text:
    STATE of Louisiana v. John Otto COX, Jr. and Allen J. Breaux.
    No. 59597.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Maurice J. Wilson, Jr., Callihan, Wilson & Duchein, Baton Rouge, for defendants-ap-pellees.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Warren J. Hebert, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   SUMMERS, Justice.

John Otto Cox, Jr., the owner of the Club Destination, and Allen J. Breaux, his bartender employee, were charged with allowing B drinking on premises licensed as an alcoholic beverage outlet. The bill of information alleged that Cox and Breaux employed or permitted a female known as Ginger Rau to act as a B girl and solicit one William Cox to purchase drinks for her and to accept drinks from William Cox and receive a commission or remuneration therefor. Further, the bill of information alleged that the premises were licensed and the accused were the holder of the license and his employee.

The offense is proscribed by Section 88(8) of Title 26 of the Revised Statutes, which provides in pertinent part:

“No person holding a retail dealer’s permit and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises:
(8) Employ or permit females, commonly known as B girls, to solicit patrons for drinks and to accept drinks from patrons and receive therefor any commission or remuneration in any other way.
Violation of this Section is punishable as provided in R.S. 26:191 and is also sufficient cause for the suspension or revocation of a permit. . . . ”

The penal provision referred to is found in Section 191 and provides:

“Whoever violates any provision of this Chapter or any rule or regulation of the board, where no other penalty is provided for in this Chapter, shall be fined not less than one hundred dollars nor more than five hundred dollars or imprisoned for not less than thirty days nor more than six months, or both.”

Counsel representing both defendants filed a broad motion to quash the indictment, alleging that the statute upon which the prosecution was based was unconstitutional, being in contravention of the United States and Louisiana Constitutions. At the hearing defense counsel based his motion to quash upon four constitutional grounds: 1) The prosecution offends principles of collateral estoppel and double jeopardy because the club had been padlocked under an order of the Alcoholic Beverage Control Board based upon the same transaction. 2) The statute is unconstitutionally vague and overbroad. 3) The statute violates equal protection. 4) The statute offends the constitutional separation of powers doctrine in that it delegates legislative authority to prescribe criminal sanctions to the A.B.C. Board, an administrative agency of the executive department.

No evidence was presented at the hearing. After hearing arguments of counsel, the trial judge granted the motion to quash holding that the quoted statute was unconstitutional on the ground that Section 88(8) was overbroad and Section 191 contained an improper delegation of legislative authority to an administrative agency of the executive department. The State appealed.

Collateral Estoppel and Double Jeopardy

Although collateral estoppel and double jeopardy were argued before the trial judge, based upon the padlocking of the Club Destination by the A.B.C. Board for the same transaction which gave rise to this prosecution, there is no evidence to support defense counsel’s assertion that such a padlocking occurred. Nor did the trial judge base his judgment upon this argument. Nevertheless, the issue will be considered because the statute on its face stipulates that a violation of its terms subject the offender to a fine or imprisonment, or both, which are criminal penalties; and a violation based upon the exact same conduct is sufficient cause for suspension or revocation of a permit, which are civil penalties.

Referring to criminal prosecutions, Article I, Section 15 of Louisiana’s Constitution of 1974 declares in part that “No person shall be twice placed in jeopardy for the same offense, except on his application for a new trial, when a mistrial is declared, or when a motion in arrest of judgment is sustained.” Article 591 of the Code of Criminal Procedure is to the same effect. Article 593 requires that a plea of double jeopardy be raised by a written motion, setting forth the name of the court, the proceeding in which the defendant was in jeopardy and the facts constituting double jeopardy. No such motion appears in this record.

Furthermore, a plea of double jeopardy is not available to these defendants because Article 595 highlights the fact that double jeopardy contemplates a second criminal prosecution for the same offense when it refers to the “prosecution” and the “indictment” involved in the first case. Double jeopardy then “prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense.” Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938) (emphasis added). See also Louisiana State Bd. of Medical Examiners v. Booth, 76 So.2d 15, 19 (La.App.1954). Therefore, assuming that defendants have been subjected to the civil penalty which the statute authorizes, they cannot plead double jeopardy in the case at bar unless they can establish that they have heretofore been prosecuted for the same offense in a criminal proceeding.

Likewise, the doctrine of collateral estop-pel is inapplicable to this case. It is a doctrine first announced in United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916), and now firmly established by Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The doctrine augments the traditional double jeopardy protection by incorporating into the Fifth Amendment the idea that an ultimate issue of fact which has been established in defendant’s favor in a prior criminal trial cannot be relitigated by the State. Jerome Hall, Criminal Law and Procedure (3rd ed. 1976), pp. 1048-49. State v. Jackson, 332 So.2d 755 (La.1976); State v. Cain, 324 So.2d 830 (La.1975); State v. Latil, 231 La. 551, 92 So.2d 63 (1956). But for a defendant to successfully raise this issue, he must have been acquitted in a prior criminal prosecution. See One Lot Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972); Moton v. Swenson, 488 F.2d 1060 (8th Cir. 1973). Two factors militate against applying the doctrine of collateral estoppel here: defendants were not successful in the alleged suspension action, and if it did take place, it was not a criminal prosecution.

Vagueness and Overbreadth

The trial judge erred in finding the statute vague and overly broad. It is not so ambiguous that it would cause reasonable minds to guess at its meaning. Language of the statute which proscribes employing or permitting B girls “to solicit patrons for drinks and to accept drinks from patrons and receive therefor any commission or remuneration in any other way” simply means that persons employed in or owning premises operating under an alcoholic permit are prohibited from allowing B girls to solicit patrons for alcoholic or other drinks and receive remuneration for this activity. Construing a similar statute in State v. Daye, 243 La. 725, 146 So.2d 786 (1962) this Court held that the word “drink” included both alcoholic and non-alcoholic beverages. The phrase “commonly known as B girls” was not vague because it was merely descriptive according to a decision of the Fourth Circuit in Burnette v. Louisiana Board of Alcoholic Beverage Control, 252 So.2d 346 (La.App.1976). There the statute’s prohibition against females soliciting and accepting drinks for remuneration was held to be clear and unambiguous.

The phrase “commonly known as B girls” has a commonly-accepted meaning, but even if it did not, the statute otherwise explains in detail the conduct which constitutes the offense. And the same is true of the phrase “commission or remuneration in any other way.” The reference is to something of value given to the B girl by the operator of the establishment or by the customer. The phrase is broad enough to cover any monies coming to the female from any source as a result of her solicitation of drinks on the premises.

Overbreadth is a concept which applies only to cases where a constitutionally protected right is claimed in the prosecution. These cases have traditionally involved such rights as freedom of speech and other First Amendment rights. The act of soliciting and accepting drinks from patrons in an establishment operating under a liquor permit is not conduct protected by the federal or state constitutions.

Equal Protection

Defense counsel takes the position that the statute contravenes constitutional equal protection rights by prohibiting solicitation only by females and not males. Neither the B girl nor her male patron is being prosecuted. The defendants are “person[s] holding a retail dealer’s permit . [or his] agent, associate, employee, representative, or servant.” These statutory classifications punish men and women equally. There is no distinction on account of sex. Defendants, the owner and bartender, respectively, cannot therefore challenge the statute on equal protection grounds. The statute condemns all persons in their classification without regard to sex.

Improper Delegation of Legislative Authority

The contention that the statute improperly delegates legislative authority to define crimes to the Alcoholic Beverage Control Board is based upon the words in Section 191 which provide that “Whoever violates any provision of this Chapter or any rule or regulation of the board, where no other penalty is provided for in this Chapter, . ” shall be punished in a specific way. (emphasis added). The argument is that the inclusion of the phrase “any rule or regulation of the board” furnishes no guidelines and has the effect of allowing the board plenary authority to prescribe rules or regulations which have the force of criminal law.

Article II of the Constitution divides the power of government into three separate branches: legislative, executive and judicial. Id. § 1. No one of these branches may exercise power belonging to either of the others. Id. § 2. The power to make laws is vested in the legislature. La.Const. art. Ill, § 1. And the Constitution mandates the scheme for their enactment. Id. §§ 2, 15, 17, 18. The executive branch has no power to make criminal laws. La.Const. art. IV.

The defendants may not raise the issue of unconstitutional delegation of legislative authority. They were charged with a violation of Section 88(8), a legislative enactment; they were not charged with the violation of a rule or regulation of the Board. Because their rights are in nowise affected by any “rule or regulation” they have no standing to complain. State v. Brown, 288 So.2d 339 (La.1974); State v. Billiot, 254 La. 988, 229 So.2d 72 (1969).

Defendants rely upon this Court’s opinion in Guidry v. Roberts, 335 So.2d 438 (La. 1976), and the decision of the United States Supreme Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). In both cases plaintiffs were allowed to sue. Unlike the case at bar, both were challenges to election campaign finance disclosure acts, not criminal prosecutions. Plaintiff in the Louisiana ease was a major contributor to political campaigns and plaintiffs in the federal case included a candidate, a potential contributor, and others. The issue was whether plaintiffs so situated had standing to attack the composition of the supervisory committees or the designation of the reporting officials who principally receive and monitor reports from candidates, not contributors. Both courts held that plaintiffs, who were subject to criminal sanctions under the act either as contributors or as candidates, had standing to sue because they did present a real case and controversy to the court, not merely the opportunity to render an advisory opinion.

The Guidry and Buckley cases are distinguishable from the case at bar. The plaintiffs in these cases were potentially criminally liable under the act they were contesting. Defendants in the case at bar are not liable under the “rule or regulation” language of Section 191. They have no standing to maintain an attack on that portion of the statute. The activity for which they are charged is explicitly covered in the statute, a legislative enactment.

We also find that the “rules and regulations” clause is severable and its alleged infirmity does not affect other provisions of the section. It is a fundamental principle that a statute may be constitutional in one part and unconstitutional in another, and if the invalid part is severable from the rest, the portion which is constitutional may stand while that which is unconstitutional is stricken and rejected. Indeed, whenever a statute contains unobjectionable provisions severable from those found to be unconstitutional, it is the duty of the court to so declare and to maintain the act insofar as it is valid.

Act 360 of 1948 is the source provision for Section 191 of the Revised Statutes. That Act contains the following severability clause: “If any section, subsection, paragraph, sentence, clause or other part of this Act, for any reason, be declared unconstitutional, invalid, or not legally enforcible, no other part of application of this Act shall be affected thereby.” Manifestly, this sever-ability clause of the 1948 Act unmistakably expressed the legislative intent. When the pertinent provisions of the 1948 Act were incorporated into the Revised Statutes as Section 191, the revision was to “be construed as continuations of and as substitutes for the laws or parts of laws which are revised and consolidated [tjherein.” La. Rev.Stat. 1:16. Thus the intent of the 1948 Act expressed in the severance clause is taken into account in construing Section 191.

Any doubt on the question is emphatically laid to rest by Section 3 of Act 2 of the Extra Session of 1950, the enacting legislation for the Revised Statutes, when it declares: “If any provision of the Louisiana Revised Statutes of 1950 as enacted by Section 1 hereof is, for any reason, declared unconstitutional or invalid, the other separable provisions or parts thereof shall not be affected thereby.”

Severability is principally a question of legislative intent and is expressed by the severability clause of the 1950 Act. In this case there are additional reasons for considering the “rules and regulations” language severable from the remaining portion of Section 191. It may be presumed from a reading of the comprehensive Alcoholic Beverage Control Law occupying an entire Chapter of Title 26 of the Revised Statutes that the legislature would have enacted the remainder of Section 191 without the objectionable “rules and regulations” clause because they are not dependent. Failure of the “rules and regulations” clause will not render the other penal provisions of Section 191 unenforceable. The object of the statute in this prosecution may be carried out under its constitutional provisions without reference to the “rules and regulations” provisions.

For the reasons assigned, the judgment of the trial court declaring Sections 88(8) and 191 of Title 26 unconstitutional is reversed and set aside. The case is remanded to the trial court for proceedings in accordance with law and not inconsistent with the reasons assigned herein.

DIXON, J., concurs.

SANDERS, C. J., concurs in the result.

      . La.Code Crim.Pro. art. 595 provides:
      “A person shall not be considered as having been in jeopardy in a trial in which:
      (1)The court was illegally constituted or lacked jurisdiction.
      (2) The prosecution was dismissed because it was instituted in an improper venue; or
      (3) The indictment was invalid.”


source: Caselaw Access Project

author: CALOGERO, Justice. DIXON, Justice

license: Public Domain

text:
    STATE of Louisiana v. Gilbert HENRY.
    No. 59632.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      James E. Shields, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant, Gilbert Henry, was charged by bill of information with armed robbery, a violation of La.R.S. 14:64, and pled not guilty. He was tried by a twelve person jury which, at the conclusion of a five day trial, found him guilty as charged. The trial court thereafter sentenced defendant to serve 20 years in the custody of the Department of Corrections. On appeal he relies upon ten assignments of error, consolidated into four arguments, for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

By this assignment defendant argues that the trial court erred in denying his motion to suppress a confession which he alleges was not voluntarily given.

A lengthy hearing on the motion disclosed that the confession was obtained under the following circumstances. Convinced of his client’s innocence, defendant’s counsel persistently requested the District Attorney’s office to administer a polygraph test to defendant. On the morning of May 21, 1975, the day scheduled for trial, the District Attorney’s office yielded and offered defendant the following proposition: the trial date would be continued and a polygraph test conducted that day; if defendant passed the test, the charges against him would be dropped. If he failed the test he would enter a guilty plea. Defendant accepted the offer and signed a detailed Agreement and Stipulation form which provided, inter alia, that the polygraphist would have access to state and defense investigative files in formulating his questions; that he would have sole discretion in determining the conduct of the examination and the questions to be asked; that the defendant would answer all questions truthfully; and that the results of the polygraph test and any statements made by defendant during any phase of the examination would be admissible in evidence. Additionally, defendant signed a document certifying that he understood the provisions of the Agreement and Stipulation and voluntarily waived his right to remain silent and to have counsel present during the examination.

Prior to defendant’s signing the above described forms, defense counsel and the assistant district attorney explained their terms and the consequences of the agreement at length, devoting approximately two and one-half hours to this task. Thereafter, the trial judge, who witnessed defendant’s signature, also reviewed defendant’s rights with him to insure that his waiver was voluntary. The attorney later testified that he would not have permitted defendant to enter the agreement had he not been confident that defendant understood his rights.

After defendant signed the agreement, he was taken to a room in the criminal court building to be tested by Sgt. Frank Ruiz, a polygraphist from the New Orleans Police Department. Ruiz testified that at the outset of the interview he advised defendant that he did not have to answer any questions and that he could discontinue the test at any time.

Ruiz explained that his standard testing procedure is to pose a set of 12 questions to the subject which are reviewed before the actual test begins. The questions are then repeated and a reading taken on the subject’s responses. After the first chart is taken, Ruiz customarily discusses the questions and responses with the subject to determine whether he has experienced any particular difficulty with them. The test is then readministered on the basis of the same 12 questions and a second reading taken.

Defendant’s examination was commenced at approximately 12:30 p. m. At the conclusion of the first test, Ruiz informed defendant that he had failed and asked whether he might clear up any problems defendant may have had with the questions. In a 15-20 minute discussion, defendant related that although it had not been his idea to rob the Westside Cleaners, he had driven a friend to that location with knowledge of his intention to rob it and had picked him up around the corner after the robbery as agreed upon beforehand. After defendant had confessed, Ruiz considered it unnecessary to conduct the second test, and the examination was concluded at 1:45 p. m., one hour and 15 minutes after its inception.

Defendant testified at the hearing that after taking the first chart Ruiz had disconnected the testing apparatus, verbally abused him and attempted to extract a confession. Defendant stated further that he did not confess.

The thrust of defendant’s argument on appeal is that the discussion which resulted in the confession was not part of the polygraph éxamination and was not contemplated by defendant or defense counsel at the time they executed the waiver forms. The argument is based upon defense counsel’s testimony that he did not and would not have agreed to any post-test questioning, and upon defendant’s assertion that the testing apparatus had been disconnected before the critical discussion began. The state contends that under the terms of the agreement Ruiz was authorized to determine how the examination was to be conducted and under the procedure he established, defendant’s confession was given during a “phase” of the examination. As noted above, Ruiz claimed that before defendant confessed he, Ruiz, had intended to take a second reading of his responses, and thus he had not detached the testing wires from defendant’s person until after the confession was given.

Before a confession or inculpatory statement may be introduced in evidence, the state has the burden of proving affirmatively and beyond a reasonable doubt that it was free and voluntary and not made under the influence of fear, duress, menaces, threats, inducements or promises. La. R.S. 15:451; La.C.Cr.P. art. 703(C); State v. Adams, 347 So.2d 195 (La.1977); State v. Glover, 343 So.2d 118 (La.1977); State v. Taylor, 336 So.2d 855 (La.1976); State v. Peters, 315 So.2d 678 (La.1975). Additionally, it must be shown that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Upon reviewing the testimony taken at the lengthy hearing on the motion to suppress and the exhibits, including the Agreement' and Stipulation form signed by the defendant, his attorney, the assistant district attorney and witnessed by the Honorable Thomas Brahney, Judge Ad Hoc, we conclude that all of what transpired between defendant and Officer Ruiz, including the discussion during which defendant confessed, was free, knowing and voluntary. The record supports the trial court’s conclusion that defendant confessed voluntarily.

Even if we were to conclude that the Agreement and Stipulation did not authorize a post-test interview and that it was a post-test interview during which defendant confessed (a conclusion not supported by our construction of the agreement and the event) we would still find that the state had established the voluntariness of defendant’s statement. Defendant was given a thorough explanation of his rights prior to the polygraph examination and it is apparent that he understood those rights. Although defendant agreed to waive his right to remain silent and his right to have counsel present during the interview, Ruiz testified that he advised defendant that the interview could be terminated at any time upon his request. Therefore, defendant was not compelled to submit to the “post-examination” interview, but could have reasserted his right to remain silent. His decision to confess, then, was a reaffirmation of his earlier waiver.

The voluntariness of a confession is a question of fact for the trial judge and his conclusions as to the credibility of the witnesses and the weight of the testimony will not be overturned on appeal unless they are unsupported by the evidence. State v. Adams, supra; State v. Ross, 343 So.2d 722 (La.1977); State v. Sims, 310 So.2d 587 (La. 1975).

We note that here the state did not attempt to introduce the results of the polygraph examination at trial; what is at issue is the admissibility of statements made during the course of that examination. See State v. Weeks, 345 So.2d 26 (La.1977).

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 9, 10, 12, 13 AND 14

By these assignments defendant complains of five allegedly improper comments made by the trial judge during the course of trial. We have reviewed each of these complaints. The remarks do not con-stituid reversible error. That complained of in assignment of error number nine, while it may have gone beyond what was necessary for the discipline of the court, was not reversibly prejudicial. That complained of in number ten was not so unduly harsh so as to discredit defense counsel in the eyes of the jury. That complained of in assignment of error number twelve was a permissible explanatory comment in assigning reasons for a court ruling. That complained of in number fourteen was not objected to at trial. And that complained of in number thirteen, while an impermissible comment by the trial judge which we do not condone herein, was not sufficiently prejudicial to require reversal of defendant’s conviction.

These assignments are not meritorious.

ASSIGNMENTS OF ERROR NOS. 3 AND 5

On the first day of trial, defendant’s former attorney testified on the issue of the voluntariness of defendant’s confession out of the presence of the jury. Due to a congested court schedule, the appearance apparently caused the witness some inconvenience and in order to obviate the need for his returning, trial defense counsel and the prosecutor agreed that his testimony on the predicate would later be submitted to the jury. To that end, the testimony was promptly transcribed by the court reporter. However, on the third day of trial, this same witness was presented in person on behalf of the defendant. On cross-examination of this witness, but not for the purpose of impeachment, the state proposed to read the entire transcript of the witness’ prior testimony to the jury. When the trial court sanctioned this procedure, in light of defense counsel’s earlier stipulation that the transcribed testimony on the predicate would later be submitted to the jury, defense counsel objected without expressing a basis for the objection. In brief, defense counsel argues that the transcript should not have been admitted because the testimony, when given, was not intended for the jury’s hearing and alternatively, that certain prejudicial comments in the record should have been deleted prior to its disclosure to the jury.

However unorthodox this method of proceeding may seem (in effect the witness testified for the defense in chief, then the transcript of his predicate testimony was read to the jury, and thereafter the witness was questioned anew by the state’s attorney) there was no error in the trial court’s ruling. Defense counsel had earlier stipulated to the use of the transcript and his objection posed just prior to introduction of the transcribed^ testimony was unattended by express reasons. Furthermore, his complaint that prejudicial comments by the trial judge should have been excised from the transcript should have been made before the transcript was read to the jury.

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 16

By this assignment defendant complains that the trial judge erred in instructing the jury on particular decisions of this Court holding that (1) illiteracy alone does not preclude a confession from being voluntary; (2) moderate retardation or a low intelligence quotient does not of itself vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession and; (3) the use of a lie detector test as a means of interrogation does not render a confession involuntary.

In light of the reasons given hereinafter for finding the assignment non-meritorious, we are not called upon to determine whether the charges complained of are erroneous. We deem it advisable to note, however, that in the context in which given the court’s charges are at the least questionable. It was the jury’s function to weigh the voluntariness of defendant’s confession and its prerogative to give appropriate significance to the (judge determined) admissible confession. While it is appropriate to advise the jury that such factors as illiteracy, retardation or low I.Q. may be considered on the issue of voluntariness, and, perhaps, that a confession procured during the course of administering a lie detector test is not on that account to be barred from consideration, it is entirely another matter for the judge to instruct the jury that the Louisiana Supreme Court in various cases has determined that each such factor does not render a confession involuntary. Such a charge is arguably an invasion of the jury function, and/or an inferential comment on the evidence by the trial judge.

The merit of the charges, however, is not before us. Defendant did not request a written copy of the trial court’s proposed charge to the jury as was his right under Article 801 of the Code of Criminal Procedure. Had he done so, defendant could have expressed his objection to the charge prior to the time that is was given to the jury. State v. Beard, 312 So.2d 278 (La. 1975). Furthermore, defendant did not object when the charge was given, either by interruption of the judge during the charge or at the conclusion of his giving it. With an objection at either stage, the court would have been afforded the opportunity to reinstruct the jury and possibly cure the alleged defect in the charge.

In fact it was not until the jury returned to the courtroom for the opportunity to view two exhibits, some three and one-half hours after it had commenced its deliberation, that the defendant finally lodged his complaint. At that point defense counsel noted that he would like to record his objection to the court’s charge “in reading into the record the cases you read.” The district attorney objected to this colloquy in the presence of the jury and asserted that defense counsel could argue that outside the presence of the jury. The court allowed the objection to be noted. Counsel did not then, nor upon the jury’s being retired, further explain the character of his objection, nor did he request that the court give supplemental jury charges of a corrective nature. Had counsel requested supplemental corrective charges and further explained the nature of his objection, the trial judge at least in that instance would have had an opportunity to properly weigh the objection and still might have opted to give the corrective jury charges.

This assignment is not meritorious.

For the foregoing reasons the conviction and sentence of the defendant Gilbert Henry is affirmed.

AFFIRMED

DIXON, J., dissents with reasons.

DIXON, Justice

(dissenting).

I respectfully dissent, being of the opinion this mental retardate could not knowingly and intelligently confess, and that the trial judge improperly commented on the evidence.

      . La.C.Cr.P. art. 772 provides:
      The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.

      . In assignment number nine defendant complains of the trial judge’s remarks that a witness’ response to a question posed by defense counsel would be unfavorable.
      Assignment number ten is addressed to the trial judge’s directing defense counsel to obtain personally certain information relative to the health of a juror, since any other method of obtaining such information might make the information suspect.
      Defendant complains in assignment number twelve of the trial judge’s comment in response to a defense objection to relevancy that the testimony in question was “most relevant”.
      The remark complained of in assignment number thirteen consisted of a question posed by the trial judge to a medical witness concerning the defendant’s mental condition and his corresponding ability to comprehend the waiver form.
      The final comment complained of by the defendant, assignment number fourteen, was a statement by the trial judge that he was able to foresee that a particular witness would be uncooperative.

      .Defendant Gilbert was originally represented by attorney Lyall G. Shiell. Shortly after the defendant gave the confession discussed in the first assignment of error Mr. Shiell, with the court’s approval, withdrew as defendant’s counsel. Thereafter, defendant’s present counsel, James E. Shields, became attorney of record.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Stanley SULLIVAN, Sr.
    No. 59639.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      Emile M. Weber, Weber & Weber, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Lennie F. Perez, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   SUMMERS, Justice.

A bill of information filed on February 19,1975 charged appellant Stanley Sullivan, Sr., with the attempted armed robbery of Leon Ford on July 12, 1974. La.Rev.Stat. 14:27 & 14:64. Sullivan has lodged this appeal from a jury verdict of guilty and a sentence of twenty-five years at hard labor without benefit of parole, probation or suspension of sentence. Twelve errors are assigned.

A brief outline of the facts will facilitate an understanding of the issues presented. Leon Ford, the victim, received a phone call at eleven o’clock on the night of July 12, 1974 from someone representing himself to be a police officer. He was told to come to the police station to pick up his son who had been arrested. As Ford left his house for the police station, he was hit on the head with a club by one of two young men lying in wait for him. Ford fell to his knees, but he retained consciousness. Before he could recover, his assailants fled. An outside light enabled Ford to recognize his assailants as Terry and Stanley Sullivan, Jr. They were members of a family who had been his neighbors in the past. Ford had been acquainted with the entire Sullivan family for eight years.

The State charged appellant, the father of those two young men, under the theory that Terry and Stanley Sullivan, Jr., with two acquaintances, Marty Williams and Lane Landry, devised a plan to get money by robbing Leon Ford. All four were teenagers. The plan was initiated by Terry Sullivan because he needed money to get married, although he was only fifteen years old at the time. Because Leon Ford, the intended victim, knew them they decided to disguise themselves by applying a heavy cream to their faces.

Having decided on this plan outside the house trailer where the Sullivans lived, they entered the house trailer and walked into the bathroom to apply the makeup. The elder Sullivan joined them in the bathroom where he learned of their plan. He then told them how to hit Ford on the head in order to knock him unconscious and further instructed them how to rifle the victim’s pockets, search for his money and otherwise successfully execute the proposed robbery.

After the disguise was applied, all five of the conspirators left the trailer house in a pick-up truck belonging to Landry. They drove out to the vicinity of Ford’s house in a rural area. The plan was for Marty Williams to approach the Ford house, knock on the door, and when Ford appeared, grab him and yank him out of the house, at which time Terry Sullivan would “clobber” Ford on the head with a club. Appellant Sullivan, Sr., Kenneth Landry and Stanley Sullivan, Jr., were to pick up Marty and Terry after the robbery and make their get-away. But the plan aborted. Marty became scared and couldn’t go through with it. So Marty and Terry rejoined their confederates at the truck where Sullivan, Sr., waited. He berated and cursed Marty for his cowardice, saying his boys would have to do it all.

The conspirators then concocted an alternate plan which involved a telephone call to Ford in which they would pretend to be the police at Denham Springs who were holding Ford’s son; then, when Ford left the house to go for his son, all four of the younger men would assault and rob him; the elder Sullivan would be waiting in the truck on the nearby highway where they would meet him and make their get-away. However, as the factual outline discloses, the alternate plan also aborted. When the attempted robbery failed, the confederates joined Sullivan, Sr., at the truck, and they returned to the house trailer together, empty handed.

Lane Landry and Marty Williams pled guilty to attempted simple robbery and were witnesses for the State at the trial of appellant.

Assignment 1

In his opening statement to the jury the prosecutor said, “So the State will shoulder its burden of proof and call witnesses in here to testify to facts, not testify against Mr. Sullivan, testify for Mr. Sullivan.”

Defense counsel argues that the prosecutor was deliberately attempting to present only enough facts to confuse the jury and to compel appellant, a simple, pathetic alcoholic, to take the stand on his own behalf and to call his two sons in his defense. This, it is reasoned, would give the prosecutor an opportunity to insinuate that the two Sullivan boys would lie for their father.

In our view this assignment and the tenuous argument made to support it are afterthoughts, for no contemporaneous objection was made to the prosecutor’s statement, and the defense argument is otherwise not well-grounded. The State did call the victim Ford, Lane Landry and Marty Williams, three of the principals in the transaction upon which this prosecution is based. In addition, the State called other witnesses who testified to circumstances surrounding the offense.

No fault can be properly attributed to the State’s failure to call the Sullivan boys as witnesses against their father. Their testimony and natural bias as defense witnesses made it abundantly clear that they would and did testify in favor of their father. If, as a result of this development, there was insinuation by the prosecution that the Sullivan boys lied, it was warranted by the contrary testimony of the victim, Williams and Landry and the other facts and circumstances of the case. The defense has cited no authority to support its position and our research disclosed none. The defense contention seems to be based upon the principles announced in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). But that case denounces the withholding of exculpatory evidence known to the State and unavailable to the defense, a situation entirely alien to the facts of this case.

This assignment is without merit.

Assignment 2

When the trial resumed on the second day, defense counsel, out of the presence of the jury, objected to allowing Lane Landry to testify on the ground that the rule of sequestration had been violated. An effort was made to show that Lane Landry’s mother and wife, who were not sequestered witnesses, sat in the courtroom listening to Marty Williams testify. They then went into the hall, according to the defense, and discussed Williams’ testimony with Lane Landry before he was called to testify. As a result, defense counsel contends that the testimony of Landry and Williams could be structured without inconsistencies.

Landry, his mother and his wife all testified that although they spoke to one another in the hall outside the courtroom where the witnesses were sequestered, no one told Lane Landry anything about Marty Williams’ testimony.

Based upon this contradictory testimony presenting an issue of credibility, the trial judge permitted Lane Landry to testify. Such a ruling was obviously based upon the testimony of the Landry witnesses that the rule of sequestration had not been violated. There is no error in the ruling. Indeed, it is the prerogative of the trial judge to reconcile contradictory testimony, and his determination in this regard will be accorded great weight on review. La.Code Crim.Pro. art. 764; State v. McKinney, 302 So.2d 917 (La.1974).

Assignment 3

At the close of the State’s case on July 29, 1975, defense counsel moved for a directed verdict specifically urging that the State had failed to support the charge of attempted armed robbery in that there was no proof that a dangerous weapon had been used and because there was no evidence of specific intent of two essential elements of the crime.

The record shows that a two-foot-long stick, an inch or two in diameter, was wielded by appellant’s confederate with sufficient force to cause profuse bleeding from the victim’s head and bring him to his knees.

Article 64 of the Criminal Code defining armed robbery requires that there be a theft “by use of force or intimidation, while armed with a dangerous weapon.” And, in order to be convicted of an attempt to commit armed robbery, a person must have a specific intent to commit the crime and must do an act tending directly to accomplish his object, even though he does not accomplish his purpose. La.Crim.Code art. 27.

The outline of facts together with the State’s theory of the case, which is supported by evidence in the record, is some evidence of the fact that force with a dangerous weapon was used on the victim in order to rob him. Insofar as specific intent is concerned, we believe that the record discloses some evidence of circumstances indicating that appellant actively desired that a theft be committed by use of force with a dangerous weapon. Proof of the subjective element of intent is necessarily inferred from circumstances. La.Rev.Stat. 15:445. Hence there existed in appellant a state of mind which supplied the specific intent necessary to satisfy that element of the crime of attempted armed robbery. La.Crim. Code art. 10.

When the defense asserts that the judge committed reversible error in denying his motion for a directed verdict of acquittal, this Court will not overturn the conviction unless there is no evidence at all of some essential element of the crime. State v. Clark, 340 So.2d 1302 (La.1976); State v. Smith, 332 So.2d 773 (La.1976); State v. Butler, 331 So.2d 425 (La.1976); State v. Kaufman, 331 So.2d 16 (La.1976).

There is no merit to this assignment.

Assignment 4

This is another allegation that error occurred because the prosecutor failed to call witnesses favorable to appellant; presumably, the argument refers to the State’s failure to call the Sullivan boys. The contention is that the prosecutor’s opening statement indicated that he would call witnesses favorable to appellant. In effect this assignment is, as the defense brief concedes, an “extension” of Assignment 1. As pointed out in Assignment 1, the Sullivan boys were called by the defense, and we can perceive no prejudice to the defendant because they were not called by the State even though the State’s opening statement may have indicated that it was the State’s intention to do so. No evidence favorable to the defense was withheld. A conclusion that prejudice resulted improperly would be speculation and conjecture.

Assignment 5

Terry Sullivan was called as a witness by the defense. On cross-examination, the prosecutor sought to impeach his testimony by showing that prior to trial Terry told the police of two trips to Ford’s house on the night of the robbery, whereas at the trial Terry said only one trip was made. He asked Terry if, when the police picked him up the second time, between Friday and Saturday, his head was “straight” (meaning free from narcotic influences), when he talked to Lieutenant Tycer. He was then asked if he told Lieutenant Tycer and Sergeant Robertson that they (the confederates in the attempt to rob Ford) had gone to Ford’s house and that Marty had “chickened out”. To which Terry replied, “I don’t know if I did or not. I know we went up there once. Anybody can say something when they are messed up. I know I have plenty of times.”

The next question was, “So you do not admit telling Lieutenant Tycer and Sergeant Robertson that y’all went out there and that you chickened out, somebody had chickened out, is that right?”

Terry answered: “I don’t know. I know we went up there once though.”

Interrogation continued: “Okay. Do you recall this part of the conversation? Tycer: Did y’all not thought to do it earlier and y’all chickened out as you say? Sullivan: Yes, sir. Tycer: And what happened that time?”

Defense counsel then objected that a proper foundation had not been laid to impeach the witness by a prior contradictory statement. Thereupon the trial judge permitted the State’s attorney to resume questioning to lay the foundation for impeachment. The prosecutor therefore resumed interrogation and asked the witness whether he recalled making the statement downstairs in the sheriff’s office. He answered: “I don’t know.”

With the issue thus formed the trial judge ruled that the statement could be used for impeachment. This ruling is assigned as error.

The witness was asked whether he made the statement, his attention was called to file time, place and circumstances, and to the person to whom the alleged statement was made and the witness did not distinctly admit making the statement. Therefore, evidence that he did make it is admissible. La.Rev.Stat. 15:493; State v. Governor, 331 So.2d 443 (La.1976). The State having substantially fulfilled the requirements of Section 493 of Title 15 of the Revised Statutes, the witness had sufficient information and an opportunity to explain the discrepancies between his testimony at trial and the prior statement. The purpose of the law is satisfied under these circumstances.

There is no error in this assignment.

Assignments 6 and 8

While Terry Sullivan was being cross-examined by the State’s attorney, he was asked whether he had talked to three deputies at the Ryan Airport office of the parish prison. He answered, “Yeah, about another case.” This response had no reference to the defendant or the case at bar. When questioned whether he had made certain statements to the officers relating to the case at bar, Terry said, “We didn’t even talk about that robbery case out there. This is [was] about another case.”

Thereafter, on recross-examination Terry said the interrogating officer, referring to the part he and his father played in the robbery, told him “you’re going to the electric chair, the gas chamber or in a little dark room . . . .”

On direct examination Officer Callander testified that on the occasion when Terry was interrogated at the Ryan Airport prison office, Terry told him that his father was involved in the robbery but that he did not pursue the questioning in detail because he was there to take a statement on another case.

In none of these instances which the defense contends violated the proscription against reference to other crimes, La.Rev. Stat. 15:446, was reference made to the defendant or the case then on trial or anyone even remotely connected with the trial. These were simply unsolicited statements made by the witnesses in explanation of the answer they gave to a permissible question.

These references to “other cases”, if they could be considered references to another crime committed by defendant as to which evidence is not admissible, were not remarks made by the judge, district attorney or a court official. As such they furnish no grounds for a mistrial and no error occurred. Furthermore, the defense must move for a mistrial to take advantage of an error in this respect. No such motion was made. La.Code Crim.Pro. art. 770; State v. Lepkowski, 316 So.2d 727 (La.1975); State v. Lewis, 315 So.2d 626 (La.1975).

Assignment 7

Upon resumption of trial after an overnight recess, some of the jurors were asked if they had discussed the case with anyone or read about it in the newspapers during the recess. The juror Cassano said that he had been approached on the sidewalk that morning by a stranger, a man who asked if he thought appellant was guilty and whether he put his two sons “up to it.” Cassano replied, without stopping, that he couldn’t say and hurried away. He believed the man was merely curious.

The trial judge questioned Cassano at length and determined from him that no threats were made, no undue influence had been exerted and Cassano was not affected by the purely fortuitous incident. Cassano was accordingly permitted to continue serving as a juror. Aside from the fact that the record does not support a finding that “prejudicial conduct occurred in or outside the courtroom”, no motion for a mistrial was made as Article 775 of the Code of Criminal Procedure requires. Cf. State v. Snowden, 198 La. 1076, 5 So.2d 355 (1941); State v. Hoffman, 120 La. 949, 45 So. 951 (1908).

Assignment 9

Again the defense urges as error the failure of the trial judge to direct a verdict of acquittal, contending that “the complete record indicates that the elements of the crime [were] not met as to the accused.” Reasons assigned for finding Assignment 3 to be without merit are applicable here.

Assignment 10

There is no merit to a complaint that the judge erred in accepting a verdict of “guilty” after specifically instructing the jury that it was to return one of the following four verdicts: 1) guilty of attempted robbery; 2) guilty of attempted simple robbery; 3) not guilty by reason of insanity; and 4) not guilty.

While it is true that the judge’s verbal instructions to the jury did refer to “guilty of attempted armed robbery” as one of four permissible verdicts, when the trial judge furnished the written list of responsive verdicts to the jury as he is instructed to do by Article 809 of the Code of Criminal Procedure, they were listed as: 1) guilty; 2) guilty of attempted simple robbery; 3) not guilty by reason of insanity; and 4) not guilty. Handing this list of permissible verdicts to the jury following the oral instructions avoided any confusion in the jury’s mind regarding the proper verdicts. Such a list was moreover, in precise keeping with the responsive verdicts authorized for a charge of attempted armed robbery by Article 814 of the Code of Criminal Procedure. As Article 810 declares, “there shall be no formal requirement as to the language of the verdict except that it shall clearly convey the intention of the jury.” In this instance the verdict did clearly convey the intention of the jury.

Assignment 11

Because appellant is fifty years old and no gun was used in the attempted robbery, the defense contends the trial judge abused his discretion in imposing a sentence of twenty-five years at hard labor, with credit for time served, without benefit of parole, probation or suspension of sentence.

Although the minutes record that appellant informed the court that his age was 39 and that he was born November 22, 1936, the claimed discrepancy between the minutes and the representation that he was 50 years old was undoubtedly taken into consideration by the trial judge who observed appellant at trial and had the benefit of a presentence report.

When consideration is given to the fact that the trial judge was authorized to impose a maximum sentence of 49Vs years, the 25-year sentence is not excessive under the facts of this case, for it fell within the authorized limits. La.Crim.Code arts. 27 and 64.

Assignment 12

“You are duty bound to follow the law as I give it to you in these instructions,” the judge said to the jury. Such a statement, it is contended, is violative of Article XIX, Section 9, of the Constitution of 1921, requiring that “The jury in all criminal cases shall be the judges of the law and of the facts on the question of guilt or innocence, having been charged as to the law applicable to the case by the presiding judge.” In addition to the fact that this 1921 constitutional provision relied upon was inapplicable to the trial of this case in July 1975, at a time when the Constitution of 1974 was in effect, no contemporaneous defense objection was made to the trial judge’s instructions. La.Code Crim.Pro. art. 841. To the contrary, at the conclusion of his instructions and before retiring the jury to deliberate, the trial judge inquired of defense counsel if there were further instructions which should be given. Defense counsel replied there were none. The instruction is one that has been repeatedly approved by this Court. La.Code Crim.Pro. art. 802. State v. McLofton, 145 La. 499, 82 So. 680 (1919).

There is no merit to this assignment.

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

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


author: CALOGERO, Justice.

text:
    Katherine E. LANDRY et al. v. PARISH OF EAST BATON ROUGE et al.
    No. 59673.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      Joseph F. Keogh, Parish Atty., Fred G. Benton, Jr., Benton, Benton & Benton, Baton Rouge, for defendants-applicants.
    Robert P. Breazeale, Van R. Mayhall, Jr., Breazeale, Sachse & Wilson, Baton Rouge, for plaintiffs-respondents.
   CALOGERO, Justice.

The Parish Council of the Parish of East Baton Rouge, utilizing the provisions of the applicable street paving improvement statute (R.S. 33:3301-3319 inclusive), undertook to effect the paving of North Street in the City of Baton Rouge. Under the statute municipalities are authorized to improve streets and may levy and collect local or special assessments on real property abutting the improvements sufficient in the amount to defray the cost of such work. R.S. 33:3301.

Since a 1970 amendment to the statute, however, the law has required that each parcel of real estate which is to be assessed be benefited to an amount not less than the proposed local or special assessment. R.S. 33:3306(A).

The required procedures include, in the order which follows, the municipality’s adopting a resolution giving notice of its intention to make the proposed improvements (R.S. 33:3302); the holding of an open hearing to consider objections, including the manner of paying for the improvements (33:3302); an ordering of construction of the improvements (33:3303); publication of the notice of intention (33:3303); preparation of plans and specifications (33:3303); advertising for bids (33:3303); and awarding of the contract (33:3304).

Upon award of the contract the municipality may, and upon completion of the work the municipality must, require of the municipality’s engineer a:

“certified statement or report, showing in detail, the total cost of the improvements, including street intersections, engineers’ and attorneys’ fees, and all other expenses incidental to the cost. The report shall also show the amount of the cost chargeable to each lot or parcel of real estate abutting the improvements in proportion that its frontage bears to all of the abutting lots or parcels of real estate to be improved and shall give a brief description of each parcel or lot of real estate with sufficient clearness to identify it; . . . ” R.S. 33:3305.

Upon receipt of the engineer’s certified statement or report, the governing authority of the municipality is required to review the statement or report, including the proposed local or special assessment, and to make the benefits determination referred to hereinabove. Proposed assessments that are found by the governing authority to have been erroneously assessed or for which the governing authority does not find the required benefit are required by the statute to be deleted from the report. R.S. 33:3306(A).

There follows mailed notice to the property owners concerning the proposed assessment and the method of payment required. R.S. 33:3306(B). After thirty days from the date of the mailing, the governing authority is permitted to adopt an ordinance levying a local or special assessment on each parcel of real estate abutting the street. R.S. 33:3306(C). The municipality may participate in payment of the total costs to the extent the municipality determines. R.S. 33:3318.

The Parish Council of the Parish of East Baton Rouge conducted four public hearings or protest meetings as well as a public hearing in connection with the “participation policy” under R.S. 33:3318. The Council chose to go forward with the street improvements and determined that the parish would contribute fifty percent of the cost of the project with the abutting property owners contributing fifty percent.

Consistent with the statute, and apparently otherwise in compliance with its directives, the Council adopted 1) Resolution No. 10,274 on March 14, 1973 ordering the improvements of North Street; 2) Resolution No. 10,413 on May 9,1973 receiving the required engineer’s report, fixing the assessments at fifty percent of the cost of the improvements, and making the benefits determination; and 3) Ordinance No. 4047 of June 27, 1973, levying the local or special assessment on abutting property owners. The ordinance, charging each property, in proportion that its frontage bears to all of the abutting lots or parcels improved, with the appropriate portion of fifty percent of the project cost, assessed each property owner a sum which, as credited on project completion with an unexpended construction contingency balance, came to $39.31 per front foot.

On June 17, 1973, five days following newspaper publication of the May 9, 1973 resolution and one and one half months before newspaper publication of the June 27,1973 assessment ordinance, the plaintiffs in this litigation (nine of the affected abutting property owners whose assessments total about $20,000) filed suit seeking to have their respective properties deleted from the engineer’s report and stricken from the ordinance.

The trial judge found that plaintiffs’ petition was not timely filed and sustained defendant’s exception of prescription. He went on, nonetheless, to determine on the merits that the assessment ordinance had been adopted in accordance with law. Accordingly, he denied plaintiffs the relief they sought.

Plaintiffs appealed and the Court of Appeal reversed. 343 So.2d 207 (La.App. 1st Cir. 1977). That court concluded that plaintiffs’ suit had not prescribed and that the Parish Council had not complied with the dictates of R.S. 33:3306(A) in the adoption of Resolution No. 10,413 and Ordinance No. 4047 because the council did not determine whether “each lot or parcel of real estate to be assessed will be benefited to an amount not less than the proposed local or special assessment.” The court was of the view that there was no evidence in the record that “any given benefit adds ‘X’ dollars to the value of the properties sought to be assessed so that the sum total of all of the benefits alleged to flow from all of the improvements equal the amount of the assessment.” 343 So.2d at 214. The Court of Appeal in effect found that not only had the council not determined that each lot assessed would be benefited to an amount not less than the proposed local or special assessment, but that the council could not properly have so determined in light of there being no such preponderant evidence before the council or the trial court.

We granted writs on application of the Parish of East Baton Rouge to review that decision of the Court of Appeal. 345 So.2d 57 (La.1977).

Relator first complains that plaintiffs’ lawsuit has prescribed and that the Court of Appeal erred in reversing the trial court’s judgment in this respect. We disagree, for the Court of Appeal was correct in this ruling. In their lawsuit plaintiffs only question the validity or legality of Resolution No. 10,413 of May 9, 1973 and the Assessment Ordinance No. 4047 of June 27, 1973. The former was not published until July 12,1973 and the latter until September 6, 1973. Accordingly plaintiffs’ lawsuit filed on July 17, 1973 was clearly not later than thirty days from date of publication of the resolution and ordinance questioned by plaintiffs. R.S. 33:3319.

Contrary to plaintiffs’ contention, we are also in accord with the Court of Appeal’s finding that Resolution No. 10,413 was not defective. The engineer’s report, which was presented to the Council and was contained in the minutes in less than comprehensive form, did contain the required identifying descriptions of abutting properties, costs chargeable to each such parcel and other details required of the engineer’s report by R.S. 33:3305.

It was the Court of Appeal’s finding that the Parish Council had not complied with the dictates of R.S. 33:3306(A) which prompted our granting this writ. Louisiana Revised Statute 33:3306(A) provides:

“Upon receipt of the certified statement or report of the engineer as provided for in the preceding section, the governing authority shall review said certified statement or report, including the proposed local or special assessments, and thereafter shall make a determination as to whether each lot or parcel of real estate to be assessed will be benefited to an amount not less than the proposed local or special assessment. * * * ” (emphasis added)

The Parish Council did indeed make the required determination as is evident by the substance of Resolution No. 10,413. That resolution recites in part as follows:

“Upon receipt of the foregoing certified statement or report of the Engineer as provided for in R.S. 33:3305, this Parish Council did review said certified statement or report, including the proposed local or special assessments, and does hereby find and determine that each lot or parcel of real estate to be assessed is to be benefitted to an amount not less than the proposed local or special assessment. In making said investigation, finding, and determination this Council has found to the best of its knowledge, information, and belief that each proposed assessment is true and correct and that the property to be assessed in each instance is benefit-ted to an amount not less than the proposed local or special assessment therefor.” (emphasis added)

The thrust of plaintiffs’ argument is that, although the council admittedly passed a resolution incorporating language to the effect that it had made the requisite determination, in fact the council had not made such a determination. The Court of Appeal agreed with plaintiffs, suggesting that inclusion of the verbiage in the resolution may have established a presumption that the council determination was made, but that such presumption is rebuttable. They found that plaintiffs had in fact proven that no determination that each parcel assessed was benefited to an amount not less than the assessment was ever made by the council. Specifically, plaintiffs contend that 1) the Parish Council entertained no evidence on the pertinent issue, 2) the council could not therefore have made an informed actual determination to the given effect and 3) in any event, the abutting properties were not benefited in the required amounts. In support of their first and second contentions above, they rely upon the testimony of two of the plaintiffs who related that they were in attendance at the May 9,1973 meeting and that no discussion was had relative to any individual lot or the benefits thereto, but that at that meeting the engineer’s report as well as the council’s resolution which accepted it and made the benefits determination were passed in routine fashion and without discussion. In support of their third contention hereinabove, plaintiffs relied principally upon the testimony of their real estate expert who testified that there were no economic benefits to the property. Plaintiffs in brief additionally rely heavily upon Brill v. City of Grand Rapids, 383 Mich. 216, 174 N.W.2d 832 (1970), wherein the Michigan Supreme Court held that a widening of what had been a twenty-foot wide paved black-top street in an excellent residential district to a through street of forty-four foot paved width for heavy traffic did not confer any benefit on adjacent residential property which was sufficient to justify the special assessment thereof.

Defendant’s contention, on the other hand, is that the council did discuss and consider the special benefits which would accrue to the abutting properties as a result of the improvements program, and did in actuality make the benefits determination contained in Resolution No. 10,413. Furthermore, defendants allege that there were benefits commensurate with the assessments to accrue to the properties by virtue of numerous improvements with which the council was intimately familiar, including street widening, drainage, tree wells, lighting and sidewalks, and consequent improvement in fire and police protection.

With respect to plaintiffs’ reliance on Brill, defendant contends, and we agree, as did the trial court, that Brill, assuming its rationale is valid, is not dispositive here. While there was an upgrading and widening of an already paved North Street as an integral part of downtown improvements in Baton Rouge, the purpose was not, as in Brill, to accommodate heavier traffic of a “through” nature, nor had the character of a little traversed residential neighborhood been changed to that of a major thoroughfare or highway.

Admittedly, the council did not receive evidence in the nature of expert opinion testimony or otherwise, correlating specific monetary enhancement and street improvements. Such, however, is not made a requirement by R.S. 33:3306. The council need merely determine that the lots to be assessed “will be benefited to an amount not less than the proposed local or special improvement.” This they clearly and specifically did. Although we find little merit in defendant’s contention that the minutes of the council are not subject to collateral attack, etc., we are equally satisfied that one may not protest that a legislative body has not done that which through its exclusive means of communication (resolutions and/or ordinances) it has proclaimed that it has.

The merit of the council’s benefits determination is, of course, a different matter. Was the council correct in its determination? Was that determination the exercise of a legislative or a judicial function? And is that determination reviewable in court?

We believe that the benefits determination, statutorily required of the municipal legislative body, is a legislative act, with admittedly quasi-judicial overtones, and that while it is not totally unreviewa-ble, courts may not upset the determination absent such manifest and palpable abuse of power such that excess of the limits of legislative discretion is evident.

As was noted by the First Circuit Court of Appeal in Olsen v. City of Baton Rouge, 247 So.2d 889 (La.1971), writs refused 259 La. 755, 252 So.2d 454, municipal legislative acts are presumed to be valid and the burden rests with the party who asserts the contrary. A court may not interfere with this legislative function unless it is clearly shown that the legislative body’s action is so clearly arbitrary and capricious as to be unreasonable. Nor is the municipal legislative body constrained (by the provisions of R.S. 33:3301 et seq. or otherwise) by the procedural rules relative to evidence and the like normally attendant to judicial proceedings. In the case at hand, while the evidence presented in the district court may arguably have been short of a preponderance that plaintiffs’ properties would be benefited to an amount not less than the proposed assessments, we are unable to conclude that the Parish Council for the Parish of East Baton Rouge exceeded its legislative discretion in determining that the abutting properties were to be benefited in the requisite amount.

Decree

For the foregoing reasons the judgment of the Court of Appeal is reversed, and that of the trial court in favor of defendant and against the plaintiffs dismissing the suit at plaintiffs’ costs is reinstated.

JUDGMENT REVERSED; TRIAL COURT JUDGMENT REINSTATED.

      . Accord, see Fourmy v. Town of Franklin, 126 La. 151, 52 So. 249 (1910) quoting from Kelly v. Chadwick, 104 La. 719, 29 So. 295 (1901) as follows:
      “With the wisdom or unwisdom of special assessments, when ordered in cases in which they are admissible, the courts have no concern, unless there is plainly and manifestly such an abuse of power as takes the case beyond the just limits of legislative discretion.”


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Ronald PROVOST.
    No. 59756.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      J. Minos Simon, J. Minos Simon, Ltd., Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-appel-lee.
   MARCUS, Justice.

Ronald Provost was charged by bill of information with the crime of attempted murder of Joseph P. Landry. After trial by jury, he was found guilty as charged and was sentenced to serve eight years at hard labor. On appeal, defendant relies on three assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in permitting the state to introduce evidence which established that the pistol allegedly used in the commission of the crime was a stolen weapon. He argues that such evidence was irrelevant and prejudicial in that it necessarily implied that defendant had stolen the weapon.

At trial, the state called to the stand Barbara Rogers, office manager of a discount store in Lafayette who was in charge of the store’s records regarding the receipt and sale of weapons. When asked whether the records contained any information concerning the gun allegedly used in the commission of the crime, the witness responded that the gun was not marked as sold to anyone and was listed as stolen. Without objection, she continued that she had no knowledge of when the theft occurred. On cross-examination, the witness admitted that she had not personally made the entries in the records of the receipt and theft of the pistol. At the conclusion of cross-examination, defense counsel moved to strike the witness’ testimony on the grounds that the witness was not qualified to testify as to the store’s records pertaining to this weapon and the testimony was irrelevant unless the state intended to prove that defendant had stolen the weapon. Defense counsel continued that, if such was the intent of the state, the state would be attempting to prove a crime not charged in the indictment and defense counsel would move for a mistrial. In response to defense counsel’s inquiry, the prosecutor explained that the testimony was offered to prove a link in the chain of evidence. He continued that defendant had not been charged with theft and he did not know whether defendant would be so charged in the future or not. Thereupon, defense counsel moved for a mistrial. He argued that the prosecutor’s remark compounded the previous prejudicial testimony relating to the theft of the gun by connecting it with defendant. The trial judge denied defendant’s motion for a mistrial.

Defendant’s objection to the allegedly irrelevant and prejudicial testimony of the witness was raised by a motion to strike at the conclusion of cross-examination rather than by a contemporaneous objection to the alleged error. A motion to strike testimony is unknown to the criminal law of Louisiana. To bar testimony at trial, a contemporaneous objection is required. State v. Nix, 327 So.2d 301 (La.1975); State v. Vince, 305 So.2d 916 (La.1974); State v. Richmond, 278 So.2d 17 (La.1973); State v. Isaac, 261 La. 487, 260 So.2d 302 (1972). Hence, if the motion to strike is treated as an objection to the testimony, it came too late and cannot be availed of on appeal. La.Code Crim.P. art. 841; State v. Williams, 343 So.2d 1026 (La.1977).

Defendant did not designate the denial of his motion for a mistrial grounded on the prosecutor’s remark allegedly connecting defendant to the theft of the gun as an error to be urged on appeal. Hence, the alleged error is not before us for review. La.Code Crim.P. art. 844; State v. Spears, 350 So.2d 603 (La.1977); State v. Wientjes, 341 So.2d 390 (La.1976); State v. Thomas, 329 So.2d 704 (La.1976); State v. Williams, 325 So.2d 582 (La.1976); State v. Williams, 319 So.2d 404 (La.1975). Nevertheless, we have examined defendant’s contention. Although we conclude that the evidence of the theft of the gun from the discount store was not relevant in establishing the defendant was in possession of the weapon when the offense was committed, this evidence had already come into the record without objection as previously noted. Moreover, on cross-examination, defense counsel questioned the witness extensively on the theft of the gun and requested that the prosecutor clarify whether he planned to establish that defendant was the person responsible for the theft. Prior to this inquiry, defendant was not linked in any way to the theft. Moreover, the prosecutor’s remark that he did not know whether or not defendant would be charged with the theft was responsive to defense counsel’s request. Under these circumstances, we are unable to say that the trial judge erred in denying defendant’s motion for a mistrial.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in permitting the state to introduce in evidence a pistol. He argues that an insufficient foundation was laid by the state prior to its introduction in evidence.

At trial, Joseph P. Landry, the victim of the crime, testified that on June 13, 1973, he was working the midnight to 8:00 a. m. shift at the Doc Bonin Power Plant in Lafayette along with defendant and Ralph Cunningham. Around 3:00 a. m., he left the control room located on the third level of the power plant and went to the kitchen on the ground floor to eat his meal. Landry testified that no one was in the kitchen at that time. He was seated with his back to the door and was eating his meal when he heard the door open, turned and saw defendant standing directly behind him. Defendant then walked to the soft drink machine behind Landry. The witness related that at that moment he heard an explosion and felt something strike him in the back of the head. He turned and saw defendant who then moved in front of him. Landry testified that he observed that defendant was holding an object in one hand pointing it at him and was working it with his other hand. He was unable to discern what the object was. Thereupon, Landry fled from the kitchen and attempted to climb the stairs to the control room but was unsuccessful because of his weakness from the blow. He stated that during this time defendant was pursuing him and was apparently reloading the object. Landry then ran to the elevator on the ground floor near four chemical tanks and caught it to the third floor control room where he found Cunningham and related to him that defendant had hit him. Shortly thereafter, Landry was taken to the hospital where metal fragments were removed from his head.

Gene Melancon, a water analyst at the power plant, testified that five days after the shooting (June 18) as he prepared to place chemicals in the tanks situated on the ground floor near the elevator he noticed a shiny object in the basket of one of the tanks which was identified as a spent cartridge. With the aid of a magnet, he discovered a pistol at the bottom of the tank. After the tank was drained, the gun was removed and surrendered to the police. The pistol was then marked for identification and stored in the evidence room at the police station until it was released to the Acadiana Crime Laboratory where it was subsequently stored until delivered to the assistant district attorney for trial. Sergeant Sidney Broussard, Jr. testified that the weapon was in a jammed condition when removed from the tank.

Ralph Huval, a criminologist for the Aca-diana Crime Laboratory, testified that the weapon recovered from the tank was a .22 caliber pistol. He further stated that, although the lead particles removed from Landry’s head were fragments of a .22 caliber bullet, he was unable to determine whether the bullet was fired from the gun discovered in the tank due to the damaged condition of the fragments.

For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case. State v. Williams, 341 So.2d 370 (La.1976); State v. Collins, 328 So.2d 674 (La.1976). Lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than to its admissibility. State v. Hayes, 306 So.2d 705 (La.1975); State v. Freeman, 306 So.2d 703 (La.1975). Ultimately, connexity is a factual matter for determination by the jury. State v. Hayes, supra; State v. Freeman, supra; State v. Dotson, 260 La. 471, 256 So.2d 594 (1971); State v. Wright, 254 La. 521, 225 So.2d 201 (1969).

In the instant case, the .22 caliber pistol was discovered within five days of the offense on the plant site near the area where the crime was committed. When discovered, the weapon was in a jammed condition which corroborated Landry’s observation that defendant was working the object with his hand immediately after the shooting. Furthermore, the evidence revealed that the victim was wounded by a .22 caliber bullet. Based on the foregoing facts, we conclude that it was more probable than not that the pistol was the weapon connected with the case. Accordingly, the trial judge did not err in admitting it in evidence.

Assignment of Error No. 2 lacks substance.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in denying his motion for a new trial.

Defendant first urges that the verdict is contrary to the law and evidence. It is well settled that such an allegation presents nothing for this court’s appellate review. State v. Williams, 343 So.2d 1026 (La.1977); State v. Jack, 332 So.2d 464 (La. 1976); State v. Bartley, 329 So.2d 431 (La. 1976).

The second and third grounds for defendant’s motion assert allegations previously considered in Assignments of Error Nos. 1 and 2 and, for the reasons assigned therein, are without merit.

Defendant’s fourth basis for his motion for a new trial is the discovery of allegedly new and material evidence consisting of the testimony of Dr. David J. Reese, a psychiatrist who had treated Ralph Cunningham, a co-worker of defendant and the victim, for acute and chronic paranoid schizophrenia and who had interviewed defendant in connection with his treatment of defendant’s wife. The testimony purportedly would tend to prove that Cunningham might possibly have committed the crime because of his predisposition for violence and his distrust of others attributable to his mental condition while defendant did not have any personality defects which would have predisposed him to attempt to kill the victim. Dr. Reese testified as such at the new trial hearing, but, by his own admission, his opinion was speculative and “not highly reliable.” Although defendant contends that, based on Dr. Reese’s testimony at the new trial hearing, this information was disclosed to the assistant district attorney prior to trial, the assistant district attorney in his testimony at the hearing emphatically denied that he knew of this information prior to trial but rather testified that Dr. Reese did not divulge this information to him until after defendant was convicted. In denying the motion for a new trial, the trial judge expressed his belief that the information had not been conveyed to the assistant district attorney prior to trial and therefore the state had not withheld the evidence.

La.Code Crim.P. art. 851(3) dictates that the court on motion of defendant shall grant a new trial whenever:

(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;

This court has consistently held that the trial judge is accorded considerable discretion in evaluating the impact of newly discovered evidence on the verdict and its reliability, and his ruling will be disturbed on appeal orily where there is a clear showing of abuse of discretion. State v. Williams, 343 So.2d 1026 (La.1977); State v. Brown, 338 So.2d 686 (La.1976); State v. Robinson, 337 So.2d 1168 (La.1976); State v. Phanor, 325 So.2d 579 (La.1976). In considering a motion for new trial based on newly discovered evidence, the test to be employed is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a different result than the verdict reached. State v. Williams, supra; State v. Brown, supra; State v. Jackson, 253 La. 205, 217 So.2d 372 (1968). In view of the speculative nature of the testimony, we are satisfied that the newly discovered evidence presented by defendant does not meet this test. We therefore conclude that the trial judge did not abuse his discretion in denying defendant’s motion for a new trial on this basis.

In sum, Assignment of Error No. 3 is without merit.

DECREE

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


author: DIXON, Justice.

text:
    STATE of Louisiana v. Joseph G. MADERE.
    No. 59765.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      Howard P. Elliott, Jr., Gen. Counsel, Dept, of Public Safety, 0. E. Jack Roberts, Baton Rouge, for plaintiff-applicant.
    Daniel E. Becnel, Jr., The Law Offices of Daniel E. Becnel, Jr., Reserve, for defendant-respondent.
   DIXON, Justice.

On September 20, 1974 Louisiana State Police officers seized sixty-two slot machines from a house and garage owned by Joseph G. Madere. At the time of the seizure none of the machines were in use, and many were allegedly in such a state of disrepair that they could not be used. The State, through the Department of Public Safety, thereafter filed an action for declaratory judgment, naming Madere as defendant, to determine whether R.S. 15:31, as amended by Act 130 of 1972, permits the confiscation and destruction of slot machines without a court order.

A separate suit, filed by Madere, seeking an award of damages against the State was later consolidated with the action for declaratory judgment. The trial court held that R.S. 15:31 requires a determination that the machines were being used for gambling within a reasonable time of their seizure before destruction is permissible. The Fourth Circuit Court of Appeal, over one dissent, affirmed the trial court judgment. 344 So.2d 29 (La.App. 4th Cir. 1977). We granted the State’s application for certiora-ri to review that ruling.

R.S. 15:31, as amended by Act 130 of 1972, provides:

“A. All law enforcement officers of municipal police forces, sheriffs’ departments and the division of state police are hereby authorized and empowered and it is made mandatory and compulsory on their part to confiscate and immediately destroy all gambling devices or machines used for gambling that come to their attention.
“B. As used in this section the term ‘gambling device’ means:
(1) any slot machine; or (2) any machine, mechanical or electronic device of any sort whatsoever with a cash automatic payout device; or (3) a pinball or other ball machine, mechanical or electronic device equipped with a mechanism to release the number of free games or replays and a mechanism to record the free games or free plays so released.
“C. Whenever any other machine, mechanical or electronic device, including but not limited to roulette wheels and similar devices, designed and manufactured primarily for use in connection with gambling, and (1) which, when operated, may deliver, as the result of the application of an element of chance, any money or property, or (2) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property, is used to conduct gambling, then following the conviction of any person for the crime of gambling by use of any such machine or device, the court wherein the verdict of guilty was returned shall order the immediate destruction of the machine or device by the proper law enforcement agency of the parish wherein the machine or device was used for gambling.
“D. Whenever any machine or other mechanical or electronic device of any kind whatsoever, not designed and manufactured primarily for use in connection with gambling, including specifically but not limited to coin-operated bowling games, shuffle alleys, mechanical baseball games, pinball games, mechanical guns, electronic ray guns, digger type machines, iron claws, and all similar types of coin-operated games, is used to conduct gambling, then following the conviction of any person for the crime of gambling by use of any such machine or device, the court wherein the verdict of guilty was returned shall order the immediate destruction of the machine or device by the proper law enforcement agency of the parish wherein the machine or device was used for gambling.
“E. The ownership of a federal gambling stamp for any machine or device, other than a machine commonly known as an ‘iron claw’ or a ‘digger’ machine, shall be absolute proof of its use for purposes of gambling, and neither the State of Louisiana nor any subdivision, agency, agent or enforcement officer shall be liable civilly or criminally for the destruction of any gambling device or gambling machine for which a federal gambling stamp has been issued.”

The Court of Appeal held that the phrase “used for gambling” modifies both “gambling devices” and “machines.” The court concluded that the slot machines seized from Madere were not “used for gambling,” and were not subject to confiscation and immediate destruction.

In the proper interpretation of R.S. 15:31 it is helpful to review the judicial interpretation of its predecessors. Act 231 of 1928 provided for the summary confiscation and destruction by officers of the State of “. . . all gambling devices known as slot machines that may come to their attention, or that they may find in operation.” (Emphasis added). This statute was interpreted to mean that all slot machines, whether in use or not, were subject to confiscation and destruction. Schimpf v. Thomas, 204 La. 541, 15 So.2d 880 (1943); State v. Ricks, 215 La. 602, 41 So.2d 232 (1949). In 1962 the provision was amended to provide for the confiscation and destruction of “. . . all gambling devices or machines used for gambling that may come to their attention and that they may find in operation.” Act 361 of 1962. In Gascon v. State, through the Department of Public Safety, 263 So.2d 81 (La.App. 1st Cir. 1972), the First Circuit Court of Appeal, properly attaching significance to the change of the disjunctive “or” to the conjunctive “and,” held that confiscation and destruction were not warranted absent a finding that the machines were in use. It is significant to note that, unlike the version in the present case, the statute interpreted in Gascon did not provide a separate definition of “gambling devices.”

Within one month of the decision in Gas-con, the legislature amended R.S. 15:31 to its present form by Act 130 of 1972. In paragraph A, law enforcement officers are authorized (and compelled) “. . . to confiscate and immediately destroy all gambling devices or machines used for gambling that come to their attention.” (Emphasis added). The term “gambling device” is defined in paragraph B; while paragraphs C and D pertain to other types of machines, which, when used to conduct gambling, are subject to confiscation and destruction.

It is apparent that the legislature, by distinguishing “gambling devices” and “machines used for gambling” with the disjunctive “or” and by separately defining “gambling devices” without reference to use, intended to restrict the use requirement described in paragraphs C and D to machines not falling within the definition of “gambling devices” found in paragraph B. Furthermore, the title of the act which, while not part of the statute, may be used to determine legislative intent, indicates that the legislature intended that “gambling devices” as defined therein, are to be treated differently from other machines designed for gambling, and destroyed without regard to whether they were in use. This apparently indicates the intent to achieve the results attained by Act 231 of 1928 as construed by Schimpf v. Thomas, supra. Thus, those devices defined in paragraph B are deemed by the legislature to be contraband and are to be destroyed in all cases, while other machines, described in paragraphs C and D as capable of legitimate use, are to be destroyed only when it is shown that they were being used to conduct gambling.

Therefore, we find that the courts below erred in holding that slot machines were subject to immediate confiscation and destruction only when “used for gambling.”

An effort was made by defendant to raise constitutional issues for the first time in this court. The only reference to constitutional issues in the pleadings in the district court is in the last sentence of the last paragraph of his answer, in which he said the seizure of his property violated his property rights and infringed upon his “civil liberty,” and that he reserved his right to file a civil suit against the State of Louisiana “at a later date.” This suit was later filed, consolidated with this declaratory judgment action, but held in abeyance pending this action.

It would not be appropriate for us to undertake to decide important constitutional issues not raised by pleadings, not briefed and argued below, and not considered below. However, it is not necessary to prolong the instant case, nor to deprive the defendant of an opportunity for adjudication of the constitutional issues. There is pending in the district court his suit for damages for wrongful seizure. While he cannot succeed in that suit under his interpretation of R.S. 15:31, he may, by appropriate pleadings, (Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971)), place at issue the constitutionality of the statute as here interpreted.

Therefore, there is judgment herein in favor of the plaintiff, State of Louisiana, and against the defendant, Joseph G. M adere, declaring that gambling devices, as defined in § B of R.S. 15:31, may be confiscated and immediately destroyed under the provisions of § A of R.S. 15:31; the defendant is cast for all costs. The record in the suit Joseph C. Madere v. State of Louisiana et a 1., No. 7273 of the Twenty-Ninth Judicial District Court, is remanded to that district court.

      . After the slot machines were seized, the State, in order to protect the seizing officers from civil liability, requested an opinion from the Attorney General. (See Atty. Gen. Op. No. 74-1415). The State also, for the same reason, postponed the destruction of the machines pending a judicial resolution of the issues.

      . The district court, pursuant to an agreement between counsel, withheld judgment on Mad-ere’s civil action pending a final determination on appeal of this action for declaratory judgment. The record, however, was forwarded to the Court of Appeal and then to this court, in spite of the absence of a district court judgment.

      . Melancon v. Mizell, 216 La. 711, 44 So.2d 826 (1950); Conley v. City of Shreveport, 216 La. 78, 43 So.2d 223 (1949).

      . The principal constitutional issue suggested is that the State is powerless to seize and destroy private property, not used in any illegal pursuit, without judicial proceedings and without compensation. A related issue was recently treated in State v. 1971 Green GMC Van (La., decided September 19,1977).