Rouge, for plaintiffs-respondents.
    Gordon B. Hyde, Curtis, Foster, Hyde & Mooney, New Orleans, for defendant-respondent.
   MARCUS, Justice.

This matter originated as a concursus proceeding invoked by the Louisiana Attorney General as representative of the Teachers’ Retirement System of Louisiana to determine the rightful owner of retirement funds deposited in the system from the earnings of the late Richard John Vial, Jr., during a period commencing on August 1, 1936 and ending with Vial’s death on January 13, 1973. The decedent’s daughter, Patsye Vial Keller, and his surviving spouse, Susan Gueydan Vial, were implead-ed and required to assert their respective claims against each other. The trial court determined from the uncontested and stipulated facts that, as the designated beneficiary of the decedent, Mrs. Vial was entitled to the accumulated contributions deposited by representatives of the retirement system in the registry of the court.

Mrs. Keller appealed, and the court of appeal affirmed the judgment of the district court. Teachers’ Retirement System of Louisiana v. Vial, 304 So.2d 53 (La.App. 1st Cir. 1974). We granted Mrs. Keller’s application for a writ of certiorari, to review the judgment of the court of appeal. 307 So.2d 367 (La.1975).

As noted above, there is no factual dispute here. According to the stipulation of facts made by counsel for both sides, the decedent was a member of the retirement system from its inception in 1936 until his death in 1973. He originally designated his first wife, Ethel (who was the mother of his daughter Patsye), as his beneficiary in the event of his death prior to retirement. Upon Ethel’s death in 1970, he designated Patsye as his beneficiary.

More than a year later, in 1971, Richard Vial remarried, taking Susan Gueydan as his wife. He then designated her as his beneficiary, revoking all prior designations. No other changes in that designation were made prior to the decedent’s death in 1973.

Mrs. Keller argues here, as in the courts below, that, as the sole heir of her father’s succession, she is entitled to the funds accumulated in the retirement system as a part of his estate. In order to have the proceeds declared part of her father’s estate, Mrs. Keller challenges the constitutionality of the statute that establishes the method by which a member of the retirement system may disburse the funds accumulated in his or her favor in the event of death prior to retirement and exclude the disbursement from the rules of successions and donations. Additionally, she urges that the statute in question contravenes the articles of the Civil Code prescribing rules of form for donations mortis causa. In the event that thé funds are not returned to her father’s succession, Mrs. Keller alternatively seeks: (1) as sole heir to her mother’s succession, reimbursement for contributions made to the retirement fund from the community earnings of her father in the amount of one-half the resulting enhanced value of his separate estate; and (2) as sole forced heir to her father’s succession, reduction of the funds disbursed to the beneficiary by the amount that impinges her legitime.

I.

Established in 1936 pursuant to constitutional authorization and enrolled as part of the Louisiana Revised Statutes in 1950, the state teachers retirement system provides retirement allowances and other benefits for teachers in the state public school system. The benefits accruing to a teacher-member of the retirement system are assignable only as provided in the act. Where a member dies prior to retirement, the contributions accumulated to his credit are, with certain exceptions not relevant here, payable on demand to his designated beneficiary. The designation of a beneficiary is made by the member completing a form provided by the administrators of the retirement system.

II.

The decedent’s daughter, Mrs. Keller, contends that the statutory retirement plan allows the disposition of a member’s accumulated contributions in contravention of the Louisiana Constitution. Article 4, section 4 of the constitution of 1921 provides, inter alia, that

[t]he Legislature shall not pass any local or special law on the following specified subjects:
Changing the law of descent or succession.
Giving effect to informal or invalid wills or deeds, or to any illegal disposition of property.

Relying on jurisprudence that likened the death benefits paid here to death benefits paid according to the terms of a policy of life insurance, the court of appeal reasoned that, since the accumulated funds formed no part of the estate of the decedent and inured to the beneficiary directly and solely by the designation of beneficiary made by the decedent according to the statutory terms of the retirement system, the rules of the Civil Code relating to donations mortis causa had no application. Hence, it concluded that whether the statutory procedure by which the funds were transferred complied with the laws of descent or succession or gave effect to an illegal disposition of property constituted an “irrelevant inquiry.”

III.

The prohibition imposed on the legislative power by article 4, section 4 of the 1921 constitution is not absolute; rather, the constitution proscribes only the enactment of local or special laws on twenty-one prohibited subjects. Hence, at the outset, we must determine whether the statutes authorizing the disbursement of death benefits under the teachers’ retirement system constitute special laws. If the statutes in question are found to be special laws, the constitutional proscription is applicable here, and the statutes must withstand constitutional scrutiny. If the statutes are found to be general in nature rather than special, the limitations of article 4, section 4 aré not applicable, and the constitutional attack must fall.

General laws are those that operate equally and uniformly upon all persons brought within the relations and circumstances for which they provide or that operate equally upon all persons of a designated class founded upon a reasonable and proper classification. In contrast, a statute is special if it affects only a certain number of persons within a class and not all persons possessing the characteristics of the class. In essence, a special law is one directed to secure some private advantage or advancement for the benefit of private persons. Viewed in this context, the constitutional proscription against special laws on certain subjects, including the rules on successions and donations, represents an important safeguard against the abuse of legislative power on behalf of special interests.

In light of these principles, we are unable to say that the statutes in question are special laws within the meaning of article 4, section 4. The teachers’ retirement system is founded upon a classification that embraces, with narrow exception, all teachers in state public schools. This classification is reasonable and applies uniformly to persons possessing the controlling characteristic of the class, viz., employment as a teacher within the public schools of Louisiana. Accordingly, the statute is a general law and not subject to the limitations placed on the passage of special laws by article 4, section 4 of the 1921 constitution. For this reason, the constitutional attack on the statutes governing the disbursement of death benefits from a deceased member’s retirement fund is without merit.

It is also claimed that the disbursement of death benefits here violates the rules in the Civil Code on donations, which prescribe various forms that the gift must assume in order to be valid. To the extent that the statutes permit the assignment of death benefits by mere completion of a printed form, they clearly conflict with the Civil Code rules on donations. However, where two statutes are in conflict, the statute that is more specifically directed to the matter at issue must prevail as an exception to the statute that is more general in character. Hence, the statutory method by which teachers’ retirement death benefits are assigned constitutes an exception to the Civil Code requirements of form ordinarily applicable to donations, and, as such, the assignment is not subject to attack as a donation invalid for want of form.

IV.

Alternatively, Mrs. Keller seeks reimbursement of her mother’s estate for one-half the enhanced value áccruing to. her father’s separate estate as a result of the retirement fund contributions from his salary. As the court of appeal correctly observed, as sole heir to both her mother’s and her father’s estates, Mrs. Keller is both creditor and debtor of the same amount. Under these circumstances, the debt is extinguished by confusion.

V.

The only issue remaining for decision is whether, as the sole forced heir to her father’s succession, Mrs. Keller is entitled to a reduction of the benefits disbursed to Mrs. Vial as a donation impinging on her legitime. We need not decide the effect of the application of article 4, section 16 of the 1921 constitution, which proscribes the passage of any law (local or special) that abolishes forced heirship, to the statutes in question, as the record clearly reveals that Mrs. Keller’s legitime was satisfied by the amounts she received from her father’s succession.

CONCLUSION

As general laws, the statutes governing the assignment of death benefits within the 'teachers’ retirement system are not subject to the constitutional proscriptions contained in article 4, section 4 of the Louisiana Constitution of 1921.- Further, the statutes must be regarded as exceptions to the statutory rules of form ordinarily applicable to donations. In sum, an assignment of death benefits made in conformity with the applicable statutes constitutes a valid disposition of those funds.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

BARHAM, J., concurs.

      . See La.Code Civ.P. arts. 4651-62 (1966).

      . La.Const. art. 12, § 23 (1921), as amended, La.Aets 1946, No. 394 j La.Aets 1936, No. 83 (regular session).

      . La.R.S. 17:571-704 (1950).

      . Id. 17:573, as amended, La.Aets 1952, No. 418, § 1.

      . Id. 17:631.1, as amended, La.Aets 1974, No. 351, § 1.

      . Id. 17:640, as amended, La.Acts 1971, No. 5, § 5.

      . The constitution of 1921 was in force and effect to govern the disposition of funds of which Mrs. Keller complains. 'The new state constitution, which became effective at midnight of December 31, 1974, contains a similar provision. La.Const. art. 3, § 12(A) (2) (1974).

      . See, e. g., Scott v. Scott, 179 So.2d 656 (La. App. 2d Cir. 1965). For a thorough discussion of the admixture of orthodox civilian theory and the law of insurance in Louisiana see Nabors, Civil Law Influences Upon the Law of Insurance in Louisiana, 6 Tul.L.Rev. 369 (1932).

        . Teachers’ Retirement System of Louisiana v. Vial, 304 So.2d 53, 55-58 (La.App. 1st Cir. 1974).

      . Id. at 58.

      . See notes 4 and 6 supra.

      . The jurisprudence has often failed to distinguish between “local” and “special” laws, in effect treating them as the same. A “local” law is one that operates only in a particular locality without the possibility of extending its coverage to other areas should the requisite criteria of its statutory classification exist there. Comment, General and Special Laws in Louisiana, 16 La.L.Rev. 768, 770 (1956) [hereinafter cited as Comment], Clearly, the statutes governing the teachers’ retirement system are not restricted in their application to any particular locale; hence, they are not, in any sense, “local” laws.

      . E. g., Knapp v. Jefferson-Plaquemines Drainage Diet., 224 La. 105, 68 So.2d 774 (1953) ; State v. moment, 188 La. 923, 178 So. 493 (1938) ; State v. Dalon, 35 La.Ann. 1141 (1883). For a thorough analysis of general and special laws in Louisiana see generally Comment, supra note 12.

      . E. g., Koteh v. Board, of River Port Pilot Gomm'rs., 209 La. 737, 25 So.2d 527 (1946), affd, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1947).

      . State ex rel. Oroseh v. Oity of New Orleans, 211 La. 241, 29 So.2d 778 (1947) ; State v. Dalon, 35 La.Ann. 1141 (1883).

      . La.R.S. 17:591-93 (1950).

      . See La.Civil Code arts. 1536-39, 1570 (1870).

      . E, g., Arata v. Louisiana Stadium and Exposition District, 254 La. 579, 608-09, 225 So.2d 362, 372, cert, denied, Sohwegmmn v. Louisiana Stadium and Exposition District, 396 U.S. 279, 90 S.Ct. 569, 24 L.Ed.2d 467 (1969).

      . La.Civil Code art. 2217 (1870).

      . The Legislature may authorize the creation of express trusts for any purpose, including but not limited to private trusts, trusts for the benefit of employees, trusts for educational, charitable, or religious purposes, and mixed trusts for any combination of purposes. Substitutions not in trust are and remain prohibited; but trusts may contain substitutions to the extent authorized by the Legislature. No law shall he passed abolishing forced heirship; but the legitime may be placed in trust to the extent authorized by the Legislature. Children lawfully adopted shall become forced heirs to the same extent as if born to the adopter and shall retain their rights as heirs of their blood relatives, but their blood relatives shall have their rights of inheritance from these children terminated.
      La.Const. art. 4, § 16 (3921) as amended, Acts 1962, No. 521 (emphasis added). For a similar proscription in the new constitution see La.Const. art. 12, § 5 (1974).

      . As sole forced heir of her father, Mrs. Keller was entitled to one-third of his succession. La.Civil Code art. 1493 (1870). Aggregating the amounts for the sake of argument, the decedent’s estate and the death benefits disbursed to Mrs. Vial totaled $96,-449.79. Mrs. Keller’s inheritance amounted to $66,969.00, clearly more than her forced portion would be, even if the succession value was calculated in that manner.


author: SUMMERS, Justice. BARHAM, Justice

text:
    STATE of Louisiana v. Robert McKINNON.
    No. 55981.
    Supreme Court of Louisiana.
    July 25, 1975.
    Rehearing Denied Sept. 5, 1975.

      Guy Johnson, New Orleans, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

By a bill of information Robert McKin-non was charged with theft between July 28, 1970 and March 3, 1972 of $72,949.51 belonging to Bob McKinnon Chevrolet Co., Inc. La.R.S. 14:67. On March 1, 1974 the information was amended to reduce the charge to the theft of $45,089.57. He was tried, found guilty as charged, and sentenced to serve 4J^ years in the custody of the Director of the Department of Corrections and to pay a fine of $3,000. On this appeal he relies upon five bills of exceptions.

McKinnon, together with Herbert L. Polk and George A. Gear, were • engaged in the business of selling and servicing automobiles in the city of New Orleans. The corporate status of this operation is reflected in its name — Bob McKinnon Chevrolet, Incorporated.

The corporation held a Chevrolet Motor Company franchise requiring that one individual be named as operator. Accordingly, appellant McKinnon was named as operator with certain accruing benefits, one of which was the right to purchase the interest of the other associates after five years of operation.

McKinnon attempted to exercise this option and the partners resisted. The result was a multiplicity of civil litigation, including actions for injunctions in both State and Federal courts. No court enjoined operation of the business, but most of the remaining litigation remains unresolved.

Polk and Gear, holders of two-thirds of the stock, fired McKinnon, called in their own auditor and proceeded to do an intensive audit. This audit and the opinions of its author constitute the principal evidence relied on by the State.

BILL 1

While the State’s attorney was questioning McKinnon’s business partner Polk, the following occurred:

“Q. Would you clarify that a little bit? What do you mean the dealer can buy it out over a five-year period ?
A. Mr. McKinnon, Mr. Gear, and I signed an agreement that the intent was Mr. McKinnon was to buy our interest out over a five-year period. And Mr. McKinnon stated to us that at his age all he wanted was to have an — ”

At this point counsel for defense noted an objection stating: “Maybe it is the time to raise a formal objection of statements made by Mr. McKinnon.” Soon thereafter, the State’s attorney asked: “Did Mr. McKinnon ever tell you he wanted to buy out the business ?” Counsel for defendant again objected on the same ground and the objection was overruled. Polk then answered, disclosing what Mc-Kinnon said.

The objection was urged as a continuing objection by defense counsel:

“Mr. Johnson: Your Honor, I want to make one objection to any statement made by Mr. McKinnon at any time in this case — make this one objection based upon the fact that if a statement of Mr. McKinnon is introduced, it is either in-culpatory or exculpatory, and the prosecution has no interest in introducing exculpatory statements, (and) compliance with the code requirements of notice of intention to use that has not been made at this time.”

The trial judge recognized a continuing objection to all statements made by the accused, McKinnon.

There are substantial questions presented by this ruling. Making the objection continuing during a protracted trial lasting nine days, in which five volumes of testimony containing 1,123 pages were recorded, is a doubtful practice. Only one bill was reserved on this issue which is referred to in detail above. Under these circumstances, since this trial ended on March 3, 1974, only the bill of exceptions reserved may be considered, for at that time the pertinent law was:

“An irregularity or error in the proceedings cannot be availed of after verdict unless it is objected to at the time of its occurrence and a bill of exceptions is reserved to the adverse ruling of the court on such objection. Failure to reserve a bill of exceptions at the time of an adverse ruling of the court operates as a waiver of the objection and as an acquiescence in the irregularity or ruling....."

La.Code Crim.Proc. art. 841.

At the time of this trial, the foregoing provision was in full force and effect. A subsequent amendment by Act 297 of 1974, permitting merely that the objecting party assign error, has no effect on this trial. Particularly where, as here, there is no designation in writing of the errors which are now urged upon this appeal, other than that contained in the bill of exceptions to which reference has been made. Article 844, in effect at the time of this trial, mandates that the “appellate court shall consider only formal bills of exceptions.” This article was amended by Act 207 of 1974 to implement the assignment of error requirement of Article 841 on appeals. Even the amendment, however, requires that the party appealing “shall designate, in writing, those errors which are urged on appeal.”

Nevertheless, the briefs indicate that this bill of exceptions is exemplary of the issues presented by the other questions and answers to which the continuing objection applies. A decision on this bill, will, therefore, be determinative of the proposition advanced by this bill' and defendant’s brief.

It is the defense contention that the State’s attorney improperly solicited an answer from the witness, an answer requiring that he say what the defendant Mc-Kinnon told him. This, it is argued, was to solicit an inculpatory statement. Although it is not stated in what respect the specific answer is inculpatory, it is reasoned that the State has no interest in eliciting exculpatory statements of the defendant, and any answer the witness might give would be inculpatory. And, if they are not inculpatory, then they nevertheless are objectionable, for they are not relevant.

It is fair to say that the State’s witnesses did testify to statements made to them by McKinnon which were unfavorable to his cause. But these statements were not inculpatory statements within the contemplation of Article 768 of the Code of Criminal Procedure providing:

“If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”

The statements made by McKinnon to the .witnesses were made in connection with a series of facts and circumstances occurring over a long period of time which formed the basis of this theft charge. The theft did not arise from a single incident but involved, instead, a number of actions on McKinnon’s part whereby on various occasions he misappropriated things having the cumulative value charged in the bill of information. The statements were, therefore, parts of the overall transaction. The law does not require that a theft consist of one single appropriation. To the contrary, “when there has been a misappropriation or taking by a number of distinct acts of the offender, the aggregate of the amount of the misappropriations or takings shall determine the grade of the offense.” La.R.S. 14:67.

These statements, therefore, are not the type inculpatory statement Article 768 is intended to govern. Inculpatory statements within the contemplation of the Article, like confessions, involve “out-of-court admissions .of incriminating facts made by the defendant after the crime has been committed.” State v. Wells, 306 So.2d 695 (La.1975); State v. Johnson, 263 La. 462, 268 So.2d 620 (1972); State v. Fink, 255 La. 385, 231 So.2d 360 (1970). These admissions on McKinnon’s part occurred during the perpetration of the numerous acts of appropriation constituting the theft offense.

The trial judge in a per curiam to this bill also reasoned that the statements were not “after the crime”, and therefore not inculpatory under Article 768. Although the defense objection was not based upon the contention that these statements were hearsay, the trial judge recognized the hearsay character of the statements, but found them to be part of the res gestae. As such, he decided, they were exceptions to the hearsay rule and not objectionable. His reasons were well-founded. The declarations of McKinnon were “necessary incidents of the criminal act, or immediate concomitants of it.” La.R.S. 15:448. See, also, La.R.S. 15:434 and 447.

BILLS 2 and 3

Examination of the qualifications of the accountant Raymond W. Schmidt established that he was an expert in his field and qualified to express an opinion. However, defense counsel objected to his competency to testify and invoked the privilege accorded by Section 85 of Title 37 of the Revised Statutes. The section declares :

“No certified public accountant, public accountant, or person employed by certified public accountant or public accountant, shall be required to, or voluntarily disclose or divulge, the contents of any communication made to him by any person employing him to examine, audit, or report on any books, records, or accounts, or divulge any information derived from such books, records or accounts in rendering professional services except by express permission of the person employing him or his heirs, personal representative or successors.”

On the basis of this objection the trial judge ruled that the witness would not be permitted to testify unless he and the party employing him waived the privilege the statute established. Accordingly, Schmidt, Polk, as president of the corporation, and Gear, as a director, took the stand and waived the privilege. The trial judge then ruled that Schmidt could testify. Defense counsel objected to this ruling and reserved bill of exceptions number 2. He then moved to suppress all evidence obtained by the prosecution prior to and subsequent to the in-court waiver based upon the contention that the privilege could not be waived. When the motion was overruled bill number 3 was reserved.

As the statute creating the privilege states, the accountant cannot divulge the testimony without the “express permission of the persons employing him.” In this case the president of the corporation employing the accountant waived the privilege on his own behalf, on behalf of the corporation and in his capacity as a director. Gear, also a director, also waived the privilege. It is our view that this constituted an adequate waiver when granted by the president, as such, and by two of the three directors of the corporation.

In addition, the testimony of the accountant is' authorized and was properly admitted at the trial on another ground. Section 86 of Title 37 states that, “[n]oth-ing in R.S. 37:83 through 37:85 shall modify, change, or affect the criminal laws of this state . . . any rules or laws of evidence of this state, or any proceedings held in any court.”

Considered in light of this caveat, the privilege is inapplicable in this criminal proceeding. It does change and affect the criminal laws of the state by adding a privilege not accorded by those laws. Testimonial privileges which may be claimed in criminal proceedings are found in Title IS of the Revised Statutes. Section 461 pertains to the husband and wife privilege; Section 47S to the attorney-client privilege; Section 476 physician-patient; and Section 477 clergyman-penitent. Since the accountant’s privilege is not found in the context of the State’s criminal laws, it cannot by its express language apply in a criminal proceeding.

These bills have no merit.

BILL 4

When the State sought to establish proof of theft of approximately $30,000 by documentary evidence, it was objected that the particulars of these documents were not disclosed by the State in answer to defendant’s request for a bill of particulars and therefore evidence as to them was inadmissible. In view of this objection the prosecution moved to amend the bill of particulars and the bill of information to conform with the evidence.

The trial judge ruled, however, that amendment of the bill of particulars would not be permitted, but that he would permit amendment of the bill of information to conform with the evidence upon the authority of Article 488 of the Code of Criminal Procedure:

“When there is a variance between the allegations of an indictment or bill of particulars which state the particulars of the offense, and the evidence offered in support thereof, the court may order the indictment or bill of particulars amended in respect to the variance, and then admit the evidence.”

In connection with this ruling, the trial judge admonished the jury to disregard all of the evidence relating to the documents and testimony which had not been disclosed by the bill of particulars.

The ruling was correct. As the quoted article makes clear, when there is an amendment in keeping with a variance in the proof to be offered, the amendment is permissible, after which the evidence may be admitted. Such an amendment during trial, however, is not permissible if the defect in the indictment is one of substance. La.Code Crim.Proc. art. 487. When a defect of substance is discovered after the trial has begun, it is too late, and a mistrial must be declared since it is sacramental that the trial must be held upon an indictment which is not substantively defective, that is, which states the basic elements of the crime charged or follows an authorized specific form. State v. Williams, 173 La. 1, 136 So. 68 (1931).

In the case at bar reducing the value of the things misappropriated does not change the genus of the thing misappropriated. The State’s amendment, therefore, does not surprise the defendant nor compel him to realign his defense. The change was merely formal, not substantive. State v. Gurney, 249 La. 71, 185 So.2d 19 (1966).

There is no merit to this bill.

BILL 5

In a motion for a directed verdict it was alleged by the defendant that there was no evidence of the crime, and, more particularly, that there was no evidence of an intent to permanently deprive the corporation of the funds taken. The motion was denied, and this bill was reserved.

By the settled jurisprudence of this Court a motion for a directed verdict in a jury trial may be granted only where there is no evidence at all to prove the crime charged, or an essential element thereof. La.Const, art. VII, ¶ 10; Art. XIX, ¶ 9; La.Code Crim.Proc. art. 778; State v. Hatch, 305 So.2d 497 (La.1974).

There is ample evidence in this record to support the verdict. McKinnon withdrew approximately $45,000 from the dealership for his personal use between July of 1970 and March of 1972. Although proof of his intent to permanently deprive the corporation of the funds taken is a question of fact, it need not be proven as a fact, it may be inferred, from the circumstances of the transaction. La.R.S. 15:445; State v. White, 301 So.2d 321 (La.1974). There is evidence in this record from which such an inference could be drawn by the jury.

This bill has no merit.

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

BARHAM, J., concurs and assigns reasons.

CALOGERO, J., concurs for the reasons assigned by BARHAM, J.

BARHAM, Justice

(concurring).

The majority has, in dictum, stated that only the bill of exceptions reserved could be considered on this appeal. This appeal is lodged under the Louisiana Constitution of 1974 and we may consider any objection made at the trial which is assigned as error. The record here is sufficiently replete with reference to the objections, and even to the bill of exceptions that was reserved, to present a proper record for total review of all objections. I concur since the majority actually treats all of the objections, and whatever else is said in the opinion in this regard has no weight as a holding in the case, being more dictum.

I am further of the opinion that when counsel makes an objection to a question and is overruled, and a long and continued line of questioning adverse to his position necessarily will follow, if he requests that his objection be made general to all such interrogation and receives a favorable ruling from the trial court, all testimony included in that category covered by the objection is before this Court for review.

I further concur because the majority characterizes the inculpatory statements as res gestae. This Court has for too long loosely used that terminology whenever any evidence is considered admissible.

I respectfully concur in the result.


author: CALOGERO, Justice. TATE, Justice

text:
    STATE of Louisiana v. Wesley Joseph SONNIER.
    No. 56054.
    Supreme Court of Louisiana.
    July 25, 1975.
    Rehearing Denied Sept. 5, 1975.

      Bryan Miller, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., James L. Babin, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant, Wesley Joseph Sonnier, was convicted of armed robbery in violation of La.R.S. 14:64 and was sentenced to serve 10 years at hard labor without benefit of parole, probation, or suspension of sentence. He appeals, relying upon seven assignments of error in urging reversal of his conviction and sentence.

The evidence shows that defendant, while armed with a revolver, entered the Kwik Shop No. 2, a small convenience store in Lake Charles, and threatened to kill the clerk, John Walker, Jr. if he had to. Walker thereupon took money from the cash register, placed it in a paper bag and gave it to defendant. Defendant did not immediately attempt to leave, however, and he was arrested in the store by police officers who arrived a few minutes after the alleged robbery occurred.

Assignments of Errors Nos. 1, 2 and 3.

Defendant assigns as error the denial of his motion for a directed verdict of acquittal. Defendant argued at trial, and he now contends in brief, that certain elements necessary to support a verdict of guilty were missing from the state’s case. Specifically, he argues that there is no evidence that he was armed with a dangerous weapon (Assignment of Error No. 1), or that he perpetrated a theft during the incident (Assignment of Error No. 2), or that he acted with the specific intent to permanently deprive anyone of anything of value (Assignment of Error No. 3.)

Article 778, C.Cr.P., authorizes the trial judge to direct a verdict of acquittal if, at the conclusion of the state’s evidence or of all the evidence, he finds that the evidence is “ . . . insufficient to sustain a conviction.” In State v. Douglas, 278 So.2d 485 (La.1973), we held that the quoted phrase referred to a situation where the prosecutor has produced no evidence to prove a crime or an essential element thereof. A directed verdict is not proper where the state has presented some evidence tending to prove the commission of the crime and each of its elements.

In the instant case, our review of the state’s case in chief discloses that the trial judge did not err in denying defendant a directed verdict of acquittal.

The state presented uncontroverted evidence showing that defendant, during the robbery of the clerk at the Kwik Shop No. 2, was armed with a .22 calibre revolver.

Defendant contends, however, that the State failed to prove that the revolver was in working order, that it was capable of firing a bullet. He contends that the revolver should have been test-fired and the results of the test-firing made known to the jury. He argues that such concrete proof of the revolver’s capacity to produce death or great bodily harm was essential to proof of the fact that the revolver was a dangerous weapon.

La.R.S. 14:2(3) states:

“ ‘Dangerous weapon’ includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.”

In State v. Levi, 259 La. 591, 250 So.2d 751 (1971), we held that an unloaded and unworkable pistol, pointed at the victim, was a dangerous weapon, making the robbery which occurred an aggravated one.

In light of the Levi decision, it was unnecessary for the state to prove, through a test firing, that the revolver was actually capable of firing. In any event, testimony at trial reflects that the revolver appeared to be in good condition, with no indications that it was broken or worn, and indeed when recovered from defendant contained three live bullets and one spent casing.

Accordingly, we find Assignment of Error No. 1 to be without merit.

Defendant’s second argument in support of his contention that a directed verdict should have been entered is that the state failed to provide evidence that a theft or taking occurred during the alleged armed robbery.

The evidence shows that defendant entered the shop at approximately 7:00 p.m. on September 28, 1973. Despite the warm weather, defendant was wearing a jacket, under which he concealed the revolver. He was also wearing a small brown hat or cap, and under the hat, there was visible a lady’s stocking, pulled down over defendant’s skull and rolled down to just above his ears.

When approached by the store clerk, Walker, defendant withdrew the revolver from his jacket and pointed it at Walker, stating that he would blow Walker’s head off and that he was not afraid to use the gun if he had to. Walker testified that he assumed defendant wanted money. Walker went to the cash register and placed what was later determined to be $109.50 into a brown paper bag. He handed the bag to defendant who took it.

Defendant did not, however, immediately leave the store, and he was arrested in the store by police officers who arrived a few minutes after the robbery occurred. Defendant was not in possession of the bag when the police arrived, having at some point placed the bag on the counter, where it was recovered by the police.

An explanation of what occurred during the interval of time after defendant had the paper bag and before the police arrived was not clearly brought out at trial. Walker did testify as to one incident which occurred. It appears .that a young child peeped around a corner and saw defendant and Walker. Defendant told Walker to give the child a quarter, and tried to give the bag of money to Walker, presumably so that Walker could extract from it a quarter to • give to the child. Walker, however, did not take the bag.

Defendant argues that these facts fail to provide evidence that he took the money without the consent of Walker. As defendant interprets the evidence, all that it shows is that he threatened Walker and Walker gave him a bag of money. He contends that the giving of the money was unsolicited and further, that he showed that he was not interested in a taking of the money because of the fact that he attempted to give it' back to Walker, and because he did not immediately attempt to escape but' instead lay the bag of money on a counter where it was eventually recovered by the police.

It is apparent, however, that the evidence depicts a set of circumstances from which rational, fair-minded men could find that there was indeed a taking. Defendant did take the bag of money. Furthermore, from the episode involving the small child, the jury could reasonably infer that defendant knew what was in the bag, and that his attempt to give the bag to Walker, so that he could give the child a quarter, was in actuality not an attempt to relinquish the bag but to the contrary was an indication of his control over the contents.

We find no merit in Assignment of Error No. 2.

Defendant’s third argument, presented in his thorough brief, is that there was no evidence that defendant had any intent to permanently deprive Walker of the money. It is argued that the State failed to prove any of the usual circumstances by which intent, a subjective state of mind, is proved. It is argued that there is no evidence that defendant ever said “This is a stickup” or similar words, that defendant in any manner checked to assure that all the money from the cash register was placed in the bag, that he ever tried to secret the money on his person, that he took steps to prevent Walker and the customers in the store from calling the police, that he prepared for escape by having a “get away” vehicle, or that he tried to escape immediately after the robbery.

Intent may of course be inferred from the circumstances of the transaction. La. R.S. 15:445.

In our opinion, there was evidence from which the jury could conclude that defendant did intend to rob Walker. Defendant’s manner of dress, the stocking, the display of the revolver, his threat to use the gun if he had to, and the fact that he did take the money are all circumstances justifying an inference that defendant intended to rob Walker, to permanently deprive him of the money. Furthermore, in addition to the foregoing evidence, the state called as a witness Sargeant Wagoner, who testified to an oral inculpatory statement given him by defendant. According to Sgt. Wagoner, defendant stated that two gentlemen whom he met in a barroom talked him into robbing the Kwik Shop and that he did in fact rob the store.

Accordingly we conclude that there was evidence of intent to deprive the clerk permanently of the money. Therefore, there is no merit in Assignment of Error No. 3.

Assignment of Error No. 4.

Defendant had entered a plea of “Not Guilty and Not Guilty by Reason of Insanity” to the charge. During presentation of the defense’s case, defendant introduced into evidence certified copies of his medical records from East Louisiana State Hospital, Central Louisiana State Hospital, and St. Patricks’ Hospital in Lake Charles. The documents show several commitments to Louisiana hospitals and a diagnosis of anti-social personality and alcohol addiction. Also included in the medical records, presumably as part of defendant’s history and perhaps pertinent to his treatment, were copies of defendant’s “rap sheet.”

In connection with the introduction of the medical records into evidence, the defense called Dr. Avery L. Cook, coroner for Cal-casieu Parish, as a witness. During direct examination, Dr. Cook referred to various documents contained in the group of records. He was not, however, questioned about the rap sheet and he made no reference to it.

On cross-examination, the prosecutor questioned Dr. Cook on aspects covered in his testimony in chief and then questioned Dr. Cook in regard to the rap sheet. Over defense objection, the state was allowed to thoroughly present to the jury the details of defendant’s past criminal record, by having Dr. Cook refer to the rap sheet.

Defendant contends that the trial court erred in allowing the state to expose defendant’s rap sheet, considering that normally evidence of prior arrests is inadmissible and evidence of prior convictions is admissible only under specific circumstances not present here.

Defendant would be correct in a situation where the state attempts to introduce inadmissible evidence over defense objection. However, such is not the case here. The documents, including the rap sheet which was explored on cross-examination, had been introduced into evidence not by the state, but by the defendant himself. The documents were properly in evidence, and before the jury for their consideration, because defendant chose to introduce them.

It is inappropriate for us to speculate as to what prompted defense counsel to introduce the rap sheet as part of the medical record. It suffices that such rap sheet was in evidence, placed there by defendant. Under these circumstances, to prevent the state from a thorough cross-examination of a witness, and an exploration of exhibits already admitted into evidence, would be an unwarranted curtailment of a legitimate trial tactic.

This assignment or error has no merit.

Assignment of Error No. 5.

Defendant assigns as error the overruling of his objection to a remark made by the prosecutor in closing argument on rebuttal. The specific remark which prompted the objection was the following :

“ . . . You had a man facing you with a pistol and told you he was going to blow your head off; what are you going to do ? Gentlemen, there’s no question that the armed robbery occurred. Luckily we caught him, and luckily there was no shooting when they did catch him.”

He objected, protesting that there had been no shooting. The trial judge properly overruled the objection (or protestation).

In brief defendant argues that the remark was irrelevant and calculated to create. prejudice against the accused by implying that the revolver was capable of firing. And he complains that the trial court did not attempt to cure the alleged error by admonishing the jury to disregard the remark.

Closing argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” La.C.Cr.P. Art. 774. The evidence in the.instant case showed that defendant was armed with a revolver which gave every appearance of being in working order, and which defendant had used to threaten Walker. The. argument by the prosecutor was, however speculative, permissibly referable to the evidence.

Furthermore, even if the remark had been irrelevant and prejudicial, the trial court was not requested by defendant to admonish the jury, such a request being required by Art. 771, C.Cr.P.

Defendant protests that the remark or argument was contrary to Art. 774, C.Cr. P., which confines the state’s rebuttal argument to answering the argument of the defendant. This contention was not made at trial, and consequently the trial court did not have the opportunity to rule on such an objection, nor upon a defense request if the objection were meritorious, to admonish the jury to disregard the argument. This protest of defendant’s is therefore not properly before us.

This assignment of error has no merit.

Assignment of Error No. 6.

This assignment of error is also directed to certain remarks made by the prosecutor in his rebuttal argument. The transcript reflects the following:

“STATE: . . . [The defendant] sure seemed to know right from wrong when he told that guy he would blow his brains out. Now, he wants to tell you that under the civil law Dr. Cook would put him in an institution so he won’t hurt anybody. Three times they tried that. Three times, and there’s no way to keep him there. Do you remember when counsel read the letter? It said tell the Coroner don’t send this man here again. He’s not our type case. He read it to you standing right..."

The objection raised at trial and overruled by the trial judge was that the prosecutor was referring to the letter “out of context,” or was misleading the jury. He submitted that the letter properly described states that defendant, if in need of further hospitalization, should be sent to Central Louisiana Hospital rather than any other institution.

Defendant now in brief presents the contention that the prosecutor’s argument in regard to the civil commitment of defendant was irrelevant and prejudicial and should therefore have prompted an admonition to the jury to disregard the remarks. Art. 771 C.Cr.P. The problem here is that defendant did not present this contention to the trial judge and did not request that the jury be admonished to disregard the allegedly prejudicial remarks.

There was no error in the court’s overruling the objection. The jury is fully capable of analyzing the evidence and disregarding partisan argument not fully supported by the evidence.

This assignment of error has no merit.

Assignment of Error No. 7.

Defendant’s final assigned error is that he was denied his right to a fair trial by jury in that women were systematically excluded from the jury venire.

Defendant was tried on September 23, 1974 by a jury selected in accordance with Louisiana Constitution (1921), Art. VII, § 41 and C.Cr.P. 402, which at that time provided for a general exemption for women. The United States Supreme Court held that the decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), which found unconstitutional the exclusion of women from jury service unless they volunteered, need not be applied retroactively. Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975). This court held in State v. Rester, 309 So.2d 321 (La.1975), that we would not give the Taylor case retroactive effect.

There is no merit in this assignment.

Accordingly, defendant’s conviction and sentence are affirmed.

TATE, J., dissents and assigns reasons.

TATE, Justice

(dissenting).

I respectfully dissent.

The accused Sonnier, if mentally competent, undoubtedly committed a felony by threatening the store clerk with the weapon. The close issues for the jury to determine were: (a) whether this mentally disturbed individual was mentally incompetent and thus a subject for (re)hospitalization rather than for the penitentiary and (b) whether, even if mentally competent, this individual intended to commit the crime of armed robbery instead of, as a mean drunk, simply threatening the store clerk (and thus subject to punishment under the less rigorous penalties of a felony other than armed robbery).

In connection with the issue of mental competency, the accused introduced into evidence voluminous medical records. Tucked within them was an arrest record of the accused, along with other sociological and background information. On cross-examination of the medical witness, the State asked the doctor to read the page or so of the arrest record contained within this medical report.

The objection to this grossly prejudicial and irrelevant cross-examination should have been sustained. I can think of no conceivable reason that it had any relevancy whatsoever to the issues of the direct examination of the medical witness, to his qualifications, or to any issue of this prosecution. The sole purpose of the cross-examination was to bring before the jury this grossly prejudicial and irrelevant information of a string of petty arrests on this mentally disturbed individual’s past, in violation of the statutory and jurisprudential rules forbidding reference to prior arrests even for the purposes of testing credibility.

The State does not deny that it would have been reversible error if it had itself sought to have introduced this arrest record. It does not contend that, if the defense counsel had limited his introduction of the medical records to the medical treatment records (and had excluded the arrest record), the State could have brought evidence of these prior arrests before the jury. Its position is simply that, since the defense counsel failed to so limit his introduction of the medical records, the State can bring this improper evidence before the jury, regardless of its relevancy.

This cannot be the law. Further, conceding the high character of the present prosecutor and the circumstance that in the heat of adversary trial the instinct of the advocate to win may cause one to overlook the following principle, nevertheless: “The duty of the prosecutor is to seek justice, not merely to convict.” American Bar Association Standards on the Prosecution Function, Standard 1.1 (1971).

Due to the grossly prejudicial evidence of prior arrests brought to the jury’s attention by the State despite the statutory and jurisprudential prohibition against doing so, the accused simply did not receive a fair trial on the issue of his mental incapacity at the time of the crime and of his lack of intent to commit a robbery (as compared with an assault).

I therefore respectfully dissent.

      . La.R.S. 14:64 defines the crime of armed robbery as ‘‘the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.”
      Theft, in turn, is defined by La.R.S. 14:67 as “the misappropriation or taking of anything 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 be the subject of the misappropriation or taking is essential.”


text:
    STATE of Louisiana v. Ronald DWYER.
    No. 56794.
    Supreme Court of Louisiana.
    Aug. 28, 1975.
   In re: State of Louisiana through the District Attorney, Parish of Orleans applying for writs of certiorari, mandamus and prohibition.

Writ denied. The matter has been resolved by the parties.

DIXON, J., concurs in the denial, being of the opinion the application is wholly without merit. The D. A. does not have the right to force a judge to fix a case for trial on a certain day. The judge controls his court.


text:
    In re Investigation of Alleged Violation of the CIVIL SERVICE LAW AND RULES by W. L. McCray, et al.
    No. 56786.
    Supreme Court of Louisiana.
    Aug. 29, 1975.
   In re: W. L. McCray and Gary T. Wilkinson applying for Supersedeas — Stay and Recall of Mandate, Civil Service Commission Docket No. 1263.

Writ refused. The showing made is insufficient to warrant the exercise of our supervisory jurisdiction.

SUMMERS & BARHAM, JJ., are of the opinion the writ should be granted.


text:
    Charles Darwin SLATER v. Idabelle Cloutman, wife of Charles Darwin SLATER.
    No. 56793.
    Supreme Court of Louisiana.
    Aug. 29, 1975.
   In re: Idabelle Cloutman, wife of Charles Darwin Slater applying for writ of prohibition and stay order.

Writ Denied. The application is premature at this time, in the absence of any-conflicting orders or judgments of the respective court.


text:
    STATE of Louisiana v. Gilbert HENRY.
    No. 56804.
    Supreme Court of Louisiana.
    Aug. 29, 1975.
   In re: Gilbert Henry applying for Remedial Writs.

Writ granted to this extent: It is ordered that defendant’s bond be reduced to $50,000.00 on the showing made.

SUMMERS, J., dissents from the granting of the writ, being of the opinion that the bond should not be reduced.

DIXON, J., is of the opinion the increased bond should be reduced to $11,000. the amount fixed on July 5. There has been no change since that time in any factor legitimately attacking the amount of the bond.