author: CALOGERO, Justice.

text:
    Dennis A. DRENNING v. KUEBEL, INC., in liquidation, et al.
    No. 57891.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.
    Patrick J. Browne, Montgomery, Barnett, Brown & Read, Phillip A. Wittmann, New Orleans, for defendants-applicants.
    Gibson Tucker, Jr., Tucker, Schonekas & Garrison, Charles A. O’Niell, Jr., New Orleans, for plaintiff-respondent.
   CALOGERO, Justice.

Dennis A. Drenning, a stockholder of Kuebel, Inc., a Louisiana corporation, brought this suit against Kuebel, Inc., In Liquidation, Robert C. Kuebel, Kenneth A. Kuebel, Conrad M. Kuebel and The Kuebel Company, a partnership consisting of the three aforementioned Kuebel brothers, to set aside a sale of corporation property by the liquidator to the partnership, dated July 18, 1972. His claims of illegality include, principally, a charge of constructive fraud and collusion on the part of the three aforementioned Kuebels and their cousin-attorney, Omer F. Kuebel, Jr., liquidator of Kuebel, Inc., In Liquidation. The facts preceding and surrounding the controverted sale are adequately set forth in the Court of Appeal opinion at 327 So.2d 571 (La.App. 4th Cir. 1976) and will not be repeated herein except insofar as considered pertinent. It will suffice for the present to state that the liquidator’s sale of the corporation’s principal asset, a leased commercial building in New Orleans East, was made to a partnership consisting of the three Kuebel brothers for a price of $227,000 ($95,512.47 cash with assumption of a mortgage balance) based upon an appraisal by one of the purchasing partners, a licensed realtor.

The trial judge, after hearing all of the witnesses, concluded that plaintiff had not been dealt with unfairly nor his minority stockholder rights violated, and that the liquidation of the corporation had been done properly and in accordance with law. The court specifically found that much of plaintiff’s difficulties stemmed from his own wilful refusal to cooperate in the liquidation of the corporation, and the court approved of the liquidator’s actions. Accordingly the trial judge dismissed plaintiff’s lawsuit at his costs.

The Court of Appeal reversed. Because of what it construed to be an apparent conflict of interest on the part of the liquidator (he was attorney for the three Kue-bels, adversary counsel as to Drenning with respect to settlement of jointly-owned property and corporate interests as well as liquidator of the corporation with fiduciary responsibility to all shareholders), the Court of Appeal determined that it should closely scrutinize the transaction. Finding that a liquidator is obligated to sell corporation assets at the best price available, and that Omer F. Kuebel, Jr., as liquidator, had sold this property to the three Kuebels for at least $28,000 less than its market value, (a figure based upon the post-sale trial appraisal of their own expert), the court nullified the sale from the liquidator to the Kuebel partnership. It declared that Dennis A. Drenning and Jo Ann Kuebel Dren-ning Williams were to be recognized as owners of an undivided one-eighth interest each in and to the property, ordered Dren-ning and his former wife to return to the liquidator any consideration tendered which they might possess resulting from the liquidation of Kuebel, Inc., and ordered the liquidator to render an accounting to them covering the liquidation of Kuebel, Inc.

Defendant’s application for writ of certio-rari was granted by this Court because of our concern about two aspects of the opinion below. First, we felt that it seemed legally inappropriate, upon voiding the sale of property from the liquidator to the Kue-bel partnership, to declare that Drenning and his former wife should be owners in indivisión of respective one-eighth interests. And, second we were concerned with the finding of the Court of Appeal that the sale from a liquidator should be nullified because, among other reasons, he did not sell the corporation assets at the best price available.

With respect to the latter consideration, it is something of an overstatement on our part to imply that the Court of Appeal nullified the liquidator’s sale simply because he sold the property for less than its market value. The Court of Appeal was probably equally impressed that the liquidator by failing to get an independent appraisal did not perform his duties as a fiduciary should, that is, with concern for the best interest of all of his shareholders. In any event, we find it unnecessary to determine whether the trial court or the Court of Appeal was correct in its assessments of the performance of the liquidator, and in its application of governing legal principles.

We believe that nullification of the sale ordered by the Court of Appeal was correct, not because of any proven fraud or collusion, not because of any clear showing that the liquidator breached his fiduciary duties, and not because the price received for the property was some $15,800, or $28,000 (or more) less than its fair market value. We pretermit resolving these legal and factual issues, and turn to the matter which we believe dictates the result in this case: the manner in which the sale was consummated.

In July 1972 there was an outstanding mortgage on the property in question securing payment of a $200,000 promissory note executed on April 5, 1968. The promissory note had been executed by the corporation and bore the personal endorsements of the four corporate shareholders including plaintiff Dennis Drenning. In July 1972 the outstanding balance on that promissory note and mortgage was $131,487.53. The purchase price of $227,000 was made up of $95,512.47 in cash and assumption of that outstanding balance on the promissory note. The Kuebel partnership paid the purchase price by assuming the $131,487.53 mortgage balance and by paying $95,512.47 which they were able to cover by depositing to the partnership checking account' (which had only a small balance), in addition to $22,000 of borrowed capital, three checks each in the sum of $24,436.65, checks which the three Kuebels had received from the liquidator apparently coincident with execution of the sale as their respective liquidating dividends.

While their means of raising the $95,-512.47 cash does indicate that the sale could not have been consummated without the active cooperation of the liquidator, we do not find in this fact alone a collusive impropriety which would require nullification of the sale. There is nonetheless a significant reason why we believe the sale by the liquidator was illegal and must be nullified.

The purchasers’ raising of the money with which to consummate the sale was accomplished by virtue of and coincident with a statutory violation by the liquidator which left the corporate shareholders, most particularly Drenning, liable as an endorser on the original April 5, 1968 promissory note.

La.R.S. 12:145(F) prohibits a corporation’s paying out liquidating dividends to stockholders while corporation debts are outstanding. At the time of the sale, that statute provided in pertinent part that:

“Any net assets remaining, after paying all debts and liabilities of the corporation, including all costs and expenses of the liquidation, shall be paid by the liquidator to the shareholders according to their respective rights and preferences.” (emphasis added)

Under the statute, a liquidator is required to assemble all assets, to pay all debts as far as the assets will permit, to terminate all liabilities, and only then to pay the surplus, if any, to the stockholders. McCoy v. State Line Oil & Gas Co., 180 La. 579, 157 So. 116 (1934); In re Dutch O’Neal Motors of Louisiana, Inc., 148 So.2d 468 (La.App. 4th Cir. 1963); Brown & Son v. Wholesalers, Inc., In Liquidation, 52 So.2d 321 (La.App. 1st Cir. 1951). The consequence of the transaction in the instant case was that final liquidating dividends were distributed to the stockholders, dividends which were derived from the proceeds from sale of the corporation’s sole significant asset, and yet the corporation remained liable on the 1968 promissory note as did the endorsers thereon, including Drenning. Whether this arrangement was collusive or fraudulent, or neither of these, it was at the very least illegally confected.

To validate the sale under these circumstances would be to sanction conduct of the liquidator and corporate shareholders in direct contravention of La.R.S. 12:145(F). We are compelled, therefore, to uphold the statute and hold that the sale of the property in question by Omer F. Kuebel, Jr. to the Kuebel Company was null and void.

We do, however, find merit in defendant’s assignment of error by which the Kuebels complain that the Court of Appeal should not have recognized Drenning and his ex-wife as having an undivided one-eighth interest each in the real estate in question. Neither Drenning nor his former wife ever had an undivided interest in the real estate in question. The owner, and vendor, was the corporate entity, Kuebel, Inc., In Liquidation. Hence, nullification of the sale of the property in question, absent a stipulation by the parties to the contrary, must result in revesting of the property in Kuebel, Inc., In Liquidation. The consideration tendered to Drenning and his former wife must, of course, be returned to the liquidator.

For the foregoing reasons the judgment of the Court of Appeal is affirmed insofar as it orders an appropriate and timely rendering of an account to plaintiff by the liquidator of Kuebel, Inc. and insofar as it orders plaintiff and his former wife to return to the liquidator, Omer F. Kuebel, Jr., any consideration tendered which has not been returned, resulting from the liquidation of Kuebel, Inc. The judgment, however, is reversed insofar as it recognizes plaintiff and his former wife as owners of an undivided one-eighth interest each in the subject property. It is further ordered that the sale from Kuebel, Inc., In Liquidation to The Kuebel Company of the property in New Orleans East Industrial Center Subdivision more fully described in the Court of Appeal opinion, be and is hereby declared null and void and of no effect.

AFFIRMED IN PART, REVERSED IN PART.

      . Mrs. Jo Ann Kuebel Drenning Williams, who is Drenning’s former wife and the sister of the three Kuebel brothers, was made an additional nominal party defendant. She submitted herself to the jurisdiction of the court for a determination of her rights as owner of a one-eighth interest in Kuebel, Inc. which she acquired through her community interest in Drenning’s 25% stock interest in the corporation. The three Kuebel brothers owned the remaining 75% stock interest, 25% each.

      . Kenneth Kuebel’s appraisal was $238,400, less an $11,400 realtor’s commission which the corporation would normally be expected to bear, or which, he argued alternatively, he was due. Plaintiff’s two appraisers, who were possibly not quite as qualified as defendants’, appraised the property at figures in the vicinity of $280,000. Defendants’ appraiser, Max Derbes, Jr., gave a July 1972 appraisal of $255,000 ($242,700 with discount for realty commission). Defendants contend that the Court of Appeal’s finding of a $28,000 difference between sale price and market value was erroneous, that the appropriate difference between the Drenning and Derbes appraisals was only $15,800. Their point in this regard may be well taken.

      . Since that time the provision has been amended to provide as follows:
      “Any net assets remaining after paying or adequately providing for the payment of all debts and liabilities of the corporation, including all costs and expenses of the liquidation any and all contingent liabilities of which the liquidator has knowledge, shall be paid by the liquidator to the shareholders according to their respective rights and preferences. The share of any shareholder who cannot be found shall be delivered to the collector of revenue in accordance with the provisions of R.S. 9:151.
      In the event that there are contingent liabilities for which provision has been made as above, the liquidator shall not be dismissed until the contingent liabilities and debts have been paid or settled in full.” Amended by Acts 1974, No. 610, § 1.

      . This might have been irrelevant to the Kue-bels who, as partners in the purchasing entity, specifically assumed payment of the note on which as corporate stockholders they had earlier been personal endorsers. The same cannot be said for Drenning who was not one of the purchasing partners, yet remained secondarily liable on the outstanding note of a corporation whose affairs had been concluded and whose assets had been disposed of.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Jerald C. CLIFT.
    No. 57959.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.

      Mac Allynn J. Achee, Wray & Robinson, Baton Rouge, for defendant-appellant
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., John W. Sinquefield, Asst. Dist. Atty!, for plaintiff-appellee.
   CALOGERO, Justice.

In February of 1974, Jerald Clift was stopped by police near an apartment where a search warrant was being executed and heroin was being seized. Clift was searched and found to be in possession of heroin. He was arrested for possession of heroin, a violation of La.R.S. 40:966(C), tried, found guilty as charged, and sentenced to four years at hard labor without benefit of probation or suspension of sentence. He now appeals that conviction and sentence, relying on ten assignments of error.

ASSIGNMENTS OF ERROR NOS. 1 AND 6.

Defendant Clift argues that heroin and marijuana seized from him by police were unlawfully obtained, and that the trial judge erred in denying his motion to suppress and in later admitting this evidence at trial. Defendant’s allegations raise two legal issues: did the police have reasonable cause to stop defendant, and, secondly, did the police have reasonable cause to search his wallet after they had arrested him for possession of marijuana?

As presented by the state, the facts show that at about eight o’clock on the evening of February 4, 1974, members of the East Baton Rouge Police Department, acting pursuant to a warrant, entered the apartment of Julius Sholars in the Lamplighter Apartments, an apartment complex in Baton Rouge. They arrested Sholars and two others in the apartment on the basis of heroin found on Sholars’ person, and proceeded to execute the warrant by searching the apartment in order to find heroin. While the search was being conducted by several officers inside the apartment, two men, Jack Mergen, then a narcotics investigator with the District Attorney’s Office, and Officer Clyde Porter of the Baton Rouge City Police, waited in the parking lot for the arrival of the police vehicle to take the three arrestees to jail and to detain anyone who sought to enter the apartment during the search. Just before nine o’clock a car pulled into the parking lot at the apartment complex, and a young man (the defendant) alighted and walked toward the building. Both Mergen and Porter recognized him as someone they had dealt with in previous narcotics investigations; Mergen remembered that he had personally arrested the man on a narcotics charge. The young man passed the point where the officers were standing and approached the door of Sholars’ apartment. When he was only a few feet from the door, the men testified that they called out “We’re narcotics officers; come here.” Instead of obeying the officers’ command, the young man van down the sidewalk away from the officers, and as he rounded the corner of the building, he threw an object into the bushes. One officer retrieved the object, which was discovered to be a bag containing marijuana, while the other officer captured defendant Jerald Clift and then arrested him for possession of marijuana. The two men took Clift inside the apartment and looked in his wallet for identification. After they found his driver’s license, they continued to search his wallet and found, folded in a small piece of aluminum foil, a small quantity of heroin. Defendant Clift was then charged with possession of heroin.

At the hearing on the motion to suppress, defendant testified that as he approached the door he veered away from it, and was walking down the sidewalk, going away from the door, when the two men called out “Halt.” Otherwise, defendant corroborated the officers’ testimony as to his flight, his dropping of the marijuana, and the search of his wallet by police.

Defendant argues that there existed no legal cause for the officers to stop him, and alternatively, that if. they did properly stop him, that they violated his constitutional guarantees when they searched his wallet.

If indeed defendant’s stop was improper, then his arrest was also improper and neither of the two illegal substances could properly have been admitted at his trial. State v. Truss, 317 So.2d 177 (La.1975); State v. Saia, 302 So.2d 869 (La.1974). This Court has repeatedly held that a person may not justifiably be detained by police unless there is a reasonable basis on which authorities believe that the person has committed, is committing, or is about to commit an illegal act. State v. Kinnemann, 337 So.2d 441 (La.1976), handed down September 13, 1976; State v. Cook, 332 So.2d 760 (La.1976); State v. Truss, supra ; State v. Saia, supra. Absent circumstances which connect the person with criminal conduct, an individual who is in a public place has a right to be left alone and to avoid encounters with the police. In order to determine whether the officers had sufficient knowledge to allow them to infringe on a citizen’s right to be left alone, a reviewing court will look to the circumstances of each case. State v. Cook, supra; State v. Saia, supra.

We believe that under the circumstances of this case there were ample grounds for police to detain defendant Clift at the time of the stop. First, defendant Clift was approaching a door which led only to an apartment where a search warrant was being executed, where three people were being detained following arrest, and where heroin had actually been found. Second, both Mergen and Porter recognized defendant as a person whom they had dealt with on previous drug arrests; Mergen had himself arrested defendant on a narcotics charge. Further, the two men testified that one purpose of their waiting outside was to safeguard the apartment while it was being searched by fellow officers. They were ensuring that the warrant could be conducted, and the coincident arrests concluded, without interference.

If the only evidence produced had been consistent with defendant’s testimony, that he had passed the apartment before he was ordered to halt, there would have been no legal grounds to stop him, because the fact that a drug user walks past a drug outlet does not, without more, present reasonable cause to believe that he has committed, is committing, or is about to commit a crime. See Harlan, J., concurring, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); State v. Saia, supra. Likewise, a stranger who is approaching a drug outlet or suspected drug outlet, cannot, without more, be forcibly detained by police. State v. Kinneman, supra.

The case before us, however, presents neither of these situations. The state’s witnesses, those evidently accepted by the trial court, testified that they called out to defendant Clift as, approaching, he drew near the door of the apartment (i. e., within two to three feet thereof). We find no reason not to accept the state’s testimony as did the trial judge. When we do so, we hold that when officers, who are protecting premises where criminal conduct has been discovered and where a search is being conducted under the authority of a warrant, see a man whom they recognize as a person involved with narcotics apparently about to enter the premises, the officers do have reason and authority to stop such person, if only to prevent his entrance or to inquire as to his intentions. Considering these circumstances, the officers properly pursued defendant who fled in response to their order. And when they saw him discard, in flight, a substance they believed to be marijuana, they properly arrested him.

We find, therefore, that the command, pursuit, and arrest were justified, there being no state or federal constitutional violations.

Defendant argues, alternatively, that even if the incipient encounter was justified and his arrest for possession of marijuana legal, the search of his wallet violated the fourth amendment because it was warrant-less, and did not fall under any exception to the warrant requirement.

The search of defendant’s wallet was made only after the lawful arrest for possession of marijuana. It is settled law that police officers, having legally arrested a person whom they have in custody, may search his person so as to discover and seize additional evidence of a crime. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1941).

Therefore, we find that defendant Clift’s first argument lacks merit, because both illegal substances were seized without violation of his rights.

ASSIGNMENT OF ERROR NO. 4.

Defendant complains that the prosecutor’s repeated references to defendant’s commission of another crime, possession of marijuana, and the introduction of the marijuana into evidence, were prejudicial to defendant and constituted reversible error.

The marijuana at issue here is that which defendant Clift threw down as he fled. It was the basis for his initial arrest, for possession of marijuana, and it led to his search and the discovery of the heroin which formed the basis for the instant prosecution.

Defendant argues that the prosecutor’s references to marijuana and the introduction of the drug were irrelevant to the prosecution, had no probative value, and prejudiced defendant. He urges that his motions for mistrial were improperly denied.

Article 770 of the Code of Criminal Procedure provides in pertinent part that:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.”

Under this article, if the evidence that defendant Clift possessed marijuana was not admissible at his trial, then upon defendant’s motion a mistrial was mandatory.

We find, however, that the evidence as to the marijuana possession was admissible.

The initial test that is used to determine the admissibility of any evidence is whether that evidence is relevant to the prosecution. La.R.S. 15:441. If evidence is relevant and otherwise admissible, the fact that it is prejudicial does not bar its admission. State v. Hatch, 305 So.2d 497 (La.1975). In its presentation of relevant evidence, the state may, if it wishes, present to the jury the alleged criminal act in its entirety. To hold otherwise would require that the state present only a part of the sequence of events which formed the criminal transaction.

Here, all of the events leading up to the arrest of the accused for possession of heroin occurred in an unbroken chain and within a few minutes of each other. Each occurrence formed a link which led directly to the defendant’s arrest for possession of heroin. This is not a case in which the accused was committing two unrelated criminal acts simultaneously, but a situation where the two criminal acts were related and intertwined to such an extent that the state could not have accurately presented its case to the jury without reference to both of them. Therefore we find that in this situation evidence of defendant’s possession of marijuana was admissible at his trial on the charge of heroin possession.

ASSIGNMENT OF ERROR NO. 9.

Defendant complains that the trial court erred when it refused to give defendant’s special jury charge on the subject of intent. Defense counsel requested that the trial judge give the charge that

“. . . an essential element of the offense of possession of heroin is that the accused must have knowingly and intentionally possessed the substance and the State must prove beyond a reasonable doubt that the accused had this guilty knowledge and intent that the substance that he possessed was heroin, otherwise the accused must be found not guilty of the offense of possession of heroin.”

The trial judge, in his instructions to the jurors, read the statutory definition of the crime and then he stated:

“Now, as you can see, the statute from its legal definition requires criminal intent; that is, guilty knowledge, so I will read you the legal definition of what criminal intent is. Article 10 of our Criminal Code provides as follows: Criminal intent may be specific or general. (1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. And (2) General criminal intent is present whenever there is specific intent and also when the circumstances indicate that the offender in the ordinary course of human experience must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. Now, since general criminal intent is required in order to convict, the State is required to prove that the accused had general and criminal intent, in order to find him guilty of the crime charged — of possession of heroin.”

The issue then, is whether the trial judge, who explained that general criminal intent is necessary before a finding of guilty, was also required to charge that “guilty knowledge and intent” were essential ingredients of the crime.

In this case the element of intent was a critical element. Defendant Clift testified that he had intended to purchase THC, a powdered derivative of marijuana, from the drug dealer, and that he believed that he had purchased this substance. He testified that he placed the substance in his wallet and later that same evening, at a friend’s house, he learned for the first time that the dealer was selling heroin, not THC. He immediately asked a friend to drive him to the dealer’s apartment to return the substance and it was as he approached that apartment that he was arrested. Defendant admitted that when he was searched he had heroin in his wallet. His defense was that he did not intend to have that substance, and that he was trying to return it when he was arrested.

Certainly the element of intent was critical in this case. However, Louisiana law requires only a showing of general intent, not specific intent, in order to establish that a person is guilty of possessing heroin. As we said in State v. Banks, 307 So.2d 594, 596 (La.1975):

“In spite of the words in R.S. 40:966 that ‘it shall be unlawful for any person knowingly or intentionally . . .’ to do the prohibited acts, the statute requires no more than general criminal intent.”

Because the trial judge did properly charge the jury that general intent was an essential element of the crime, that general charge included defendant’s request that both “guilty knowledge and intent” be required. Charging the jury that it must find general criminal intent sufficiently tells them that defendant must have had guilty knowledge in this case.

Because the general charge contained the information in defendant’s requested charge, the instructions contained no error, and the assignment lacks merit.

ASSIGNMENT OF ERROR NO. 13.

In this assignment, defendant urges that the trial court committed error when it denied defense counsel’s motion for a new trial on 'the grounds that there was no evidence as to the essential element of guilty knowledge and intent; that the state unlawfully introduced evidence of another crime (possession of marijuana); and that the trial court failed to admonish the jury and give special jury instructions requested by the defense. Two of these grounds merely repeat previously asserted contentions we have discussed in other assignments. See assignments of error numbers four and nine.

For the first time, however, defendant alleges here that there was no evidence as to the essential element of guilty knowledge and intent. This Court can find error in the trial judge’s denial of a motion for new trial on the basis that the state introduced no evidence of an essential element of the offense only when, upon our review of the record, we find no evidence of an element of the crime. State v. Mims, 330 So.2d 905 (La.1976). When we review this record, we do find evidence that the accused had the requisite guilty knowledge and intent. Although intent is a fact, it need not be proved as a fact. Instead, it can be inferred from the circumstances. La.R.S. 15:445. Here, the state introduced evidence that the illegal substance was taken from a section of defendant’s wallet which was removed from his pocket, and that he fled upon being told to come toward the narcotics officers. Of course, defendant Clift himself testified that he believed that the substance he possessed was heroin from the time that he was told by his friend that the man from whom he purchased the substance was selling heroin, not THC. He testified that he did not attempt to destroy the heroin, but instead drove to the dealer’s apartment so as to return it for a refund. See State v. Smith, 332 So.2d 773 (La.1976). Thus, the record offers some evidence that defendant had the intent to possess the illegal substance.

We have carefully considered the other assignments (evidence of prior arrest elicited at motion to suppress, assignment number three; hearsay attack on a lab report, assignment number seven; a claim that the prosecutor improperly attempted to impeach a state witness, and improperly attempted to question an unresponsive state witness, assignments numbers five and eight; an allegation that the prosecutor’s closing argument- contained error because he included in it evidence not in the record and a statement of the law, assignments numbers ten and eleven). We find these assignments to be without merit. Assignments numbers two and twelve were specifically abandoned in brief.

Accordingly, for the reasons stated above, we affirm defendant’s conviction and sentence.

SANDERS, C. J., concurs.

SUMMERS, J., concurs. Mentioning issues is not assigning reasons for rulings on them. ^

DIXON, J., dissents. The initial stop was without probable cause.

      . THC is the common designation for the chemical substance tetrahydrocannabinols.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Ivory GEORGE.
    No. 57975.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.
    Charles B. W. Palmer, Amite, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yo-kum, Dist. Atty., Joseph H. Simpson, Asst. Dist. Atty., for plaintiff-relator.
   SUMMERS, Justice.

Application of the State was granted to review the ruling of the trial judge at a habeas corpus hearing, in which he set aside the conviction and sentence of Ivory George on the ground that he was insane at the time of the offense, ordering him discharged and held under bond for retrial.

Ivory George was convicted for the June 17, 1969 murder of his wife and sentenced to death. On appeal to this Court the conviction and sentence were affirmed. State v. George, 262 La. 409, 263 So.2d 339 (1972). As a result of an application to the Supreme Court of the United States the death penalty was vacated, and the case was remanded to this Court for further proceedings. 411 U.S. 902, 93 S.Ct. 1532, 36 L.Ed.2d 192 (1973). This Court, in turn, remanded the case to the trial court and ordered George sentenced to life imprisonment. 277 So.2d 633 (La.1973).

While incarcerated in the Louisiana State Penitentiary, George, on June 8, 1973, applied to the District Court in St. Helena Parish for habeas corpus relief. He alleged that, prior to his trial in April 1970 on the murder charge, the trial court ordered an inquiry into his present insanity and his sanity at the time of the commission of the offense. By virtue of this authority he was examined at East Louisiana State Hospital by Dr. James E. Hill, the resident psychiatrist, who filed a written report dated January 5, 1970.

According to that report, George’s behavior indicated no evidence of psychotic thinking mechanism, hallucinations or delusions at that time. Based upon the history he gave to the doctor, at the time of the alleged offense George probably was “delusional and quite paranoid in regards to his wife, thinking that she was out to do him in and either kill him or drive him permanently crazy by putting something in his medication. . . .” The doctor felt that at the time of the alleged offense George was probably overtly psychotic. George’s prior history also disclosed that he had been treated at the Veterans Administration hospital and the Hammond Mental Health Clinic.

In the doctor’s opinion, pressure from George’s large family of fourteen children and his psychoneurotic gastro-intestinal difficulty proved formidable obstacles which his limited ability could not overcome, and he probably had a “psychotic break.” However, the report recommended that George did meet the criteria for triability, and he was returned to stand trial.

This report of the psychiatrist, which George contends would have supported a defense of insanity at the time of the commission of the offense at his April 1970 trial, was not admitted into evidence because an insanity defense was not permissible under a limited plea of not guilty. He alleged that he had been denied the right to change his “not guilty” plea to “not guilty and not guilty by reason of insanity.” The trial judge denied the change of plea on the basis of Article 561 of the Code of Criminal Procedure, defendant having delayed until after the jury was selected to move for the change. Because he was unable to make this insanity defense, George alleged in his habeas corpus application that he was deprived of due process.

The State filed an opposition to the application, alleging that the petition on its face set forth that George was not entitled to be set at liberty. The ground for the opposition was that the issue presented was res judicata, the question of the change of plea having been ruled on in the trial court and approved on appeal.

In the meantime, in reply to an inquiry from defense counsel for clarification of his January 5, 1970 report, Dr. Hill wrote on May 8, 1973, “I feel it would be inappropriate for me to rewrite my report. However, for the record, I am willing to state without reservations that it is and was my opinion that at the time of the alleged offense, Ivory George was psychotic ‘insane’ and therefore did not know right from wrong.”

In an August 7, 1973 hearing on the habeas corpus application the trial judge overruled the opposition, and granted a stay of the habeas proceedings to permit the State to apply for writs of review. - The application to review was denied in this Court on September 14, 1973.

Thereafter, on April 17, 1975, on application of defense counsel alleging that Dr. James E. Hill was ill, the trial judge ordered the taking of Dr. Hill’s deposition to preserve his testimony. The deposition was taken and eventually considered at a hearing on the application for habeas on May 3, 1976 at which time the trial judge granted the writ of habeas corpus ordering George discharged and held under $10,000 bond for retrial. No reasons were assigned for this ruling.

The sole issue considered by the trial judge in granting the writ was the insanity of the defendant at the time of the offense. Aside from the January 5, 1970 report of Dr. Hill and his letter of May 8, 1973, which have heretofore been mentioned, Dr. Hill’s deposition of May 12, 1975 was the only evidence before the judge on the question of defendant’s insanity at the time of the offense.

In his deposition, which this Court has reviewed, Dr. Hill steadfastly adhered to his opinion of January 5, 1970 and its clarification by letter of May 8, 1973 to the effect that defendant was insane and did not know the difference between right and wrong at the time of the offense.

Dr. Hill is a psychiatrist of considerable experience and impressive qualifications in the field of forensic psychiatry. His testimony was sincere and uncontradicted by other experts in the field. While an opinion on this question would be more persuasive if based upon more extensive background information and more thorough examination of the subject, the Court is aware of the limited facilities available to Dr. Hill at the tíme. In the absence of countervailing evidence, Dr. Hill’s opinion must be considered acceptable. The report of January 5, 1970 is prima facie evidence of the facts recited in such report and of the correctness of the findings of the commission. La.Rev. Stat. 15:425; La.Code Crim.Pro. art. 644 (1966).

In this State, and in modern civilized countries throughout the world, an insane person is not punished for conduct otherwise considered criminal. Louisiana’s rule of law regarding insanity is found in Article 14 of the Criminal Code in these words:

“If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.”

Considering this record and the law of this State, there is no error in the ruling of the trial judge.

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


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Lonnie Carl MAY.
    No. 57978.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.

      R. Bradley Lewis, Talley, Anthony, Hughes & Knight, Bogalusa, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., John N. Gallaspy, Second Asst. Dist. Atty., for plaintiff-appel-lee.
   DENNIS, Justice.

Lonnie Carl May was charged by bill of information with having participated in the April 27, 1975 armed robbery of Virginia Duncan, an employee of the Quick Shop Grocery located in Bogalusa, Louisiana, in violation of La.R.S. 14:64. May pleaded not guilty to the charge, and was subsequently convicted by the unanimous verdict of a twelve-man jury. The trial judge sentenced defendant to serve sixteen years at hard labor. May relies on fifteen of sixteen assigned errors for reversal of his conviction and sentence, having abandoned one of his assignments of error.

Two co-indictees, Joe Louis and Charles Sims, Jr., pleaded guilty to armed robbery, and were sentenced to serve twelve and nine years respectively. According to the State’s theory of the case, Joe Louis entered the store armed with a gun, and robbed Virginia Duncan, an employee at the store; Charles Sims, Jr., also armed, stayed outside as a lookout, and Lonnie Carl May, the present defendant, drove the getaway car, in an attempt to make good their escape. At trial, defendant took the stand and testified that, although he was with Louis and Sims both before and after the robbery, he did not agree to or participate in the commission of. the crime. May claimed he left Sims and Louis before they went to the Quick Shop Grocery, in order to purchase some fried chicken at a nearby fast-food store and that when he returned to the car he merely waited for Sims and Louis, not knowing they were engaged in a robbery. Once they returned, May asserted, he drove away, not even aware that a robbery had occurred.

To establish May’s complicity in the offense, the State relied principally on the testimony of May’s alleged co-participant, Joe Louis. Louis testified that prior to the robbery, he, Sims and May had discussed robbing a store, though not specifically the Quick Shop Grocery. In Louis’ words, “we’re going out and make some money.” When Louis and Sims returned from the store, May was waiting, with the motor running. And, according to Louis’ testimony, after the robbery the money was divided among all three.

The State produced a witness, fourteen year old Joseph Magee, who claimed to have seen the defendant near the car by the Quick Shop Grocery, holding a gun and a bag. Two other unidentified men were, according to Magee’s testimony, sitting in the car, and the car’s motor was running.

ASSIGNMENT OF ERROR NO. 1

In his motion for bill of particulars, defense counsel asked the prosecutor to “ * * state specifically the facts which show the nature and causes of the charge or charges against the defendant.” The State responded that no answer was required. The trial court found the State’s response sufficient.

Defendant urges that the trial court erred in not requiring the State to respond to his request, citing Article I, § 13 of the Louisiana Constitution of 1974, and the Louisiana Code of Criminal Procedure article 484. Of course, these provisions entitle an accused to be informed of the “nature and cause” of the charges brought against him.

While there is no doubt that an accused is to be informed of the nature and cause of the charges lodged against him, e. g., State v. Miller, 319 So.2d 339 (La.1975), the rights vouchsafed by the foregoing provisions do not include discovery of the State’s evidence or of the details of the State’s case. State v. Jenkins, 338 So.2d 276 (La.1976); State v. Huizar, 332 So.2d 449 (La.1976); State v. Nix, 327 So.2d 301 (La.1976); State v. Knight, 323 So.2d 765 (La.1975); State v. Major, 318 So.2d 19 (La.1975).

In the present case the bill of information together with the bill of particulars informed the defendant of the crime charged, the identity of the alleged victim, and the place and approximate time that the offense allegedly occurred. Defendant was adequately informed of the nature and cause of the charges brought against him. Thus, we find no abuse of the trial court’s discretion in refusing to compel the State to respond to defendant’s request by furnishing him additional details and facts relative to his participation in the commission of the crime. State v. Alexander, 334 So.2d 388 (La.1976); State v. Vince, 305 So.2d 916 (La.1974).

ASSIGNMENT OF ERROR NO. 2

Prior to trial, defendant filed a motion for the production of all exculpatory evidence and information under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The State disclaimed possession of exculpatory evidence. Defendant argues that “[IJeaving the decision as to what [evidence] is favorable and what is unfavorable to the prosecutor simply is not sufficient to implement the requirements of Brady.” Defendant urges that the trial court be required, either to conduct an in camera examination of the State’s files, as suggested by the United States Court of Appeals in Flanagan v. Henderson, 496 F.2d 1274 (5th Cir. 1974) and Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968), or allow the defendant through counsel to examine them. These same arguments were rejected by this Court in State v. Major, 318 So.2d 19 (La.1975), wherein we held:

“ * * * [A] criminal conviction is not subject to reversal merely because the State did not, before, during or after trial, open its evidence file to defense or court scrutiny.” 318 So.2d at 21.

A more serious question is presented by this defendant’s assignment of error, for not only did defendant generally ask for exculpatory material which might be in the State’s possession, defendant also asked with particularity for a letter allegedly authored by Charles Sims, Jr., a co-indictee, which defendant claimed contained statements by Sims that he and Louis were the robbers and that Lonnie Carl May did not participate in the crime. The State never specifically denied having this letter. The State’s sole response to defendant’s entire “Brady motion” was the general assertion that it had no exculpatory evidence. The trial judge felt constrained to believe the prosecutor’s assertion, and therefore overruled defendant’s motion for production of exculpatory material in its entirety.

In Brady v. Maryland, supra, the United States Supreme Court held that the suppression of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution. However, in determining what is material evidence in the myriad fact situations in which suppression claims arise, courts and scholars have experienced great difficulty in defining a standard of general applicability. See cases cited in Annotation, Withholding or Suppression of Evidence by Prosecution in Criminal Case as Vitiating Conviction, 34 A.L.R.3d 16 (1970); Comment, The Prosecutor’s Constitutional Duty to Reveal Evidence to Defense, 74 Yale L.J. 136 (1964); Comment, Brady v. Maryland and the Prosecutor’s Duty to Disclose, 40 U.Chi.L.Rev. 112 (1972). In response to these gropings the United States Supreme Court has again spoken and, in doing so, has enunciated some principles applicable to the instant case.

The high court, in United States v. Agurs, - U.S. -, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) held that

“ * * * Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.” 96 S.Ct. at 2399.

If the letter requested by defendant exists and contains statements of the nature he claims, there is at least “a substantial basis for claiming materiality exists,” and the prosecutor should have either furnished the letter or have submitted the problem to the judge, instead of making the general response that he held no exculpatory evidence. In addition to Brady v. Maryland itself, there are many cases in which courts have held improper the non-disclosure of a statement exculpating the defendant given to the prosecution by a participant in the crime charged. E. g., People v. Kucala, 7 Ill.App.3d 1029, 288 N.E.2d 622 (1972); Nash v. Purdy, 283 F.Supp. 837 (D.C.Fla.1968); Smith v. Urban, 245 Ark. 781, 434 S.W.2d 283 (1968); People v. Cotto, 28 App.Div.2d 1116, 285 N.Y.S.2d 247 (1967); Wiman v. Powell, 293 F.2d 605 (5th Cir. 1961). Cf. State v. Cahill, 125 N.J.Super. 492, 311 A .2d 760 (1973); Nelson v. State, 59 Wis.2d 474, 208 N.W.2d 410 (1973). Although admissibility of the evidence sought alone does not determine whether “a substantial basis for claiming materiality exists” it is at least a factor to be considered. Under Louisiana law there are several instances in which a confession or statement by an alleged confederate exonerating a defendant could be used as admissible evidence by the defense: for impeachment purposes if the author of the statement is called by and testifies favorably for the State; for purposes of impeachment if the witness is called by defense and gives testimony that surprises or displays hostility toward defendant as provided by La.R.S. 15:487; for corroboration of the witness’s testimony, in the event the State attempts to impeach him, in accordance with La.R.S. 15:496; for purposes of calling the witness on cross-examination under Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), which held, on somewhat similar facts, that a state’s rules excluding hearsay and prohibiting a party from impeaching his own witness must yield to defendant’s right to a trial in accord with traditional and fundamental standards of due process.

Additionally, we observe that Sims, had he been called by the defense, could have refused to testify as to the events surrounding the crime by exercising his constitutional privilege against self-incrimination. United States Constitution, Amendment 5; Louisiana Constitution Article I, § 16 (1974). Although we need not resolve the question at this time, it is at least arguable that the letter, had it been made available to the defendant, would have been admissible despite its hearsay character as a declaration against Sims’ penal interest, Sims’ testimony being “unavailable” because of his exercise of his constitutional privilege. See State v. Gilmore, 332 So.2d 789 (La. 1976).

Therefore, we conclude that the trial court fell into error in not requiring the prosecutor to respond to the specific request of the defendant for the letter by stating whether the State had knowledge or possession of it, and, if so, by not requiring the prosecutor to furnish it to defendant or submit it to the court for a determination as to whether it constituted material to which defendant was not entitled. Nevertheless, the error may not be reversible, because the United States Supreme Court, in United States v. Agurs, supra, in delineating the “significant and practical difference between the pre-trial decision of the prosecutor [and, at times, the judge as we read the opinion], and the post-trial decision of the judge” on the issue of disclosure stated:

“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that [in a post-trial hearing by the court] if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” 96 S.Ct. at 2401-02.

Accordingly, we will remand the case to the trial court for it to determine, in the light of United States v. Agurs, supra, and our opinion herein, (1) if there was a suppression of subject matter requested for which there was a substantial basis for claiming that materiality existed, and, if so, (2) whether the material suppressed by the State would upon its evaluation in the context of the entire record create a reasonable doubt as to the defendant’s guilt. Should the trial court find such a reasonable doubt exists after its evaluation, a new trial will be required. If the trial court finds there was no suppression of material which should have been disclosed, or if it finds, after an evaluation as described, there is no reasonable doubt as to the defendant’s guilt, the conviction and sentence will be affirmed. Of course, the proceedings and determinations of the trial court will be subject to review by this Court on appeal.

ASSIGNMENT OF ERROR NO. 3

Prior to trial defense counsel unsuccessfully attempted to interview Patrolman Willis Yarbrough, one of the police officers who investigated the crime, and Rose Sara-ceno, an eye witness to the crime and an employee of the Quick Shop Grocery. Defendant, relying on State v. Hammler, 312 So.2d 306 (La.1975), filed a motion to compel these witnesses to speak with defense counsel, or in the alternative, to bar their testimony at trial. Defendant contends the trial court erred in overruling his motion. In State v. Hammier, this Court declared,

“It is our opinion that the prosecuting attorney’s conduct in advising the witnesses not to speak to defense attorneys significantly interfered with the defendants’ constitutionally guaranteed right to effective counsel because their counsel were denied the opportunity to adequately prepare a defense.” 312 So.2d at 309.

However, the transcript of Yarb-rough’s testimony at the hearing on defendant’s motion, convinces us that, while his superiors did not encourage him to talk with counsel, neither did they advise or instruct him to refuse to talk with counsel. Therefore, defendant’s reliance on State v. Hammier is misplaced.

Likewise, the record indicates that Rose Saraceno declined to meet with counsel on the instruction of her employer, Mrs. Scianna, and not because of instructions by the police or the district attorney’s office.

Thus, defendant’s third assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

Prior to trial defendant filed a motion for discovery, asking for “ * * * any and all information and evidence in the possession of the State relating to the alleged offense or offenses of which the defendant is charged * * *Defendant assigns as error the trial court’s ruling denying that motion.

This Court has consistently held that the State need not produce its evidence for pre-trial inspection by the defense. State v. Ball, 328 So.2d 81 (La.1976); State v. Nix, 327 So.2d 301 (La.1976); State v. Howard, 325 So.2d 812 (La.1976); State v. White, 321 So.2d 491 (La.1975); State v. Major, 318 So.2d 19 (La.1975). Such broad discovery is not compelled as a matter of due process.

This Court is not prepared at this time to depart from those decisions and to order full discovery in criminal cases. Defendant’s fourth assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 5

During voir dire examination the trial judge refused to allow defense counsel to propound the following questions to the prospective jurors:

“Now, would any member of the jury require the Defense to present evidence to explain some evidence of guilt?
U * * $
“Would any member of the jury have a tendency to believe the testimony of a police officer over the testimoney [sic] of a lay-witness, solely based on the fact that he is a police officer? * * *
* * *
* * * [Do any of you prospective jurors believe] that a man in this country could be convicted when he was innocent.”

Defendant contends the trial court’s rulings constituted reversible error.

While the jurisprudence of this State gives the trial court discretion to limit the scope of voir dire examination, State v. Nix, 327 So.2d 301 (La.1976); State v. Jones, 320 So.2d 182 (La.1975), the trial judge must give wide latitude to counsel in the conduct of voir dire examination in order to effectuate the accused’s rights embodied in Article I, § 17 of the Louisiana Constitution (1974), and La.Code of Criminal Procedure article 786. State v. Monroe, 329 So.2d 193 (La.1976). See also, State v. Jones, 282 So.2d 422 (La.1973); State v. Hills, 241 La. 345, 129 So.2d 12 (1961).

A careful reading of the entire record of the voir dire examination convinces us that counsel was able to get his point across by rephrasing the questions. Under the circumstances we find that the trial judge did not abuse his discretion in this case.

In view of the foregoing, defendant’s fifth assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial court erred in denying his challenge of prospective juror Malcolm Adams for cause. During the course of voir dire, it was established that Adams lived next door to Mrs. Scianna, the owner of the Quick Shop Grocery, and in the same neighborhood as Rose Saraceno, one of the employees in the store at the time it was robbed. Because the trial judge refused to excuse Mr. Adams for cause, counsel was required to exercise one of defendant’s peremptory challenges. Defendant subsequently exhausted his peremptory challenges, and was therefore compelled to accept as a juror an owner of a small grocery store similar to the one allegedly robbed by the accused — a sound basis in counsel’s view for exercising a peremptory challenge.

Defendant relies on La.Code of Criminal Procedure article 797 and urges that “[i]t is reasonable to conclude that Mr. Adams would have been influenced in arriving at a verdict by the fact that the owner of the store allegedly robbed was his next door neighbor and that another member of his neighborhood was one of the clerks in the store at the time of the robbery. * * * ”

Mr. Adams testified, however, that he did not know Mrs. Scianna and Rose Saraceno well and his acquaintance with them would not affect his partiality.

We find no abuse of the judge’s discretion in this instance. See, State v. O’Conner, 320 So.2d 188 (La.1975).

For the foregoing reasons, defendant’s sixth assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 7 and 8

In the presentation of its case against the accused, the State called Sergeant Donald Penton of the Bogalusa Police Department. In the course of his examination of Sgt. Penton the State’s attorney asked him whether Joseph Magee, a fourteen year old witness previously called by the State, had identified the car used by the robbers when he was interviewed by the police at the station. Sgt. Penton testified that Magee identified the car in which the defendant was arrested as the one he observed at the Quick Shop Grocery. Defense counsel objected to Sgt. Penton’s answer as hearsay. The State’s attorney correctly argued that Magee had previously testified he identified the ear at the police station, and that Sgt. Penton’s testimony was merely corroborative of Magee’s earlier testimony. The trial court overruled his objection on the ground that the testimony was part of the res gestae, and therefore not subject to the hearsay ban. In this respect the trial judge was in error. “Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. * * * ” (Emphasis supplied.) La.R.S. 15:447. That the witness’s identification of the car took place shortly after the event does not make that identification part of the res gestae. According to La.R.S. 15:448, the res gestae consists of the circumstances and declarations which are “ * * * necessary incidents of the criminal act, or immediate concomitants of it. * * * ” (Emphasis added.) Magee’s identification of the car was neither the result of the immediate pressure of the occurrence, nor a necessary incident of the criminal act or an immediate concomitant thereof. Time alone is not the measure of res gestae.

Defendant assigns as error the trial court’s ruling in admitting the hearsay identification testimony.

A similar issue was presented to this Court in State v. Ford, 336 So.2d 817 (La. 1976), and in that case we declared that assertive acts as well as verbal communication were hearsay, and excludable under the general hearsay ban. La.R.S. 15:434. In so holding we specifically overruled State v. St. Amand, 274 So.2d 179 (La.1973). Nevertheless, we held in Ford that the State’s introduction of hearsay identification testimony was not reversible error because it was merely cumulative and corroborative of prior testimony given by the de-clarant. See also, State v. Smith, 285 So.2d 240 (La.1973); State v. Maiden, 258 La. 417, 246 So.2d 810 (1971).

State v. Ford, supra, is controlling in the present case. Joseph Magee had previously testified as to his identification of the automobile. Sgt. Penton’s hearsay testimony as to Magee’s identification of the car was merely cumulative and corroborative of that prior testimony. The erroneous introduction of hearsay evidence was harmless. La.C.Cr.P. art. 921.

The State’s attorney also attempted to elicit from Sgt. Penton testimony concerning Magee’s identification of the accused at the station. Defendant’s objection that the question was improper interrupted the witness’s testimony so that the jury learned only that Magee identified someone at the police station. The State’s attorney, after the argument on the objection, neglected to renew the inquiry; he never asked Sgt. Penton if Magee identified Lonnie Carl May.

Had Sgt. Penton clearly related to the jury Magee’s identification of the defendant, then reversible error would likely have been committed under the rule announced by a majority of this Court in State v. Jacobs (La.1976), Mo. 57,629 because Magee because Magee had not previously testified as to his identification of the accused. Thus the rule of State v. Ford, supra, would have been inapplicable.

For the reasons given defendant’s seventh and eighth assignments of error present no ground for reversal.

ASSIGNMENT OF ERROR NO. 9

This assignment of error, having been neither briefed nor argued is abandoned. See, State v. Russell, 334 So.2d 398 (La.1976).

ASSIGNMENT OF ERROR NO. 10

Defendant assigns as error the trial judge’s refusal to read to the jury the following requested special charge:

“That armed robbery is a crime of specific intent and that in order to be a principal to armed robbery one must have had specific intent to commit the acts which would make him a principal to armed robbery.”

The trial judge, concluding that armed robbery is a crime of general intent, denied defendant’s request on the ground that the instruction was an incorrect statement of the law.

La.R.S. 14:64 defines armed robbery as “the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” La.R.S. 14:67 defines theft as “the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.” (Emphasis supplied.) La.R.S. 14:11 in pertinent part provides “ * * * in the absence of qualifying provisions, the terms ‘intent’ and ‘intentional’ have reference to ‘general criminal intent.’ ” Of course, La.R.S. 14:10 defines both general and specific criminal intent.

Based on our reading of these provisions we are unable to conclude, as did the trial judge, that armed robbery is not a specific intent crime. Nevertheless, we find that the trial judge’s refusal to charge the jury as requested is not reversible error in this case.

In its general charge, the trial court included the following comments:

“ * * * In order, therefore, that the crime of robbery be complete, it is necessary as in theft that the accused should have taken something of value from the prosecuting witness, and it also must be taken with the intention of depriving the other permanently of the thing taken, and with the intention of appropriating it to the taker’s own use. In plain words, it must be taken by the accused with the intent of stealing it. * * *
“ * * * It is essential that the State should prove not merely the use of force or intimidation and the taking of the thing of value from the prosecuting witness, but also that the taking was with the intent to commit a theft. Thus, if the thing is taken under a claim of right, though it be done by intimidation, the act will not be robbery. * * * ”
u * * *
“ * * * I read you the law of principal; that is, what the law. says: ‘All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission or directly or indirectly counsel or procure another to commit the crime are principals.’ * * *”

La. Code of Criminal .Procedure article 807 in pertinent part provides:

<< * * *
“A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”

In the present case the substance of defendant’s requested charge was conveyed by the judge’s general charge, which satisfied the requirements of law and properly summarized the rule as to culpability of principals. Under article 807, the trial court properly refused defendant’s charge.

Defendant’s tenth assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 11

Defendant urges that the trial court committed reversible error in refusing to give the following requested special charge:

“Conviction of a crime cannot be based on the uncorroborated testimony of a purported accomplice if such testimony is self-contradictory, uncertain or improbable.”

As a general principle of Louisiana law, a conviction can be sustained on the uncorroborated testimony of a purported accomplice, although the jury should be instructed to treat such testimony with great caution. State v. Matassa, 222 La. 363, 62 So.2d 609 (1953).

[22] The trial judge gave the following instruction which we find sufficiently covers the charge requested by the defendant:

“ * * * An accomplice is defined as one who is associated with another in the commission of a crime and an accomplice is a competent witness, either for the State or for the defendant. Whether the accomplice has been convicted or not, whether he has pleaded guilty or nol praus [sic] or dismissal has been entered into, or whether he be joined in the same Bill of Information or indictment with the person on trial or not, corroboration is desirable, but it is not always indispensible. The jury may convict on his uncorroborated testimony. And while it is not the rule of law, it is rather the rule of our experience in dealing with that class of testimony that while you may convict upon the uncorroborated testimony of an accomplice, still you should act upon his testimony with great caution, subject to great careful examination of the weight of the other evidence in the case. And you are not to convict upon such testimony alone unless satisfied, after a careful examination of its truth, that you feel you can safely rely on it. What the law means by corroboration of the testimony of an accomplice is not merely the corroboration of the accomplice’s narrative and the mere details of how the crime was committed or the crime charged was committed, but some real and independent corroboration intending to implicate the defendant in the commission of the offense charged. It is not sufficient to corroborate an accomplice as to the facts of the case. Generally, he should be corroborated as to some material fact which tends to prove that the accused was connected with the crime that’s charged. * * *

The trial court’s refusal to give the requested charge was proper under La.Code of Criminal Procedure article 807.

Defendant’s eleventh assignment of error therefore lacks merit.

ASSIGNMENT OF ERROR NO. 12

During the course of closing argument the State’s attorney made several statements characterized by the defendant as improper and prejudicial.

Defendant first refers to the following statement made by the prosecutor after he had summarized the State’s evidence against the accused:

“ * * * Now, so far as I’m concerned, after hearing that evidence, he is guilty, and there is no question in my mind about it. * * * ”

Defendant contends this comment mandates reversal as a prohibited assertion of the prosecutor’s personal belief in the guilt of the accused. We disagree.

Admittedly the personal opinions of the prosecutor as to the guilt of the accused have no place in proper argument before the trier of fact. See, La. Code of Professional Responsibility, Ethical Consideration 7-24, and Disciplinary Rule 7-106(C); ABA Standards, The Prosecution Function, § 5.8 (1971). The jurisprudence of this State clearly reprobates the prosecutor’s interjection of his personal opinion as to the accused’s guilt where the prosecutor intimates that evidence not presented to the jury points to the defendant’s guilt. State v. Kaufman, 304 So.2d 300 (La.1974); State v. Landry, 262 La. 32, 262 So.2d 360 (1972); State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964).

However, the State’s attorney can unquestionably comment on inferences supported by evidence adduced at trial. State v. Thomas, 325 So.2d 593 (La.1976); State v. Reeves, 263 La. 923, 269 So.2d 815 (1972); State v. Curry, 262 La. 280, 263 So.2d 36 (1972).

Determining whether specific language used by the prosecutor falls within the sphere of impermissible argument is no simple task, as the precise line between permissible and impermissible argument is difficult to fix. In the present case the allegedly improper statement was preceded by a lengthy recitation of the facts adduced at trial. While the comment, when taken out of context, appears to be an impermissible statement of the prosecutor’s personal belief in the guilt of the accused, we find the statement, .taken in context, is not of the character necessitating reversal. The State’s attorney did not imply to the jury that he had personal knowledge of facts not presented to them indicating the defendant’s guilt.

The defendant also argues that the prosecutor, in telling the jury about the serious risks involved in the perpetration of armed robbery, improperly interjected personal comments and opinion. Defendant cites the following comments by the State’s attorney:

“ * * * I thought during this case, ‘What if I had been there?’ I probably wouldn’t have done anything, I hope. I probably would just step back and keep my mouth shut. But what if I had gotten riled and wanted to try to stop these fellows? I’d probably be dead. That’s what would have happened. There’s not enough money in wages or profit to pay these people or to pay any of you to undertake this kind of risk. Now, that’s why I feel strongly about these cases. * * *

These hypothetical comments were not sufficiently inflammatory and beyond the realm of fair comment on the evidence to warrant a reversal. See, State v. Daniels, 262 La. 475, 263 So.2d 859 (1972).

Defendant further urges that the State’s attorney improperly commented on the credibility of the State’s witnesses. The comments alleged to be offensive are the following:

“ * * * Now, we had one witness here that I was especially proud of. He was a very brave little thirteen year old boy. Now, that’s a brave little man because he has to live in Bogalusa where these tough fellows live too.
u * * *
“You heard this little 13 year old fellow get up here and testify. Now, most of you have children. I have three. Mrs. Weaks has taught two generations of our children in Bogalusa, and you can tell when a kid is lying. You can tell. One of them comes in fibbing to me, it’s written all over his face.
u * * *
“You saw this little fellow testify. And if he wasn’t telling the truth, then I’m a fool. That’s all I have to say about * * * »

It is permissible for the prosecutor to argue facts appearing in the record which bear on the credibility of witnesses. State v. West, 319 So.2d 901 (La.1975). Of course, the prosecutor cannot properly refer, explicitly or implicitly, to facts bearing on witness credibility which have not been presented to the jury. State v. Brown, 319 So.2d 409 (La.1975); United States v. Lamerson, 457 F.2d 371 (5th Cir. 1972). We do not find the comments herein objected to sufficiently improper to require a reversal.

Additionally, we observe that similar argument was utilized by defense counsel in his closing argument:

“ * * * Now, is Joe Lewis [Louis] telling the truth? I submit to you that he is not. * * * Joe Lewis [Louis] lied, and the reason he lied is he robbed that store. His testimony was affected by what he thought would happen to him if he didn’t convict the other people.
u * * *
“[Lonnie Carl May] did not give Joe Lewis [Louis] a gun. Joe Lewis [Louis] lied when he said that. * * * ”

We conclude, for the foregoing reasons, that defendant’s twelfth assignment of error does not demonstrate reversible error.

ASSIGNMENTS OF ERROR NOS. 13,14 and 15

Defendant contends the trial court erred in denying his motion for new trial based on the alleged insufficiency of the evidence to support the verdict, on the failure of the trial judge to order Officer Yarbrough and Rose Saraceno to talk with defense counsel, and on the ground that the jury was confused as to whether the accused was charged as a principal or an accessory.

The trial judge’s refusal to order Officer Yarbrough and Rose Saraceno to talk with defense counsel has been discussed in this Court’s treatment of assignment of error number three, and we therein found no reversible merit in the position taken by the defendant.

Defendant’s motion for a new trial, insofar as it was based on the alleged insufficiency of the evidence to support the verdict obligated the trial judge, independently of the jury’s determination, to pass on the sufficiency of the evidence. State v. Landrum, 307 So.2d 345 (La.1975); State v. Jones, 288 So.2d 48 (La.1974); State v. Gilbert, 286 So.2d 345 (La.1973); State v. Daspit, 167 La. 53, 118 So. 690 (1928).

If we were able to determine from the record that the trial judge independently had passed on the sufficiency of the evidence, in accordance with the duty imposed upon him by La.Code of Criminal Procedure article 851(1), defendant’s contention that the verdict was contrary to the law and the evidence would present nothing for our review unless no evidence appeared in the record supporting one of the essential elements of the offense. State v. Landrum, supra; State v. Jones, 303 So.2d 486 (La.1974); State v. Gilbert, supra.

We find some evidence in the record as to each element of the offense which, if believed, would support defendant’s conviction. However, there is nothing in the record, beyond the trial judge’s mere denial of the motion for new trial, to indicate whether the trial judge independently decided that the evidence was sufficient to support the verdict, or whether he relied on the jury’s determination of the defendant’s guilt.

Although this is not a case in which the record affirmatively indicates that the trial judge failed to decide independently the question of the sufficiency of the evidence, as was the case in State v. Jones, 288 So.2d 48 (La.1974), wherein we reversed and remanded in order for the trial judge to make that ruling, neither is it a case in which the record affirmatively demonstrates the trial judge’s satisfaction with the sufficiency of the evidence, as was the case in State v. Landrum, 307 So.2d 345 (La.1975). Because we have already determined that the case must be remanded, we instruct the trial judge to clarify the reasons for his denial of defendant’s motion for new trial insofar as that motion was based on the alleged insufficiency of the evidence to support the verdict.

Defendant, in his unsuccessful motion for new trial, also alleged that the trial court erred in allowing the jury to return a verdict of guilty of armed robbery against the accused because the jury was “obviously confused” as to whether the defendant was charged as a principal or an accessory to the crime. Defendant urges that the ends of justice would be served by a new trial. La.C.Cr.P. art. 851(5).

Defendant’s allegation that the jury was confused as to the charges leveled against the defendant is based on the following circumstances:

The jury, after having retired to consider its verdict, returned to the courtroom with a question. This exchange took place:

“THE COURT:
“Which of you gentlemen is the foreman? I understand you have a question of me?
“[THE FOREMAN]:
“Yes, sir, we understand this man is being tried for accessory to armed robbery.
“THE COURT:
“No, he is being charged with armed robbery, not accessory.
“[THE FOREMAN]:
“Why is simply robbery on it?”

Thereupon the trial judge, having previously charged the jury as to the responsive verdicts in an armed robbery prosecution in accordance with La. Code of Criminal Procedure articles 804(B) and 814, again explained the verdicts responsive to a charge of armed robbery, offering these observations:

“ * * * The law says that when the greater charge includes any other charge that can be included in it, I have to give you an instruction as to the law on both of them.
U * * *
“Now, we are dealing here with armed robbery, and the law says that the responsive verdicts to armed robbery are: guilty, guilty of simple robbery and not guilty. Now, — and again, I’m not trying to be cagey with you, but the law says that the trial Judge cannot comment on the facts of the case to the jury, because you are the Judges of the facts, not me. I might have an opinion but I can’t express it to you and I shouldn’t even give you a suggestion of what my opinion is. You are the Judges of the facts. Now, when the law says that the man can be found — you can bring back one of three responsive verdicts and ten of you have to agree on one — guilty of armed robbery, guilty of simple robbery or not guilty. Now, the only distinction between guilty of armed robbery and guilty of simple robbery is that of the weapon. And I would go back to the basic definition. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another by use of force or intimidation while armed with a dangerous weapon. And I am going to read the other. Simple robbery is the theft of anything of value from the person of another or which is in the immediate control of another by use of force or intimidation. The same exact wording up to that point but not armed with a dangerous weapon. Now again, I’ll read you the definition of principal which is designed to put the principals all in the same boat together. And if you find that a person is a principal within the definition of Article 24, which says that all persons concerned in the commission of a crime, whether present or absent and whether they directly commit the act constituting the offense, aid and abet in its commission or directly or indirectly counsel or procure another to commit the crime are principals. So consequently, without getting into the facts of this case, if two people go to commit an armed robbery and only one has the weapon, the one who does not have the weapon can be a principal as well as the one who does. Now, if you found, as a matter of fact, that there is no weapon involved, that’s why simple robbery is a responsive verdict. They are the same type crime, but the difference is while armed with a dangerous weapon, or not armed with a dangerous weapon. And that’s a fact question that you have to reach. Now, have I helped you or hurt you? If you’re not clear, tell me and I’ll try to work it out with you.

After the judge’s explanation, defendant requested that he charge the jury as to the definition of accessory. The judge at first declined to do so, because the defendant had not been charged as an accessory. Nevertheless, at defendant’s insistence, the trial judge recalled the jury and read to them La.R.S. 14:24 and 25. The judge did not, however, specifically instruct the jury that, if they were convinced the defendant was merely an accessory, they should not return a guilty verdict against him. Defendant had asked the judge to so charge the jury, but the record reflects no objection by the defendant to the judge’s failure to do so.

Contemporaneous objection by the accused is a necessary prerequisite to appellate relief on an alleged inadequate jury charge. State v. Mitchell, 319 So.2d 357 (La.1975). Further, special requested charges are to be in writing. La.C.Cr.P. art. 807. Nevertheless, defendant now assigns as error the failure of the trial judge to charge the jury that if they found the defendant merely an accessory to the armed robbery, they should acquit him of the armed robbery charge.

Were we to disregard the procedural defects presented by this assigned error, we would be forced to conclude that defendant’s assertions lack substantive merit.

The trial judge’s additional instructions to the jury were sufficient to clear up any confusion they may have had concerning the charges lodged against the defendant. The trial judge clearly instructed the jury that the accused was charged with armed robbery — not as an accessory thereto. He explained why simple robbery was included in the list of responsive verdicts. His initial instruction and explanation taken together with his supplemental instruction abundantly satisfy the requirements of La. Code of Criminal Procedure article 804.

Defendant has not demonstrated that the trial court abused its discretion in denying his motion for new trial. State v. Landrum, 307 So.2d 345 (La.1975); State v. Thomas, 240 La. 419, 123 So.2d 872 (1961); State v. Simpson, 184 La. 190, 165 So. 708 (1936).

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 16

Defendant urges this Court to find the sixteen year sentence imposed by the trial court excessive, arguing that the defendant, the “least culpable” of the three principals to the crime, was given a longer sentence than his accomplices (who pleaded guilty and received sentences of nine and twelve years), because he pleaded not guilty and thereby put the State to the trouble and expense of proving its case at trial.

We are unwilling to conclude on the basis of the record that the trial judge arbitrarily and flagrantly abused his sentencing powers, as suggested by the defendant. The alleged plea negotiations and the trial court’s supposed knowledge of them, referred to in defendant’s brief, are not matters of record. The record does reflect, however, the jury’s determination that Lonnie Carl May was guilty — as a principal — of the crime of armed robbery. The defendant’s own testimony acknowledges his prior felony convictions for burglary and theft. The record further reflects that the trial judge ordered a pre-sentence investigation and report, in accordance with La. Code of Criminal Procedure article 875, and that the judge relied on that report in sentencing the defendant.

In sum, we are unwilling to assume, as defendant urges us to do, that the disparity in sentences between the defendant and his co-participants who pleaded guilty, is the result of improper judicial conduct.

The sentence imposed in the present case is within the limits prescribed by La.R.S. 14:64, and is not cruel, unusual or excessive in violation of the Eighth amendment to the United States Constitution or of Article I, § 20 of the Louisiana Constitution.

For the reasons assigned, defendant’s conviction and sentence are affirmed but the case is remanded for further proceedings in accordance with the views expressed herein, reserving unto the trial court the authority to grant a new trial herein and reserving the defendant’s rights to appeal from any adverse ruling by the trial court.

AFFIRMED CONDITIONALLY AND REMANDED.

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

      . “Now, did Joseph Magee also identify any one at the police station?
      “Yes, sir, he walked in — .”

      . Because Sgt. Penton stopped short of testifying that Magee identified Lonnie Cari May at the police station, we need not consider whether Magee’s earlier affirmative response to the State’s question, “and you never knew this man [Lonnie Carl May] prior to April 27th, the day you identified him?” (emphasis supplied) was sufficient prior testimony by Magee (the declarant) to render Sgt. Penton’s hearsay testimony cumulative, corroborative, and therefore harmless under the rationale of State v. Ford, supra.