text:
    Danny ARIS, alias Danny Lee Aris v. STATE.
    7 Div. 382.
    Court of Criminal Appeals of Alabama.
    Oct. 21, 1975.
    Donald W. Stewart, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant entered first a plea of not guilty to a two-count indictment charging burglary in the second degree and grand larceny. He afterwards withdrew his plea of not guilty and entered a guilty plea and was sentenced to imprisonment in the penitentiary for a term of four years, the sentence to run concurrently with Case No. 7801 in the same court. Approximately seven weeks after his conviction and sentence, he filed in the trial court “MOTION FOR A NOTICE OF APPEAL.” He made an affidavit of indigency, and the trial court after investigation found that he was indigent, directed a free transcript and appointed counsel on appeal. The disignated document filed by appellant contained several alleged grounds, but each ground is unintelligible, unsupported other than by a conclusional verified statement of appellant or inconsistent with the record, or is so vague that it does not justify any relief. Among the grounds is the bare statement that appellant “was not properly represented by competent counsel.” There is nothing in the record to support such an averment. He was represented by experienced counsel of the county of the trial, and the record indicates that he was employed by defendant, as the record shows no appointment by the court of such counsel or any need or request therefor.

Another ground of the document filed by appellant is to the effect that it was understood that if he would enter a guilty plea the sentence would run concurrently with “the Sentence he is now serving” but that “the Sentence did not run concurrent.” We are not informed whether the reference is to the case with which, as shown above, the sentence in this case is made concurrent.

Appellant’s counsel here urges that the trial court “failed to enter into an adequate colloquy with the Appellant,” that he was “never adequately questioned as to his understanding” of each of his rights and that the trial court failed to “enter into an adequate discussion of the Appellant’s rights and of the consequences of a guilty plea.”

We appreciate counsel’s zealous fulfillment of his duty as counsel on appeal, but we find that defendant’s plea was changed from not guilty to guilty after full information as to all of his rights and that he knowingly and understanding^ changed his plea and entered a plea of guilty, that he knowingly and understanding^ waived his constitutional rights as to the privilege against self-incrimination, the right to a trial by jury, the right to confront one’s accusers, the right to produce witnesses on his behalf and the benefit of the presumption of innocence and the requirement of proof beyond a reasonable doubt of his guilt. He was correctly advised as to the range of punishment and the punishment was kept well within that range. He executed the form found in Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971), and it was read to him in open court by his attorney. The signed document is in the record and is quoted verbatim in the colloquy among the trial judge, defendant and his counsel. After it had been read, by his counsel to him in open court, he was asked by his counsel whether he understood his rights and he replied “Yes, sir.” Thereupon he signed the instrument acknowledging his understanding thereof, his guilt and his desire to plead guilty in the language of such an acknowledgment found in Ireland. His attorney also signed the certification in the language of the certification in Ireland that he had read the contents of the document, he had read to defendant the contents of the document signed by him, had discussed defendant’s rights with him, in detail, and that a written copy of the rights acknowledged and signed by defendant was given to him to keep, use and study.

The court thereafter inquired of defendant in the mentioned colloquy whether he understood his rights as his counsel had read and explained to him and he answered, “Yes, sir.” The trial court went on to inquire of him whether he understood certain of the specific rights covered in the document he had signed and which had been read to him and he answered, “Yes, sir.” He was then asked how he pleaded, and he answered, ■ “Guilty, sir.” He was then asked to relate what happened, and he said, “I burglarized the house and went in with the intent to steal.” He was asked if it was his house and he replied, “No, sir.” He was asked if he had the intent to steal and he answered, “Yes, sir.” After he was asked if he had anything to say before the court passed sentence, he replied, “No, sir.” Thereupon the court imposed the sentence of imprisonment in the “State Penitentiary for a term of four years” to run concurrently with Case No. 7,801.

We find full compliance with all of the safeguards set forth by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274, and related cases for the protection of a defendant’s constitutional rights in the process of entertaining, accepting and acting upon a guilty plea.

We note that the record of the judgment entry does not fully reflect the action of the court revealed by the transcript of the colloquy among the trial judge, defendant and his counsel, in that the entry shows that there was a plea of guilty and a judgment finding defendant guilty “of the offense of Burglary and Grand Larceny,” but the transcript of the colloquy shows that defendant pleaded guilty to Count One only, which is a burglary in the second degree count, and did not plead guilty to Count Two, which charged grand larceny. This was not substantial error as was held in Meadows v. State, 21 Ala.App. 72, 105 So. 428, and McGee v. State, 22 Ala.App. 500, 117 So. 487, but was clearly inadvertent.

In our opinion, defendant stands lawfully convicted of burglary in the second degree and lawfully sentenced to imprisonment for four years for such offense only. It is clear that as the trial court accepted a plea of guilty to -burglary only, as distinguished from a plea of guilty to burglary and grand larceny, the punishment was based on a conviction of burglary only and not grand larceny. We see no possibility of any injury to defendant in the language of the judgment entry other than some possible consequential nonlegal injury if the inaccurate entry is allowed to stand. The same is hereby corrected by deleting the words "and Grand Larceny” wherever they appear in the entry as to the plea of guilty and as to the judgment and sentence. As thus corrected, the judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

Corrected and affirmed.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    R. H. ABBEY v. Edgar GRAHAM and Carl Ernst, d/b/a Ernst Flying Service.
    No. 48418.
    Supreme Court of Mississippi.
    Nov. 10, 1975.
    Holcomb, Dunbar, Connell, Merkel & Tollison, H. Hunter Twiford, III, Clarks-dale, for appellant.
    John W. Whitten, Jr., Sumner, A. Donald Whitten, Charleston, for appellee.
    Before INZER, WALKER and BROOM, JJ.
   Affirmed.


text:
    BRELAND TRUCKING & CONSTRUCTION CORPORATION v. Robert Patrick TOOMEY and Danny R. Minchew.
    No. 48381.
    Supreme Court of Mississippi.
    Nov. 10, 1975.
    Daniel, Coker, Horton, Bell & Dukes, Jackson and Gulfport, Donald V. Burch, Jackson, for appellant.
    Boyce Holleman, Jim W. Rose, Gulfport, for appellees.
    Before INZER, WALKER and BROOM, JJ.
   Affirmed as to Liability with Suggestion of Remittitur in Toomey’s Case.

GILLESPIE, C. J., RODGERS, P. J., and PATTERSON, SMITH, ROBERTSON and SUGG, JJ., concur.


text:
    James VAUGHN et al. v. J. C. SHARP et al.
    No. 48375.
    Supreme Court of Mississippi.
    Nov. 10, 1975.
    H. A. Courtney, Jackson, Oates & Houston, Bay Springs, for appellants Luther Lee, and others.
    Riddell & Dabbs, Quitman, A. W. Ma-gruder, Jr., Jackson, Robert H. McFarland, Bay Springs, for appellees.
    Before PATTERSON, INZER and WALKER, JJ.
   Affirmed.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON, SUGG and BROOM, JJ., concur.


text:
    In the Matter of the ESTATE of Mrs. Sarah LENOIR, Deceased.
    No. 48267.
    Supreme Court of Mississippi.
    Nov. 10, 1975.
    Bourdeaux & Jones, William C. Ham-mack, Meridian, for appellant.
    Singley, Minniece, Hamilton, Neville & Hamill, Meridian, for appellee.
    Before PATTERSON, INZER and SUGG, JJ.
   Reversed and remanded.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


text:
    LOFTIN & WOODARD, INC. and Highlands Insurance Company v. Kenneth L. STONE.
    No. 48416.
    Supreme Court of Mississippi.
    Nov. 10, 1975.
    Heidelberg, Woodliff & Franks, W. Swan Yerger, Jackson, for appellants.
    Pyles, Tucker & Cupit, John L. Maxey, II, Jackson, for appellee.
    Before RODGERS, P. J., and PATTERSON and SUGG, JJ.
   Reversed and order of commission reinstated.

GILLESPIE, C. J., and INZER, SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


author: BROOM, Justice, for the Court.

text:
    Dalton ALEXANDER v. Mack L. KILLEBREW.
    No. 48437.
    Supreme Court of Mississippi.
    Nov. 10, 1975.

      Johnson & Walker, Jackson, for appellant.
    Barrett, Barrett & Barrett, Lexington, for appellee.
    Before INZER, WALKER and BROOM, JJ.
   BROOM, Justice, for the Court.

Default judgment of plaintiff, Killebrew (appellee, cross-appellant) on his suit based upon a note and a separate contract was vacated by the Circuit Court of Holmes County at a court term subsequent to the term in which the judgment was entered. Trial was then had on Killebrew’s declaration against Alexander (defendant, counter-claimant below; appellant, cross-appel-lee here), and on Alexander’s counterclaim against Killebrew. Alexander appeals and Killebrew cross-appeals. We affirm on direct appeal and reverse on cross-appeal.

The controlling issue is: Did the trial court err in vacating the default judgment at a term of court subsequent to the term during which the judgment was entered?

Killebrew’s original declaration in two counts against Alexander was filed on Wednesday, September 26, 1973. Count one was based upon a promissory note allegedly executed by Alexander in favor of Killebrew in the sun of $1856.27; count two was based upon an alleged contract in the amount of $524.59. Process was personally served upon Alexander on September 26, 1973, returnable to the following Monday, October 1, 1973, the first day of the court term. Default judgment in Kil-lebrew’s favor in the sum of $2380.86 plus court costs was entered on October 23, 1973, and the term adjourned on October 26, 1973.

On October 31, 1973, Alexander answered the suit and counterclaimed against Kil-lebrew in the amount of $550. Then on November 20, 1973, Alexander (almost a month after the term expired) filed a motion to vacate the default judgment. On the first day of the April 1974 Term, the court sustained Alexander’s motion to vacate the original default judgment and during that term a jury tried the cause. A peremptory instruction resulted in a verdict for Killebrew on his count one (the note) for $1941.47, interest included. The jury returned a verdict in favor of Alexander both on his counterclaim and on count two of Killebrew’s declaration. This resulted in a judgment for Killebrew in the sum of $1391.47, being the amount of the verdict for Killebrew on count one of his declaration ($1941.47) reduced by the amount of Alexander’s counterclaim ($550).

Killebrew’s argument that the court erred in vacating the original default judgment entered against Alexander for $2380.-86 on October 23, 1973, is well founded.

Regarding finality of judgments, Mississippi Code Annotated section 11—7— 171 (1972) provides: “ . . . judgment shall be entered therefor and be final, if not set aside during the term. . . . ” The appearance of a defendant upon whom a circuit court summons is served must be made in that court at the return term if the process “be executed five days before the return-day thereof.” Miss.Code Ann. § 13-3-11 (1972).

Here the requirement of section 13-3-11 was met. The requisite five days’ service was accomplished according to time computation formula provided by Mississippi Code Annotated section 1-3-67 (1972), which states: “ . . . the day of serving the process . . . shall be excluded and the day of appearance included . . .” In Strain v. Gayden, 197 Miss. 353, 360, 20 So.2d 697, 698 (1945), we held that process served on Wednesday, October 27, 1943, returnable to Monday, November 1, 1943, the first day of a court term, was “five days” process and that a judgment thereon was not “void or even erroneous.”

It follows that the default judgment originally entered on October 23, 1973, was legally entered and became a valid final judgment when the term adjourned three days later. The general rule is that (except in cases involving fraud, or an absolutely void judgment) a motion to vacate a judgment filed after a term of court adjourns is beyond the jurisdiction of the court. Robb v. Ward, 266 So.2d 133 (Miss.1972). A court loses control of its judgments when the term ends unless there are special circumstances not present in this case. McNeeley v. Blain, 255 So.2d 923 (Miss.1971); Evers v. Truly, For Use and Benefit of Town of Fayette, Mississippi, 317 So.2d 414 (Miss.1975), held that when a final judgment is entered and court is adjourned, “the court no longer had jurisdiction of the subject matter of this cause.” The court further stated in Evers that: “After the court adjourned any error in the procedure in arriving at the final judgment could only be corrected by an appeal.” In Willard v. Hill, 317 So.2d 435 (Miss.1975), this Court upheld a motion (overruled by the trial court) to set aside a default judgment, but there the motion had been filed during the term in which the default judgment had been entered.

We therefore hold that it was error for the trial court to put appellee Killebrew to trial (the second time) on the note which was subject of the original default judgment—a valid and final judgment from which no appeal was taken. Accordingly, we do not reach the question as to whether or not the trial court erred (after vacating the default judgment) in refusing to allow Alexander to introduce evidence that he did not execute the promissory note.

Killebrew does not question, and in effect by his brief concedes, the validity of the jury verdict against him on Alexander’s counterclaim in the sum of $550. His concession amounts to a confession of judgment against him for the $550. Therefore, we reverse on cross-appeal and judgment will be entered here reinstating Killebrew’s default judgment for $2,380.86 against Alexander, but Alexander shall be credited with the $550 judgment on his counterclaim which is confessed by Kille-brew.

Affirmed on direct appeal; reversed on cross-appeal; default judgment reinstated and reduced by credit.

GILLESPIE, C. J., RODGERS, P. J., and PATTERSON, SMITH, ROBERTSON and SUGG, JJ., concur.


author: SANDERS, Chief Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. Gregory WHITE.
    No. 56519.
    Supreme Court of Louisiana.
    Nov. 3, 1975.

      John P. Nelson, Jr., Patricia Saik, Nelson, Nelson, & Lombard, Ltd., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Defendant, Gregory White, indicted for Second Degree Murder, was tried, found guilty, and sentenced to imprisonment for life, without benefit of probation, parole, or suspension of sentence for twenty years. Defendant appeals, relying upon seven assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant alleges that he was denied his Sixth Amendment right to have counsel present during post-arrest questioning and that the court erred in denying his pretrial motion to suppress inculpatory statements.

Police officers testified that defendant was advised of his Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), rights on three occasions: in the house where he was arrested; in the car on the way to headquarters; and on the day following the crime in the Police Homicide Office. Defendant concedes that he was advised of his rights.

Defendant complains mainly that the officers failed to ask him if he wanted to call a lawyer. He alleges that the officers denied his request to call an attorney. The officers testified that the defendant made his request while in the Homicide Office and that telephone calls were only allowed at Central Lockup. The officers further testified that defendant was advised that he could call his lawyer as soon as he returned to Central Lockup. Defendant contends that this delay denied his right to have counsel present at crucial post-arrest questioning. LSA-C.Cr.P. Art. 230; Miranda v. Arizona, supra.

The testimony is in conflict. Defendant testified that not only was he questioned after his request to call an attorney was denied, but also that he was beaten and punched by the officers. The officers denied the beating and testified that when defendant refused to waive his rights and requested counsel, interrogation ceased. All officers testified that the inculpatory statement, “I threw the gun in the river," was spontaneous and unsolicited and that no questions were asked regarding the gun after defendant volunteered the statement.

Defendant’s refusal to sign a waiver of rights and to answer questions does not preclude him from making an admissible spontaneous statement. State v. Lewis, La., 315 So.2d 626 (1975). Further, defendant need not be advised of the right to use the telephone. See State v. Cripps, 259 La. 403, 250 So.2d 382 (1971).

The trial court held that the defendant, on two occasions after being advised of his rights, volunteered the statement : “I threw the gun in the river.” The voluntarinesss of a confession is a question of fact, and the ruling of the trial court will not be disturbed on appeal unless it is clearly contrary to the evidence. State v. Sims, La., 310 So.2d 587 (1975). Admissibility of an inculpatory statement is for the court to determine, and its weight is to be determined by the jury. According to defendant’s testimony, he made no statements whatsoever to the officers. This testimony raises a factual issue, involving credibility, for the jury’s determination.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant alleges that the State failed to prove that the oral statement, supra, was voluntary and that the court erred in allowing the State to offer additional evidence of its voluntary nature on rebuttal.

In its case in chief, the State offered the general testimony of the police officers to the effect that no force or coercion was used to secure a confession. When the defendant took the stand, he testified that he was struck by police officers. He pointed out the officers. On rebuttal, the officers refuted these specific charges.

In our opinion, the trial judge did not abuse his discretion in allowing the rebuttal testimony. See State v. Peters, La., 315 So.2d 678 (1975); State v. Monroe, La., 305 So.2d 902 (1974); State v. Honeycutt, 216 La. 610, 44 So.2d 313 (1950).

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Prior to trial, defendant filed a supplemental prayer for oyer, which sought, among other things, “to examine all gun pellets that may have been recovered or retrieved by the police in their investigation of the death of Willie Green.” The defense alleges that such an inspection was crucial, since the murder weapon was never recovered. Assignment of Error No. 3 complains of the trial judge’s denial of the request.

The trial judge relied upon this Court’s decision in State v. Barnard, La., 287 So. 2d 770 (1973). Since that decision was handed down, the United States Court of Appeals for the Fifth Circuit set aside the conviction, holding that the denial of defendant’s request for a pretrial examination of the bullet in that case was a denial of due process. See Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975).

Although decisions of the intermediate federal courts are not binding upon this Court, they are persuasive.

In Barnard v. Henderson, supra, the United States Court of Appeals stated:

“Prior to the trial he moved for permission of the Court to allow inspection of the murder weapon and bullet by a ballistics expert of his own choosing. That this was not a frivolous request is evident since one of the most damaging pieces of evidence against Barnard was the identification of the murder bullet as having been fired by a .22 Ruger pistol traced to his possession. Seventy-five percent of this slug was destroyed and the identification was made on the remaining 25%. This fact alone raises the possibility that had Barnard been assisted by a ballistics expert of his own he may have been able to shake the identification testimony of the State’s experts.”

The present case is distinguishable. In the present case, the bullets were not badly damaged, permitting a quick comparison under a dual microscope at the trial. Defendant made no request for examination at the trial. In the present case, moreover, the guilt of defendant was established by eyewitness testimony.

In State v. Collins, La., 308 So.2d 263 (1975), this Court set forth the general rule as follows:

“As a general proposition the State is not required to produce the physical evidence it intends to use at the trial. Exceptions to this rule have recognized the right of a defendant to view and copy his written confession in the possession of the prosecutor. State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945); to obtain production of a taped confession, State v. Hall, 253 La. 425, 218 So.2d 320 (1969) ; or some of the confiscated narcotic evidence in a narcotic prosecution, State v. Migliore, 261 La. 722, 260 So.2d 682 (1970). When proper allegations support a finding that the defendant acted in self-defense and specifies that the weapon sought was used by the alleged victim against the defendant, supporting a claim of self-defense, we have required production of the weapon by the State. State v. Woodruff, 281 So.2d 95 (La. 1973).”

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant alleges that the trial court erred in denying his motion to suppress a box of bullets seized from the closet in which the defendant was found at the time of his arrest. Defendant argues that the seizure does not fall into any exception allowing a lawful search without a warrant.

At the hearing on the motion to suppress, the State introduced evidence that the arresting officer received a call complaining of the discharge of firearms at the Toledano apartment of Debra Williams. Debra, an eyewitness, identified the defendant as the perpetrator. The officers who responded to the call learned that the defendant was personally known to Debra and that they could possibly find him at his home. The officers and Debra went to that address. On the way to the defendant’s home, the officers learned that defendant was wanted for a murder. Defendant’s wife answered the door. The officers explained that they were looking for defendant who was wanted for attempted murder and possibly murder. She denied defendant’s presence and freely gave her consent to the search of the house. The officers found defendant hiding in a closet, arrested him, and contemporaneously with the arrest, found a box of gun pellets in the closet.

Defendant urges that the officers did not have an arrest warrant when they searched the closet and found the box of bullets. He contends that his wife’s consent to search for defendant ended as soon as defendant was discovered. He also urges that as soon as he was discovered, he was arrested and placed in handcuffs; therefore, the officers were no longer in danger from possible physical reprisal and a search of the closet could not be deemed incident to arrest.

The trial court properly denied the motion to suppress. Mary White, defendant’s wife, consented to the entry to search for defendant. The officers, supplied with the information given by the eyewitness, Debra Williams, to her attempted murder by defendant, coupled with the information received prior to entry that the defendant was also wanted for a murder, established probable cause to arrest. The search of the closet, in which defendant was hiding, was incidental to the lawful arrest. The seizure of the box of gun pellets from the closet occurred contemporaneously with the arrest of the suspected felon in the house. The search and seizure were, therefore, valid. State v. Cloud, Blakes and Cedan, La., 319 So.2d 793 (1975); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L. Ed.2d 782 (1967).

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant objected to admitting into evidence the bullet removed from the victim’s head during the autopsy. Dr. Welch, the pathologist, did not mark the bullet and could not identify it. Defendant alleges that admitting it into evidence, over his objection, is error.

Defendant’s allegation is without merit. Evidence offered at trial shows that an officer from homicide, Martin Alonzo, was present when Dr. Welch removed the bullet; that the doctor handed the bullet'to Alonzo, who marked it with his initials, M.A., and turned it over to Robert Townsend, the senior firearms examiner of the crime laboratory. Defendant admits that both Alonzo and Townsend identified the bullet by means of their initials. Defendant contends, however, that the doctor who performed the autopsy could not identify the bullet. He urges that the court erred in finding that a continuous chain of custody was established and that a proper foundation had been laid for admitting the bullet into evidence.

Identification of a physical object can be either by visual means or by a proper chain of custody. State v. Freeman, La., 306 So.2d 703 (1975); State v. Isaac, 261 La. 487, 260 So.2d 302 (1972); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971). In the present case, the doctor who removed the bullet testified that he delivered it to the police officer, Martin Alonzo. Alonzo testified that he marked his initials on the bullet and, later, gave it to Townsend. Townsend testified that he could identify the bullet by his initials and that he retained possession of the bullet until it was offered into evidence at the trial. A continuous chain of custody was established, and the court correctly held that a proper foundation was laid for its admission into evidence. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. State v. Mitchell, La., 311 So.2d 888 (1975).

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant alleges that the testimony of the State’s expert witness, Officer Robert Townsend, that a comparison of S-l, the bullet removed from the victim, and S — 7, the bullet taken from the Toledano Street address, showing they were fired from the same gun, should have been stricken from the record as the best evidence would have been a photograph of the two pGLts.

Townsend was qualified as a firearms expert and was accepted as such by the defendant and the court. LSA-R.S. IS :466. During cross-examination, he testified that, although there was a camera attached to the microscope he used to examine the pellets, he did not photograph what he had seen through the dual microscope. Townsend gave his opinion as an expert witness on the comparison of these two gun pellets from his observation under the microscope. This is sufficient. LSA-R.S. 15:464-465. The weight to be given to the evidence is to be determined by the jury.

Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant alleges that the district court erred in overruling his motion for new trial.

Defendant raises the following issues in the motion: that the verdict is contrary to the law and the evidence; that the overruling of the motion to suppress the confession and the motion for pretrial examination of the gun pellets prejudiced the accused. The latter two contentions have been previously disposed of in defendant’s prior assignments of error and will not be discussed herein. His remaining allegation, that the verdict is contrary to the law and the evidence, presents nothing for our review. State v. Gilbert, La., 286 So.2d 345 (1973).

Assignment of Error No. 7 is without merit.

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

DIXON, J., dissents.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice

(dissenting).

I believe that the trial court’s refusal to allow defendant’s expert to examine the gun pellets which were retrieved by the police in investigating the crime was reversible error. The majority opinion attempts to distinguish the case of Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975) which found error in a trial court’s refusal to allow an expert for defendant to inspect the murder weapon and bullet. While this federal Fifth Circuit opinion is not controlling on this Court, I believe the principles therein enunciated are correct and should be applied here. In Barnard, the Fifth Circuit said:

“Fundamental fairness is violated when a criminal defendant on trial for his liberty is denied the opportunity to have an expert of his choosing, bound by appropriate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion.” 514 F.2d at 746.

I feel that the requested inspection was crucial to defendant’s preparation of his defense. Since the murder weapon was never recovered, one major link between the defendant and the murder was the gun pellets which were recovered by the police. A few hours before the murder, defendant allegedly fired a gun. The state ballistics expert compared the pellets fired at that time with the pellets taken from the victim. He found that both sets of bullets were fired from the same gun and testified that the test he conducted was so exact that two experts would never disagree. Had the state provided the defendant an opportunity to inspect the pellets prior to trial, the defense could have verified the state expert’s finding or perchance disagreed with such finding and produced its own expert witness to weaken or discredit the state’s case. I feel that defendant was prejudiced by his inability to have his own expert inspect the pellets so that he might testify whether both pellets were absolutely from the same gun, and whether the tests were subject to varying expert opinion. Due process requires that the defendant be able to inspect this critical piece of evidence prior to trial.

I therefore dissent.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Tracy W. NEAL.
    No. 56483.
    Supreme Court of Louisiana.
    Nov. 3, 1975.

      Samuel T. Singer, Winnsboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., S. E. Lee, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant, Tracy W. Neal, was found guilty of simple burglary, a violation of La.R.S. 14:62 and was sentenced to serve 9 years at hard labor. He appeals, relying upon two assignments of error in urging reversal of his conviction and sentence.

The facts evidence that at approximately 10:00 p. m. on July 20, 1974 defendant broke the plate glass door of the Wiggins Drug Store in Winnsboro, La. and entered the building. The police were contacted, and they arrived on the scene within a few minutes. A short while thereafter an employee of the store arrived and turned on the lights. A search was conducted and defendant was found hiding in a storeroom on the premises.

The defense urged was intoxication. Defendant contended that his intoxicated condition negated “the presence of criminal intent.” Apparently his argument, more fully, is that an element of bürglary is intent to commit a felony within the structure entered, (R.S. 14:62), and that the requisite intent is specific [R.S. 14:10(1)] rather than general [R.S. 14:10(2)].

ASSIGNMENT OF ERROR NO. 1.

Defendant denotes as error the trial court’s ruling that his oral confession was a free and voluntary one, given after he was informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and thus admissible in evidence. It is defendant’s principal contention that the confession was the result of interrogation of an illiterate person not fully apprised of his constitutional rights and thus not voluntarily given. He also notes that the interrogation was conducted after he had been in custody for two days, charged with the instant crime; that the interrogation lasted between forty-five minutes and one hour; that he was not presented a waiver of rights statement to sign; and that he was not informed of the procedure by which an attorney would be appointed to represent him.

The principles applicable to admissibility of confessions or inculpatory statements are well settled. Before a confession can be introduced into evidence, the state must show that it was freely and voluntarily given. La.R.S. 15 :451. Under Miranda, the state may not use statements or confessions stemming from a custodial interrogation unless it is shown that the state used safeguards effective to secure the privilege against self-incrimination. Determination of the admissibility of a particular confession is dependent upon the unique facts presented in each case.

During trial of the instant matter, prior to the introduction of defendant’s confession, the jury was excused from the courtroom, and the state presented evidence to show the circumstances under which the confession was obtained. The sole witness was Deputy William Holcomb, the officer who conducted the interrogation. No one else was present during the approximately one-hour-long interrogation session.

Deputy Holcomb stated that he did not use force, threats, or coercion, and that he made no promises or misrepresentations in order to obtain the statement. He stated that defendant informed him that he had never been to school, and that he knew defendant was illiterate, able only to write his name. Deputy Holcomb testified that he took extra care in conveying to defendant his Miranda rights; in addition to reading them aloud, he explained them in language which was explicit and exhaustive. He testified that he spent ten minutes explaining the Miranda rights and that the defendant understood the rights. Deputy Holcomb’s explanations were exhaustive and he testified that he explained all of the rights, including the right to appointed counsel. At one point during his testimony on cross-examination, however, he admitted that he had not specified the mechanics of the appointment of counsel for an indigent accused, i. e., when and by whom the appointment would be made. He specifically testified, however, that defendant said he did not want a lawyer. He further acknowledged that he did not have defendant sign a waiver of rights form, explaining that defendant had signed one earlier.

The state presented no further evidence. Defendant did not testify nor did he call any witnesses. He relied exclusively upon his contention that the statement was not freely and voluntarily given in that he did not fully understand his right to an attorney and his right to remain silent.

We have thoroughly reviewed the testimony .and find that the evidence supports the trial court’s finding that the confession was freely and voluntarily given. The uncontroverted testimony of Deputy Holcomb establishes that the confession was obtained without the use of force, threats, or promises and after defendant was adequately advised of his rights.

The mere fact of illiteracy does not preclude a knowing and voluntary confession. Cf. State v. Nicholas, No. 56,438 on the docket of this Court, decision rendered 10/1/75, 319 So.2d 361 (La.1975). In the instant case, Deputy Holcomb testified under oath that he orally explained to defendant all of the rights of which an accused must be informed prior to interrogation, and that defendant understood these rights. Defendant presented no evidence to contradict this testimony. Under these circumstances, defendant’s inability to read and write does not affect the voluntary nature of the confession. See State v. Sears, 298 So.2d 814 (La.1974).

Nor do we find that any of the other factors pointed to by defendant negates the free and voluntary nature of this confession. A one hour interrogation conducted after the accused has been in custody for two days, standing alone, is not in our opinion per se an unreasonable procedure, especially where, as here, defendant has not shown or even alleged that he was mistreated in any way either while in custody or during the questioning.

In regard to the failure of Deputy Holcomb to have defendant sign a written waiver of rights form, we find that the better procedure would have been for him to do so, but the lack of such a written waiver is only one factor to be considered and is not determinative of the issue of the voluntariness of the confession. State v. Navarre, 302 So.2d 273 (La.1974).

Defendant in seeking to have us rule that the admission of the confession was error cites Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). That pre-Miranda decision concerned a confession obtained from an accused after eight hours of interrogation, after misrepresentations and trickery by the interrogating police officers, and after the accused’s repeated requests to speak to his attorney (defendant had obtained retained counsel prior to the interrogation) were ignored. The Supreme Court in Spano found that under traditional principles the confession was not a voluntary one. That decision does not stand for the proposition, as argued by defendant, that a confession obtained after the accused has been charged with a crime cannot be used at trial unless an indigent accused was provided an appointed counsel to be present during the interrogation.

We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 2.

As noted earlier, the defense urged was that defendant was so intoxicated at the time he committed the burglary that he lacked the requisite criminal intent to commit a felony once inside the drugstore. During redirect examination of Officer Paul Harvey, state witness, the prosecutor, apparently exploring defendant’s condition on the night of the crime, asked: “Did you see him [defendant] at any time that evening that you felt that he wasn’t aware of what he was doing?” After the witness responded to the question, defense counsel objected, contending that the officer could not testify as to what he felt. The trial court overruled the objection, stating that defendant himself had asked the same thing on cross-examination. Defendant denotes this ruling as Assignment of Error No. 2.

In brief to this Court, defendant contends that the trial court erroneously allowed the witness to give opinion evidence. Defendant argues that such testimony was improper and cites in this regard La.R.S. 15:463.

With rare exceptions, a witness can testify only to facts within his knowledge. He may not testify as to an impression he may have. State v. Kirkland, 283 So.2d 713 (La.1973) and the cases cited therein. A witness may, however, state a natural inference from something he has observed. State v. St. Amand, 274 So.2d 179 (La.1973).

In our opinion, the trial court did not err in overruling defendant’s objection. Officer Harvey had observed defendant on the night of the crime. Intoxication, with its attendant behavioral manifestations, including disorientation, is an observable condition about which a witness may testify. State v. Ryan, 122 La. 1095, 48 So. 537 (1909). Under the circumstances of the instant case, where defendant himself had placed his mental condition on the night of the crime in issue, and where the defense had elicited similar testimony regarding the defendant’s mental condition, we find no error in .allowing Officer Hebert to testify as to whether it appeared (i. e., whether he “felt”) defendant knew what he was doing.

We therefore find no merit in this assignment of error.

We have reviewed for errors and have found none. Accordingly, defendant’s conviction and sentence are affirmed.

      . R.S. 15:463 provides :
      “Except as otherwise provided in this code, the witness can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have.”

      . We do not have in this appeal a complete transcript of the testimony adduced at trial. Consequently, we cannot determine if defendant did indeed, as stated by the trial court, ask the identical question of Officer Harvey during cross-examination. From those portions of the transcript which are before us, however, it is apparent that during the course of the trial, defense counsel sought to and did elicit evidence of the same type which lie now complains was improperly elicited from Officer Harvey. For example, during reeross-examination of Dep. Holcomb, defense counsel posed the following question: “You felt like this guy [defendant] entered that building, not knowing what he was doing, huh?”


author: SUMMERS, Justice.

text:
    The SOUTHLAND CORPORATION v. The COLLECTOR OF REVENUE FOR the State of LOUISIANA.
    No. 56280.
    Supreme Court of Louisiana.
    Nov. 3, 1975.

      Edwin M. Callaway, Baton Rouge, for defendant-appellant.
    John S. Thibaut, Jr., Thibaut & Thibaut, Baton Rouge, for plaintiff-appellee.
   SUMMERS, Justice.

Petitioner, the Southland Corporation, is a foreign corporation domiciled in Texas but authorized to do business in Louisiana, where it owns and operates numerous retail stores under the name of Pak-A-Sak/Seven Eleven. Southland is a Louisiana licensed dealer in tobacco products. This action is against the Louisiana Collector of Revenue and challenges the application to Southland of that portion of Section 842(5) of Title 47 of the Revised Statutes, as amended by Act 414 of 1974, referred to as the “grandfather clause”. Southland’s contention is that the Collector’s application of the act constitutes a denial of Equal Protection under the Fourteenth Amendment, and, further creates an undue burden on Interstate Commerce. Southland prayed for a declaratory judgment holding the statute as thus amended to be unconstitutional, and for injunctive relief.

The Louisiana Tobacco Tax Law is to be found in Sections 841-869 of Title 47 of the Revised Statutes. It has two general purposes: the imposition of a tax upon the sale and distribution of tobacco products, and the regulation of those persons who engage in the sale and distribution of such products so as to insure collection of the tax. Prior to the amendment, Section 842(5) of Title 47 defined a “wholesale dealer” as “those dealers who shall sell any cigars, cigarettes or smoking tobacco to licensed retail dealers for the purpose of resale.”

In Section 843 of this title, the Collector was permitted to enter into reciprocal agreements with tax authorities of border states, whereunder wholesale dealers in those states serving a trade area of retail dealers in this State were permitted to purchase Louisiana stamps with benefit of discount (6%) where border states permitted Louisiana dealers similarly situated to purchase such stamps with benefit of discount.

Prior to the construction of its large distribution center in Texas, Southland expanded the warehouse in its plant to a scale sufficiently large to accommodate the storage, handling, and stamping of tobacco products intended for sale in Louisiana. This action was taken in reliance on assurances from officials in the Collector’s office that because of the reciprocal agreement provisions it would qualify as a “wholesale dealer” under Section 842(5). It was, thereafter, in April of 1973, issued a wholesale dealer’s license, which was renewed in 1974.

The legislature of 1974, amending Section 842(5) by its Act 414, changed the definition of a “wholesale dealer” by providing, in what is termed a “grandfather clause,” that “wholesale dealers shall include . . . those Louisiana dealers who were affixing cigarette and tobacco stamps within the state as of January 1, 1974.” (emphasis added). The reciprocal agreement authorization in Section 843 was also amended to reflect this restriction by providing that the reciprocal agreement authorization applied only to those dealers meeting the requirements of a wholesale dealer as set forth in 842(5).

When petitioner inquired about the effect of this amending provision on renewal of its license, the Collector ruled its effect was to disqualify Southland. Consequently, its license would not be renewed in 1975, making it impossible for plaintiff to secure revenue stamps at the six percent discount accorded such dealers. This suit followed.

In attacking the constitutionality of Act 414, plaintiff contends the legislature created thereby a subclassification of wholesale dealers which arbitrarily, capriciously, and without rational basis excluded others from qualifying. Differentiating between those individuals affixing stamps outside the state on January 1, 1974 and those affixing stamps within the state on January 1, 1974 for the purpose of determining who could continue to be qualified as a wholesale dealer is without any rational basis and is violative of Southland’s constitutional rights under the Fourteenth Amendment. In addition to the contention that the classification is without rational basis, this is said to be a restrictive classification having no relation to the object of the statute as stated in its title: “to change the definition of wholesale dealer.”

Southland also argued the act had the effect of not only depriving the corporation of its Louisiana wholesale dealer’s license, but also of preventing it from engaging in the retail sale of tobacco in Louisiana since it will be unable to compete successfully on this level, with resulting loss of the capital invested in the processing, stamping, and distribution of tobacco products intended for sale here.

The State’s answer constituted a general denial.

The trial court finding plaintiff failed to overcome the well-recognized presumption in favor of the validity of the statute, held it to be constitutional. However, on rehearing, and predicated on the decision in Dukes v. City of New Orleans, 501 F.2d 706 (5th Cir. 1974) , the trial judge found the “unusual” “grandfather clause” in the act “creates a classification bearing no fair and substantial relationship to the object of the legislation and establishes a closed class of favored enterprises, thus depriving Southland of equal protection of the laws.” The court also granted the injunctive relief sought, but, because of the severability provision in Section 4 of Act 414 of 1974, all unobjectionable matter was held to be retained and to remain in operation. The State has appealed.

In this court the Collector contends the 1974 act was deemed by the legislature to be a reasonable exercise of its authority in tax matters and must be upheld under the well-established presumption of constitutionality because it bears a rational relationship to a legitimate governmental interest, i. e., control of the method of supervising the distribution and application of tax stamps.

In brief it is argued that the discrimination in treatment between Southland and those Louisiana wholesale dealers who were affixing stamps within the State on January 1, 1974, does not infringe equal protection guarantees since it is rationally aligned with the State’s desire to protect and preserve the integrity and efficiency of its revenue system. In addition, the Collector answers that Southland’s disadvantaged economic situation cannot be considered in determining whether Section 842 (5), as amended, is unconstitutional inasmuch as the Fourteenth Amendment shelters only personal rights. The Collector cites this authority to support his contention :

“The Equal Protection Clause does not mean that a State may not draw lines that treat one class of individuals or entities differently from the others. The test is whether the difference in treatment is an invidious discrimination. Harper v. Virginia Board of Elections, 383 U.S. 663, 666, 16 L.Ed.2d 169, 86 S. Ct. 1079. Where taxation is concerned and no specific federal right, apart from equal protection, is imperiled, the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation.” Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973).

The constitutional safeguard of equal protection must rest on a real difference. It is only offended if the classification rests on grounds wholly irrelevant to the achievement of valid state objectives. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1973). Where they are founded on no real distinctions in the subject classified and are clearly fanciful, capricious, arbitrary, or unnatural, they will be invalidated. State v. Holtgreve, 58 Utah 563, 200 P. 894 (1921); 16 Am.Jur.2d, Constitutional Law, |j 496. Activities in broad, general classes that have been further broken down by licensing legislation into subclasses are subject to the same test. Morey v. Doud, 354 U.S. 457 (1957) ; 51 Am.Jur.2d, Licenses and Permits, |[ 27-30.

The question presented for our consideration, therefore, is whether the date of affixing tobacco stamps and the place of affixing them was necessary and essential to a determination of which Louisiana “wholesale dealers” were to be automatically qualified under the “grandfather clause” of Section 842(5) as amended by Act 414 of 1974. In other words, was the place of affixing the stamps on a given date essential to achieve the State’s proclaimed objective of preserving the integrity and efficiency of the revenue system, and so rationally aligned with the State’s desire to keep “wholesale dealers” within tight control that it meets the constitutional test under the Equal Protection Clause.

To sustain its position, the State argues that the integrity and efficiency of the revenue system may be impeded by allowing out-of-state tobacco merchants to obtain stamps, because the “out-of-state location effectively removes the merchant from the direct supervisory and police powers” of the State. Yet, the reciprocity provision of the same statute permits just this, and the State concedes that at a future date a Louisiana dealer might move out of the State and still, through reciprocity, receive Louisiana stamps and affix them in the foreign state.

In an effort to justify this difference the State contends it is because of prior “instate experiences” with the dealer that the Collector can be assured the merchant would properly follow the State’s revenue schemes. However, there is no contention that Southland’s previous out-of-state location and the affixing of stamps there has to date impeded the integrity and efficiency of the revenue system. No showing is made that both the in-state and out-of-state experience with Southland has been other than satisfactory, that it has not at all times properly followed Louisiana’s revenue scheme under the law, or that the corporation has not, heretofore, been under the Collector’s “tight control.”

Instead, the testimony in the record, not contradicted by the State, clearly establishes that the State, in auditing Southland’s operations, which were computerized, received the company’s full cooperation. Southland’s handling and affixing of these stamps in Texas was done expeditiously and efficiently, the records and returns always being accurate. The employee within the revenue department auditing Southland’s records on the Texas premises, testified this presented no difficulties; that the stamping and accounting procedures were reviewed and the State was satisfied “that security measures were adequately enforced.”

It is obvious, therefore, that the affixing of the stamps on any given date within Louisiana by its wholesale dealer is not essential to the achievement of the State’s asserted objective of preserving and protecting the integrity and efficiency of its revenue system. Consequently, the inclusion of these requirements within the amended definition for purposes of determining which of the Louisiana “wholesale dealers” would be automatically qualified under this clause was arbitrary and capricious.

It should be pointed out that the clause in Act 414 of 1974 differs from the usual “grandfather clause” in licensing statutes. Clauses of this kind are adopted to recognize and continue in force as a matter of right service performed on the effective date of the act; that is, to extend certain prerogatives to persons and entities theretofore established in the profession, occupation, or business being regulated, those seeking to qualify at a future date being relegated to the statute’s main provisions. See State ex rel Krausmann v. Streeter, 226 Minn. 458, 33 N.W.2d 56 (1948); 51 Am.Jur.2d, Licenses and Permits, ¶ 36; 4 A.L.R.2d 667, including the supplement thereto. Such a clause is often inserted in licensing legislation that is concerned with the regulation of a particular activity under the view that persons who have properly carried on the activity for some time, or who are engaged therein as of a specified date, may be presumed to have the qualifications that are needed for carrying on the activity.

The “grandfather clause” in the 1974 statute has the unusual effect of disqualifying a previously qualified holder of a Louisiana wholesale dealer’s license. Its apparent purpose is to eliminate Southland as a competitor in the wholesale tobacco field in this state. Such an arbitrary discrimination is violative of the shelter guaranteed by the Equal Protection Clause.

In reaching this conclusion this unusual discriminatory provision has received the careful consideration under the facts and circumstances alluded to with approval in Morey v. Doud, 354 U.S. 457, 466, 77 S. Ct. 1344, 1 L.Ed.2d 1485 (1957), although not the strict judicial scrutiny required where legislative judgments interfere with such fundamental constitutional civil and political rights as race, sex, voter qualifications and the like. Where this strict scrutiny is required, a state’s system is not entitled to the usual presumption of validity, the state rather than the complainant must carry a heavy burden of justification, the state must demonstrate its system has been structured with precision, and is tailored narrowly to serve legitimate objectives, and that it has selected the less drastic means for effectuating its objectives. See Fronturo v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Kramer v. Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).

This conclusion makes it unnecessary to consider the Collector’s answer to South-land’s complaint of economic disadvantage.

For the reasons assigned, the judgment appealed from is affirmed.

      . An appeal has been granted by the United States Supreme Court in this ease.


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

text:
    STATE of Louisiana v. Benjamin DeMANUEL.
    No. 56225.
    Supreme Court of Louisiana.
    Nov. 3, 1975.

      Frank L. DeSalvo, Orleans Indigent Defender Program, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

A bill of information dated November 14, 1972 charged that defendant Benjamin DeManuel committed armed robbery on October 23, 1972. He pled not guilty to this charge on November 22, 1972. Thereafter on January 12, 1973 he withdrew the former plea of not guilty and, with retained counsel, entered a guilty plea. After waiving delays, he was sentenced that same day to serve seven years at hard labor with credit for time served.

Later the District Attorney informed the defendant that he was to be charged as a multiple offender under Section 529.1 of Title 15 of the Revised Statutes. Accordingly, on February 20, 1973 defendant filed a motion to withdraw his guilty plea of January 12, 1973. The motion sets forth that at the time of the plea, and prior thereto, his attorney had engaged in plea bargaining with the District Attorney’s office regarding the armed robbery charge. At the time of the guilty plea he specifically asked his attorney if by pleading guilty he would thereafter be charged as a multiple offender and was advised that he would not be “double billed” after a guilty plea. Subsequently, however, the motion continues, he was charged under the provisions of Section 529.1 as a multiple offender and because of this faced imprisonment for a minimum term of 33 years. He would not have entered a guilty plea, he alleged, had he been advised that he would be so charged following the plea of guilty or that the District Attorney’s office would not commit itself with respect to double billing.

The District Attorney answered this motion replying that a bill of information had been filed charging defendant as an habitual offender pursuant to Section 529.1. By the motion he asserts that Article 559 of the Code of Criminal Procedure provides that “The court may permit a plea of guilty to be withdrawn at any time before sentence.” This article, he argues, limits the authority of the court to permit the withdrawal of guilty pleas only to cases where the motion to withdraw was filed prior to sentence.

On the basis of these pleadings, a hearing was held on February 23, 1973 during which defendant’s attorney testified that he did in fact advise the defendant before he entered the guilty plea that he would not be charged as a multiple offender thereafter. He gave this advice on the basis of his knowledge and experience, gained during ten years of practice, that it was not the policy of the State to double bill defendants who entered guilty pleas. In addition, at the time of his advice to defendant it was his intention to confirm this understanding with the District Attorney, but the handling of the case distracted him from this objective. He also testified that he had engaged in plea bargaining with the District Attorney at the same time with respect to another charge which was nolle prossed in consideration of the guilty plea,- and this may have been a factor he mistakenly considered in advising his client. Based upon this and other evidence the trial judge granted the motion to withdraw the guilty plea on March 22, 1973, and the seven year sentence imposed on January 12, 1973 was set aside.

After once again engaging in plea bargaining with the District Attorney’s office on May 16, 1973 the defendant entered a guilty plea for the second time, with the understanding that he would be sentenced to imprisonment for fourteen years, and there would be no charge filed against him as a multiple offender. This plea with appointed counsel was carefully supervised by the trial judge who fully informed the defendant of his rights. As a result of the plea he received a sentence to fourteen years imprisonment with credit for time served.

In less than a month defendant filed a motion to withdraw this latter plea, alleging that before pleading guilty on this occasion he was informed that unless he pleaded guilty he would be charged as a multiple offender if convicted by a jury. Thus, he alleged, his plea was not made knowingly and voluntarily, for the threat of a minimum sentence of 33 years forced him to agree to a term of imprisonment which would offer some hope of eventual freedom.

Another hearing was held on July 20, 1973 as a result of which the circumstances surrounding the second guilty plea were reviewed in detail, and the motion to withdraw the plea of May 16, 1973 was denied.

Defendant then appealed to this Court, contending that the trial judge improperly denied his motion to withdraw the second guilty plea and sentence to fourteen years on the ground that it was coerced and, therefore, in violation of due process guarantees of the federal constitution. The State contended that the trial judge found the guilty plea to be free and voluntary and defendant was carefully and thoroughly advised of all rights at the time of the plea. The fear of double billing, the State asserts, was only one of many circumstances inducing him to plead guilty.

It then became apparent from the record that the trial judge had improperly permitted, after sentence, the withdrawal of the first guilty plea of January 12, 1973. La. Code Crim.Proc. art. 559; State ex rel. Hebert v. Henderson, 290 So.2d 832 (La.1974); State v. Ballard, 282 So.2d 448 (La.1973). Thus defendant argued that the judgment of the trial court setting aside the first guilty plea in contravention of Article 559 of the Code of Criminal Procedure was null and void and without effect. As a consequence, under this contention, the seven year sentence resulting from the first plea remained viable until set aside by a post conviction proceeding (habeas corpus). This being true, the second guilty plea and sentence to 14 years, based upon the same charge, placed defendant in double jeopardy in violation of constitutional and statutory prohibitions which guarantee that no person shall be twice put in jeopardy of life or liberty for the same offense, except under certain circumstances not present here. La.Const. (1921) art. I, ¶9; La.Code Crim.Proc. art. 591.

In this posture of the case, defendant contends that both the first seven and second fourteen year sentences should be set aside; the first because the trial judge found that it was not free and voluntary, and the second because it was imposed contrary to the constitutional and statutory protections against double jeopardy.

Ordinarily a trial judge may permit a plea of guilty to be withdrawn at any time before sentence. La.Code of Crim. Proc. art. 559. In this circumstance he has a broad discretion which will not be overturned on review unless arbitrarily exercised. State v. Johnson, 260 La. 902, 257 So.2d 654 (1972). The point to emphasize here is that Article 559 of the Code of Criminal Procedure clearly permits the exercise of this judicial discretion only before sentence. And the great weight of authority, according to the statutes and cases, support the rule that authorizes the change of plea only before sentence. See Comments, La.Code Crim.Proc. art. 559. Cases in this Court have sustained the rule. State ex rel. Hebert v. Henderson and State v. Ballard, supra; State v. Willis, 279 So.2d 192 (La.1973).

Review of illegal sentences must be upon the application of defendant or of the State by appeal or writs of certiorari and prohibition with the understanding that the writ of habeas corpus is always available for that purpose, La.Code Crim.Proc. art. 882. This procedure is prescribed because generally the jurisdiction of the trial court is divested after sentence, except for certain ministerial purposes or to correct clerical errors.

Upon this authority, therefore, it is necessary to conclude that the ruling of the trial judge permitting the withdrawal of the first guilty plea after sentence was improper. For the same reason the decree setting aside the sentence was also without effect. The conviction and sentence resulting from the first plea of guilty are therefore in full force and effect. This being so, the second guilty plea and sentence based upon the identical charge cannot stand, for defendant cannot be twice put in jeopardy for the same offense. La. Const. Art. I, ¶| 9 (1921); La.Code Crim. Proc. art. 591.

Defendant s contention that this Court should set aside the first guilty plea because the trial judge found that it was not free and voluntary is not tenable because that determination by the trial judge was made by virtue of a hearing held after sentence which the law did not authorize. It is correct to rule, however, that the appeal on the second guilty plea and sentence is well-taken, and, accordingly, that plea and sentence will be set aside as an error patent on the face of this record which reveals two sentences imposed on the same charge. La. Code Crim.Proc. art. 920.

In the interest of orderly procedure the question of the free and voluntary character of the first guilty plea on January 12, 1973 will be relegated to a proper proceeding for review, either by an out-of-time appeal granted by the trial judge or by habeas corpus petition which defendant may file. La.Code Crim.Proc. arts. 351-70; 882.

For the reasons assigned, the conviction and sentence resulting from the guilty plea of May 16, 1973 is annulled and set aside.

CALOGERO, J.,

concurs. The result is correct. This case is distinguishable from St. v. Reed, La., 315 So.2d 703, decided June 23, 1975.

DIXON, J., dissents with reasons.

DIXON, Justice

(dissenting).

I respectfully dissent.

The motion to withdraw a guilty plea should be considered a motion for a post-conviction remedy. The trial judge has jurisdiction to entertain post-conviction motions and set aside a conviction because a plea was not free and voluntary. The fact that the motion was not entitled “habeas corpus” should not affect the power of the district court to dispose of the contentions and grant the relief prayed for.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Joseph SINGLETON.
    No. 56484.
    Supreme Court of Louisiana.
    Nov. 3, 1975.

      Michael F. Barry, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant, Joseph Singleton, was charged by bill of information with the crime of armed robbery, in violation of La.R.S. 14:64. After a jury trial on January 23, 1973, he was found guilty and sentenced to eight years imprisonment. The defendant perfected fifteen bills of exceptions reserved during the trial, ten of which were neither briefed nor argued on appeal, and are therefore considered abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

BILL OF EXCEPTIONS NO. 7

After the State had completed the direct examination of its first witness, the defendant’s attorney declined immediate cross-examination, reserving his right of cross-examination until a point later in the trial. This was allowed by the trial judge. However, after the State had finished the direct examination of its second witness, the defendant’s attorney again declined immediate cross-examination and requested that he be allowed to reserve his right of cross-examination until the State had presented its entire case. When the trial judge ascertained that defense counsel planned to do this with every state witness, he denied the request to reserve cross-examination, to which ruling the defendant assigns error.

The control of the examination of witnesses is left within the sound discretion of the trial judge, and his rulings thereon will not be disturbed in the absence of abuse of this discretion. State v. Fulmer, 263 La. 971, 270 So.2d 116 (1972).

Defendant relies on C.Cr.P. art. 773 :

Neither the state nor the defendant can be controlled by the court as to the order in which evidence shall be adduced; but when the evidence requires a foundation for its admission, the foundation must be laid before the evidence is admissible.

Defendant’s reliance is misplaced. The judge did not attempt to control the order in which the defendant presented his evidence. Rather, the trial judge merely wanted defense counsel to pursue the normal order of trial. See C.Cr.P. art. 76S. Furthermore, the trial judge’s ruling insured that the jury would receive the evidence laid before it in an orderly fashion, so that the jury would not be confused and could better appreciate all that it saw and heard.

The defendant was not deprived of the right to cross-examine the witnesses against him. Nor has he shown any prejudice in being required to cross-examine the witness immediately after his direct testimony. No special circumstances are argued; only strategic reasons are advanced to support the request. Therefore, we find no abuse of discretion in the trial judge’s ruling.

Bill of Exceptions No. 7 is without merit.

BILL OF EXCEPTIONS NO. 9

Officer Chester Gros, a state witness, was asked by the prosecuting attorney :

Q. And what description of the car did you broadcast over the police radio?

The defendant objected, on the grounds the question called for a hearsay response. The objection was overruled, and the officer described the vehicle in which the defendant was subsequently apprehended. The defendant assigns error to this ruling.

Officer Gros had been given the description of the vehicle by a man who lived across the street from the scene of the crime. The question does not call for a hearsay response, because the officer is asked to testify about what he did, not what someone else told him. He can testify about facts within his knowledge, i. e., what description he broadcast, without vouching for the truth of the matters asserted therein.

However, even if the response were hearsay, the error was harmless, since the eye-witness testified earlier in the trial as to the description of the vehicle he saw drive away from the scene of the crime. See State v. Brown, 288 So.2d 339 (La.1974); State v. Williams, 260 La. 941, 257 So.2d 668 (1972).

Bill of Exceptions No. 9 is without merit.

BILL OF EXCEPTIONS NO. 10

Officer Gros, during direct examination, began to relate what the victim told him about his ability to identify the perpetrators of the crime. This was objected to as hearsay, and the objection was sustained. Officer Gros then merely stated that he had taken an oral statement from the victim during the course of his on-the-scene investigation.

Defendant’s counsel, as soon as the witness was tendered, requested that the State produce the oral statement that Officer Gros had alluded to, as well as any other police record, memorandum or the like. The trial judge denied the request:

By the Court:
Now you want the State to produce the statement that the man is alleged to have made to him, an oral statement, after you’ve already objected to it going in evidence ?
By Counsel:
This is what I’m requesting, Your Honor, and I’ll clarify it. I’m requesting the opportunity to inspect any memoran-da, reports, etc. made by this officer as a result of his investigation of this offense.

Preliminarily, we note that the oral statement which defendant sought was not admitted into evidence, because of defendant’s own objection. Therefore, there is no sound reason to require the State to produce this oral statement, if, in fact, it was ever reduced to writing.

Defendant relies on State v. Tharp, 284 So.2d 536 (La.1973), as authority for his request for “any memoranda, reports, etc.” made by Officer Gros as a result of his investigation. Once again, the reliance is misplaced.

In the Tharp case, the officer under examination admitted that his testimony came from his report in his possession. Furthermore, the principal issue in Tharp was the credibility of witnesses, for seven defense witnesses testified in direct opposition to the testimony of the agents. Under these circumstances “the production of the report may have proven the State’s witnesses unreliable.” State v. Tharp, 284 So.2d 536 at 542.

On the other hand, in the instant case there is no showing whatsoever that Officer Gros was testifying from anything other than his memory. His credibility was never questioned by the defendant. The defendant makes no showing how the availability of any report Officer Gros might have made would have affected the cross-examination of the officer, much less affect the outcome of the trial. Thus, no foundation was laid for the request for production of the report, and we cannot say the trial judge erred in denying the motion to produce. State v. Foret, 315 So.2d 278 (La.1975); State v. Lane, 302 So.2d 880 (La.1974).

Bill of Exceptions No. 10 is without merit.

BILL OF EXCEPTIONS NO. 13

In his closing argument to the jury, the prosecuting attorney stated:

. The State feels that its proved that Joseph Singleton pulled that armed robbery on May the 7th at 4 in the morning far beyond any reasonable doubt. And, all of the evidence you’ve heard here today, gentlemen, was uncon-tradicted and uncontroverted, every bit of it, uncontradicted and uncontroverted. And, we ask you to find Joseph Singleton guilty as charged.

The defendant moved for a mistrial, on the ground that the prosecutor was commenting on the defendant’s failure to take the stand. To the trial judge’s denial of the motion for a mistrial, the defendant assigns error.

Under C.Cr.P. art. 774, the argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.”

The prosecutor’s remarks in the instant case did not constitute an impermissible reference to the accused’s failure to take the stand. Rather, his remarks were nothing more than a permissible statement of his appreciation of the evidence brought forth during the course of the trial. In State v. Bentley, 219 La. 893, 54 So.2d 137 (1951) this court held that the prosecutor’s statement “the evidence is uncontradicted and uncontroverted” was not an impermissible comment on the accused’s failure to take the stand. See also U. S. v. Goodwin, 470 F.2d 893 (5th Cir. 1972), cert. den. 411 U.S. 969, 93 S.Ct. 2160, 36 L.Ed.2d 691 (1973); State v. Baggett, 292 So.2d 201 (La.1974).

Bill of Exceptions No. 13 is without merit.

BILL OF EXCEPTIONS NO. 14

The defendant submitted nine special jury charges to the court. None were given, since the trial judge determined that all were adequately covered by his general charge. Defendant assigns error to the failure to give two of his requested charges.

Defendant’s requested charge number four dealt with the presumption of innocence. The trial judge’s charge included, in part :

Gentlemen of the jury, the defendant is presumed to be innocent until he is proven guilty beyond a reasonable doubt.
The consequence of this rule of law is, he is not required to prove his innocence, but may rest upon the presumption in his favor until it is overthrown by positive affirmative proof. The onus, therefore, is on the State to establish to your satisfaction, and beyond reasonable doubt, the guilt of the accused, as to the crime charged in the bill of information, or any lesser one included in it.
If you entertain any reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, it is your sworn duty to give him the benefit of that doubt and return a verdict of acquittal. Even where the evidence demonstrates a probability of guilt, yet if it does not establish it beyond a reasonable doubt, you must acquit the accused.

This part of the charge, along with the other parts, more than adequately explains the presumption of innocence. It was therefore not error for the trial judge to refuse to give defendant’s special charge number four. C.Cr.P. art. 807.

Defendant’s special charge number six purported to deal with the duty of each attorney to object to evidence which he believes inadmissible, and with the effect of the judge’s ruling on objections.

The trial judge properly refused to give this requested charge. It is not wholly correct, since an attorney is under no duty to object to every bit of evidence that he believes inadmissible. The jury’s role in evaluating evidence was adequately covered in the general charge. Therefore, it was properly refused. State v. Nelson, 261 La. 153, 259 So.2d 46 (1972); C.Cr.P. art. 807.

Special charges need not be given if fairly and accurately included in the judge’s general charge. State v. Yoxtheimer, 301 So.2d 318 (La.1974); State v. Paciera, 290 So.2d 681 (La.1974).

Bill of Exceptions No. 14 is without merit.

Accordingly, the sentence and conviction are affirmed.


author: MARCUS, Justice. CALOGERO, Justice

text:
    Ida SMITH v. Ray J. TROSCLAIR, Jr.
    No. 55749.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Joseph Accardo, Jr., Luling, for plaintiff-applicant.
    A. J. Kling, Jr., Gonzales, for defendant-respondent.
   MARCUS, Justice.

Plaintiff, Ida Smith, filed suit on August 27, 1973, seeking visitation rights with her minor grandchildren, Dyrk and Todd Tros-/ clair, pursuant to La.R.S. 9:572. The trial court granted plaintiff visitation rights, and the court of appeal reversed. 303 So. 2d 926 (La.App. 1st Cir. 1974). We granted her application for certiorari. 307 So. 2d 366 (La.1975).

Dyrk and Todd Trosclair are issue of the marriage that existed between Ray J. Trosclair, Jr., defendant, and Alice Smith Trosclair, plaintiff’s daughter, who died on November 7, 1967. Following her death, defendant married Edith Martha Thomas-sie, who, on September 14, 1968, obtained a final decree of adoption of the two Tros-clair children.

La. Acts 1972, No. 4 (La.R.S. 9:572), states:

If one of the parties to a marriage dies and is survived by a minor child or children of the marriage, the parents of such deceased party may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interests of the child or children.
Section 2. All laws or parts of laws in conflict herewith are hereby repealed.

Although defendant’s first wife died in 1967, before the passage of La.R.S. 9:572, plaintiff contends that the statute was intended to have retroactive effect. We find it unnecessary to answer her contention, however, because we agree with the court of appeal that the decree of adoption procured by defendant’s second wife judicially severed all of plaintiff’s rights and duties vis-á-vis her grandchildren.

Civil Code article 214, as amended, La. Acts 1958, No. 514, § 1, provides in relevant part as follows:

If the adoptive parent is married to a blood parent of the adopted person, the relationship of that blood parent and his blood relatives to the adopted person shall remain unaltered and unaffected by the adoption. Otherwise, upon adoption: the blood parent or parents and all other blood relatives of the adopted person are relieved of all of their legal duties and divested of all of their legal rights with regard to the adopted person . . . .”

(Emphasis added.)

It is argued by plaintiff, however, that La.R.S. 9:572, insofar as it grants visitation rights to grandparents after the death of their child, impliedly repeals this part of the article because it was passed subsequent to the substantial re-enactment of Civil Code article 214 in 1958. A law is impliedly repealed only when its provisions are contrary to, or irreconcilable with a later law. La.Civil Code art. 23 (1870). We find no irreconcilable conflict between La.R.S. 9:572 and the portion of Civil Code article 214 cited above.

At the time article 214 was amended, there existed no statute conferring visitation rights to grandparents. In 1970, article 157 of the Civil Code was amended to grant visitation rights to grandparents after the death of a divorced or separated child. In 1972, La.R.S. 9:572 was enacted, which substantially broadened the circumstances in which visitation privileges might be conferred. These visitation rights were not statutorily conferred, however, to plaintiff, who was divested of all her legal rights with regard to her blood grandchildren by Civil Code article 214.

It is argued that Civil Code article 214 should not be applied in the circumstances of this case. Only when a parent voluntarily places a child with an agency for adoption, it is urged, should the child’s blood relatives be divested of their legal rights. The article, however, plainly draws no distinction between agency adoptions and adoptions effected in these circumstances. This court is constrained by Civil Code article 13 from ignoring the letter of a statute when, as here, its language is clear and unambiguous. Moreover, article 214 expressly refers to the situation here presented.

We perceive plaintiff’s understandable desire to visit with defendant’s sons. The legislature, however, by' providing in article 214 that the adopted person “is considered for all purposes as the legitimate child and forced heir of the adoptive parent or parents,” and by further providing that the “blood relatives of the adopted person [other than the blood relatives of a blood parent married to the adoptive parent] are relieved of all their legal duties and divested of all their legal rights with regard to the adopted person,” manifestly intended to subordinate her wishes to the necessity that the adoptive child become a full and complete member of his adoptive home.

DECREE

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

DIXON, J., dissents.

CALOGERO, J., dissents with reasons.

CALOGERO, Justice

(dissenting).

I dissent from the holding in this case because, among other reasons, I do not believe that the adoption statute was intended to, nor does it, preclude a blood grandparent’s right of visitation with his grandchild, with the attendant right of the grandchild to visit with the grandparent, particularly in light of R.S. 9:572.

      . La.Civil Code art. 167(B), added by La. Acts 1970, No. 436, § 1, provides:
      B. If subsequent to the granting of a divorce or separation one of the parties to the marriage dies and is survived by a minor child or children of the marriage, the parents of such deceased party may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interests of the child or children.

      . We need not decide whether grandparents have visitation rights apart from those conferred in Civil Code article 157(B) and La. R.S. 9:572. Article 216 of the Civil Code provides that a child remains under the authority of his father and mother until his majority or emancipation. Despite a similar I>rovision in article 372 of the Code eivil, the Court of Cassation in France has held that parents do not have an absolute right to forbid all visits and communications between grandparents and their grandchildren. Cass, civ., July 6, 1931, S. 1931.1.390; Cass, req., June 5, 1931, Gaz.Pal. 1931.2.345. See D. 1934.2.57, note by Lebrun. Other cases, however, have held to the contrary. See 1 M. Planiol, Traité élémentaire de droit civil, no. 1653, at 23 (La.State L.Inst. transí. 1959).

      . La.Civil Code art. 13 states:
      When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.

      . Article 214 states that “[i]f the adoptive parent [defendant’s second wife] is married to a blood parent [defendant] of the adopted person [defendant’s children], the relationship of that blood parent and his blood relatives to the adopted person shall remain unaltered and unaffected by the adoption. Otherwise, upon adoption: the blood parent or parents and all other blood relatives [plaintiff] of the adopted person are relieved of all of their legal duties and divested of all of their legal rights with regard to the adopted person, . . .” (Emphasis added.)


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Allen BROWN, Jr., Appellant.
    No. 56223.
    Supreme Court of Louisiana.
    Nov. 3, 1975.

      James D. Caldwell, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., Lowen B. Loftin, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Brown was convicted of armed robbery, La.R.S. 14:64, and sentenced to thirty-nine years at hard labor. He appeals, relying upon five assignments of error.

Deputy-Witnesses Lunching with Jurors

The most substantial contention of error is presented by Assignment 5. It concerns the circumstance that two deputies, who were witnesses for the state, were allowed to eat at a table with two jurors who served in the case, immediately before or immediately after they were selected.

The United States Supreme Court has held that the accused may be denied his constitutional right to a fair and impartial jury if placed in charge of, or permitted close and continual association during the trial with, law enforcement or other officers who are significant prosecution witnesses. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965).

The evidence shows that the already selected and the prospective jurors were cautioned not to discuss the case, and that, although not sequestered, they went in a group for lunch to a cafe near the courthouse, where an area was sectioned off for the jurors’ group. A deputy sheriff or two was detailed to assist them and to assure their timely arrival back to the courtroom.

During the time the jury was being selected, the chief deputy and another deputy, both of whom later testified in the case, were assigned this duty. However, after the second noon recess, when defense counsel informally objected to the trial court about the practice, the court immediately ordered the sheriff to assign the duty of associating with jurors only to deputies who had nothing to do with the evidence in the case.

There was no evidence that the jurors or prospective jurors discussed the case. The deputies testified, without contradiction, that the conversation when they sat with one juror on one occasion and with two on another was about hunting and of a casual nature not related to the present case.

Considering the prompt action by the trial judge immediately after the matter was brought to his attention, as well as the lack of evidence as to any improper influence, we are doubtful that the impropriety, of a casual nature, constituted prejudicial error. State v. Dotson, 260 La. 471, 250 So.2d 594 (1971). Nevertheless, we do not reach the substantive merits of the complaint.

The evidence shows the defendant’s counsel was fully aware of the circumstances and in fact informally complained of it to the judge at the time and obtained corrective action. Counsel was apparently satisfied at the time, which was before the selection of the jury was completed. Counsel did not make any formal objection at the time nor at any time during the trial. The defendant’s first formal contention of error was made after the verdict, in his motion for a new trial.

The belated complaint of error cannot on appeal be the basis by itself for reversal, for an alleged error to which no formal objection is made at the time is deemed waived. La.C.Cr.P. art. 841.

Neither does a motion for a new trial lie for this alleged error, since its factual basis was discovered before or during the trial, La.C.Cr.P. art. 851(3), (4), unless the trial court in its discretion is of the opinion that the ends of justice would thereby be served, La.C.Cr.P. art. 851(5).

The motion for a new trial was properly denied. We find no abuse of discretion in the trial court’s denying the new trial sought for the above reason on this latter discretionary ground.

Other Assignments

The other assignments of error are without merit:

Under the evidence and showing made, the motions for a change of venue (Assignment 1) and for severance of the trial of the two defendants (Assignment 2) were properly denied by the trial court, for the reasons stated in its excellent per cur-iams. The evidence of the kidnapping of a victim and another person following the robbery, and of incidents connected therewith, were admissible as an immediate incident and concomitant of the robbery, forming with it a continuous transaction, La.R. S. 15:448 (res gestae) (Assignment 3). The belated attack on the sufficiency of the bill of information made by motion to quash after the verdict raises no reversible error, since the technical insufficiency of an indictment or information may not be questioned after conviction, where as here the accused has been fairly informed of the charge against him by it. State v. James, 305 So.2d 514 (La.1974) (Assignment 4).

Decree

Accordingly, we affirm the conviction and sentence.

Affirmed.


author: SANDERS, Chief Justice. DIXON, J.,

text:
    STATE of Louisiana v. Huey P. FISHER.
    No. 56515.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Charles W. Seaman, Kelly, Seaman & Ware, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., R. Raymond Arthur, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The defendant, Huey P. Fisher, pleaded guilty as an accessory after the fact to the crime of armed robbery, a violation of LSA-R.S. 14:25, and was sentenced to pay a fine of $500.00 and to imprisonment for five years in the custody of the Louisiana Department of Corrections. On appeal, he relies upon one assignment of error for reversal of his sentence.

Defendant alleges that his sentence violates the prohibition against cruel, excessive, or unusual punishment in Article 1, § 20 of the Louisiana Constitution of 1974.

His argument is two-fold. First, he asserts that the trial judge imposed his sentence of imprisonment with the proviso that it be served without benefit of probation, parole, or suspension of sentence, an unauthorized sentence under the penalty clause of LSA-R.S. 14:25. Next, he argues that the five-year sentence is “grossly disproportionate” in view of the nature of the offense and defendant’s prior record. (Allegedly, the defendant is a first offender.)

At the outset, we note that the sentence contains no prohibition against parole, probation, and suspension of sentence. The judge merely recorded his recommendation to the parole and correctional authorities. He stated:

“It is recommended by the Court that you not be given benefit of parole, probation or suspension of sentence.
“The Court recognizes that it has no authority to request the five years sentence of Huey P. Fisher be served without benefit of parole, probation or suspension of sentence but the Court wishes to make its feelings known to the State Department of Corrections.”

The defendant cites no authority, nor are we aware of any, which prohibits a trial judge from making such a recommendation.

The sentence of five-years imprisonment imposed by the court is within the penalty prescribed by LSA-R.S. 14:25, which authorizes a sentence of five-years imprisonment, with or without hard labor. Hence, unless the penalty provision of the statute is constitutionally infirm, the sentence is valid. LSA-C.Cr.P. Art. 878; State v. Frank, La., 310 So.2d 110 (1975).

Armed robbery is one of the most serious offenses in a civilized society. It is fraught with danger of serious physical harm, even death — not only to the victim but also to any person at the scene. See State v. Levi, 259 La. 591, 250 So.2d 751 (1971). The Legislature has recognized the gravity of the offense by authorizing a sentence of imprisonment from five to ninety-nine years, without benefit of probation, parole, or suspension of sentence. See LSA-R.S. 14:64.

In our opinion, a five-year sentence for the crime of being an accessory to armed robbery does no violence to the constitutional standard prohibiting cruel, excessive, or unusual punishment. Hence, we conclude that the penalty provision of LSA-R.S. 14:25 are constitutional.

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

DIXON, J.,

concurs. In the proper case this must review excessiveness. Art. 1, § 20 La.Const.1974.


author: BOLIN, Justice.

text:
    STATE of Louisiana v. Dale BASS and Tommy Bass.
    No. 56334.
    Supreme Court of Louisiana.
    Nov. 3, 1975.

      Richard Kilbourne, Clinton, for defendants-relators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., W. Lee Overton, Asst. Dist. Atty., for plaintiff-respondent.
   BOLIN, Justice.

The relators were convicted after a bench trial of illegal night hunting, a violation of La.R.S. 56:124, and each was sentenced to pay a fine of $75.00 and costs or serve 30 days in jail. Since neither the fine nor the jail sentence imposed confers upon relators the right to appeal their convictions and sentences, a writ or review was sought and granted. State v. Bass, 313 So.2d 833 (La.1975). We set aside the defendants’ convictions and sentences.

Two assignments of error are relied upon by relators for a reversal of their convictions and sentences; the determination of the issue presented in the first assignment of error depends upon a review of all of the State’s evidence to decide the propriety of the trial court’s denial of rela-tors’ motion for a directed verdict made at the close of the State’s case in chief. The second assignment of error complains of the trial court’s denial of the motions for new trial filed on behalf of relators, which motions were based upon the claim that there was no evidence upon which to base a guilty verdict in this matter.

On December 7, 1974, at approximately 1:00 A.M. the pick-up truck in which rela-tors and one of their wives was travelling was forced to stop in the middle of a gravel road in East Feliciana Parish because the vehicle of Wildlife and Fisheries Agent Woodside was blocking the road. When relators’ vehicle stopped Agent Woodside approached the truck and questioned their purpose for being on the rural road at that time of night. After relators stated they were returning home from the Pinehaven Lounge the Agent noticed two high-powered rifles in the cab of the truck. The Agent proceeded to search the vehicle, both the cab and the truck bed, but no further evidence was found. The Agent called his supervisor, who advised that he should arrest the relators for illegal night hunting. This prosecution ensued.

During the presentation of the State’s case, the evidence revealed that the road on which the relators were travelling was to some extent flooded on the evening in question, there having been a heavy rain earlier that day. Agent Woodside testified that the area was known to be heavily populated with deer. He also testified that the search of relators’ truck revealed no game and that he discovered nothing (presumably nothing related to the offense suspected) except the two rifles which were in plain view. In response to questions it was revealed that the Agent found no headlights, such as those often used in night hunting, but arrested the relators because they had high-powered, loaded rifles on a flooded rural road at a late hour. In response to cross-examination Agent Woodside admitted that he did not see either relator point a gun at any game and did not see anyone get out of the truck holding a firearm. There was no testimony that shots were observed or heard.

The statute which the relators were found to have violated, La.R.S. 56:124 reads, in pertinent part:

“No person shall:
“ * * *
“(9) Hunt with firearms of any type or with bows and arrows after one-half hour after official sunset and before one-half hour before official sunrise. This prohibition shall apply to hunting of outlaw quadrupeds as well as to all other hunting, but it shall not affect night hunting of raccoons or oppossums under Paragraph (7) of this section.”

Corpus Juris Secundum defines the noun, “hunting” as “[t]he act of pursuing and taking wild animals; the chase.” (Footnote omitted.) 41 C.J.S. Hunting at 373.

The Random House Dictionary of the English Language defines the verb, “hunt,” thus: “to chase or search for (game or other wild animls) for the purpose of catching or killing.”

A close review of the evidence presented during the State’s case in chief prompts a conclusion that there was no evidence that relators were “hunting with firearms * * * after one-half hour after official sunset and before one-half hour before official sunrise * * While the evidence presented may be construed as supporting a suspicion that relators may have been engaged in this illegal activity, there is an absolute lack of evidence that the crime was in fact committed. The State’s witnesses were unable to testify that they saw the relators, or either of them, holding a weapon, or stalking an animal, or behaving in a manner which clearly indicated that they were engaged in an attempt “to chase or search for (game or other wild animals) for the purpose of catching or killing.”

This assignment of error has merit and warrants reversal of the convictions and sentences which we review.

Relators’ second assignment of error complains of the trial court’s denial of the motions for new trial filed on their behalf. In a per curiam which appears in the record, the trial court appears to support its verdict and the consequent conviction on the relative demeanor of the State and defense witnesses (the relators). The trial court also reviewed some of the conflicts in the testimony of the witnesses (Agent Woodside said one of the rifles was out of the gun rack, leaning against the seat, with the muzzle on the floor, while the relators testified that both rifles were in the gun rack). Some of the observations which appear in the trial court’s per curiam are not supported by the record.

While it may be that the trial court was correct in denying the new trial motions on the basis of the “no evidence to support a conviction” allegation, if the demeanor and testimony of the defense witnesses is considered, it is plain that the new trial motions renew the objection to the denial of a directed verdict at the close of the State’s case in chief. Therefore, on this basis, the denial of the new trial motions was likewise error.

When the State fails to prove an essential element of the crime charged a directed verdict must be granted. See State v. Bradley, 310 So.2d 582 (La.1975). When, as here, there is no evidence that a crime has been committed, certainly the same result must obtain.

The convictions and sentences are set aside and the relators ordered discharged.