text:
    STATE of Louisiana v. Ella Faye BONNER.
    No. 56189.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    On Rehearing Feb. 23, 1976.
    Rehearing Denied March 26, 1976.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Walter L. Smith, Jr., L. J. Hymel, Jr., Asst. Attys. Gen., Ronald C. Martin, Dist. Atty., John S. Stephens, Asst. Dist. Atty., for plaintiff-appellant.
    C. R. Whitehead, Jr., Whitehead & McCoy, Natchitoches, for defendant-appel-lee.
   CALOGERO, Justice.

Defendant Ella Faye Bonner was indicted for bribery of voters in violation of La.R.S. 14:119. For the reasons assigned in State v. Newton, La., 328 So.2d 110, decided this day, the trial court’s action in declaring the statute constitutionally infirm and its action in quashing the indictment is hereby affirmed.

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

ON REHEARING

SANDERS, Chief Justice.

For the reasons assigned in State of Louisiana v. Newton, La., 328 So.2d 110, decided this day, the judgment of the district court is reversed; the motion to quash the indictment is overruled; and the case is remanded to the district court for further proceedings consistent with the views therein expressed.

TATE, DIXON and CALOGERO, JJ., dissent.

DENNIS, J., concurs for the reasons stated in State v. Newton, La., 328 So.2d 110, decided this day.


source: Caselaw Access Project

author: CALOGERO, Justice. SANDERS, Chief Justice.

license: Public Domain

text:
    STATE of Louisiana v. Lizzie JONES.
    No. 56190.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    On Rehearing Feb. 23, 1976.
    Rehearing Denied March 26, 1976.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Walter L. Smith, Jr., L. J. Hymel, Jr., Asst. Attys. Gen., Ronald C. Martin, Dist. Atty., John S. Stephens, Asst. Dist. Atty., for plaintiff-appellant.
    J. Q. Davis, Coushatta, for defendant-ap-pellee.
   CALOGERO, Justice.

Defendant Lizzie Jones was indicted for bribery of voters in violation of La.R.S. 14:119. For the reasons assigned in State v. Newton, La., 328 So.2d 110, decided this day, the trial court’s action in declaring the statute constitutionally infirm and its action in quashing the indictment is hereby affirmed.

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

ON REHEARING

SANDERS, Chief Justice.

For the reasons assigned in State of Louisiana v. Newton, La., 328 So.2d 110, decided this day, the judgment of the district court is reversed; the motion to quash the indictment is overruled; and the case is remanded to the district court for further proceedings consistent with the views therein expressed.

TATE, DIXON and CALOGERO, JJ., dissent.

DENNIS, J., concurs for the reasons stated in State v. Newton,. La., 328 So.2d 110, decided this day.


text:
    STATE of Louisiana v. Sentell JONES.
    No. 56191.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    On Rehearing Feb. 23, 1976.
    Rehearing Denied March 26, 1976.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Walter L. Smith, Jr., L. J. Hymel, Jr., Asst. Attys. Gen., Ronald C. Martin, Dist. Atty., John S. Stephens, Asst. Dist. Atty., for plaintiff-appellant.
    J. Q. Davis, Coushatta, for defendant-ap-pellee.
   CALOGERO, Justice.

Defendant Senteil Jones was indicted for bribery of voters in violation of La.R.S. 14:119. For the reasons assigned in State v. Newton, La., 328 So.2d 110, decided this day, the trial court’s action in declaring the statute constitutionally infirm and its action in quashing the indictment is hereby affirmed.

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

ON REHEARING

SANDERS, Chief Justice.

For the reasons assigned in State of Louisiana v. Newton, La., 328 So.2d 110, decided this day, the judgment of the district court is reversed; the motion ot quash the indictment is overruled; and the case is remanded to the district court for further proceedings consistent with the views therein expressed.

TATE, DIXON and CALOGERO, JJ., dissent.

DENNIS, J., concurs for the reasons stated in State v. Newton, La., 328 So.2d 110, decided this day.


text:
    STATE of Louisiana v. Flora Bell HARRIS.
    No. 56192.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied March 26, 1976.
    On Rehearing Feb. 23, 1976.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Walter L. Smith, Jr., L. J. Hymel, Jr., Asst. Attys. Gen., Ronald C. Martin, Dist. Atty., John S. Stephens, Asst. Dist. Atty., for plaintiff-appellant.
    J. Q. Davis, Coushatta, for defendant-ap-pellee.
   CALOGERO, Justice.

Defendant Flora Bell Harris was indicted for bribery of voters in violation of La.R.S. 14:119. For the reasons assigned in State v. Newton, La., 328 So.2d 110, decided this day, the trial court’s action in declaring the statute constitutionally infirm and its action in quashing the indictment is hereby affirmed.

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

ON REHEARING

SANDERS, Chief Justice.

For the reasons assigned in State of Louisiana v. Newton, La., 328 So.2d 110, decided this day, the judgment of the district court is reversed; the motion ot quash the indictment is overruled; and the case is remanded to the district court for further proceedings consistent with the views therein expressed.

TATE, DIXON and CALOGERO, JJ., dissent.

DENNIS, J., concurs for the reasons stated in State v. Newton, La., 328 So.2d 110, decided this day.


text:
    STATE of Louisiana v. Vera Lee HARRIS.
    No. 56193.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    On Rehearing Feb. 23, 1976.
    Rehearing Denied March 26, 1976.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Walter L. Smith, Jr., L. J. Hymel, Jr., Asst. Attys. Gen., Ronald C. Martin, Dist. Atty., John S. Stephens, Asst. Dist. Atty., for plaintiff-appellant.
    J. Q. Davis, Coushatta, for defendant-ap-pellee.
   CALOGERO, Justice.

Defendant Vera Lee Harris was indicted for bribery of voters in violation of La.R. S. 14:119. For the reasons assigned in State v. Newton, La., 328 So.2d 110, decided this day, the trial court’s action in declaring the statute constitutionally infirm and its action in quashing the indictment is hereby affirmed.

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

ON REHEARING

SANDERS, Chief Justice.

For the reasons assigned in State of Louisiana v. Newton, La., 328 So.2d 110, decided this day, the judgment of the district court is reversed; the motion to quash the indictment is overruled; and the case is remanaea to tne district court tor tur-ther proceedings consistent with the views therein expressed.

TATE, DIXON and CALOGERO, JJ., dissent.

DENNIS, J., concurs for the reasons stated in State v. Newton, La., 328 So.2d 110, decided this day.


text:
    STATE of Louisiana v. Raymond BEAVERS.
    No. 56194.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    On Rehearing Feb. 23, 1976.
    Rehearing Denied March 26, 1976.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Walter L. Smith, Jr., L. J. Hymel, Jr., Asst. Attys. Gen., Ronald C. Martin, Dist. Atty., John S. Stephens, Asst. Dist. Atty., for plaintiff-appellant.
    J. Q. Davis, Coushatta, for defendant-ap-pellee.
   CALOGERO, Justice.

Defendant Raymond Beavers was indicted for bribery of voters in violation of La.R.S. 14:119. For the reasons assigned in State v. Newton, La., 328 So.2d 110, decided this day, the trial court’s action in declaring the statute constitutionally infirm and its action in quashing the indictment is hereby affirmed.

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

ON REHEARING

SANDERS, Chief Justice.

For the reasons assigned in State of Louisiana v. Newton, La., 328 So.2d 110, decided this day, the judgment of the district court is reversed; the motion to quash the indictment is overruled; and the case is remanded to the district court for further proceedings consistent with the views therein expressed.

TATE, DIXON and CALOGERO, JJ., dissent.

DENNIS, J., concurs for the reasons stated in State v. Newton, La., 328 So.2d 110, decided this day.


text:
    STATE of Louisiana v. Joe SLOAN.
    No. 56195.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    On Rehearing Feb. 23, 1976.
    Rehearing Denied March 26, 1976.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Walter L. Smith, Jr., L. J. Hymel, Jr., Asst. Attys. Gen., Ronald C. Martin, Dist. Atty., John S. Stephens, Asst. Dist. Atty., for plaintiff-appellant.
    J. Q. Davis, Coushatta, for defendant-ap-pellee.
   CALOGERO, Justice.

Defendant Joe Sloan was indicted for bribery of voters in violation of La.R.S. 14:119. For the reasons assigned in State v. Newton, La., 328 So.2d 110, decided this day, the trial court’s action in declaring the statute constitutionally infirm and its action in quashing the indictment is hereby affirmed.

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

ON REHEARING

SANDERS, Chief Justice.

For the reasons assigned in State of Louisiana v. Newton, La., 328 So.2d 110, decided this day, the judgment of the district court is reversed; the motion to quash the indictment is overruled; and the case is remanded to the district court for further proceedings consistent with the views therein expressed.

TATE, DIXON and CALOGERO, JJ., dissent.

DENNIS, J., concurs for the reasons stated in State v. Newton, La., 328 So.2d 110, decided this day.


text:
    STATE of Louisiana v. Lance KIRTS.
    No. 56196.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied March 26, 1976.
    On Rehearing Feb. 23, 1976.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Walter L. Smith, Jr., L. J. Hymel, Jr., Asst. Attys. Gen., Ronald C. Martin, Dist. Atty., John S. Stephens, Asst. Dist. Atty., for plaintiff-appellant.
    J. Q. Davis, Coushatta, for defendant-ap-pellee.
   CALOGERO, Justice.

Defendant Lance Kirts was indicted for bribery of voters in violation of La.R.S. 14:119. For the reasons assigned in State v. Newton, La., 328 So.2d 110, decided this day, the trial court’s action in declaring the statute constitutionally infirm and its action in quashing the indictment is hereby affirmed.

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

ON REHEARING

SANDERS, Chief Justice.

For the reasons assigned in State of Louisiana v. Newton, La., 328 So.2d 110, decided this day, the judgment of the district court is reversed; the motion ot quash the indictment is overruled; and the case is remanded to the district court for further proceedings consistent with the views therein expressed.

TATE, DIXON and CALOGERO, JJ., dissent.

DENNIS, J., concurs for the reasons stated in State v. Newton, La., 328 So.2d 110, decided this day.


author: SUMMERS, Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. Bobby Ray SNEED et al.
    No. 56585.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Rehearing Denied Feb. 20, 1976.

      Bobby L. Culpepper, Holloway, Baker, Culpepper & Brunson, Jonesboro, Nesib Nader, Shreveport, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whitten, Dist. Atty., Robert Y. Butler, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

On June 28, 1974 the Grand Jury of Bienville Parish charged Bobby Ray Sneed, Eugene Wright and Arthur Gardner with the first degree murder of Curtis E. Jones on June 13, 1974. A change of venue was granted to Claiborne Parish where the accused were tried and found guilty of second degree murder. They were each sentenced on April 24, 1975 to life imprisonment at hard labor, not eligible for parole, probation or suspension of sentence for a period of twenty years. On this appeal, seventy-three errors are assigned by the defense.

Early on the morning of June 13, 1974 the elderly couple, Curtis E. Jones and his wife Maude, were brutally beaten by a number of assailants as they slept side by side in -their home at Gibsland in Bienville Parish. The assailants forced Maude Jones to disclose the location of her purse from which they obtained $700. Jones and his wife were then bound with wire and the assailants made good their escape. When Maude Jones was able to loosen the wire which bound her, she summoned help. Clyde Stinnet, a neighbor, responded to her call. When help arrived about 7:30 that morning Curtis Jones was dead. Maude Jones was seriously injured by the assault and required lengthy hospitalization.

Assignment No. 1

While she was testifying to the facts and circumstances surrounding the beating of her husband and herself, Maude Jones said she could hear her husband begging his attacker to stop, saying over and over “Oh, don’t.”

When defense counsel objected that the testimony was hearsay, the objection was overruled, the State’s attorney explaining that the testimony was offered to prove that the statement was made, not for the truth of its content.

Whether offered for the purpose stated or otherwise, the statement of the decedent while he was being brutally beaten to death was clearly admissible as part of the res gestae, La.R.S. IS :447-48, a well-recognized exception to otherwise objectionable hearsay testimony.

Assignment No. 2

Defense counsel makes a general assignment that error occurred when the State’s attorney propounded leading questions to Maude Jones as she testified for the State. In brief the State alleges that “the objection was actually that same was not material nor relevant,” while defendants argue the leading nature of the State’s inquiry. Reference is then made in the State’s brief to Maude Jones’ testimony in which she described the injuries to her face sustained during the beating on June 13. When the State’s attorney asked her, “What about your hands were they . . . ”, defense counsel objected that the question was leading, and was neither material nor relevant to the beating death of her husband. When the objection was overruled, the witness answered, “I don’t believe I had any injury in my hand. It was in my face.”

The answer to the question objected to was favorable to defendants. Whether the objection is based on the materiality or relevancy of the testimony or the leading nature of the question, there is no merit to this assignment. In connection with the objection that the question was leading, we note the trial judge’s observation in ruling on a similar objection shortly thereafter: ' “The witness is aged and somewhat infirm and I will give him (the State’s attorney) a little bit more leeway . . ..” He then admonished the State’s attorney to moderate the leading nature of his questions.

Assignment Nos. 3 and 4

While the State’s attorney was questioning Maude Jones, she was asked: “. . . some months before June the 13th, Mrs. Jones, what sums of money, the amounts of money that you kept in your home, would you tell the Judge?” When defense counsel objected that the question was leading or because it sought “very specific sums of money that she has had in the house,” the objection was sustained. Nevertheless, the State’s attorney pursued the line of questioning and elicited from the witness, without further objection, the fact that several hundred dollars were kept in the house prior to June 13th.

The State’s attorney answers the defense argument that this testimony was irrelevant by saying that its purpose was to establish a possible motive for the armed robbery of the Joneses, an element of felony murder, the charge of first degree murder under Article 30(1) of the Criminal Code, the crime with which these defendants were charged. La.R.S. 15:441.

Assignment No. 5

Objection was made by the defense that the answer would be irrelevant when the State’s attorney asked “How do you know Mr. Sneed please, Ma’am, Mrs. Jones?” As the answer disclosed, Sneed had frequented the Jones house as a small boy doing chores. He would therefore be familiar with the premises, and Maude Jones was familiar with his voice which she recognized while the beating was in progress. For both reasons the evidence was relevant and material.

There is no merit to this assignment.

Assignment Nos. 4,15,18, 24, 26, 27, 28, 33, 34, 35, 38, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53,54, 55, 56,57, 58, 59, 60

These thirty assignments of error relate principally to testimony, photographs or physical evidence admitted over defense objection that the evidence was not within the scope of the opening statement. Other objections urged in these bills are that the evidence was immaterial, irrelevant and introduced without proper foundation.

Article 766 of the Code of Criminal Procedure requires that “The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.”

“Evidence not fairly within the scope of the opening statement of the state shall not be admitted in evidence.
“If the state offers evidence that was inadvertently and in good faith omitted from the opening statement, the court, in its discretion may admit the evidence if it finds that the defendant is not taken by surprise or prejudiced in the preparation of his defense.” La.Code Crim. Proc. art. 769.

It is not necessary for the State to explain the evidence in minute detail in its opening statement. Evidence which by implication can be considered within the scope of the opening statement is admissible. State v. Eubanks, 240 La. 552, 124 So.2d 543 (1960) ; State v. Jones, 230 La. 356, 88 So.2d 655 (1956); State v. McLean, 211 La. 413, 30 So.2d 187 (1947). What may fairly be considered within the scope of the opening statement is admissible. State v. Stahl, 236 La. 362, 107 So.2d 670 (1959). In large measure the entire matter should be considered on a basis of the sound discretion of the trial judge as to prejudicial effect. State v. Clark, 231 La. 807, 93 So.2d 13 (1957). This Court in State v. Sneed, 316 So.2d 372 (La.1975), a case arising out of this same transaction, approved the use of a very general opening statement, citing substantial authority therefor.

The evidence introduced would fall within “general terms” setting forth “the nature of the evidence” by which the State expected to prove the charge. And the State furnished notice that inculpatory statements would be used in evidence. Moreover, the opening statement of the State is not part of the record before us. No written motion was made by defense counsel to include the State’s opening statement in the record as part of these assignments of error. La.Code Crim.Proc. arts. 841-45, 920.

In any event a reading of this record convincingly demonstrates that defendants were not taken by surprise, .and that the trial judge did not abuse his discretion by admitting the evidence.

Assignment No. ó

Clyde Stinnet, a neighbor, responded to Maude Jones’ call for help. He testified that when he arrived she said, “Clyde, they broke in on us, and I think they’ve killed Curt.” The objection was that the statement was hearsay and Maude Jones was the proper person to testify to what she said.

The statement is admissible as part of the res gestae. Maude Jones had just released herself from the wires which bound her legs and had struggled to the back steps of her house and called to Clyde Stinnet for help. Her statement when he arrived was spontaneous and uttered under the stress of the circumstances surrounding the killing of her husband. Repetition of what she said by the witness Stinnet was corroborative of her testimony that her husband had been beaten and that she cried out for help. La.R.S 15:447-48; State v. Morgan, 296 So.2d 286 (La.1974). This assignment is without merit.

Assignment No. 7

Jessie W. Collingsworth testified that he drove the vehicle which transported a body from Gibsland to the Bossier General Hospital. Defense counsel objected that there was no foundation to establish whose body was transported. Thereafter, Collingsworth testified that the body was the remains of Jones. The basis for the objection was removed by the witness’ later testimony. In addition Lamar Watson, the preceding State witness, testified that he was a funeral director and he had picked up Jones’ body

for further transfer. Collingsworth’s testimony was to establish the next link in the chain of evidence showing that Jones’ body was transported to the hospital for an autopsy.

Assignment No. 8

Dr. H. H. Middleton, a general practitioner and Bienville Parish Coroner, was called to the scene of the slaying on the morning of June 13. He testified to the physical condition in which he found the deceased and Maude Jones' as a result of the beating they sustained.

This testimony forms the basis of a defense objection that Maude Jones’ physical condition was immaterial and irrelevant. We cannot agree. This prosecution was based upon the felony murder doctrine embodied in Article 30 of the Criminal Code. Under this theory the assault upon Maude Jones which occurred while her husband was being beaten to death was relevant and material to establish that the killing occurred while a felony was being committed. La.R.S. 14:30[1]; La.R.S. IS :464—67.

Assignment No. 9

Dr. Middleton’s qualifications as an expert were stipulated. He was, then, qualified to give an opinion as to the cause of Curtis Jones’ death from his observation of the decedent’s physical condition. The objection to his giving his opinion of the cause of death, is therefore, unfounded. La.R.S. 15:464-67.

Assignment No. 10

This assignment is the subject of another objection to a leading question. Joe Story is the Chief of Police of Arcadia. In this capacity he, Bobby Butler and Larry Sutton arrested the accused Bobby Sneed on June 14, the day after the death of Curtis Jones. Story removed Sneed’s personal belongings, and when he was asked, “What did you do with the personal belongings?”, the question was objected to and sustained because no foundation was laid. The State’s attorney then asked, “As an incident [of the] arrest did you examine Mr. Sneed?” Again objection was made that the question was leading. The objection was overruled.

The ruling of the trial judge is correct. If this question is leading it is difficult to see how any trial could be conducted and the facts of the case elicited.

Questions so framed as to suggest to the witness the answer desired are leading questions. There is no standard test to determine what is a leading question. However, the most commonly used test is whether the question may be answered yes or no. Other tests are whether the question is in the form of an assertion, or assumes facts not yet proved, or is asked in a tone or with an inflection that is suggestive of the answer desired. Because it is impossible to lay down any standard test and because so much depends upon the tone and inflection of the examiner, the apparent intelligence or lack of intelligence of the witness, the importance or comparative unimportance of the testimony sought to be elicited, the friendly or hostile attitude of the witness toward the examiner, and so on, it has become a thoroughly established rule that the matter is one for the discretion of the trial judge, and his ruling will not be disturbed on appeal unless the question was of vital importance to the case and there was a clear abuse of discretion. J. Tracy, Handbook of the Law of Evidence 167 (Prentice-Hall, 19S2); La.R.S. IS :277.

Assignment No. 11

Sheriff Arvis E. Whitman was called as a witness for the State. He testified that he received a call at the Sheriff’s office and went to the home of Curtis Jones at 7:30 on the morning of June 13. He testified he went into the house and found Jones’ body in bed. When asked, “Would you describe that bedroom please, sir?”, defense counsel objected that a description of the bedroom was immaterial and irrelevant. The objection was properly overruled.

“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.” La.R.S. 15:441. It must be determined by the purpose for which it is offered. La.R. S. 15:442.

Relevancy, as the word itself indicates, is not an inherent characteristic of any item of evidence but exists as a relation between an item of evidence and a proposition sought to be proved. If an item of evidence tends to prove or to disprove any proposition, it is relevant to that proposition. Relevancy in a particular case depends upon whether the evidence tends to prove or disprove a proposition which is properly provable or disproved in the case.

The sheriff’s answer to the question disclosed that in the bedroom blood was splattered on the bed, on the floor, on a chair, on the telephone, and on the walls; in the bathroom blood “literally covered” the tub, the commode and the drawers; the phone was torn from the wall; Jones’ hands were tied with electrical cord and pillow slips used in choking him were around his neck. All this attested to the violent, deliberate and brutal killing, and was, thus, evidence material and relevant to a charge of first degree murder. La.R. S. 14:30(1).

Assignment Nos. 12, 13, 14 and 20

Joe Story had testified that he arrested Bobby Sneed, searched him and removed some personal objects. While Sheriff Whitman was testifying he was asked, “Did you receive anything from Mr. Joe Story on the afternoon of June the 14th?” This was objected to as a leading question, and the judge allowed the question, but subsequently, before it could be answered, sustained the objection. The State’s attorney then rephrased the question to ask the Sheriff if he had seen Story on June 14th and what was Story’s purpose in coming into the Sheriff’s office. The Sheriff replied that Story surrendered Bobby Sneed and his personal belongings. The Sheriff then testified over objection to the items of personal property belonging to Sneed which Story turned over to him—a billfold containing five twenty-dollar bills, sunglasses and small change.

In our opinion the trial judge properly regulated the examination of this witness. The first defense objection became moot when it was ultimately sustained by the trial judge, and subsequent objections were ill-founded.

Assignment No. 16

Joe Story was recalled as a witness by the State to testify that he had been told prior to arresting Bobby Sneed that a warrant had been issued for Sneed’s arrest. Defense counsel objected to the recall because after his initial testimony Story had been released from the order of sequestration of witnesses, to which he had been subjected.

There is no showing that Story talked to other witnesses, or that he was present in the courtroom or had otherwise violated the order of sequestration. In the absence of such a showing, the trial judge is presumed to know if his order has been violated. Therefore, the trial judge did not abuse his discretion when he permitted Story to be recalled. He is authorized by Article 764 of the Code of Criminal Procedure to modify his order in the interest of justice.

Assignment No. 17

When Joe Story testified after being recalled that he had been advised by law enforcement agencies or officers that a warrant was outstanding for the arrest of Bobby Sneed, the defense objected that he was testifying to hearsay evidence. The subject matter of Story’s testimony was not offered for the truth of the assertion, but only for the purpose of establishing that Story acted upon the information that a warrant for Sneed’s arrest was outstanding. State v. Vassel, 285 So.2d 221 (La.1973).

Assignment Nos. 18 and 19

Alfred Critton was one of the participants in the crime. He turned state’s evidence and testified to statements made by other participants as they returned to his car immediately after they left the Jones house. The defense contends that no notice of intent to use inculpatory statements had been furnished by the State as required by Article 768 of the Code of Criminal Procedure and therefore these inculpa-tory statements of the participants were inadmissible.

The State did advise defendants that they would use various oral statements made by the accused, and the State furnished defense counsel with all statements made by all codefendants, including a transcript of the statement made by the witness Critton, all as required by Article 768 of the Code of Criminal Procedure.

Moreover, under these circumstances, Critton’s recounting of the statements made by the accused which were closely connected in time and place to the offense, was merely narration of declarations which were part of the res gestae. The conspirators were leaving the scene of the crime and were in furtherance of their common enterprise. La.R.S. 15:447-48; State v. Hodgeson, 305 So.2d 421 (La. 1975); State v. Fink, 255 La. 385, 231 So. 2d 360 (1970).

Assignment Nos. 21, 22, 23

A defense objection that Critton should not have been permitted to testify to what the participants told him when they returned to the car unless he named the person who made the statement is not well taken. Critton did not say what the statement was until he named the declarant —Arthur Gardner.

And a reading of Critton’s testimony establishes that ample foundation was laid to form the basis for testifying to Gardner’s statement.

Assignment Nos. 25, 29

Critton testified that Bobby Sneed contacted Andrew Rhodes and that Rhodes was a participant in the crime. The defense objection to evidence involving Rhodes in the initial stages of the conspiracy was, therefore, not well-founded. Although Rhodes was not a defendant in this trial, he was a participant according to Critton’s testimony. His involvement is therefore material.

Assignments 30, 31, 32, 33, 34 and 35

Although some of these assignments urge that the photographs referred to were not mentioned in the State’s opening statement and were, therefore, inadmissible, and this contention has previously been disposed of in our consideration of that issue, the principal issue discussed here involves the defense claim that photographs were introduced without a proper foundation. The assignments are without merit. The photographer who took the pictures testified before the photographs were introduced that they fairly and accurately depicted the scenes they represented. A foundation for the introduction was well-established.

Assignment No. 36

Objection was made during the testimony on redirect examination of the State’s witness Deputy McCarthy. McCarthy took photographs of physical evidence and identified the photographs and their subject matter on direct examination. At the time of the redirect examination, the objection referred generally to the fact that interrogation involved matters not mentioned on direct or on cross-examination. However, the objection did not point out wherein the redirect exceeded the subject matter of direct or cross-examination. The defense brief is equally as vague on the question. For this reason the objection fails to comply with the directions contained in Article 841 of the Code of Criminal Procedure that the party “at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.”

Notwithstanding the arguable contention that the redirect examination was beyond the direct and cross-examination, the application of the rule which confines redirect examination of a witness to the subject matter of the cross-examination and to the explanation of statements elicited on cross-examination is within the discretion of the trial judge. La.R.S. IS :281. Since defense counsel was not denied the opportunity to recross on the new matter alleged to have been brought out on redirect, there was no abuse of the discretion vested in the trial judge. State v. Watson, 301 So.2d 653 (La.1974); State v. Daniels, 262 La. 475, 263 So.2d 859 (1972), cert. denied, 410 U.S. 944, 93 S.Ct. 1378, 35 L. Ed.2d 610.

Assignment No. 37

Defense counsel objected to the introduction of a photograph of a key, arguing that the key was the best evidence and should be introduced instead. Shortly after the photograph of the key was admitted, the key was introduced in evidence.

The rule sought to be invoked here by the defense requires that the best evidence which from the nature of the case must be supposed to exist, and which is within a party’s control, must be produced. La.R.S. 15 :436. This does not mean, however, that a photograph of that evidence may not be introduced to show, as in this case, the site from which the evidence was obtained and to otherwise establish its connection with the facts of the case at issue. Since the “best evidence” was in fact introduced into evidence, there was no error.

Assignments Nos. 39-41

In these assignments of error defense counsel does not argue that the photographs introduced into evidence were inherently prejudicial; he does not argue that a proper foundation was not established ; he argues that the photographs prejudiced the defendants merely because there were too many of them.

No authority is cited to support the defense contention, nor has an effort been made to explain what prejudice defendant has suffered by the admission of the allegedly cumulative photographic evidence.

Although Section 275 of Title 15 of the Revised Statutes illustrates the inherent authority of the trial judge to regulate the unnecessary and irrelevant introduction of evidence at the trial, the article does not specifically refer to the facts presented by this assignment of error. It is evident, however, from this and judicial authority generally, that a sound discretion is vested in the trial judge in such matters. There has been no showing of abuse of that discretion here.

Assignments 50-60

These assignments, already considered on the basis of the contention that the evidence involved was not within the scope of the State’s opening statement, are now taken up on the contention that certain physical evidence was immaterial and irrelevant and introduced without foundation or chain of custody having been established. The evidence involved consisted of negroid hair, gloves, pants, á wash cloth and towel, and a handbag stained with blood, all found near the scene of the killing, and bloodstained money taken from one of the defendants.

The objections were entirely groundless, for all of this evidence was relevant and material, and a proper foundation for its introduction was established. In brief, defense counsel argues that the mass of evidence was prejudicial. Because the evidence was relevant and material it is no ground for objection that it was voluminous.

These assignments are without merit.

Assignment No. 61

Here the defense contends that it was error to permit the jury to view the physical evidence referred to in Assignments 50-60. If the evidence was admissible, as it was, it was not error to permit the jury to view it. This assignment has no merit.

Assignment No. 62

Defense counsel objected to the recall of the state witness Critton. As we understand it, the objection is based upon the fact that the recall would involve testimony which was cumulative of facts to which the witness had already testified.

Since permitting the recall of a witness is a matter which addresses itself to some extent to the discretion of the trial judge, there is no showing of abuse here. Nor is there a showing that the defense was denied an opportunity to recross.

Assignment No. 63

A defense motion for a directed verdict was denied by the trial judge and this ruling is said to be erroneous. A motion for a directed verdict can only be granted when there is no evidence at all of the offense or some essential element thereof. Here there is much evidence of every element of the crime charged, and the trial judge properly denied the motion for a directed verdict.

Assignment No. 64

In this assignment the defense argues that the trial court refused to order the prosecutor to set forth in answer to a motion for a bill of particulars the physical evidence that it intended to introduce. Under these circumstances, it is argued, the defense was denied the right to inspect that evidence and have it examined by experts contrary to the holding in Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975).

No showing has been made that any of the evidence referred to required inspection and examination by experts. The effect of defendant’s argument is to urge this court to approve a general extension of pretrial discovery, an extension this Court has been reluctant to make, except in a few well-delineated circumstances. State v. Major, 318 So.2d 19 (La.1975).

There was no error in the ruling of the trial judge.

Assignment No. 65

Defense counsel contends that it was error for the trial judge to find in the preliminary hearing that there was probable cause for charging defendants with the offense of first degree murder considering that the only evidence introduced at that hearing by the State was a copy of the grand jury indictment against defendants.

After a grand jury has indicted an accused, the preliminary examination at the time it was held was limited to the perpetuation of testimony and the fixing of bail. La.Code Crim.Proc. art. 296. Cf. La. Const, art. I, § 14 (1974). Neither the State nor the defense availed itself of the opportunity to perpetuate testimony, or produced evidence on the issue of bail. Moreover, after conviction and sentence, errors alleged to have occurred at a preliminary hearing are moot. State v. Monk, 315 So.2d 727 (1975); State v. Richardson, 258 La. 62, 245 So.2d 357 (1971).

Assignment No. 66

A defense motion to quash the indictment because no women served on the grand jury was properly denied by the trial judge.

This indictment was returned on June 28, 1974, at a time when this Court had repeatedly held that the absence of women on grand or petit juries did not invest those juries with constitutional infirmity. State v. Comeaux, 252 La. 481, 211 So.2d 620 (1968). Thereafter, in 1975, the United States Supreme Court held in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), that exclusion of women from petit juries was unconstitutional and convictions by juries so constituted were invalid. However, the Taylor decision was held not to be retroactive, and convictions obtained prior to that decision were not invalid because women did not serve on the jury. Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975).

There was no error in the ruling of the trial judge.

Assignment Nos. 67 and 71

In these assignments it is contended that the trial judge committed error when he failed to quash the -indictment on the defense motion that Act 109 of 1973, Article 30 of the Criminal Code, was passed at a fiscal session of the legislature and for that reason is invalid. Further, Act 111 of 1973, Article 30.1 of the Criminal Code, under which defendants were convicted is alleged to be invalid for the same reason.

We considered these questions in State v. Reado, 295 So.2d 440 (La. 1974), and decided that the acts were enacted in accordance with law and were valid and enforceable.

Assignment No. 68

From the State’s brief we understand that this assignment of error is based upon the defense contention that the indictment charging first degree murder should have been quashed, for the statute upon which it is based, La.R.S. 14:30, is unconstitutional in that it prescribes the death penalty held to be unconstitutional in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

The constitutionality of the death penalty prescribed in Section 30 of Title 14 of the Revised Statutes has been upheld in State v. Hill, 297 So.2d 660 (La. 1974), cert. denied, 419 U.S. 1090, 95 S.Ct. 682, 42 L.Ed.2d 683 (1975), a decision made in the light of the holding of Furman v. Georgia. We adhere to that decision.

Assignment No. 69

A motion ior a new trial was filed by defendants in which the errors asserted in the assignments of error are repeated. Since we have considered these contentions and found them to be without merit, the motion for a new trial is not well-founded. La.Code Crim.Proc. art. 851.

Assignment No. 70

The denial of a motion in arrest of judgment is asserted to be error. Aside from the brief reference to the motion itself, no argument is made setting forth the basis for the contention that the ruling was erroneous.

The motion repeats the allegation contained in the motion for a new trial. For the reasons assigned in our disposition of the numerous assignments of error, there is no merit to the motion in arrest of judgment.

Assignment No. 72

This assignment relates to the amendment of the indictment prior to arraignment to indicate “Arthur Gardner” to be the true name of the alias “John Doe”, and to show “Eugene Wright” to be the true name of the alias “Richard Roe”.

The problem is governed by Article 466 of the Code of Criminal Procedure, which provides:

“In an indictment it is sufficient for the purpose of identifying the defendant to state his true name, or to state the name, appellation, or nickname by which he is known, or if no better way of identifying him is practicable, to state a fictitious name, or to describe him as a person whose name is unknown, or in any other manner. In stating the true name or the name by which the defendant is known or a fictitious name, it is sufficient to state a surname, a surname and one or more given names, or a surname and one or more abbreviations or initials of a given name or names.
“If the true name of a defendant identified in the indictment otherwise than by his true name is disclosed by the evidence or is otherwise discovered, the court shall cause the indictment to be amended to show his true name, and the proceedings shall continue against the defendant in his true name.
“In no case is it necessary to aver or prove that the true name of the defendant is unknown to the grand jury, complainant, or prosecuting officer.”

This article authorizes the action taken, and there is no merit to this assignment.

Assignment No. 73

Failure of the court to grant a motion to provide the defense with a copy of the grand jury proceedings is asserted in brief as a grounds for this assignment of error. The defense was not entitled to a copy of these proceedings. La.Code Crim. Proc. art. 434. No authority has been cited to support the defense contention.

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

DIXON, J., concurs.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice

(concurring).

I consider the majority’s reference to conspiracy in the treatment of Assignment Numbers 18, 19 and in the treatment of Assignment Numbers 25, 29, unnecessary to the disposition of the Bills and legally inappropriate.

I therefore concur.


author: DIXON, Justice.

text:
    John McCORMICK and Ernie Ray Clanton v. Elayn HUNT.
    No. 56907.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Ralph E. Tyson, Asst. Attys. Gen., Ossie Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for defendants-re-lators.
    Vincent Wilkins, Jr., Director, Benjamin E. Smith, New Orleans, Roland T. Huson, III, App. Counsel, Baton Rouge, for plaintiff-respondent.
   DIXON, Justice.

We granted the State’s application for writs in this case to review a ruling of the trial judge that the Department of Corrections must award prisoners “good time” credits for “jail time,” that is, time spent in a parish prison after arrest, but prior to conviction and sentence. We reverse.

R.S. 15 :571.3 B provides:

“Every inmate in the custody of the Department of Corrections who has been convicted of a felony and sentenced to imprisonment for a stated number of years or months may earn a diminution of sentence by good behavior and performance of work or self improvement activities or both to be known as ‘good time.’ Those inmates serving life sentences will be credited with good time earned which will be applied toward diminution of their sentences at such time as the life sentences might be commuted to a specific number of years. The director of corrections shall establish procedures for awarding and recording of good time and shall determine when good time has been earned toward diminution of sentence. The amount of diminution of sentence allowed shall be as otherwise provided by law.”

The very words of the statute make it clear that it does not apply to time served in a parish prison after arrest while awaiting trial, since at that time the accused is not an “inmate in the custody of the Department of Corrections who has been convicted of a felony and sentenced to imprisonment.” Therefore, unless some constitutional right mandates that “good time” be awarded for jail time, there is no merit in petitioners’ contentions.

Petitioners argue that the failure to award good time credits for jail time violates the constitutional guarantee of equal protection of the law, because an accused who can afford bail actually serves less time in jail than an accused who cannot afford bail. This same argument was presented to the United States Supreme Court in McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973). In that case, New York did not award good time on jail time in computing the minimum date that an inmate could appear before the parole board. In reversing a lower court ruling that the state scheme violated the equal protection clause, the Supreme Court stated:

“ . . .As the statute and regulations contemplate state evaluation of an inmate’s progress toward rehabilitation, in awarding good time, it is reasonable not to award such time for pretrial detention in a county jail where no systematic rehabilitative programs exist and where the prisoner’s conduct and performance are not even observed and evaluated by the responsible state prison officials. Further, it would hardly be appropriate for the State to undertake in the pretrial detention period programs to rehabilitate a man still clothed with a presumption of innocence. In short, an inmate in county jail is neither under the supervision of the State Correction Department nor participating in the State’s rehabilitative programs. Where there is no evaluation by state officials and little or no rehabilitative participation for anyone to evaluate, there is a rational justification for declining to give good-time credit.” 410 U.S. 263, 271, 93 S.Ct. 1055, 1060, 35 L. Ed.2d 282.

The equal protection clause does not require absolute equality or precisely equal advantages. Ross v. Moffitt, 417 U. S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). As stated in Dandridge v, Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970):

“In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S. Ct. 337, 340, 55 L.Ed. 369. ‘The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.’ Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 443, 57 L.Ed. 730. ‘A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393.”

The United States Supreme Court in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1910), laid down the rules to be used in determining whether a legislative enactment violated the equal protection clause:

“The rules by which this contention must be tested, as is shown by repeated decisions of this court, are these: 1. The equal-protec.tion clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.” (Citations omitted).

In the instant case, petitioners have not shown the absence of a reasonable distinction between those incarcerated in the State prison serving their sentences after conviction and those in the parish prison awaiting trial.

The lower federal courts have consistently held that good time need not be awarded for jail time. See Blackshear v. United States, 434 F.2d 58 (C.C.A. 5 1970); Aderhold v. Ellis, 84 F.2d 543 (C. C.A. 5 1936), cert. den., 299 U.S. 587, 57 S.Ct. 123, 81 L.Ed. 433 (1936); Swope v. Lawton, 83 F.2d 814 (C.C.A. 9 1936).

As stated in Bandy v. Willingham, 398 F.2d 333, 335 (C.C.A. 10 1968), cert. den., 393 U.S. 1006, 89 S.Ct. 497, 21 L.Ed.2d 470 (1968):

“The seventh claim is that appellant should have received good time credit from the date of his arrest in 1959. This claim is without merit. Good time credit cannot be earned until the prisoner commences service of his sentence. 18U.S.C. §4161.”

The purpose of good time is twofold : to promote work and self improvement, and to serve as a disciplinary tool for prison officials. Parish jails, unlike the State institutions, generally serve as detention centers only, holding those accused of crime who cannot post bail while awaiting trial.

The awarding of good time is a matter of state law, not a federal constitutional right. Holtzinger v. Estelle, 488 F. 2d 517 (C.C.A.5 1973). The legislature has seen fit to award good time only to an inmate “in the custody of the Department of Corrections who has been convicted of a felony.” An accused awaiting trial is not an inmate who has been convicted of anything. Therefore, the good time statute does not apply, and the classification violates no federal constitutional guarantee. McGinnis v. Royster, supra.

Accordingly, the judgment of the trial court is reversed and the demands of petitioners for the issuance of a writ of mandamus are denied.

      . Assume A and B are arrested together for simple robbery on January 1, 1975. A makes bail and is released pending trial. B cannot make bail and is incarcerated in the parish jail awaiting trial. Both men go to trial on January 1, 1976, are convicted, and sentenced to five years imprisonment. A, who posted bond, serves two years, eight months and twenty-one days in jail, with maximum good time. B, who could not post bond, receives credit for the year in jail. C.Cr.P. 880. His stay at Angola will be two years, two months and five days with maximum good time. Thus B serves approximately six months longer in over-all jail time than A.


author: SANDERS, Chief Justice. TATE, Justice

text:
    STATE of Louisiana v. Charles Leonard ALEXANDER.
    No. 56951.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    A. K. Goff, Jr., Charles C. Barham, Ruston, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ragan D. Madden, Dist. Atty., O. L. Waltman, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The Lincoln Parish Grand Jury indicted Charles Leonard Alexander with first degree murder in violation of LSA-R.S. 14:30. He was tried and found guilty of second degree murder. The trial judge sentenced him to life imprisonment. Defendant appeals his conviction and sentence, relying on four assignments of error.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

In brief, defendant consolidates Assignments of Error Nos. 1 and 2; both relate to the questioning of prospective jurors concerning the death penalty. Defendant argues that it was error for the trial court to allow the State to question prospective jurors to determine whether their conscientious scruples against the infliction of capital punishment would automatically require them to vote against a capital verdict without regard to the evidence.

The questions propounded follow the guidelines established in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 2d 766 (1968) as codified in Article 798 of the Louisiana Code of Criminal Procedure, providing in pertinent part:

“It is good cause for challenge on the part of the state, but not on the part of the defendant, that:
“(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt

Since Witherspoon and the amendment of Article 798 of the Louisiana Code of Criminal Procedure to conform thereto, this Court has consistently held that a juror can be challenged for cause when he would automatically vote against a capital verdict irrespective of the evidence at the trial. State v. Batiste, La., 318 So.2d 27 (1975); State v. Brown, La., 302 So.2d 290 (1974); State v. Hayes, La., 271 So.2d 525 (1973). The record reflects that all the excused jurors fell into this category.

In any event, since the sentence imposed was life imprisonment, the trial judge committed no reversible error in excusing prospective jurors because of their attitude toward capital punishment. This Court has consistently held that the rule announced in Witherspoon, designed to reprobate the “hanging jury,” is irrelevant when the sentence imposed is life imprisonment. State v. Brown, supra; State v. Fallon, La., 290 So.2d 273 (1974); State v. Shilow, 252 La. 1105, 215 So.2d 828 (1968).

Assignments of Error Nos. 1 and 2 are without merit.

ASSIGNMENT OF ERROR NO. 3

The defendant assigns as error the ruling of the trial court denying his motion to suppress and admitting into evidence his taped confession. He specifically objects to the admissibility of the tape recorded confession as violative of LSA-R.S. 15:451, which requires the State to prove that the confession was “free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” In addition, defendant complains that the taped confession was inaudible and that the court should have allowed him to introduce the typed transcription of the tape recorded confession into evidence at the trial.

The defendant bases this assignment of error upon the following:

(1) The State’s failure to fully explain, in clear and express language, to the defendant his constitutional rights as required by the holding in 0Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

(2) The State’s failure to apprise the defendant on the night of February 6, 1975, that he was going to be interrogated about the instant charge of murder.

(3) The State’s failure to show that the defendant clearly and intelligently waived his constitutional rights.

In a motion to suppress a confession or inculpatory statement, the State has the burden of proving the confession was freely and voluntarily given. LSA-C.Cr.P. Art. 703. In addition, the United States Supreme Court decision in Miranda v. Arizona, supra, requires that the State establish that the defendant was advised of his rights, including the right to counsel, but waived these rights.

The testimony adduced at the hearing on the motion to suppress reflects that:

On February 3, 1975, Chief of Police Perry Roberts questioned defendant in Winnfield, Louisiana, concerning forgery charges pending against him in Winn Parish. At this interrogation for the forgery charges, the defendant was read his Miranda rights. Defendant was not in custody at that time.

The next day, defendant returned to the police station in Winnfield, indicated to Chief Roberts that he and Thornton Lee Paul had stopped and purchased gasoline at a service station in Ruston on December 7, 1974. On December 7, 1974, Charles David Foxworth was killed while working at the Shady Tree Auto Parts Store in Ruston in the late afternoon. His body was found by the cash register.

Because of this fact, Chief Roberts asked Alexander if he would drive with him from Winnfield to Ruston and point out the place where the defendant and Thornton Lee Paul had stopped to purchase gas. Defendant, after being advised of his Miranda rights, was taken by Chief Roberts to Ruston, where he pointed out the Shady Tree Auto Parts Store as the station where they had purchased gas. Defendant was then taken to the Ruston Police Station where he was questioned.

On February 5, 1975, Thornton Lee Paul made a statement to Chief Roberts, implicating himself and Alexander in the Fox-worth murder. On the basis of that statement, a warrant was issued for the defendant’s arrest. Alexander voluntarily came to the police station in Winnfield and was arrested. Chief Roberts read Alexander his rights, and Alexander signed a waiver of rights form.

On February 6, 1975, a deputy sheriff from Jackson Parish arrived in Ruston to question defendant about an armed robbery in Jonesboro. Defendant was brought from the jail to an interrogation room and was informed of his Miranda rights. At some time during this interrogation about the armed robbery in Jonesboro, defendant made an inculpatory statement with regard to the Foxworth murder. The Ruston officer present at the interrogation discussed the fact that Thornton Lee Paul had made a statement with the defendant. Defendant said that he was not the one who shot Foxworth. The questioning of the defendant by the officers terminated.

The next morning, February 7, 1975, the defendant was again brought from his cell and asked to recount to Chief Roberts of Ruston the facts he had told the officer at the questioning the night before. He was again informed of his Miranda rights. The morning interrogation was interrupted. After lunch, the defendant was again informed of his Miranda rights. At 2:45 that afternoon, the taped interrogation which forms the basis of this assignment of error was initiated.

The record contains no evidence of mistreatment, threats, or coercion being used to induce the defendant to confess. In addition, there is no evidence to support the defendant’s allegation that he did not clearly and intelligently waive his constitutional rights. It appears that the defendant was informed of his constitutional rights several times. At one point, when he was being informed of his rights, he told Deputy George Simonton that he knew his rights, he understood what was on the waiver of rights form and would read over the form himself and sign it.

Unless clearly erroneous, a factual determination by the trial judge that a confession was not the product of threats or promises and that it was freely and voluntarily made will not be disturbed on appeal. State v. Sims, La., 310 So.2d 587 (1975); State v. Cosey, 261 La. 550, 260 So.2d 620 (1972). We conclude that the ruling of the trial judge admitting the confession was correct.

We have also listened to the defendant’s tape recorded confession. It is audible and thus there was no necessity for the admission into evidence of the transcription of the tape. The trial court properly ruled that the defendant’s tape recorded confession is the best evidence. LSA-R.S. 15:436.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

In Assignment of Error No. 4, the defendant contends that the trial court erred in allowing the introduction of two colored photographs into evidence. The photographs depict the scene of the crime, including splotches of blood on the floor after the victim’s body had been removed. Defendant argues that the photographs were unnecessary because there were four witnesses who could testify as to the location of the body behind the counter immediately below the cash register.

The State argues that the exhibits had probative value in showing the proximity of the body to the cash register as part of the proof relating to the armed robbery.

The test for the admissibility of a photograph of this nature is whether the probative value of the photograph outweighs its probable inflammatory effect. State v. Beach, La., 320 So.2d 142 (1975); State v. Chavers, La., 294 So.2d 489 (1974); State v. Curry, La., 292 So.2d 212 (1974).

There can be no doubt that the photographs have substantial probative value in the present case. The defendant was charged with first degree murder under Paragraph (1) of LSA-R.S. 14:30. For conviction, the State must establish that defendant was engaged in the perpetration or attempted perpetration of armed robbery at the time of the homicide. The photographs were relevant to corroborate testimony and show exactly where the deceased victim of the armed robbery was when he was shot.

In his Per Curiam, the trial judge correctly disposes of this assignment of error as follows:

“In the case at bar the State was contending that the defendant was in the act of committing an armed robbery when he killed the victim. The photographs in question were introduced in evidence to show the location of the victim’s body with reference to the cash register from which the defendant allegedly took money. Since the State was relying to a large extent upon this circumstantial evidence to discharge its burden of proof I concluded that the probative value of the photographs outweighed their prejudicial effect.”

This Court has consistently held that the admission of photographs rests in the discretion of the trial court judge and that his holding will not be disturbed in the absence of a clear abuse of this discretion. State v. Gibson, La., 271 So.2d 868 (1973); State v. LaCoste, 256 La. 697, 237 So.2d 871 (1970); State v. Ford, 259 La. 1037, 254 So.2d 457 (1971).

We hold that the trial court did not abuse its discretion in admitting the photographs into evidence.

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

DIXON, J., concurs.

TATE, J., assigns additional concurring reasons.

CALOGERO, J., concurs for reasons assigned by TATE, J.

TATE, Justice

(concurring).

I concur in the affirmance and in the disposition of all the assignments of error.

However, in my opinion, the erroneous exclusion of jurors who merely have reservations against the death penalty, contrary to state statute, La.C.Cr.P. art. 798(2) (1968), is not harmless because the jury only imposes life imprisonment instead of the death penalty. When jurors are excluded in violation of state law, the accused is deprived of the cross-section of the population to which he is entitled.

No error here occurred because, in fact, the present jurors were properly excusable, since opposed to the death penalty under all circumstances. The majority correctly so finds.

Nevertheless, by way of dicta, the majority opinion suggests that, at any rate, even if the prosecution (contrary to law) excluded from the jury those with mere reservations on the subject, no reversible error would result. To do so, would allow the state more peremptory challenges than the law allows. La.C.Cr.P. art. 800. This is cause for reversal, as the code article recognizes.

In support of this dicta, the majority cites decisions based on jurisprudence before our state code article was so amended. Then, under the United States Supreme Court decision in Witherspoon, the death penalty (but not the conviction itself) was invalid as in violation of federal constitutional rights. Accordingly, when a With-erspoon violation was alleged, we found that (under then state law, which permitted exclusion of jurors merely for death-penalty reservations) no Witherspoon issue was involved if only a life penalty resulted. This was, of course, because the sole remedy recognized by Witherspoon was the reduction of the death penalty to life imprisonment.

An entirely different issue is presented if under present state law a juror is improperly excluded for such cause. La.C. Cr.P. art. 798(2). In such case, reversal is required, for the effect is to grant the state additional peremptory challenges if it has otherwise exhausted those allowed by law. La.C.Cr.P. art. 800.

The dicta in the majority opinion is therefore misleading and incorrect, in my opinion.


author: DIXON, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Michael T. SIMMONS.
    No. 56967.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      Charles R. Chesnutt, III, Thomas L. Smith, Law Offices of Charles R. Ches-nutt, III, 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.

Defendant appeals his conviction of armed robbery resulting from an offense which occurred July 26, 1974. He raised five assignments of error; we find merit in Assignment No. 2.

In Assignment of Error No. 2 defendant complains of the erroneous admission into evidence of an inculpatory statement taken from him by the police, which defendant contends was the result of physical abuse prior to interrogation.

At the trial of the motion to suppress the confession, the State called Officer Villar, who testified that he was one of the officers investigating the case. Villar testified concerning the details surrounding obtaining the statement from defendant. He denied that any force or mistreatment had been used in the course of the interrogation.

The State rested after Villar testified. Defendant called one witness, then took the stand himself and testified that he was beaten by officers for about an hour, and that the statement was coerced. Defense counsel informed the court that three to four days after the confession he visited defendant in parish prison, and that defendant complained that the confession had been obtained by force. Defendant’s lawyer noticed that defendant had a small bruise on his leg and that “his lip was swollen.”

On rebuttal, the State called Officer Hurban, who confirmed the testimony of Villar.

No other witnesses were called.

Villar and Hurban testified that they picked the defendant up at Central Lockup about 7:10 p. m. on July 30, 1974, and brought him to the detective bureau, where defendant was placed in a holding cell a couple of doors from the interrogation room. Five or six policemen were around, having participated in the investigation. For some time three officers questioned defendant’s accomplice, .during which time “one of the officers would go check to see if he (defendant) needed anything while he was waiting in the cell before we took the statement.” Villar and Hurban denied any coercion or abuse, and did not “see anybody do anything.” The holding cell was locked by Villar. There was no testimony about the possession of a key to the room by any other person, either in the motion to suppress or on the trial on the merits.

At the close of the motion to suppress, defendant argued that the State had not borne its burden of proof. It was his contention that because there were officers who did not testify but who were present during the time defendant claims he was beaten, and because the adduced testimony showed there were times defendant was alone with these officers, the State had failed to sustain its burden of proof.

In ruling on the motion to suppress, the trial judge stated to defense counsel: “They’re all available. They’re all out there. There are more officers who haven’t been called that are available, if you want to call them. They’re here . . .If you want to put them on the stand. I suggest you put them on. You have the same subpoena powers as the State.” Defense counsel then pointed out to the court that he did not have the power to discover the identity of the other officers, and that the burden was on the State to prove the validity of the confession.

The law governing the admissibility of confessions is clear:

“Before what purposes to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” R.S. IS :451.
“No person under arrest shall be subjected to any treatment designed by effect on body or mind to compel a confession of crime.” R.S. 15:452.
“A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers.” R.S. 15:453.
“On the trial of a motion to suppress filed under the provisions of this article the burden of proof is on the defendant to prove the grounds of his motion, except that the state shall have the burden of proving that a purported written confession or written inculpatory statement was made freely and voluntarily and was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” C.Cr.P. 703(C).
“No person shall be compelled to give evidence against himself in a criminal case or in any proceeding that may subject him to criminal prosecution, except as otherwise provided in this Constitution. No person under arrest shall be subjected to any treatment designed by effect on body or mind to compel confession of crime; nor shall any confession be used against any person accused of crime unless freely and voluntarily made.” La.Const. art. I, § 11 (1921).

Before a confession may be admitted into evidence, the State has the burden of proving affirmatively and beyond a reasonable doubt that it was made freely and voluntarily, not through coercion. See State v. Peters, 315 So.2d 678 (La.1975), and cases cited therein. Furthermore, though the decision of the trial judge on the question whether a confession is free and voluntary is entitled to great weight, a reviewing court cannot avoid its responsibility to examine the record to be certain that the State has fully borne its heavy burden of proof. State v. Peters, supra.

In Peters we made it clear that the State could not merely ignore testimony by the defendant and thereby sustain its burden of proof; we also made it clear that “general allegations by the officers present that no force was used in eliciting the purported confession are insufficient to satisfy the certainty demanded by the law that a confession is free and voluntary before a man’s own words may be used against him.”

Nor does State v. Sims, 310 So.2d 587 (La.1975), apply. In Sims we held that:

“. . . In this case the officers specifically testified on direct examination that there was no force or violence used against the defendant when the confession was obtained. Although this evidence was not introduced in rebuttal of the defendant’s testimony, it is in direct conflict with the defendant’s version of the incident. It would be superfluous to require the officers to take the stand to repeat what they testified to in the State’s affirmative showing. . . 310 So.2d 587, 589.

In Sims, unlike the case before us, the State had introduced evidence that was in direct conflict with defendant’s allegations.

Also, in Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967), the United States Supreme Court, in a case strikingly similar to the one before us, held that the state had not sustained its constitutionally imposed burden of proving that defendant’s confession was voluntary.

Sims testified that he was abused by the physician who examined him. The doctor admitted he saw defendant on the floor of his office and that he had a laceration over his eye. The doctor denied defendant had been abused in his presence, but he was unable to say whether state patrolmen had committed the alleged offenses against defendant. The state did not call the patrolmen to the stand. The court found that:

“. . . The State had every opportunity to offer the police officers, to contradict petitioner’s version of the events. Its failure to do so . lends support to the conclusion that their testimony would not, in fact, have rebutted petitioner’s.” 389 U.S. 404, 406, 88 S.Ct. 523, 525, 19 L.Ed.2d 634.

Because Sims was an illiterate with a third grade education whose mental capacity was decidedly limited and who had been in custody eight hours without access to family, friends, counsel or food, the court found that the state’s reliance on proper warnings made to petitioner prior to his confession was misplaced.

The defendant before us is an illiterate whose mental capacity is decidedly limited. He testified that he was kicked and beaten. His attorney revealed defendant had a swollen lip and a bruised leg. The State’s witnesses testified they saw no physical abuse applied to defendant. Officer Villar testified he locked defendant in a cell at the detective bureau. No testimony was adduced as to whether the key to the cell was available to the other officers who defendant claims beat him. Nor were these officers called to testify. Hence, defendant’s testimony that the other officers beat him is uncontradicted.

On December 2, 1974, two days before the hearing on the motion to suppress in the instant case, we handed down, on rehearing, State v. Monroe, 305 So.2d 902. There, the State had failed to call witnesses to contradict testimony of abuse by the accused. We there stated:

“In view of the burden on the state in such circumstances to prove affirmatively beyond a reasonable doubt the voluntary nature of the confession, the state is required to rebut specific testimony introduced on behalf of the defendant concerning factual circumstances which indicates coercive measures or intimidation; it cannot simply rely on general testimony of officers not present that they witnessed no coercion, intimidation, or other undue influence. State v. Simien, 248 La. 323, 178 So.2d 266 (1965); State v. Honeycutt, 216 La. 610, 44 So.2d 313 (1950); State v. Robinson, 215 La. 974, 41 So.2d 848 (1949). In the absence of such rebuttal testimony, as the cited decisions hold, the state has not borne its burden of proof, and the appellate court must reverse.
“In the present case, the testimony by the accused and by other of his witnesses shows coercive treatment outside of the presence of the officers who testified. No effort was made to rebut this testimony. Under the decisions noted, we must hold that the state did not bear its burden of proving beyond a reasonable doubt the free and (voluntary) nature of the written and oral confessions. . . .” 305 So.2d 902, 912-913.

We find, therefore, that the State has not borne its burden of proving the confession free and voluntary, and that Assignment of Error No. 2 has merit.

However, we have reviewed the other assignments of error and find them free of error. The record does not support Assignment of Error No. 1, in which defendant argues he lacked the mental capacity to waive his constitutional rights and make a voluntary confession.

Assignment of Error No. 3 complained that copies, not originals, of the “waiver of rights form” and the confession were introduced. One was a xerox copy and the other a carbon copy. The absence of the originals was explained and the copies were adequately identified as authentic reproductions.

Assignment of Error No. 4 complains of the manner in which the confession was reduced to writing. The objection goes merely to the weight to be given the evidence. Nor is the statement, if otherwise admissible, to be excluded because the interrogation of an illiterate accused is reduced to typewritten material by the interrogating officer.

Argument is made under Assignment of Error No. 5 that “fifty percent of the people serving on the jury venire were not women.” The assignment is based on a contention in the motion for new trial. No prior attack on the composition of the jury had been made. See C.Cr.P. 532 and 535. At any rate, Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), relied on by defendant herein, does not apply retroactively to juries empanelled prior to January 27, 1975, the date of the Taylor decision. Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975); State v. Zeno, 322 So.2d 136 (La.1975); State v. King, 322 So.2d 205 (La.1975).

Since we find no trial error except that on the motion to suppress, it is not necessary at this time to reverse the conviction and order a new trial, because the error might be eliminated upon another trial of the motion to suppress. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), where, in a habeas proceeding complaining of a state conviction, the applicant was afforded a hearing before a state judge to determine the admissibility of a confession. As in Jackson v. Denno, supra, we reserve to the trial judge the power to grant a new trial should he determine the confession inadmissible (a matter on the merits of which we express no opinion). If, on the other hand, the trial judge determines, after a hearing on the motion to suppress, that the confession is admissible, the right to appeal from such ruling is reserved to the defendant. In the absence of such an appeal, the conviction and sentence will be affirmed.

The case is, therefore, remanded to the district court for further proceedings in accordance with this opinion.

SANDERS, C. J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I find no abuse of discretion by the trial judge in concluding that the confession was free and voluntary. I also question the propriety of the procedure employed by the majority in the remand of this case to the trial court.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Charles KEYS.
    No. 57015.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      Dee D. Drell, Gravel, Roy & Burnes, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., R. Raymond Arthur, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Charles Keys, with possession of marijuana, second offense. The jury returned a verdict of attempted possession of marijuana, second offense. The trial judge sentenced defendant to pay a fine of $500 and costs, or, in default of payment, to serve six months in the Natchitoches Parish Jail, and to two and one-half years in the parish jail, suspended, and defendant was placed on supervised probation for the same term. On appeal, defendant relies upon four specifications of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

At trial, the State introduced into evidence Exhibit No. 1, consisting of marijuana found during a search of defendant’s apartment. Defense counsel objected to this evidence at the trial and argues before this Court that: 1) the evidence was unconstitutionally seized; and 2) the State failed to establish an adequate foundation regarding results of the laboratory tests of the marijuana and an adequate chain of custody. Defendant’s arguments are without merit.

The proper method of barring unconstitutionally seized tangible evidence from a trial is by a Motion to Suppress. LSA-C.Cr.P. Art. 703. Defendant filed no such motion. Additionally, neither in his objection, in his assignment of error, nor in his brief does defendant allege facts which would tend to show that the marijuana was unconstitutionally seized. When no Motion to Suppress is filed prior to trial, and no ground exists for allowing a belated filing, defendant waives his right to object to the constitutionality of the seizure. LSA-C.Cr.P. Art. 703, Official Revision Comment (d); State v. Womack, La., 283 So.2d 708 (1973); State v. Wallace, 254 La. 477, 224 So.2d 461 (1969); State v. Davidson, 248 La. 161, 177 So.2d 273 (1965).

Further, defendant contends that a proper foundation is lacking because there is no evidence to show that only Mr. Foley, the State’s expert, had access to the evidence after the evidence was stored. The State established that the officers turned the evidence over to Deputy Self, who locked up the evidence, and the following day, Deputy Self took the evidence to Mr. Foley "at the crime laboratory in Shreveport. (Tr. 90). Foley described the safeguards taken by the laboratory to maintain the integrity of the evidence. (Tr. 97).

The State established that it was more probable than not that the evidence introduced was that taken from defendant’s apartment. The foundation was sufficient, and defendant’s objections goes to the weight to be given to the evidence rather than its admissibility. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

Defendant’s allegations that the laboratory procedures used by the State were inadequate and that no showing was made that the evidence introduced at trial was marijuana are without merit. The expert witness testified that the evidence included marijuana seeds, leaves, and gleanings.

Assignments of -Error Nos. 1 and 2 are without merit.

ASSIGNMENT OF ERROR NO. 3

Here, defendant alleges that the court improperly limited the scope of his cross-examination of the State’s principle witness.

Defendant first sought to elicit the names of confidential informants from the witness. The court’s sustaining the objection to this line of questioning was correct. The State is required to reveal the names of its confidential informants only under extraordinary circumstances. No such circumstances are shown here. See State v. Dotson, supra.

Secondly, defendant assigns as error the court’s sustaining the State’s objection to the following question:

“Q Back to the search at 136A, you say you don’t remember Who all was with you over there ?
“A Well, it was the same
[DISTRICT ATTORNEY:] Your Honor, I am going to object to the search at 136A, unless Counsel can show some relevance between what went on at 136A and this 136C.
[THE COURT:] Objection sustained.
[DEFENSE COUNSEL:] May I be heard on that, your Honor ?
[THE COURT:] Yes, sir.
[DEFENSE COUNSEL:] This gentleman has testified that certain things happened and everything, and the state has alleged that my client possessed marijuana and so forth, I think it is very relevant as to possibly which apartment was searched first. We have two places, right there in the same thing, I want to make sure that they were even in the right apartment when they say that this man had something in his apartment. I think it is most relevant. Also, I think that I have him on cross, examination, and I can test his credibility as far as his memory and everything else. He remembers exactly that it was locked, and the exact dimensions of a closet and all that, and I want to test him further.
[THE COURT:] The objection is to relevancy and I don’t see the relevancy. The objection is sustained.”

The following testimony, elicited from the same witness prior to the objection, reveals that the witness had already answered the question and others related in subj ect matter:

“[DEFENSE COUNSEL:]
Q Mr. Delphine, you conducted your search at 136 C Boyd Street, didn’t you conduct another search at that same street address on this same day?
Yes, sir, we did.
Where was that search conducted?
In one of the front apartments.
What was the number of it?
136A.
Which one did you search first ?
136A.
Did you find any material there which appeared to be marijuana?
Yes, sir, we found some marijuana there.
Whose apartment was that ? ©
A subject by the name of Mr. Boyd. I think that was his name. >
Or was it Ford? a
It could have been Mr. Ford. <
How many places did you search over there on this particular day? a
Two. >
But you searched 136A first ? ©
Yes, sir, as I can recall. >
Who all was there when you made that search ? ©
I am not in a position to answer that question in detail, because I would have to refer to my notes, and I don’t have my notes in reference to that particular case with me at that time. >
But you did make that search first, is that correct ? ©
I can’t testify truly to that.
Well, you have already testified that you searched 136A first, are you changing your mind now ? a
Well, as I think about it, we did search there, I am testifying that we did conduct a search there, but as far > as it being first [or] second, I am thinking it is first. But to be honestly truthful with you, I would have to get my notes in reference to that particular case, I didn’t know we were going to go into that case today. Had I known it, I would h.we been properly prepared.
Q Did you have a search warrant for 136C?
A Yes, sir.”

Assuming, without deciding, that error was committed in sustaining the objection, the error was harmless in light of the fact that defendant secured the testimony sought. LSA-C.Cr.P. Art. 921.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant argues that his conviction and sentence for “attempted possession of marijuana, second offense,” is illegal since there had been no prior conviction for attempted possession of marijuana.

The trial court provided the jury with the following list of responsive verdicts: (1) Guilty of possession of marijuana, second offense; (2) Guilty of attempted possession of marijuana, second offense; or (3) Not guilty. The jury first returned a verdict of guilty of possession of marijuana, second offense. Then, it was discovered that the jury made a clerical error in omitting the word “attempted.” The court then accepted and filed a corrected verdict.

Although there was no objection to the list of responsive verdicts, objection was made that the verdict was not responsive to the charge when it was rendered and entered into the minutes of court. We have held that the verdict is part of “pleadings and proceedings” discoverable by mere inspection of pleadings and proceedings. LSA-C.Cr.P. Art. 920(2); State v. White, La., 315 So.2d 301 (1975).

LSA-R.S. 40:966(D) (2), under which defendant was charged, provides:

“(2) On a second conviction for violation of Subsection C of this section with regard to marijuana, the offender shall be fined not more than two thousand dollars and/or imprisoned with or without hard labor for not more than five years.

LSA-R.S. 40:979, relating to attempts, provides:

“Any person who attempts or conspires to commit any offense denounced and/or made unlawful by the provisions of this part shall, upon conviction, be fined or imprisoned in the same manner as for the offense planned or attempted, but such fine or imprisonment shall not exceed one-half of the punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”

It is clear that a verdict of attempted possession is responsive to a charge of possession. State v. Marshfield, 229 La. 55, 85 So.2d 28 (1956); State v. Nicolosi, 228 La. 65, 81 So.2d 771 (1955); State v. Broadnax, 216 La. 1003, 45 So.2d 604 (1950). We held in State v. Bouzigard, La., 286 So.2d 633 (1973), that the prosecution for multiple-offender possession of marijuana must include in the bill of information the charge that the defendant had been previously convicted of the same offense.

To obtain a multiple-offender conviction for possession of marijuana, the allegation that the crime is a multiple offense must be contained in the bill of information. The term “second offense” in the present bill of information denotes that, if the defendant is convicted of possession, it will be the second time that he has been convicted of the same charge. “Second offense” is descriptive of a multiple conviction. Therefore, when a verdict of attempted possession in a multiple-offender prosecution is returned, the verdict is responsive and controls the sentence applicable to the defendant.

In the instant case, since defendant is a first offender insofar as possession is concerned, the enhanced penalty for a second conviction of possession cannot be used. The use of the term “second offense” in the verdict must be regarded as surplusage, since the law does not provide an enhanced penalty for a second attempt. The defendant must be sentenced in accordance with LSA-R.S. 40:979 to no more than one-half the sentence prescribed in LSA-R.S. 40:966(D)(1), which provides :

“D. POSSESSION OF MARIJUANA. (1) On a first conviction for violation of Subsection C of this section with regard to marijuana, the offender shall be fined not more than five hundred dollars and/or imprisoned in the parish jail for not more than six months.”

We note that the defendant’s sentence exceeds the maximum sentence prescribed by LSA-R.S. 40:979 and LSA-R.S. 40:966(D) (1). Hence, the sentence must be set aside, and the case remanded for sentencing according to law.

For the reasons assigned, the conviction is affirmed; however, the sentence is annulled and set aside; the the case is remanded to the district court for resentenc-ing in accordance with law and the views herein expressed.