author: MARCUS, Justice. CALOGERO, Justice DENNIS, Justice.

text:
    STATE of Louisiana v. Richard Norman GLOVER.
    Nos. 56812, 56894.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    On Rehearing Jan. 24, 1977.
    Rehearings Denied March 2, 1977.

      Robert Glass, Frederick J. Gisevius, Jr., George W. Healy, III, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for Richard N. Glover.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for the State.

       Sanders, C. J., Summers and Marcus, jJ., were of the opinion that a rehearing should be granted.

   MARCUS, Justice.

Richard Norman Glover was indicted by the Orleans Parish Grand Jury on June 29, 1972 for murder in violation of La.R.S. 14:3o. Prior to trial, defendant filed a motion to suppress three inculpatory statements that he made during the period of June 13-14, 1972. The trial judge suppressed two written confessions made to the police, but refused to suppress an oral inculpatory statement defendant made to his common-law wife that the police electronically intercepted. We granted the application of both the state and defendant for certiorari. 321 So.2d 361 ‘ (La. 1975).

FACTS

On December 24, 1971, Cynthia LeBouef was raped and murdered in New Orleans. Approximately six months later, in June of 1972, the St. Bernard Parish Sheriff’s office received information from several confidential informants indicating that defendant had committed this crime. At that point in time, defendant’s common-law wife, Linda Bently, contacted Captain Louis Reichert of the St. Bernard Parish Detective’s office. She told him that she had left defendant and had fled into Pla-quemines Parish in fear for her life, and that she suspected defendant of having raped and murdered Cynthia LeBouef. She agreed to have a wireless transmitter, or microphone, attached to her person so that the police could monitor defendant’s statements. On June 13, 1972, at about 6:00 p. m. she met defendant at a parking lot in St. Bernard Parish. In a car nearby, eavesdropping on the conversation between Glover and his common-law wife by means of an electronic device, were Deputy Sheriff George Bethea and Officer Louis Reichert of St. Bernard Parish, and Patrolman Preston Reuter of the New Orleans Police Department. During the conversation, defendant asked Linda Bently why she would not return to him. She replied, “Well, Richard, the reason why I haven’t returned to you is that I heard that you killed that little white girl, killed and raped that little white girl,” whereupon Glover said, “No, I didn’t kill her. Tater killed her, but I was there.” This inculpa-tory statement having confirmed their suspicion that defendant was involved in the murder of Cynthia LeBouef, the police officers immediately took defendant into custody, orally advised him of his Miranda rights, and transported him to the St. Bernard Parish courthouse. At the sheriff’s office, defendant was again advised of his Miranda rights about 7:00 p. m. After signing a waiver-of-rights form, he then executed a typewritten confession in which he admitted that he was present when the crime was committed, but insisted that another person (whom he called “Tater”) had actually raped and murdered the victim. At about 9:00 p. m., defendant was taken from the courthouse to the Orleans Parish coroner’s office. En route, he spontaneously pointed out to the police the scene of the crime. After he was examined by the coroner, he was turned over to the Orleans Parish authorities at Central Lockup. The next day (June 14) at about S :00 p. m., after being fully advised of his rights, he made a second typewritten confession, in which he admitted that he himself had perpetrated the offenses.

At the conclusion of the trial of the motion to suppress held on May 30, 197S, the trial judge ruled that defendant was insane at the time he made these inculpatory statements and suppressed the two written confessions obtained while defendant was under police custody. On the other hand, he held that the oral inculpatory statement made to his common-law wife was admissible because it was not made while defendant was in police custody, stating in his reasons for judgment that the jury could determine what “weight and credibility” they wished to give to this statement.

I.

Before a confession or inculpato-ry statement can be introduced in evidence, it must be affirmatively shown by the state that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La.R.S. 15:451. See also La. Const, art. 1, § 11 (1921), in effect at the time of the alleged offense; La. Code Crim.P. art. 703(C) (1966). The admissibility of a confession or an inculpatory statement is a question of law for the trial j udge to determine; the weight to be given it is a question for the jury. State v. Sears, 298 So.2d 814 (La.1974); State v. Simpson, 247 La. 883, 175 So.2d 255 (1965); State v. Kennedy, 232 La. 755, 95 So.2d 301 (1957). Therefore, only after the trial judge has decided that the state has satisfied its burden of proving that a confession or inculpatory statement was free and voluntary may it be introduced in evidence.

The trial judge felt that defendant’s inculpatory statement to his common-law wife, because it was precustodial, was not subject to the requirement that it be found free and voluntary under the standards set forth above before its admission in evidence. In this respect, we believe he erred. The provisions of Louisiana law establishing that only free and voluntary confessions and inculpatory statements are admissible draw no distinction between those made before and after the accused is taken into police custody. La. Const, art. 1, § 11 (1921); La.R.S. 15:451; La.Code Crim.P. art. 703(C) (1966). We have defined an “inculpa-tory statement” as one that refers to the out-of-court admission of incriminating facts made by the accused after the crime has been committed. It relates to past events. State v. Fink, 255 La. 385, 231 So.2d 360 (1970). Defendant’s inculpatory statement to his common-law wife, made almost six' months after the crime with which he is charged occurred, incontestably falls within this definition. The state is not required, it is true, to show when it seeks to introduce a noncustodial inculpato-ry statement in evidence that the accused had been advised of his Miranda rights before it was made. State v. Roach, 322 So. 2d 222 (La. 1975). It still has the duty, however, of affirmatively showing that a noncustodial confession or inculpatory statement is free and voluntary. Therefore, the trial judge erred in ruling that it was unnecessary for the prosecution to lay this foundation and for him to rule thereon prior to the introduction of defendant’s in-culpatory statement to his common-law wife in evidence.

II.

While stating that he was uncertain whether the state or the defendant has the burden of proving insanity at the trial of a motion to suppress, the trial judge concluded that defendant had in fact proven his insanity at the time he made the inculpato-ry statement and confessions by a preponderance of the evidence. We disagree with this finding.

While La.R.S. 15:451 and article 703(C) of the Code of Criminal Procedure impose the burden upon the state of proving that a confession or inculpatory statement is free and voluntary, La.R.S. 15 :432 provides that an evidentiary legal presumption exists that a defendant is sane and responsible for his actions. La.R.S. 15:432 further provides that a legal presumption relieves him in whose favor it exists, in this case the presumption of sanity in favor of the state, from the necessity of any proof. Reading these provisions in pari materia, we believe that, in order to rebut the presumption of sanity, the accused has the burden of proving by a preponderance of the evidence his insanity at the time he made a confession or inculpatory statement. See La.Code Crim.P. art. 652 (1966) and Official Revision Comment thereto.

At the hearing on the motion to suppress, defendant called only one witness, Dr. Kenneth A. Ritter, a psychiatrist. Dr. Ritter was the member of a sanity commission appointed to determine defendant’s mental capacity to stand trial. He did not examine defendant until September 14, 1972, at which time he found defendant insane. However, this examination did not take place until three months after defendant made the inculpatory statement and confessions at issue (June 13-14).

Dr. Ritter’s testimony at the motion to suppress was equivocal with regard to defendant’s mental condition on June 13-14, 1972. He testified that defendant suffered from chronic schizophrenia, and that this psychosis would have been present in June. Yet, he also stated that there are varying degrees of psychosis and that all psychotics are not legally insane. Dr. Ritter admitted on cross-examination that, because schizophrenia is a progressive illness, defendant’s psychosis was possibly not as severe in June as in September and could have been present in a lesser degree.

At no point in his testimony did Dr. Rit-ter express with certainty his professional opinion that defendant’s psychosis had developed into what would be characterized as legal insanity by June, 1972. On direct examination, he was questioned regarding an earlier report to the court that he had made with Dr. Gene Usdin, another psychiatrist. In this report, he concluded that defendant was “probably” insane at the time of the commission of -the offense in December, 1971. The portion of the report -read at-the hearing ended with the following sentence: “However, for the purpose of emphasis, we repeat our lack of certainty about this.” We feel that the psychiatrist displayed a similar lack of certainty concerning defendant’s mental condition in June, 1972. When asked whether he could express a more positive opinion of defendant’s mental condition in June, 1972 (a closer point in time to the September psychiatric examination), he replied that he would be on “firmer gounds ... in speculating his mental status . . .” because of the closer proximity in time to the examination. (Emphasis added.) He did not thereupon state a definite professional opinion that defendant was legally insane on June 13-14, at which time defendant made the inculpatory statement and confessions sought to be suppressed.

In rebuttal, the state called several lay witnesses who were present and spoke with defendant at the time he made the inculpa-tory statement and confessions. They uniformly testified that defendant acted coherently and rationally and exhibited no signs of unusual or abnormal behavior. Significantly, defendant, who has the burden of proving insanity, failed to call his sister (who was present at the time he executed the written confession in Orleans Parish on June 14) or his common-law wife (to whom he made the oral inculpato-ry statement on June 13) at the hearing on the motion to suppress. Nor did he call Dr. Carl Rabin, the Orleans Parish coroner, who gave defendant a physical examination on the night of June 13. These persons, having seen and been familiar with defendant in June, 1972, would have been able to shed further light on his condition at that time. Additionally, no evidence was adduced at the hearing that defendant had any prior history of mental illness.

Under these circumstances, we do not find that defendant has borne the burden of proving by a preponderance of the evidence his insanity at the time he made the inculpatory statement and confessions on June 13-14. He has failed to overcome the presumption in favor of his sanity. Thus, the trial court erred in concluding otherwise.

Furthermore, we find that the state has affirmatively shown that the oral in-culpatory statement and the two written confessions were free and voluntary. The noncustodial statement made by defendant to his common-law wife on June 13 was spontaneous and did not result from police interrogation. Defendant’s in-custody confessions were made after being fully advised of his Miranda rights. On the night of June 13, he made a written confession immediately after being advised of his rights; and on June 14, he executed the second confession after about an hour of interrogation. The police officers present at the time the inculpatory statements were made testified as to the free and voluntary manner in which they were confected and denied the existence of any influence of fear, duress, intimidation, menaces, threats, inducements, or promises. Defendant offered no evidence to dispute their testimony. In absence of such evidence, and in absence of sufficient evidence to overcome the presumption of sanity, we conclude that the inculpatory statement and confessions made on June 13-14 were free and voluntary.

We must next determine whether defendant knowingly and intelligently waived his privilege against self-incrimination

A before he executed the in-custody confessions. Dr. Ritter testified at the hearing on the motion to suppress that defendant was illiterate and possessed a mentality that bordered on mental retardation. These factors do not preclude a knowing and intelligent waiver of the privilege against self-incrimination. State v. Neal, 321 So.2d 497 (La.1975); State v. Nicholas, 319 So.2d 361 (La.1975); State v. Edwards, 257 La. 707, 243 So.2d 806 (1971). Because defendant appeared to be uneducated, Captain Reichert, the arresting officer who participated in the taking of the June 13th written statement and witnessed defendant’s signing of a waiver-of-rights form, testified that, after reading to defendant the printed form advising him of his rights, he explained him his rights a second time in greater detail. He further testified that defendant was able to read part of the printed form aloud. Likewise, Officer Sam Gebbia testified that defendant was fully advised of his Miranda rights which defendant acknowledged that he understood prior to making the written confession on June 14. On being questioned regarding defendant’s ability to comprehend his Miranda rights, Dr. Ritter responded that in his opinion defendant was capable of comprehending the essence of these rights. Hence, we conclude that defendant knowingly and intelligently waived his Miranda rights prior to making the in-custody confessions.

III.

Finally, defendant contends that the trial judge erred in refusing to suppress his oral inculpatory statement made to Linda Bently, his common-law wife, and intercepted by the police by means of an electronic device. He claims that, absent proof of Linda Bently’s consent to the electronically intercepted conversation as required by the fourth amendment and 18 U.S.C. § 2510 et seq., the intercepted statement is inadmissible.

In United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), the Supreme Court found no violation of the fourth amendment where the communications between the defendant and an informant were overheard by governmental agents by monitoring a radio transmitter carried by and concealed on the informant. The Court further held that the testimony of the governmental agents relating to these intercepted conversations did not violate defendant’s fourth amendment rights.

18 U.S.C. § 2510 et seq., which prohibits the electronic interception of an “oral communication” without antecedent judicial authorization, permits a law enforcement officer to intercept such an “oral communication” without prior judicial authorization if one of the parties to the communication consents thereto. 18 U.S.C. § 2511(2)(c) states:

It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

At the hearing on the motion to suppress, Captain Louis Reichert, who arrested defendant on June 13, testified that he had questioned Linda Bently, defendant’s common-law wife. She told him that she h.ad left defendant and fled to Pla-quemines Parish in fear for her life. She also expressed to him her suspicion that defendant was involved in the rape and murder of Cynthia LeBouef. Deputy Sheriff George B. Bethea, who also participated in defendant’s arrest, testified on cross-examination by defense counsel that Linda Bently had contacted Captain Reich-ert, had given her consent to the placing of a transmitter on her person, and had agreed to ask defendant certain questions in order to elicit from him incriminating responses. Deputy Sheriff Bethea further testified that he, Patrolman Reuter, and Captain Reichert witnessed Linda Bently meet defendant at a St. Bernard Parish parking lot, whereupon she engaged in such a conversation with him in accordance with previous arrangements she had made with Captain Reichert. As they conversed, the officers intercepted their conversation from a nearby location in their police car. No evidence was adduced at the hearing to dispute the fact that Linda Bently consented freely and voluntarily to the interception of her conversation with defendant.

We therefore conclude that the state proved her consent to the police eavesdropping operation at the hearing on the motion to suppress. Accordingly, the interception of defendant’s oral inculpatory statement violated neither the fourth amendment nor 18 U.S.C. § 2510 et seq., and the intercepted inculpatory statement is admissible.

DECREE

For the reasons assigned, we reverse the ruling of the trial judge suppressing the oral and written confessions made on June 13-14, 1972; we affirm the trial judge’s ruling that the oral inculpatory statement made by defendant to his common-law wife on June 13 is admissible. We rule that the oral and two written confessions made on June 13-14, 1972 are admissible. The matter is remanded to the trial court for further proceedings not inconsistent with this opinion.

DIXON, J., dissents.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice

(dissenting).

1 respectfully dissent from the opinion of the majority in this case which holds, among other things, that the statements at issue are admissible because defendant Richard Glover was sane at the time they were made. Dr. Ritter testified at length that Glover was an insane man, and the trial judge concluded that defendant had in fact proven he was insane at the time he made the statements/confession. The majority’s interpretation of the psychiatrist’s testimony to hold that he was uncertain whether Glover was insane is in my view obviously incorrect.

ON REHEARING

DENNIS, Justice.

On December 24, 1971 Cynthia LeBouef was raped and murdered in Orleans Parish. In June of 1972 three unidentified informants, whose reliability does not appear from the record, told St. Bernard Parish sheriff’s deputies that Richard Norman Glover was involved in the crime. Further investigation revealed that Glover resided nine blocks from the scene of the crime. Upon questioning, Glover’s former common-law wife, who had left him and gone to Plaquemines Parish, told the officers that Glover was oversexed, that he had once imprisoned her in a house and that she suspected Glover had committed the offenses against LeBouef. However, she did not report that Glover had ever admitted any involvement in the rape-murder.

At the request of his former common-law wife, Glover met and talked to her in the parking lot of a business establishment in St. Bernard Parish on June 13, 1972. A wireless transmitter and microphone were concealed on her person enabling-law enforcement officers in a car parked nearby to eavesdrop on their conversation. According to the officers. Glover asked her why she would not return to him, and she replied, “Well, Richard, the reason why I haven’t returned to you is that I heard that you killed that little white girl, killed and raped that little white girl.” To this, the officers said Glover responded, “No, I didn’t kill her. Tater killed her, but I was there.” The officers then immediately drove up, arrested Glover and advised him of his constitutional rights.

The arrest occurred at approximately 6:00 p. m. on June 13, 1972. Glover was taken to the St. Bernard courthouse and again advised of his rights. That night at about 7:30 p. m., a police officer interrogated Glover in the presence of one or two assistant district attorneys and a stenographer. According to the stenographer’s transcription Glover said that on December 24, 1971 in New Orleans, he and a person he called “Tater” got off a bus through its rear door near a corner drugstore at the same time a white girl exited through the front door; that Tater grabbed her and beat her head against the concrete building; and that Glover tried but did not succeed in stopping him.

In this first typewritten statement, which was introduced as an exhibit, we find the following passage:

“Q. In the beginning of your statement you mentioned the subject by the name of Tater. I now show you a B. of I. photograph No. 130859, is this the same subject that you mentioned in your statement, and if so do you know his real name.
“A. That’s him. James that’s all I know him by.”

Curiously, however, this identification of Tater by photograph was never mentioned during the later motion to suppress hearing, and there is no evidence in the record to indicate whether the police questioned or investigated the individual depicted by the photograph.

After the interrogation Glover was placed in a patrol car at about 9:15 p. m. to be transported to the Coroner’s Office in Orleans Parish. According to-the officers in the car, while en route, Glover without any prompting offered to show them where the girl had been killed. According to them, he pointed out a drug store parking lot where he said Tater had beaten her and showed them how Tater dragged her across the street to a fried chicken store, where he said Tater swung her up against a metal container as though she were a baseball bat. Glover was taken to the Orleans Parish Coroner’s Office, where he was examined briefly at about 12:15 a. m., and then to the New Orleans Central Lockup.

The next day, June 14, 1972, New Orleans police officers resumed interrogation of Glover at about 2:15 p. m. The record does not reflect the intensity and details of this interrogation before officer Sam Gebbia took over the questioning at about 5:00 p. m. After approximately one hour under his interrogation, Glover agreed to give an additional written statement. He then gave a statement substantially consistent with his prior one in which he again named Tater as the assailant. However, according to Officer Gebbia, after another hour of questioning Glover admitted that he had struck and raped the girl, that there was no Tater, and that Tater wasn’t involved. His statement was reduced to typewritten form, and he signed it after his sister arrived at about 8:15 p. m.

On July 27, 1972, the trial judge appointed Drs. Kenneth A. Ritter and Henry E. Braden, III, to examine Glover for competency to stand trial. Based on their report of October 16, 1972, the court found him lacking in the mental capacity to stand trial, and on October 19, 1973 Glover was committed to the East Louisiana State Hospital. On July 25, 1973, the court appointed Dr. Ritter and Dr. Gene L. Usdin to re-examine Glover, and based on their written report of August 27, 1973, recommitted him to the mental institution on August 29, 1973.

In 1974, Drs. Ritter and Usdin were again appointed to examine Glover. On the basis of their reports of September 26 and 30, 1974, which indicated that Glover was synthetically sane because he was regularly receiving strong anti-psychotic drugs, the court found that Glover was presently competent to understand the proceedings and to assist in his defense.

On March 12, 1975, on motion of defense counsel, the court appointed Drs. Ritter and Usdin to determine the sanity of defendant at the time of the crime. Their report of April 9, 1975, in pertinent part, related:

“There can be no question that Richard Glover has a severe chronic mental illness, namely, undifferentiated chronic schizophrenia; this illness appears to be in remission at the present time. He also has a borderline degree of mental retardation with some organic brain changes which may be secondary to chronic drug abuse. As we mentioned in our earlier report to your Court of September 30, 1974, he requires potent antipsychotic medication, and it is imperative that this medication be continued. We believe he would decompensate without these medications, and we also recognize that his hold to reality is tenuous.
<( * * *
“With this type of chronically ill, borderline intelligence person with possible organic brain change, it is difficult to ascertain his mental status at a specific date and time nearly three and a half years ago. He might have been in a period of remission on that ■ date, but were he not being actively treated and receiving antipsychotic medications, it is our opinion that he probably was overtly psychotic and unable to appreciate the usual, natural and probable consequences of his acts, and unable to distinguish the difference between right and wrong of the specific act for which he is charged. However, for the purpose of emphasis, we repeat our lack of certainty about this. Possibly material brought out at the time of the trial by other witnesses may be helpful to the jury.
<( * * * ”

Counsel for the accused, on May 6, 1975, moved to suppress all statements, both oral and written, made by Glover on June 13 and 14, 1972. After an evidentiary hearing on May 30, 1975, the trial judge, on August 22, 1975, held that the confessions and demonstrations given by Glover to the police on June 13 and 14, 1972 were inadmissible, but overruled the motion to suppress as to Glover’s pr'e-arrest statement to his former common-law wife.

We granted writs applied for by both the State and the defendant to determine the correctness of the trial court’s rulings. On original hearing we reversed the suppression of defendant’s two statements given while in police custody and affirmed the trial judge’s refusal to suppress the oral statement electronically intercepted by police during defendant’s conversation with his former common-law wife. We held that before inculpatory statements by a defendant, whether or not made in police custody, may be introduced in evidence, the State must prove they were free and voluntary. However, we concluded that because the State may rely upon the presumption that defendant was sane, it was therefore incumbent on the defendant to prove by a preponderance of the evidence that he was insane at the time of the utterances. Upon reviewing the evidence we determined that the trial judge erred in finding that defendant had borne the burden of proving that he was insane at the time he gave the confession and inculpatory statements. Furthermore, we decided that the defendant had knowingly and intelligently waived hi-s Miranda rights before making the in-custody statements, and that the interception of defendant’s pre-custody statement to his former common-law wife violated neither the Fourth Amendment nor 18 U.S.C § 2510, et seq., because she had consented to the electronic eavesdropping.

A rehearing was granted principally to consider defendant’s contention that in reversing the trial judge’s determination of defendant’s insanity at the time he made the statements, we did not accord appropriate weight to these findings of fact. For the reasons set forth below, we now decide we committed factual error by reversing the findings of the trial judge on the issue of insanity. Also, by stating, without more, that a defendant must prove his “insanity” by a preponderance of the evidence as a prerequisite to defeating the State’s showing of voluntariness, our original opinion was perhaps misleading. We now recognize that both the trial judge and this Court on original hearing misapprehended the ultimate issue as being whether the defendant was “sane” at the time of his utterances, rather than whether the statements were voluntarily made. Applying the correct principles of law to the evidence we have concluded that the State failed to prove that any of the statements made by the defendant were free and voluntary. Accordingly, we affirm in part and reverse in part the trial judge’s rulings, and we pretermit as unnecessary any comment on the other issues discussed in our original opinion.

In our first opinion we correctly held that before cither a custodial or a noncustodial confession or inculpatory statement may be introduced in evidence, the State must prove that it was made freely and voluntarily. For convenience we repeat:

“Before a confession or inculpatory statement can be introduced in evidence, it must be affirmatively shown by the state that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La.R.S. 15:451. See also La.Const, art. 1, § 11 (1921), in effect at the time of the alleged offense; La.Code Crim.P. art. 703(C) (1966). The admissibility of a confesssion or an in-culpatory statement is a question of law for the trial judge to determine; the weight to be given it is a question for the jury. State v. Sears, 298 So.2d 814 (La.1974); State v. Simpson, 247 La. 883, 175 So.2d 255 (1965); State v. Kennedy, 232 La. 755, 95 So.2d 301 (1957). Therefore, only after the trial judge has decided that the state has satisfied its burden of proving that a confession or inculpatory statement was free and voluntary may it be introduced in evidence. [Footnote 2: “The due process clause of the fourteenth amendment also requires that the court determine that a confession is free and voluntary before it allows its admission in evidence. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).”]
“The trial judge felt that defendant’s inculpatory statement to his common-law wife, because it was precustodial, was not subject to the requirement that it be found free and voluntary under the standards set forth above before its admission in evidence. In this respect, we believe he erred. The provisions of Louisiana law establishing that only free and voluntary confessions and inculpatory statements are admissible draw no distinction between those made before and after the accused is taken into police custody. La.Const, art. 1, § 11 (1921); La.R.S. 15:451; La.Code Crim.P. art. 703(C) (1966). We have defined an ‘in-culpatory statement’ as one that refers to the out-of-court admission of incriminating facts made by the accused after the crime has been committed. It relates to past events. State v. Fink, 255 La. 385, 231 So.2d 360 (1970). Defendant’s incul-patory statement to his-common-law wife, made almost six months after the crime with which he is charged occurred, incontestably falls within this definition. The state is not required, it is true, to show when it seeks to introduce a noncustodial inculpatory statement in evidence that the accused had been advised of his Miranda rights before it was made. State v. Roach, 322 So.2d 222 (La.1975). It still has the duty, however, of affirmatively showing that a noncustodial confession or inculpatory statement is free and voluntary. Therefore, the trial judge erred in ruling that it was unnecessary for the prosecution to lay this foundation and for him to rule thereon prior to the introduction of defendant’s incul-patory statement to his common-law wife in evidence.” (Footnote 3 omitted.)

We note that some jurisdictions have adopted the contrary view that a confession may be involuntary in the due process sense only where the declarant has been subjected to police custody, external pressure or coercion. United States v. Bernett, 161 U.S.App.D.C. 363, 495 F.2d 943 (1974); People v. Brown, 86 Misc.2d 339, 380 N.Y.S.2d 476 (1975) (and cases cited therein). However, we reject this view as incorrect and destructive of the very purposes of requiring the prosecution to demonstrate that a confession was voluntarily made before it can be introduced in evidence. The position we have taken has been adopted by other courts in Eisen v. Picard, 452 F.2d 860 (1st Cir. 1971); United States v. Robinson, 148 U.S.App. D.C. 140, 459 F.2d 1164 (1972); Gladden v. Unsworth, 396 F.2d 373 (9th Cir.1968). Cf. Pea v. United States, 130 U.S.App.D.C. 66, 397 F.2d 627 (1967).

On the other hand, some elaboration upon other statements of law in our original opinion is required. Although we acknowledged that the State bears the burden of proving that a confession or in-culpatory statement is free and voluntary, La.R.S. 15:451; La.C.Cr.P. art. 703(C), we neglected to say that the prosecution is required to prove this beyond a reasonable doubt. State v. Ragsdale, 249 La. 420, 187 So.2d 427 (1966). The United States Supreme Court has held that the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary, but that the states are free to adopt a higher standard. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). Also, a false impression may have been created by our statement that La.R.S. 15:432, which presumes “that the defendant is sane and responsible for his actions” places upon the accused the burden of proving by a preponderance of the evidence his “insanity” at the time of a confession. Although the defendant bears the burden of proving the existence of a mental abnormality which, under the circumstances may have destroyed the voluntary nature of his confession, he is not required to prove a particular kind of “insanity.” The legislature has not defined insanity for this, purpose as it has with regard to insanity at the time of an offense, La.R.S. 14:14, and mental capacity to proceed, La.C.Cr.P. art. 641. Also, we should have added that- a claim of mental illness or introduction of evidence thereof does not shift the ultimate burden of proof of voluntariness from the State. If the defendant fails to prove the existence of a mental illness or defect or fails to prove that such a disorder prevented his confession from being voluntary, the State is not required to negate the defendant’s mental abnormality, but the State must in all other respects prove beyond a reasonable doubt that the confession was voluntary.

Therefore, the crucial issue is not simply whether the defendant was “insane,” but whether he suffered from a mental illness or defect which, under the circumstances, prevented his statements from being voluntary. Our having reached this conclusion, however, only makes the case more complicated. Voluntariness is a difficult concept or combination of concepts which do not admit to short or simple description. The courts have branded confessions “involuntary,” and therefore inadmissible, for many different reasons. Consequently, there is no easy formula which a trial judge may apply in determining if a confession is voluntary. He must review each and every circumstance leading up to and under which the confession was given and decide if there exists any of the various reasons for suppressing confessions which have developed under the notion of volun-tariness.

Justice Frankfurter, in Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961), stated:

“* * * The notion of ‘voluntar-iness’ is itself an amphibian. It purports at once to describe an internal psychic state and to characterize that state for legal purposes.” At 604-605, 81 S.Ct. at 1880, 6 L.Ed.2d at 1059.

In Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960), the high court candidly stated that

“ * * * [A] complex of values underlies the stricture against use by the state of confessions which, by way of convenient shorthand, this Court terms involuntary, and the role played by each in any situation varies according to the particular circumstances of the case.” At 207, 80 S.Ct. at 280, 4 L.Ed.2d at 248.

Many legal scholars have attempted to analyze the “complex of values” which provide the reasons that some confessions are declared involuntary and inadmissible. In their very exhaustive discussion of the subject, the authors of Developments in the Law of Confessions, 79 Harv.L.Rev. 938, 963-64 (1966) stated:

“Mr. Justice Frankfurter noted that “voluntariness” is ... an amphibian. It purports at once to describe an internal psychic state and to characterize that state for legal purposes.’ But without a clear understanding of the applicable ‘legal purposes’ as a guide, the fact of voluntariness is extremely difficult to find, since it represents not an observable physical phenomenon but a characterization of varying concatenations of facts. The purposes that dictate a requirement of voluntariness must determine when that requirement is satisfied. The Court’s cases suggest that the due process voluntariness standard has three possible goals: (1) ensuring that convictions are based on reliable evidence ; (2) deterring improper police conduct; or (3) assuring that a defendant’s confession is the product of his free and rational choice. The sections immediately following attempt to assess the extent to which the Court’s decisions are consistent with these goals.”

In Comment, The Coerced Confession Cases in Search of a Rationale, 31 U.Chi. L.Rev. 313, 325 (1964), the writer attempted to distill all elements of the confession cases:

“The rationale here urged as the one which best accounts for all the elements of the coerced confession cases may be summarized as follows. The accusatorial, adversary trial is the most effective means of accomplishing the goals of the system. When a confession is admitted into evidence it has such a persuasive effect upon the trier of fact as to substantially determine the outcome of the trial. As a result the outcome of the trial is substantially predetermined at the time the confession is obtained. If the adversary theory is not maintained at that time, its benefits are lost to the defendant and to the system. Therefore the adversary theory should govern the proceeding at which the confession is obtained and no confession obtained under circumstances not [sic] incompatible with an accusatorial, adversary system should be admitted into evidence.”

In a similar vein, Professor McCormick has described the. “complex of values” as follows:

“(1) Protection of particular defendants against use of unreliable confessions. In part, the voluntariness requirement still reflects the concern of the common law rule that a confession obtained in the absence of free choice is unreliable and therefore unworthy of consideration on the issue of guilt or innocence. * * *
“(2) The privilege against compulsory self-incrimination and the values underlying this rule. While in theory police investigators probably have no legally enforceable right to require answers to questions, police interrogation might well convey the impression to a subject that his interrogators had the right or at least the power to compel responses. As a practical matter, then, the values underlying the privilege are endangered by pretrial interrogation. It is clear that this concern was a factor in the promulgation and development of the due process voluntariness requirement. * * *
“(3) Discouragement of police practices that are generally likely to result in unreliable evidence. In addition to the unreliability of particular confessions challenged under the voluntariness requirement, the rule is in part based upon the assumption that as a general matter there is sufficient probability that an involuntary confession will be unreliable that the exclusion of the entire category is justified. Thus the rule serves the purpose of excluding a category of evidence which, as a whole, is sufficiently subject to question on reliability grounds to justify its exclusion.
“(4) Discouragement of police practices which are unacceptable on grounds other than the unrealiability of the resulting evidence. Analogous to the policy basis of the privilege against self-incrimination, there is undoubtedly a feeling underlying the voluntariness requirement that the methods used to obtain non-voluntary confessions are unacceptable without regard to the reliability of the resulting evidence. Here, as in the case of that privilege, the conclusion rests in large part upon acceptance of the propositions that even one guilty of an offense against society has a right to be treated in a manner consistent with his inherent dignity as a human being, and that the use of certain investigating tactics is inconsistent with this dignity.

“(5) The preservation of the trial rights of an accused. Because of the heavy weight which a trier of fact is likely to give to a statement of the defendant, the introduction of a confession makes the other aspects of a trial in court superfluous, and the real trial, for all practical purposes, occurs when the confession is obtained. Thus the decision to confess before trial amounts in effect to a waiver of the right to require the state at trial to meet its heavy burden of proof. Yet the imposition of this burden of proof upon the prosecution serves valuable social purposes, not only in assuring the guilt of particular defendants but also in minimizing the availability of the criminal process for political and other irregular purposes. The social interest in making the trial a truly adversary proceeding at which the state prove guilt beyond a reasonable doubt is served by a policy which minimizes the opportunity for the state to bypass this requirement by use of a statement obtained during pretrial investigation.” McCormick on Evidence, § 148, at 315-316 (2d ed. 1972). (Footnotes omitted.)

See, generally, 3 Wigmore on Evidence, § 822 (Chadbourn Rev. 1970).

In Blackburn v. Alabama, supra, where the Court set aside a conviction based on the confession of a madman who had been institutionalized during the four years immediately prior to the crime and the interrogation, Chief Justice Warren acknowledged the validity of the elements which have been pointed out by the scholars as justification for suppression of a confession. The opinion stated:

“In the case at bar, the evidence indisputably establishes the strongest probability that Blackburn was insane and incompetent at the time he allegedly confessed. Surely in the present stage of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane ; and this judgment can without difficulty be articulated in terms of the unreliability of the confession, the lack of rational choice of the accused, or simply a strong conviction that our system of law enforcement should not operate so as to take advantage of a person in this fashion. * * (Emphasis supplied.) 361 U.S. at 207, 80 S.Ct. at 280, 4 L.Ed. 2d at 248-249.

We have reviewed the evidence in the instant case with the various tests of vol-untariness in mind. There appears to be no evidence of improper police practices. We have some doubt as to whether the statements were obtained under circumstances compatible with an accusational, adversary system, because the evidence is fairly conclusive that Glover lacked the mental capacity to proceed at the time he made the confession and inculpatory statements. Under the theory that the real trial, for all practical purposes, occurs when the confession is obtained and, therefore, should take place under conditions compatible with a court proceeding, Glover’s statements would clearly be inadmissible. However, because it is a newly emerging and, at present, ill defined theory, we prefer to rest our decision herein upon more traditional grounds. Therefore, we will discuss only two questions raised by the medical evidence as to Glover’s statements: Do the statements constitute trustworthy and reliable evidence ? And were they products of Glover’s free and rational choice ?

Although in recent times the United States Supreme Court has paid greater attention to other aspects of the voluntariness requirement, we have no doubt that the probable testimonial trustworthiness of a confession still is and ought to be established as a necesssary antecedent to its introduction in evidence. The Court in Lyons v. Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481 (1944), stated:

“A coerced confession is offensive to basic standards of justice, not because the victim has a legal grievance against the police, but because declarations procured by torture are not premises from which a civilized forum will infer guilt.”

And in Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948, 958 (1961), Justice Douglas concurring said: “Experience however teaches that confessions born of long detention under conditions of stress, confusion, and anxiety are extremely unreliable.” Thus if confessions obtained by coercive methods are inadmissible because they are apt' to be unreliable, then confessions which are proven to be untrustworthy, for whatever purpose, should not be introduced in evidence.

One classical articulation of the requirement that a confession must be the product of a free and rational choice is set forth in Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961), as follows:

“The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760. The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession,” 367 U.S. 602, 81 S.Ct. 1879, 6 L.Ed.2d 1057-1058.

At the motion to suppress hearing in the instant case, the defendant called as his only witness, Dr. Ritter, the psychiatrist whom the court had previously appointed to examine him on several occasions. The State called no psychiatric or psychological experts, but relied on the testimony of four police officers, an assistant district attorney and a stenographer, who either interrogated the defendant or observed him during the time he was questioned and confessed.

Dr. Ritter first examined the defendant on September 14, 1972, three months after Glover made the statements in question. The doctor testified that in his opinion the defendant at that time was actively psychotic to such a degree that he was “legally insane.” When asked to define this term he testified that Glover

“ * * * [W]as unable to appreciate the usual, natural, and probable consequences of his acts. And unable to tell the difference between right and wrong . and unable to assist counsel.”

Dr. Ritter, with Dr. Usdin, again examined Glover for the purpose of determining his mental state on December 24, 1971, the date of the offense. Their report of that examination which was introduced at the hearing, in part, related:

“A. With this type of chronically ill, border-line intelligence person with possible organic brain change, it is difficult to ascertain his mental status at a specific date in time nearly three-and-a-half years ago. He might have been in a period of remission on that date, but were he not being actively treated and receiving anti-psychotic medication, it is our opinion that he probably was overtly psychotic and unable to appreciate the usual, natural and probable consequences of his acts, and unable to distinguish the difference between right and wrong of the specific act for which he is charged. However, for the purpose of emphasis, we repeat our lack of certainty about this.”

When asked to give his opinion of Glover’s mental condition of June 13 and 14, 1972, assuming he had no medication, Dr. Ritter replied:

“Oh, I must assume that because of the fact that schizophrenia is a chronic disease, and that it rarely appears suddenly and without warning, that it generally appears much earlier in life in adolesence [sic], and that we did discover that the man had schizophrenia, and that he showed the sign of schizophrenia on the date in September. I must assume he was schizophrenic in June. It was not what you would call a fresh case of schizophrenia. He showed marked luny [lunacy], of that effect, and vast signs of schizophrenia, and also mental retardation. And I must assume as of June that he was, in all likelihood, in the same state when I saw him in September.”

He later elaborated on this subject, stating:

“A. We can certainly assume considering the far-advanced nature of the diseased process, that it was in existence in June and didn’t [first] appear in the interval between June and September. Just like if you see a far-advanced case of arthritis with deformity of the hand and back and feet, you know that that arthritis didn’t start yesterday or three months ago. You know it’s been going on for a number of years at least.”

The record does not reflect that Glover was taking any medication that would prevent him from being psychotic on June 13 and 14, 1972. In order to transform Glover’s mental state to a condition of synthetic sanity it had been necessary to administer heavy doses of powerful anti-psychotic drugs. The record does not reflect how long the transformation had required, but Dr. Ritter described the administration of the drugs as follows:

“He is on prolixin, intra-muscularly, two cc’s every three weeks. Now, pro-lixin is a very potent anti-psychotic medication, and this is administered by a needle. He is on thorazine, 200 milligrams at bedtime. Again, not a potent— it’s a potent medication, not excessively high dose. I would say an average dose, but prolixin is a potent drug.”

Dr. Ritter testified that on one occasion through oversight the medicine had not been given for a short period of time and that Glover consequently regressed very rapidly into a state of overt psychosis.

Therefore, Dr. Ritter testified again that, in his opinion, without this potent medicine, Glover would have been insane on June 13 and 14, 1972.

On cross-examination, Dr. Ritter testified that if Glover spoke with several officers on June 13, 1972 and responded logically and coherently to their questions this would not cause him to change his evaluation of Glover’s psychosis at that time. The doctor stated,

“ * * * I would have to know a great deal of what was talked about, what level was going on, a great deal more information. I can converse with Richard, and have on a number of occasions where he was able to respond appropriately to some questions. * * * ”

Dr. Ritter was shown the two typewritten statements taken from Glover and asked if the fact that he blamed a second party for the offense in one of the statements would cause him to alter his evalution. The doctor replied,

“ * * * Having read these two, things and making an assumption that the man was actively psychotic at the time these two statements were rendered, I would not know which one to believe knowing that the man was schizophrenic. Because any definition, in any definition of schizophrenia, there’s always the substitution of fantasy for reality, and this is the difficulty in testing credibility to either one. * * * ”

Further elaborating on this issue the doctor testified:

“Q. You indicated in answer to Mr. Whalen’s questions that in your dealing with individuals with a similar kind of mental problem as Mr. Glover, that because of the fantasy world or what have you, you would have trouble believing any particular statement that any of them made, is that right ?
“A. F would have difficulty in making a decision insofar as these two statements are concerned. Difficulty in making a decision, which one was valid, which one reported fact.
“Q. Or either of them?
“A. Either of them.
“Q. So that in your mind there is a significant question as to the truthfulness or reliability in terms of truthfulness in those confessions ?
“A. Yes, sir, that would be my opinion.”

Finally, Dr. Ritter was questioned about the combined effect of Glover’s psychosis and his mental retardation:

“Q. Now earlier, we spoke about the effect of retardation, mental retardation on an individual, specifically. If you combine, as in Mr. Glover’s case, retardation with the organicity and the psychosis that you saw and applied was in force on June 14th and 13th, 1972, would you say that Mr. Glover was in a position to make rational decisions? That is not isolating the retardation, now, but putting it all together ?
“A. 1 would think that his decisions were heavily biased by his psychosis and mental retardation, without question. And from the standpoint of rationality, I would think that it would be and do with a good deal less rationality that if I or someone else were doing the same thing.”

The State’s attorney was able to elicit from Dr. Ritter statements to the effect that it was within the realm of possibilities that Glover was not as psychotic on June 13 and 14, 1972 as he was at the time the doctor first examined him on September 14, 1972; and that it was possible that he was in a state of remission at the time of the confession. In our original opinion we seized upon these statements to overturn the trial court’s factual finding of insanity at the time of the confession and inculpa-tory statements.

In doing so we erred. To paraphrase the United States Supreme Court in Blackburn v. Alabama, supra, it is, of course, quite true that we are dealing here with probabilities. It is possible that Glover confessed during a period of complete mental competence. But a fair reading of the entire record leads only to the probable conclusions that Glover, who was twenty-six at the time of the offense, suffered from undifferentiated schizophrenia and mental retardation from his adolescence ; that he was actively psychotic and legally insane at the time of his confession and inculpatory statements; and that due to the nature of his illness, which causes the subject to substitute fantasies for reality, all of Glover’s statements on June 13 and 14, 1972 were testimonially untrustworthy and not products of his free and rational choice. Although facts pertaining to the imbalance of a human mind cannot easily 'be ascertained since it requires a judgment which must by its nature always be one of probabilities, once the probabilities have been determined we must unflinchingly decide the case in accordance with them. because of his mental condition. As we understand his reasons for judgment he refused to suppress Glover’s statement to his former common-law wife solely because it was a non-custodial statement, and not because Glover was any less insane at this time. The record does not contain any evidence which would indicate a difference in Glover’s mental condition at the time of each of the three statements át issue here. We have already stated our reasons for concluding that the trial judge committed an error of law .in excluding the non-custodial statement from the volun-tariness requirement. We conclude that the law and the evidence support a finding that Glover suffered from insanity and mental defects on June 13 and 14, 1972 which caused all of the statements given by him on those dates to have been involuntary and, consequently, inadmissible.

Decree

For the reasons assigned, we affirm the ruling of the trial judge suppressing the oral and written confessions and demonstrations made on June 13 and 14, 1972, but we reverse his ruling that the oral in-culpatory statement made by defendant to his former common-law wife on June 13, 1972 is admissible and order that it be suppressed also.

The case is remanded for further proceedings, including a trial on the merits, not inconsistent with this, opinion.

SANDERS, C. J., dissents, adhering to the majority views expressed on original hearing.

SUMMERS, J., dissents, being of the opinion the original opinion is correct.

MARCUS, J., dissents, adhering to reasons and decree in original hearing.

The trial judge found Glover’s in-custody statements to have been involuntary

      . Defendant liad been found incapable of standing trial because of his insanity; however, on March 11, 1975, after a hearing, the court ruled that defendant was presently sane and able to stand trial.

      . The due process clause of the fourteenth amendment also requires that the court determine that a confession is free and voluntary before it allows its admission in evidence. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

      . Cf. State v. LeBlanc, 305 So.2d 416 (La.1974) and State v. Bendo, 281 So.2d 106 (La.1973), wherein we held that the accused is entitled to notice in accordance with article 768 of the Code of Criminal Procedure and to pre-trial inspection of recorded post-crime inculpatory statements made prior to arrest.

      . This article places upon the defendant the burden of establishing insanity at the time of the offense by a preponderance of the evidence. We have also held that owing to the presumption of sanity the accused has the burden of proving by a preponderance of the evidence that he is incapable of standing trial because he is mentally defective. State v. Gray, 258 La. 852, 248 So.2d 313 (1971); State v. Graves, 247 La. 683, 174 So.2d 118 (1965).

      . Defendant argues that Blackburn v. Alabama, 361 U.S. 190, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960) is controlling here. We do not agree. The facts in Blackburn, in which the confession of an insane person was suppressed, are clearly distinguishable from those in the instant case. The accused in Blackburn was a patient at a mental institution who committed a robbery while on an authorized absence from the hospital ward. At the time he committed the crime, he had a lengthy history of mental illness and had already been declared “100 per cent incompetent.” Moreover, the accused in Blackburn was subjected to a sustained, eight-to-nino-hour interrogation in a tiny room without the presence of any of his friends and relatives before the police procured a confession. The Supreme Court, in Blackburn, held that the admission of the accused’s confession, obtained under the circumstances of that case, violated the due process clause of the fourteenth amendment.

      . “Oral communication” is defined in 18 U.S. O. § 2510(2) as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectations.” Glover’s conversation with Linda Bently would fall within this definition.

       We do not reach in this opinion the issues of whether Glover knowingly and intelligently waived his Miranda rights or whether the electronic eavesdropping constituted a violation of the Fourth Amendment or 18 U.S.C. § 2510, et seq.


source: Caselaw Access Project

author:
      SUMMERS, Justice. DIXON, Justice
      CALOGERO, Justice DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Robert Davis ANDERSON.
    No. 57987.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    On Rehearing Feb. 28, 1977.

      James David Caldwell, Tallulah, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles R. Brac-kin, Dist. Atty., Thomas W. Bishop, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Appellant Robert D. Anderson was charged in a bill of information with the September 21 or 22,1975 simple burglary of the Osborne Ford Lincoln Mercury garage, in Tallulah, Madison Parish, Louisiana.

He was tried in December of 1975, found guilty as charged and sentenced to imprisonment at hard labor for a term of nine years. Eight assignments of error are relied upon on this appeal for reversal of the conviction and sentence.

Assignments 1 and 4

Prior to his opening statement the State’s attorney moved that the jury be retired. When the judge granted the motion, the State’s attorney announced that he intended to produce evidence of a prior conviction to show system and intent and to refer to this prior conviction in his opening statement. He explained that the crime charged in the instant case was simple burglary. In this connection, he stated, it was necessary for the State to show that defendant made an unauthorized entry into a garage with intent to commit a felony or theft therein. Accordingly, the State would attempt to show mode of operation by a previous bill of information charging theft on June 1, 1975 of a 1975 Mercury belonging to Tallulah Motor Company, the predecessor of Osborne Ford Lincoln Mercury, Inc. Also the State would show the circumstances upon which the theft charge was based, together with a plea of guilty to that charge. For these reasons, the prosecutor pointed out, the ruling on the evidence of the prior offense outside the presence of the jury was requested before the State made mention thereof in its opening statement.

Defense counsel acknowledged that the State had given him notice that it would introduce evidence of another offense involving auto theft but not of simple burglary. The State’s attorney then stated that only evidence of the prior theft offense and the circumstances surrounding that offense would be referred to. As we understand the defense argument, no circumstance surrounding the charge of auto theft which amounted to simple burglary was admissible, and only the facts and circumstances which established theft were admissible. This argument is based upon the contention that as a result of the June 1, 1975 offense two charges were lodged against this defendant, one for simple burglary and one for auto theft. The simple burglary charge was nolle prossed, but defendant pled guilty to auto theft. The objection also seems to be based upon the ground that evidence of a guilty plea is inadmissible.

In establishing the circumstances surrounding the theft charge, the State produced witnesses to show that an unauthorized entry was made into the garage of the Tallulah Motor Company and a 1975 Mercury was taken, which was later found in defendant’s possession in Texas.

With regard to the first part of the defense objection, it is noted that intent to commit theft is a necessary element of simple burglary. La.R.S. 14:62. Similar offenses may be shown to establish the elements of a crime charged, as well as the complete crime charged. La.R.S. 15:445-46. To establish the offense of theft it is necessary to show the taking of something of value belonging to another. La.R.S. 14:67. It was, therefore, necessary in establishing the similar offense of theft for the State to show that defendant took an automobile belonging to the Tallulah Motor Company without their consent. To do this it was essential that the evidence show how it was taken. Thus, testimony showing how the car was taken from the garage was relevant in the State’s effort to show the circumstances surrounding the plea of guilty to the similar offense of theft, in order to support the theft element of the crime of simple burglary for which defendant was on trial.

The contention is that evidence of criminal activity other than that for which the defendant is on trial is inadmissible, except under specific statutory exceptions permitting evidence which is part of the res gestae, or evidence of criminal acts which are relevant to show intent, knowledge or system under Sections 446, 447 and 495 of Title 15 of the Revised Statutes.

Intention to commit theft is an essential element of the crime of simple burglary. The State is charged with proving this element beyond a reasonable doubt. For this purpose, in proving a similar offense of theft, it was necessary that proof be made that there was a taking of the property of another. To do this it was permissible to show the taking of the automobile from the garage of the Tallulah Ford Motor Co., the identical garage involved in the crime for which defendant was on trial. State v. O’Conner, 320 So.2d 188 (La.1975); State v. Hatch, 305 So.2d 497 (La.1975).

Rules of evidence require that a defendant be convicted only upon evidence relevant to the particular crime charged. For that reason evidence of his propensity to commit crimes, and nothing else, is inadmissible because it does not tend to prove that defendant committed the particular crime charged. When, however, relevant and highly probative evidence is necessary to establish the elements of the crime charged, the fact that it involves another crime does not render the evidence objectionable. State v. Bell, 315 So.2d 31 (La.1975); State v. Graves, 301 So.2d 864 (La.1974); State v. McGuffey, 301 So.2d 582 (La.1974); State v. Kinchen, 290 So.2d 860 (La.1974); State v. Cormier, 272 So.2d 686 (La.1973); State v. McLeod, 271 So.2d 45 (La.1973).

There is no merit to these bills.

Assignments 2 and 3

Again defendant urges the argument advanced in connection with Assignments 1 and 4. Here, however, the emphasis is on the fact that in showing the circumstances upon which the prior offense of theft was based, to which defendant pled guilty, there was no showing that defendant was involved in the break-in at the Tallulah Ford Motor Co. garage.

It may be true that no direct evidence was produced to show that defendant broke into the garage on June 1, 1975, however, the circumstantial evidence was strong against him. It was clearly shown that the car was taken from the garage without the consent of the Ford dealer, and defendant was found in possession of the car soon thereafter in Texas. There is, in addition, a strong presumption that the person in the unexplained possession of property recently stolen is the thief. La. R.S. 15:432.

Proof of intention may be based on circumstantial evidence, and defendant’s intention may be inferred from the nature and facts of the case. La. R.S. 15:438. State v. Robinson, 315 So.2d 268 (La.1975).

These assignments have no merit.

Assignment 5

A complaint that the trial judge unnecessarily restricted defense counsel’s cross-examination of a State witness is the basis of this assignment.

During the trial Officer D’Elmer Williamson was called as a witness for the State. He testified to the facts and circumstances uncovered in his investigation of the burglary of September 21, 1975. According to his investigation a small hole in a window had been broken, through which someone could reach to open the window from inside. To support the testimony Officer Williamson would give relating to fingerprints he lifted at the site, the State sought to have him give an explanation of a latent fingerprint. Defense counsel objected that he had not been qualified as an expert and could not give an opinion on that subject.

Williamson was then questioned by the State concerning his qualifications and experience in raising latent fingerprints. He testified that he had been a deputy sheriff for more than seven years. Prior to this time he had been with the city police. In these capacities he had been lifting fingerprints for fifteen years. As a deputy sheriff he took most of the fingerprints in the sheriff’s department of Madison Parish. He had been to numerous schools where he received instructions on the technique. After this predicate he was offered by the State as an expert qualified to give opinion testimony with regard to lifting fingerprints.

He was then cross-examined extensively by defense counsel. When the examination digressed into the witness’ ability to read fingerprints as distinguished from lifting them, and it promised to be exceedingly protracted, the trial judge denied defense counsel the right to continue the cross-examination, and ruled that the witness was competent to testify to the lifting of fingerprints. Objection was made and this assignment of error is presented.

This defense objection to the ruling of the trial judge is answered by Section 275 of Title 15 of the Revised Statutes:

“In the discipline of his court, the trial judge is vested with a sound discretion to stop the prolonged, unnecessary and irrelevant examination of a witness, whether such examination be direct or cross, and even though no objection be urged by counsel.”

In numerous recent decisions we have affirmed the right of the trial judge to limit and restrict the irrelevant and protracted cross-examination of witnesses. State v. Batiste, 318 So.2d 27 (La.1975); State v. Harris, 308 So.2d 767 (La.1975); State v. Scott, 278 So.2d 121 (La.1973); State v. McCauley, 272 So.2d 335 (La.1973); State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972).

This assignment is without merit.

Assignment 6

Relying upon the right to submit special written charges for the jury to the court, La.Code Crim.Pro. art. 807, defense counsel requested that the trial judge charge the jury that the crime of simple burglary requires the specific intent to commit a felony or any theft therein, not general criminal intent.

Following are extracts from the trial judge’s general charge to the jury yrhich are pertinent here.

The accused is charged with simple burglary which is defined in the Louisiana Code, Article 62 as follows: ‘Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, moveable or immoveable, with the intent to commit a felony or any theft therein, other than as set forth in Article 60. Whoever commits the crime of simple burglary shall be imprisoned at hard labor for not more than nine years . . .’ Since simple burglary as herein the above defined requires that the accused enter with the intent to commit any felony or theft therein. It is deemed pertinent to read to you Article 10 and 11 of the Louisiana Criminal Code which is as follows: ‘Criminal intent may be specific or general. (1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. (2) General criminal intent is present whenever there is specific intent. And also when the circumstances indicate that the offender in the ordinary course of human experience must have averted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.’ Article 11 with reference to criminal intent reads: ‘The definition of some crimes required a specific criminal intent while in others, no intent is required. Some crimes consist merely of criminal negligence that produces criminal consequences. However, in the absence of qualifying provisions, the term intent and intentional have reference to general criminal intent.’ In order to show intent, evidence is admissible of similar acts independent of the act charged as a crime in the indictment. For though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction ... By law attempted simple burglary is a lesser offense to simple burglary and is a possible responsive verdict. Louisiana Criminal Code, Article 27 defines attempt as follows: ‘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.”

Article 807 of the Code of Criminal Procedure provides that a requested special charge need not be given if it is included in the general charge. The foregoing quoted portions of the general charge fairly cover the requested charge. There is no error in this assignment.

Assignment 7

It is the defense contention that the trial judge erred in allowing the custodian of the East Carroll Prison Farm to testify on behalf of the State to defendant’s bad character.

Defendant had pled guilty to the June 1, 1975 theft of an automobile. On August 21, 1975 he was sentenced to imprisonment for two and one-half years and confined in the East Carroll Parish Prison Farm. The State called Warden Fontenberry who testified that defendant had been granted a week-end pass on September 20, 1975 for the restricted purpose of visiting his immediate family in Lake Providence. The defense contends that since it had been shown that the defendant was apprehended on September 21 in Tallulah in close proximity to the garage where the attempted burglary occurred the jury would undoubtedly draw the inference that defendant had violated his week-end pass.

In effect, according to this contention, the testimony relative to the restriction on the week-end pass amounted to evidence of bad character offered by the State on its case-in-chief when no evidence of defendant’s good character had yet been offered by the defense. Relying upon Section 481 of Title 15 of the Revised Statutes, defendant contends the State is permitted to introduce testimony of the bad character of the accused only in rebuttal of the evidence introduced by him to show good character.

The contention is without merit. The evidence was relevant to a material issue of the case. It was necessary for the State to show that defendant’s presence near the scene of the crime was not warranted, except insofar as it established his connection with the offense. La. R.S. 15:435. The fact that defendant was not where he was supposed to be, combined with the fact of his apprehension near the scene of the break-in, raised an inference that he may have been involved in the break-in. The testimony, therefore, supports an inference raised by the fact of his presence near the break-in. As such it is relevant and was properly admitted. La. R.S. 15:441.

Assignment 8

Defense arguments in connection with assignments 1 to 7 are advanced in support of defendant’s motion for a new trial. The motion was denied and error was assigned to the ruling. Having found the other defense contention without merit, the motion is likewise without merit.

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

DENNIS, J., concurs, except that he disagrees with the treatment of assignments 2 and 3 because the crime of burglary cannot be inferred solely from the possession of recently stolen property. See State v. Searle, La., 339 So.2d 1194.

DIXON, J., concurs with reasons.

CALOGERO, J., dissents and assigns reasons.

TATE, J., dissents for the reasons assigned by CALOGERO, J.

DIXON, Justice

(concurring).

The evidence of defendant’s prior theft from the Tallulah Motor Company was relevant to prove intent in the instant burglary of the same building. Intent was an essential and important element of the offense. The probative value of the prior misconduct was not overcome by its prejudicial nature.

CALOGERO, Justice

(dissenting).

I disagree with the court’s resolution of assignment of error number six.

In this simple burglary prosecution defense counsel, complying with Article 807 of the Code of Criminal Procedure, submitted a special written requested charge to the effect that the crime of simple burglary requires specific intent to commit a felony or any theft therein, not simply general criminal intent. He was correct, of course, for the crime of simple burglary does require specific and not general intent. State v. Lewis, 288 So.2d 348 (La.1974); La. R.S. 14:62.

The majority finds that the judge’s general charge fairly covers the requested charge. The majority opinion accurately quotes the only possibly pertinent portion of the trial judge’s charge in this respect. But as I read that general charge of the trial judge, there appears nowhere in it the statement that specific intent is necessary to prove guilt of the crime of simple burglary. At best it can be said that the judge instructed the jury that simple burglary requires that the accused enter with the “intent” to commit any felony or theft therein and thereafter simply read from the law definitions of specific and general criminal intent. It is evident from the transcript that the judge felt that specific criminal intent was not a necessary ingredient of the crime of simple burglary, for he refused to give defendant’s wholly correct and pertinent requested charge immediately on the heels of the state’s argument that specific intent was not required.

I believe that assignment number six has merit and that the conviction should be reversed and the defendant ordered retried.

ON REHEARING

DENNIS, Justice.

In December of 1975, Robert Davis Anderson was convicted of simple burglary of the Osborne Ford Lincoln Mercury dealership in Tallulah, Louisiana, and was sentenced to serve nine years imprisonment at hard labor. On original hearing we affirmed his conviction and sentence. However, in response to Anderson’s timely application, we granted a rehearing in order more fully to consider the correctness of our initial conclusion that no reversible error was committed by. the trial judge by his refusal to read to the jury, at defendant’s request the following special charge:

“The crime of simple burglary requires the specific intent to commit a felony or any theft therein, not general criminal intent.”

The elements of the offense for which defendant was prosecuted are set forth in La. R.S. 14:62 as follows:

“Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, * * *

As is clear from the statutory language, proof that an accused actually committed a felony or theft is not necessary to a conviction for simple burglary; however, at the moment of his unauthorized entry, the actor must intend to commit a felony or theft therein.

We have previously held, and continue to subscribe to the view, that the intent required by La. R.S. 14:62 is specific criminal intent. State v. Lewis, 288 So.2d 348 (La.1974). See also, State v. Lentz, 306 So.2d 683 (La.1975); State v. Jones, 315 So.2d 650 (La.1975). The actor must specifically intend to accomplish certain prescribed criminal consequences — i. e., he must actively desire to commit a felony or theft within the premises at the time of his unauthorized entry.

The trial judge read to the jury in his general charge, without elaboration, La. R.S. 14:62 (definition of simple burglary), La. R.S. 14:10 (definitions of general and specific criminal intent), La. R.S. 14:11 (provision that absent qualifying language the term “intent” in penal statutes refers to general intent), La. R.S. 15:445 (provision that intent may be inferred from circumstantial evidence, and that other crimes evidence may be used to show such intent), and La. R.S. 14:27 (definition of attempt). On original hearing we concluded the general charge fairly included the defendant’s special requested charge, despite its lack of an express statement that specific intent is necessary to prove guilt of the crime of simple burglary.

Defendant forcefully argues that the trial judge’s general charge left the jury to decide on its own whether to apply the definition of general criminal intent or that of specific criminal intent in determining defendant’s innocence or guilt. Defendant’s position is that the trial judge’s general charge said too much, and that the special requested charge should have been given to clear up any ambiguity which might have been created by the judge’s reading of both intent definitions.

We agree with defendant that the trial judge should not have included in his general charge the definition of general criminal intent from La. C.Cr.P. art. 10, because of its inapplicability to the charge of simple burglary. Given the evidence of this case, however, we do not agree that the inclusion of that definition in the general charge could have created such confusion in the minds of the jury as to mandate reversal.

In the first place, by virtue of the trial judge’s having read the elements of the offense of simple burglary, the jury was informed that, in order to convict, it must find that the accused intended to commit a felony or theft at the time he unlawfully entered the premises. Secondly, because of the nature of this case, the risks of jury confusion which might attend some burglary trials were not present. There was no evidence tending to show that the defendant lacked the mental capacity to form the requisite intent to commit burglary. There was no evidence that the defendant actually committed a theft or felony within the building. The defendant took the stand and denied entering the premises, claiming that he had arrived on the scene from St. Joseph, Louisiana, just prior to his apprehension. Accordingly, it was not important for the jury to know that certain kinds of mental disorders make it impossible for one to have specific intent. Nor was it possible for the jury to become confused between the intent to commit a theft or felony at the time of entry with such an intent formed as an afterthought subsequent to the entry.

Perhaps the reading of the general intent definition to a jury in a different type of burglary case presenting more complex issues could cause confusion and a wrongful conviction. But since the issue here was simply whether Anderson made an unauthorized entry with the intent to commit theft or felony we do not see how the jury could have found him guilty without finding he did so with specific intent. Nor do we see how the jury could have failed to find him guilty by applying the specific intent definition and yet convict him by using the general intent definition. Actually, the difference between the two definitions is inefficacious in the evidentiary setting of the instant case.

Therefore, in the instant case, the judge’s inclusion of the superfluous general intent definition in the general jury charge, and his refusal to read the special requested charge, did not result in a miscarriage of justice, or a substantial violation of defendant’s statutory or constitutional rights. La. C.Cr.P. art. 921. Our decision here, however, should not be mistaken for an approval of the jury instruction. On the contrary, under different circumstances the charge could have been highly prejudicial amounting to reversible error. To avoid the possibility of such error trial courts in burglary cases should either instruct juries that the crime requires specific intent or that it requires simply “the intent to commit a felony or any theft therein.” La. R.S. 14:62.

For the foregoing reasons, we conclude that the result reached on original hearing was correct. The defendant’s conviction and sentence are affirmed.

DIXON, J., dissents.

CALOGERO, J., dissents for the reasons expressed in his dissent on original hearing.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. James Earl HUNTER.
    No. 58063.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Rena M. Price, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

After a jury trial, James Earl Hunter was convicted of having robbed Elmer Beatty while armed with a knife, a violation of LSA-R.S. 14:64. Subsequently, the State charged defendant as a multiple offender; he was found to be a triple offender, given credit for time served, and sentenced to serve forty-nine and one-half years at hard labor, without benefit of parole, probation, or suspension of sentence. Pursuant to a request from this Court, defense counsel has filed two assignments of error, upon which defendant relies for reversal of his conviction and sentence on appeal.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erred when it permitted United States Marshal Messa to testify that Elmer Beatty, the victim, told him that he had been robbed by a black subject. Defendant objected that this statement was hearsay, and the trial court overruled his objection.

The trial court properly overruled defendant’s objection, ruling that the statement formed part of the res gestae of the crime and was, therefore, not subject to the hearsay rule.

LSA-R.S. 15:447 and LSA-R.S. 15:448 define res gestae as follows:

“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.”
“To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

The res gestae doctrine in Louisiana is broad and includes statements of those involved in a crime immediately before, during, or immediately after the commission of the crime. LSA-R.S. 15:447 and 15:448; State v. Batiste, La., 318 So.2d 27 (1975); State v. Morgan, La., 296 So.2d 286 (1974); State v. Edwards, La., 287 So.2d 518 (1973); State v. Curry, 263 La. 997, 270 So.2d 484 (1972); State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964). A victim’s spontaneous statement immediately after the crime, in the excitement of the occasion, is generally part of the res gestae. State v. Edwards, supra. Such a statement is sometimes referred to as excited utterance. See Pugh, Louisiana Evidence Law, p. 506 (1974); Comment, Excited Utterances and Present Sense Impressions as Exceptions to the Hearsay Rule in Louisiana, 29 La.L.Rev. 661 (1969).

The contested statement was made by the victim to a federal Marshal within a few seconds after he had been robbed and while he was still pursuing the culprit. Clearly, the statement was part of the res gestae.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Here, defendant alleges that the State failed to lay a proper foundation for the introduction of physical evidence: (1) the butcher knife with which defendant was armed; and (2) the wallet taken from the victim.

Defendant argues that the foundation was deficient because the State failed to show that the two items had a connection to the defendant.

The trial court properly overruled defendant’s objection and admitted the knife and wallet into evidence.

To admit physical evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case; or it can be by a chain of custody, that is, by testimony establishing the custody of the object from the time it was seized to the time it is offered in evidence. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971). For admission, it suffices if the evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient. The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury. State v. Drake, La., 319 So.2d 427 (1975); State v. Freeman, La., 306 So.2d 703 (1975); State v. Dotson, supra.

In the present case, two United States Marshals, who observed defendant and victim struggling, testified: that they saw defendant running after the commission of the offense with the victim pursuing him; that defendant dropped two objects while one of the Marshals was pursuing him; and that the two objects retrieved were a butcher knife and a wallet. The Marshals testified that the wallet admitted into evidence was the same wallet retrieved and later given to the police. The victim identified the wallet as the one taken from him. The Marshals and victim also testified that the knife was similar to the one used in the robbery and dropped by the defendant. A New Orleans police officer identified the knife as the one given to him by the Marshals at the scene from his initials and the date on the attached evidence tag.

Clearly, sufficient connexity was shown for admission. The jury, of course, had the responsibility of determining the weight to be given to the evidence.

Assignment of Error No. 2 is without merit.

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

DIXON, J., concurs.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Vincent HARRIS.
    No. 58250.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Daniel J. Caruso, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The trial judge in this case sustained a motion to suppress, which had attacked the sufficiency of the affidavit upon which the search warrant was issued. On the State’s application, we granted writs to review the ruling.

The affidavit was executed before a judge by police officer Lester Thorne, and contained the following recitation:

“THE reasons and facts for the request of this search warrant are:
“Officer Lester Thorne, while assigned to the Fourth District report of meeting Alfred Gisclair, W/M 18 residing 4412 Fields St. at 4409 Joycelyn St. at 5:15 P.M. on 3-13-76. From him officers learned the following: A man named Vincent residing at 6421 Medlock St. owes Alfred Gisclair money. On 3-13-76, Gisclair went to 6421 Medlock St. to collect his money from Vincent. While at 6421 Medlock St. Gisclair observed the above described stereo unit and television set. Gisclair is acquainted with the rightful owner (Calvin Young residing 4409 Joycelyn St.) of the property and recognized the property. Gisclair then went to 4409 Joyselyn St. and met Mr. Young who informed him that his property had been stolen in a burglary of his residence on 3-12-76 at approximately 11:15 A.M. At this time the owner of the property along with Mr. Gisclair notified the above mentioned officer.
“Gisclair pointed out 6421 Medlock St. to the officers, which is a single story duplex with dark brown bricks and dark brown wood trim. Officer observed 6421 Medlock St. to be the front apartment of the building which carries municipal numbers 6421 and 6423 Medlock St. The officer learned that the subject Vincent is a negro male about 25 yrs. 6'1" 175 and that the victim knows the subject, because the subject used to work for the complex. Also, the victim told the officer that Vincent had been in his apartment when he worked for the complex. “Based on the before mentioned facts the officer respectfully apply (sic) for this warrant.”

Defense counsel argued in the district court that there was nothing in the warrant to explain the reason that Gisclair recognized Young’s stereo and television. No specific argument supporting the ruling of the trial judge is contained in defendant’s brief before us. ■

There is no requirement that the affidavit do more than establish probable cause for the issuance of a search warrant. If the affidavit recites facts establishing to the satisfaction of the judge that probable cause exists for the issuance of a search warrant, it is sufficient. C.Cr.P. 162; State v. Paciera, 290 So.2d 681 (La.1974).

Here, the affiant recites that he was told by Gisclair that Gisclair had seen Young’s property in defendant’s house; that Gisclair learned from Young that his property had been stolen the day before; that Young and Gisclair reported the situation to the affi-ant. The affidavit further discloses that the affiant learned from Young that the defendant was known to Young, and that the defendant had previously been in Young’s apartment.

The affidavit is a recitation of factual matter, related by the affiant to the magistrate. If the circumstances disclosed by the affidavit clothe the recitation with indicia of authenticity, it is not required that eyewitnesses to the crime be produced before the magistrate in order that a warrant issue. The informant here is not an unknown person. His identity is established in the warrant. The reasons for his being where he was when he obtained the information are disclosed, and are credible. It is true that the affidavit does not disclose details explaining how Gisclair recognized the stereo and television as being that which belonged to Young. However, when Gisclair’s recognition of the property is coupled with the information that it had been stolen from Young the day before, and that the defendant had previously been in Young’s apartment, there was adequate factual information for the magistrate to conclude that the property in defendant’s possession was probably that which had been stolen from Young’s apartment.

Therefore, the ruling of the trial judge in sustaining the motion to suppress is reversed, and the case is remanded to the district court for further proceedings in accordance with law.