author: TATE, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Philip WASHINGTON.
    No. 56507.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Dissenting Opinion Nov. 24, 1975.

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

The defendant Washington was convicted of armed robbery, La.R.S. 14:64, and sentenced as a multiple-offender, La.R.S. 15:529.1, to sixty-six years at hard labor. On his appeal, he replies upon two assignments of error.

Assignment One

The first assignment relates to the comments made by the trial court and by a bailiff in the presence of a jury, at a time when the defendant (continuing a previous pattern of obstreperous conduct) stood up and interrupted the victim-witness’s testimony, exclaiming, “It’s a damn lie.” The bailiff told the defendant to sit down.

The defendant’s trial attorney moved for a mistrial.

The trial court denied the motion for the reason that the defendant’s conduct had been “continuously disrespectful.” The trial judge continued: “I will have to order his removal from the courtroom. I want to tell all of you sheriffs if he feels like he whenever he feels like he can come in the court without disrupting the proceeding, I want him back in the courtroom.”

The bailiff then interjected, “Judge, the only way you’re going to do it is to tape his mouth and put a straight jacket on him.” The trial judge replied, “No, I don’t want to do that. We will proceed in his absence in view of the defendant’s conduct . . . if he feels like he can settle down and come into the court, I will permit him to return.”

The defendant’s trial counsel then re-urged his motion for a mistrial. At this point, the trial recessed for lunch. When trial resumed, the defendant was permitted to be present with his counsel, and the trial proceeded through the next (and final) six witnesses without any other disruption by him.

Appellate counsel for the defendant concedes (as he must) that the trial judge was entitled to take adequate measures against the accused’s disruptions to assure courtroom decorum and the orderly progress of the trial. Illinois v. Allen, 397 U. S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); State v. Brewer, 301 So.2d 630 (La.1974). However, counsel contends with some force that it was error to deny a mistrial without emphatic cautionary instructions to the jury that the measures ordered had no bearing on the guilt or innocence of the accused but were merely to maintain orderly procedure in the courtroom. See State v. Brewer, cited above; State v. Boudoin, 257 La. 583, 243 So.2d 265 (1971). See, e. g., State v. Roberts, 86 N.J.Super. 159, 168, 206 A.2d 200, 205 (1965).

The defendant is correct in his contention that cautionary instructions of this nature should be given to the jury whenever restraint or other order-preserving measure is necessitated by the disruptive conduct of the accused. As American Bar Association Standards of Criminal Justice Relating to Trial by Jury, Standard 4.1(c) (1968) provides: “Defendants and witnesses should not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, he should enter into the record of the case the reasons therefor. Whenever physical restraint of a defendant or witness occurs in the presence of jurors trying the case, the judge should instruct those jurors that such restraint is not to be considered in assessing the proof and determining guilt.”

However, the oversight of the trial court in failing to afford the cautionary instructions, affirmatively required on his part, did not constitute reversible error. If trial counsel felt that the oversight seriously prejudiced a fair trial for the accused, his failure to request instructions at the time (or object to the denial of the mistrial without them) had the effect, at least under the circumstances shown, of waiving the irregularity or error now complained of. La.C.Cr.P. art. 841.

Assignment Two

By his second assignment, the defendant contends that the competent evidence before the trial court was insufficient for finding him to be a second offender, La.R. S. 15:529.1 (1958), and, therefore, for imposing upon him a heavier sentence in accordance with this finding.

The proof educed was: certified copies of the bills of information, pleas of guilty (the same date), and concurrent sentences on the prior offense(s); an exhibit from the state penitentiary containing the prison record there of a Philip Washington and copies of his fingerprints; and testimony of a witness qualified as a fingerprint expert that the present defendant Washington’s fingerprints were identical to those reflected by the prison record.

The proof required for a multiple-offender conviction (that there was a prior felony committed and that the defendant is the person who committed it, State v. Dugas, 170 La. 5, 127 So. 345 (1930)) is prima facie established where the state presents (a) documents from the state penitentiary, properly authenticated, together with a photograph and fingerprints of the person imprisoned on the prior offense, La.R.S. 15:529.1, subd. F (1958), State v. Morris, 222 La. 480, 62 So.2d 649 (1953), and (b) evidence establishing that the defendant is the same person.

We reject the defendant’s contention that the trial court abused its discretion in finding the witness qualifed as a fingerprint identification expert for the purposes offered. La.R.S. 15:464, 465.

However, the defendant correctly points out that the documents from the state penitentiary were not properly authenticated, as required by statute. (Except for this inadequacy, the proof is otherwise sufficient to support the trial court’s holding that the defendant is a second offender.)

The documents from the penitentiary, including the fingerprints, were transmitted by a letter from an individual identifying himself as “I.D. Officer, La. State Penitentiary.”

The records were not shown to be “certified by the officer who is the legal custodian” of the document offered and thus admissible as an officially certified copy of a document. La.R.S. 15 :457. Neither did the informal letter of transmittal meet the statutory standard provided for prima facie evidence of the imprisonment and discharge of the defendant on a prior conviction. La.R.S. 15:529.1, subd. F. The last-cited statute provides that, for the penitentiary document to have such effect, it should be established by the certificate of the warden under his seal, if any.

Thus, the objection to the admission of the penitentiary documents as uncertified should have been sustained. Therefore, we must sustain the defendant’s assignment of error that the proof educed was incompetent to convict him as as second offender. The case must be remanded for re-sentencing in accordance with law.

Decree

Accordingly, we affirm the defendant’s conviction of armed robbery; but we remand the case to the trial court for re-sentencing in accordance with law as a second offender, La.R.S. 15:529.1, subject to any defense available to the defendant.

Conviction affirmed; case remanded for re-sentencing in accordance with law.

SUMMERS, J., dissents and will assign reasons.

BOLIN, J., dissents on disposition of assignment Two.

SUMMERS, Justice

(dissenting).

In brief to this Court appellant argues that the trial judge erred in finding that the accused was a second offender on the evidence offered by the State at the multiple offender hearing. This question cannot be considered by this Court because no written assignment of error on this point was ever submitted to the trial judge for his per curiam comment as required by Article 844 of the Code of Criminal Procedure:

“The party appealing shall designate, in writing, those errors which are to be urged on appeal.
“The assignment of errors shall be filed within the time specified by the trial judge.
' “The trial judge may submit such per curiam comments as he desires.”

These are the assignments of error in the trial court:

“The court erred in refusing to grant the defense motions for mistrial and otherwise in commenting before the jury on defendant’s conduct during trial and in permitting the courtroom deputies to comment on same before the jury.”

In this connection, it may be well to remind this Court that

“The following matters and no others shall be considered on appeal:
“(1) An error designated in the assignment of errors; and
“(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La.Code Crim.Proc. art. 921.

It is upon the “evidence” that this reversal turns, and without any assignment of errors on the issue presented by the “evidence”. The reversal is not based upon the pleadings and proceedings.

This absence of an assignment of error on the issue upon which this reversal turns was emphatically stressed by the State in its brief. Actually, assignment of error number two in the trial court was considered by the trial judge in his per curiam to be related to the amendment of the bill of information, not the issue this Court considers as assignment of error number two. In any event the trial judge wrote no per curiam on the issue this Court considered in overturning this conviction.

Notwithstanding these facts, this Court states: “Therefore, we must sustain the defendant’s assignment of error that the proof educed was incompetent to convict him as a second offender.” Thus, this decision, on the erroneous impression that an assignment of errors had been made as required by Article 844, compels the trial judge to set aside the enhanced penalty of this recidivist offender, previously convicted of simple burglary.

I would affirm the conviction.

      . La.R.S. 15 :529.1, subd. F provides:
      “The certificates of the -warden or other chief officer of ■ any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the fingerprints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence on the trial of any person for a second and subsequent offense of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.”


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Robert Emmitt BUTLER, Appellant.
    No. 56385.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Dissenting Opinion Nov. 24, 1975.

      Murphy W. Bell, Director, R. Judge Eames, Trial Atty., Roland T. Huson, III, Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., David M. Miller, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

Based on a 1972 offense, the defendant was convicted of attempted murder, La.R. S. 14:27, La.R.S. 14:30(1) (1950), and sentenced to ten years imprisonment at hard labor. On his appeal, he makes twenty-three assignments of error. For reasons to be assigned, we find three of them have merit and, accordingly, reverse.

The context facts show :

The defendant Butler and the female victim had been living together for about two years, but they broke up. About two months later, they met in the early hours of the morning and went together to a motel room.

In the motel room, Butler immediately taxed her with going with another man. He then cut her numerous times on the face, eyes, arms, and back, and kicked her in the stomach. He told her to crawl to the bathroom to look at herself and that “if she did not want him, he was going to see who wanted her.” She was subsequently taken to the hospital in a critical condition, where her injuries were diagnosed as a ruptured spleen and liver and a mutilated face.

The Offense Charged

The defendant was charged with attempted murder. La.R.S. 14:30(1) (1950) and La.R.S. 14:27. These statutory enactments provide:

La.R.S. 14:30(1) : “Murder is the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm. * * * .”

La.R.S. 14:27: “Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. * * *(Italics ours)

The crime of attempted murder was at the time of the offense punishable by imprisonment at hard labor for not more than twenty years. La.R.S. 14:27, subd. D(1) (1950).

The theory of the defense was that the defendant was not guilty of attempted murder because he had no specific intent to kill the victim. Thus, the defendant's theory was that, at the most, the evidence shows that he was guilty of an aggravated battery, namely, the intentional use of force upon another person with a dangerous weapon, (a crime punishable by imprisonment with or without hard labor for not more than ten years). La.R.S. 14:34.

The accused was not permitted to argue or to submit this defense to the jury by reason of a series of rulings by the trial court which accepted the state’s clearly erroneous contention that attempted murder could be committed by an overt act committed with a specific intent to inflict great bodily harm on the victim, although without any specific intent to kill her.

The Assignments Presenting Reversible Error

The specific assignments of error relied upon are:

Assignment 21, which complains of the trial court’s charge to the jury that, to find the accused guilty of attempted murder, it need find the accused guilty of either a specific intent to kill or of a specific intent to inflict great bodily harm.

Assignment 22, which complains of the trial court’s failure to give the jury a special charge instructing it that there can be no attempt to commit murder unless the attempt was made with the specific intent to kill.

Assignment 15, which complains of the trial court’s failure to correct the erroneous statement of the prosecutor that attempted murder could be committed if the assault was made only “with intent to do great bodily harm to someone, even though there is no intent to kill.”

Additionally, the trial court sustained the state’s objection, made during the course of the defendant’s final argument to the jury, and prevented him from arguing to the jury that a specific intent to kill was required, stating to counsel, Tr. II, 217: « * * * i will n0(- permit yOU to mislead a jury by saying in attempted murder there must be an intent to kill, because T think that’s a misstatement of the law, and I so instruct you.”

The Applicable Law

La.R.S. 14:27 provides that to attempt a crime an accused must do an act tending directly towards accomplishing his object, “having a specific intent” to commit the crime. The crime of murder is “the killing of a human being,” under certain circumstances. Thus, as this court held in State v. Roberts, 213 La. 559, 35 So.2d 216, 217 (1948), “the elements of the crime of attempted murder are specific intent to kill a human being (Article 30, Criminal Code) and an overt act in furtherance of the object.” It has therefore universally and without exception been held in American jurisdictions that a specific intent to kill is an essential element of the crime of attempted murder.

See: Perkins, Criminal Law, P. 574, (2d ed. 1969); Clark & Marshall, A Treatise on the Law of Crimes, Section 4.08 (7th ed. 1967); LaFave and Scott, Handbook on Criminal Law, 428-429 (1972); 1 Wharton’s Criminal Law & Procedure, Section 73 (Anderson ed., 1957) ; Annotation, What Constitutes Attempted Murder, 54 ALR 3d 612, Section 3 (1973); 40 Am. Jur.2d Homicide, Section 566 (1968) ; 40 C.J.S. Homicide § 68 (1944).

Professor Dale Bennett, noted authority on Louisiana criminal law, has described the relationship between the crime of murder, which requires a killing with a specific intent to kill or to inflict great bodily harm, and the crime of attempted murder, which requires a specific intent to kill. He notes, 34 La.L.Rev. 340 (1974) :

Murder requires “ ‘a specific intent to kill or to inflict great bodily harm.’ Such an intent will be implied from the use of a deadly weapon — as by stabbing or shooting the victim. [State v. Jordan, 276 So.2d 277 (La.1973)]. A more difficult burden of proof is imposed for a conviction of attempted murder which requires a specific intent to kill. In State v. Lee [275 So.2d 757 (La.1973)] a conviction of attempted murder was supported by evidence showing that the defendant had 'fired at least one shot at the alleged victim.’ It is conceivable, however, that a deadly weapon may be used with a specific intent to maim or seriously injure, rather than to kill. In such a situation the defendant would be guilty of murder if the victim died, but would not be guilty of attempted murder if the shot or blow did not kill the victim. By the nature of the attempt definition a specific intent to commit the crime, which may be more demanding than the intent required for the completed offense, is an essential element of that offense.”

The state does not cite any authority contrary to this well-settled principle.

The state’s reliance upon State v. Lee and State v. Jordan, cited in the above excerpt from Dr. Bennett’s discussion of recent jurisprudence, is misplaced. The Lea case in effect simply held that evidence that the defendant had fired a shot aimed at the victim was some evidence by which a properly instructed jury could infer a specific intent on the part of the accused to kill the victim; therefore, the motion for new trial after conviction of attempted murder was properly denied. Tn Jordan, where the accused was convicted of murder, the court simply pointed out that specific intent for murder may statutorily include specific intent to commit great bodily harm, for there is a presumption that one intends the consequences of his act, La.C. Cr.P. art. 432.

Thus, these cases may be authority for a holding that the jury may infer, as a matter of fact, a specific intent to kill by reason of a specific intent to inflict great bodily harm. They are not authority, however, for any holding that, as a matter of law, attempted murder may be committed by an act without a specific intent to kill.

To adopt the state’s argument would be to permit the state to charge with attempted murder any accused guilty of a battery, with or without a dangerous weapon, whenever that battery involved the possibility of great bodily harm, whether or not the accused acted with intent to kill. To do so would be to ignore the legislatively different definitions of the crimes of attempted murder, simple battery, and aggravated battery, with the legislatively provided distinction in the penalties to be applicable upon conviction of the different offenses.

Because of these erroneous rulings by the trial court, we are required to reverse and to remand for a new trial in accordance with law. The defendant was by them denied a defense permitted him by law.

Harmless Error?

The state raises what initially appears to be an attractive argument: Since the evidence the jury found credible undoubtedly proves an aggravated battery, La.R.S. 14:34, and since the sentence of ten years received by him does not exceed the maximum (ten years) punishment provided for that crime, then the technical insufficiency of the instructions received by the jury should be overlooked as harmless. Translated into what occurred here, the suggestion is thus made that the present conviction of attempted murder should be affirmed, since the evidence proves that the defendant was guilty of another crime, an aggravated battery.

The difficulty with this suggestion is that it is contrary to fundamental theory in America of criminal prosecution and of judicial review. It suggests that, if an accused’s conduct constitutes any crime, he cannot complain even if he was tried and convicted for a crime which, as defined by the legislature, did not punish the conduct of which he is found guilty, provided only that the actual sentence does not exceed the maximum allowable for the actual crime committed.

Fundamental to American law are the principles here applicable. The state through its legislature has defined the conduct constituting particular offenses, with particular consequences (sentences). To secure conviction for any such offenses, the state through its prosecutors must charge the accused with a particular crime or crimes and prove the accused’s guilt of the legislatively-defined crime(s) beyond a reasonable doubt. The jury with proper instructions of law is the exclusive arbiter of the innocence or guilt of the crime charged. The courts are constitutionally bound to assure that those accused before our courts are tried in accordance with law and to reverse, where substantial error of law is committed.

To suggest that no substantial error of law occurs, where the jury was in effect instructed that a person guilty of aggravated battery can be convicted of attempted murder although he has no specific intent to kill by the battery, is to suggest an untrammelled discretion of prosecutor, jury, and court to punish an accused for offensive conduct. To the contrary, the legislature has authorized prosecutions for particular crimes. In a government of law and of constitutionally and legislatively limited powers, neither prosecutor, jury, nor court are empowered to sustain a conviction for conduct not punishable by the crime for which the accused stands charged.

Other Assignments of Error

For the most part, the other assignments of error concern contentions that will probably not arise on the re-trial. However, the following assignments relate to substantial issues that may arise:

Assignments 14 and 23: These urge as error the trial court’s denial of a directed verdict and of a new trial. Both are based on the contention that the state failed to prove a specific intent to kill, based on the victim’s testimony that the accused told her he was trying to disfigure her so that no other man would have her.

However, the evidence also indicates that the accused inflicted with a knife serious injuries upon the victim, of which she nearly died. A properly instructed jury might reasonably infer, as a fact, the specific intent to kill: Under all the circumstances shown, an intent to kill might be reasonably implied from the intentional use of a deadly weapon to produce injuries involving serious risk of death. State v. Jordan, 276 So.2d 277 (La.1973); State v. Lee, 275 So.2d 757 (La.1973); Bennett, 34 La.L.Rev. 340 (1974).

In the jurisprudence of other states, the specific intent to kill may be inferred from the accused’s entire conduct, but not merely from the overt act itself which constitutes (along with the specific intent to kill) an essential element of an attempt to murder. Annotation, What Constitutes Attempted Murder, 54 ALR 3d 612, Section 2(a) at p. 618, Section 12 (1973). Cf. also State v. Daniels, 236 La. 998, 109 So.2d 896 (1959).

Thus, since in the present case there was some evidence from which a properly instructed trial jury could infer a specific intent to kill, the motions were correctly denied.

Assignment 1: We find no error in the denial of a change of venue. The extensive publicity some two years before the trial and the minor publicity about the large bail set at the time of the accused’s arrest are not shown to have affected the accused’s right to obtain a fair and impartial trial when it occurred some time later. The defendant was not denied the right to present any evidence on the issue. La.C. Cr.P. art. 622; State v. Bell, 315 So.2d 307 (La.1975).

Assignments 9 and 11: This concerns objection to introduction of gruesome photographs as unnecessarily repetitive and with a grossly prejudicial effect outweighing their probative value. We are unable to rule on this assignment: Slides 16 and 18-21 are not in the record, although supposedly incorporated therein; and inquiry through the office of our clerk of court to the office of the clerk of the district court have been unable to locate them.

Assignments 17, 18, and 19: These concern objections made to the prosecutor’s rebuttal argument, which the trial court overruled without correcting.

The remarks appear to constitute irrelevantly prejudicial appeals to emotion (referring to the victim’s hospitalization “at the expense of public taxpayers”), prejudi-cially incorrect statements of law (“Counsel will come up here and try to hoodwink you — to tell you that this was some other crime, and that, you know, let him go on this crime, so we can try him on the other crime, but that is not true. I mean, if this man is found not guilty, he cannot be tried .”), and inflammatory arguments going beyond the facts of the present case (“Can you imagine if a fellow could go around raping and maiming . . .”).

In view of the reversal on other grounds, we need not rule whether these remarks constituted reversible error, for we deem it unlikely they will reoccur on the retrial.

Decree

Because of the errors presented by Assignments 15, 21, and 22, which denied the defendant a defense to which he is entitled by law and which contrary to statute improperly relaxed the burden of proof by the state, we reverse; and we remand for a new trial in accordance with law.

Reversed and remanded for a new trial in accordance with law.

SANDERS, C. J., dissents.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

As the Court’s opinion recognizes the

“evidence also indicates that the accused inflicted with a knife serious injuries upon the victim, of which she nearly died. . . . Under all the circumstances shown, an intent to kill might be reasonably implied from the intentional use of a deadly weapon to produce injuries involving serious risk of death.”
Under these circumstances:
“A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.” La. Code Crim.Proc. art. 921.

In my view this conviction did not result in a miscarriage of justice, nor was the accused denied any substantial rights.

I would affirm.

      . This was an essential holding of the decision. In holding- that a verdict of aggravated battery was not responsive to the charge of attempted murder (although the same conduct might, often violate both statutes), the court through Mr. Justice MeOaleb set forth the different essential elements of each crime.
      It may be noteworthy that, as amended by Act 528 of 1975, Article 493 of the Code of Criminal Procedure now permits the joiner in the same indictment of two or more offenses -which “are based on the same act or transaction.”

      . At the time of trial in November, 1974, the four years for institution of a prosecution for an aggravated battery of July, 1972 had not run. La.C.Cr.P. art. 572(2).

      . There is not the slighest intimation that rape was involved in the present crime.


author: BARHAM, Justice.

text:
    STATE of Louisiana v. Larry COLEMAN and Leonard Pearley.
    No. 56418.
    Supreme Court of Louisiana.
    Nov. 4, 1975.
    Rehearing Denied Dec. 5, 1975.

      Normand F. Pizza, Reuter & Reuter, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   BARHAM, Justice.

Defendants were charged by bill of information with the simple burglary of the apartment of Charles Kelly. After trial of the matter, defendants were convicted and sentenced to serve nine years in the custody of the Director of the Department of Corrections. This is an appeal from those convictions and sentences.

On March 26, 1973, Mr. Charles Kelly and his wife returned to- their home from shopping and found the back door to their apartment open. They discovered that a stereo, some clothes, a television, a tape recorder, and other items were missing. They reported the incident to police and the subsequent investigation revealed that a neighbor, Mrs. Jo Ann Walker, had seen two black men with knit caps carrying the stolen goods out of the house. Mrs. Walker testified that the men loaded the items in a maroon car with a white top, which was parked in front of the Kelly apartment.

Three days later, on March 29, 1973, Mr. Kelly, home during his lunch hour, and his wife noticed that a maroon and white car fitting the description given by Mrs. Walker-had just parked outside their apartment. One of the two men in the car approached the door to Kelly’s apartment and knocked. Kelly remained quiet and the party knocked again. After no answer was received, he went next door and knocked on the door to that apartment. Kelly testified that when the man received no answer there he began walking back down the steps. At that point, Kelly walked out of his front door with a gun, “jammed him,” and asked what he was doing there. He also forced another man to get out of the car. The defendants said that they were looking for a girl named Myra who did not, in fact, live in either building.

Shortly thereafter, the police were called and Mrs. Walker, who had witnessed the burglary, came over and identified the two men as the ones she had seen on the previous occasion.

Defendants assigned three errors. However, the first and second assignments were neither briefed nor argued, and they are thus deemed abandoned. State v. Richmond, 284 So.2d 317 (La.1973).

The third assignment of error, the only one that we consider, is an objection to the trial court’s refusal to grant a new trial on the ground that the verdict was contrary to the law and the evidence. In support of his allegation that the verdict is contrary to the law and the evidence, defendants submit the following particulars: (a) defendants established an alibi that was not rebutted; (b) the State’s witness could not positively identify the defendants as the perpetrators of the crime; (c) the State did not prove guilt beyond a reasonable doubt; and (d) the court erred by not issuing a directed verdict of acquittal as dictated by the evidence.

We are limited on review to a determination of whether, as a matter of law, there is no evidence to support the conviction. State v. Douglas, 278 So.2d 485 (La. 1973). A perusal of the record indicates clearly that there was some evidence that the crime had been committed by defendants; therefore, it was not error for the trial judge to fail to direct a verdict for defendants or refuse to grant them a new trial on a factual basis.

Defendants argue that State v. Douglas, supra, and its progeny, which set forth this Court’s role in reversing rulings refusing directed verdicts, no longer control this issue because Article XIX, § 9 of the 1921 Louisiana Constitution has been repealed by the Louisiana Constitution of 1974. It is thus argued that La.C.Cr.P. art. 778 (allowing a directed verdict “if the evidence is insufficient to sustain a conviction”) and art. 851 (allowing a new trial when the “verdict is contrary to the law and the evidence”) should be applied literally without the “no evidence” gloss superimposed by Douglas.

We do not reach this issue because the new constitution did not become effective until January 1, 1975. The operative facts and the trial of this case occurred in 1973, long before the effective date of the new constitution.

For the reasons assigned, defendants’ convictions and sentences are affirmed.

DIXON, J., concurs.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Edward L. SMITH, Appellant.
    No. 56369.
    Supremo Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.

      Robert P. McLeod, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Donald K. Carroll, Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Smith was convicted of first degree murder, La.R.S. 14:30 (1973), and sentenced to death. On this appeal, he relies upon nine assignments of error. Finding no error, we affirm.

Context Facts

The victim Terry and a companion, Mary K., were sleeping in a camper parked on a country road. A man came with a pistol, ordered Mary K. out of the cab where she was sleeping, and went to the back of the camper, where he shot Terry in the left chest and killed him. (He then took Mary K. in his car for several miles to a field, where he raped her. She escaped from him and immediately reported the rape and murder.)

Based on Mary K.’s description, several suspects were shown to her that day in a physical line-up. She stated that none of them was the assailant. About four days later, she identified the present defendant as the assailant, first on the basis of a photographic identification (picking him out from several photographs of similar appearing men) and then on the basis of a physical line-up. See Assignment 1. A pistol seized under a search warrant from the accused’s home was, on the basis of ballistic tests, found to be the weapon which had fired the shot which killed Terry. See Assignment 2.

In the present case, the defendant is tried for the murder of Terry. The trial for murder was conducted with minimal reference to the rape. The trial court and the prosecutor, as well as the defense counsel who conducted a vigorous and resourceful defense, should be especially commended for the conduct of a thorough, fair, and dispassionate trial.

Assignments of Error

The most substantial issues are raised by Assignment 6 (relating to a denial of a mistrial, when the defendant was brought into the courtroom handcuffed in the presence of the prospective jurors on the day the trial commenced) and by Assignment 8 (relating to the violation of a sequestration order by a juror after he was selected to serve on the petit jury).

Assignment ó (Defendant handcuffed in the presence of prospective jurors)

On the first day of the trial, the defendant Smith was brought into the courtroom. He was wearing a suit. His hands were handcuffed and attached to a band around his waist, which was effectively hidden by his coat. He walked in with hands held close together in front. He sat down, with his hands in his lap. As he sat down, a noise was made by the chain which hung beneath the coat.

The prospective jurors were removed, at which time the court heard and ruled on several preliminary motions. At this time, the court also took evidence on the motion for mistrial based upon the defendant’s being brought in handcuffed. The handcuffs were removed, since no reason based on his in-court or other conduct was shown for restraint of the defendant.

i

The evidence accepted by the trial court shows that, due to the defendant’s clothing, the handcuffs and waist shackles were not noticeable.

Although obstreperous conduct may permit a defendant in a criminal trial to be shackled, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), State v. Brewer, 301 So.2d 630 (La.1974), ordinarily reversible error may be committed, as the denial of a fair trial, if an accused is tried clothed in prison garb or shackled or otherwise exhibited to the trial jury under circumstances which tend to deprive him of his presumption of his innocence. State v. Brewer, cited above; State v. Daniel, 297 So.2d 417 (La.1974); State v. Tennant, 262 La. 941, 265 So.2d 230 (1972); State v. Spencer, 257 La. 672, 243 So.2d 793 (1971).

We find no error here in the denial of a mistrial or because of this inadvertent, brief, and barely noticeable incident. As the trial judge stated: “When I observed the defendant in the courtroom, he was neatly dressed and wore a long sleeved suit coat or jacket. The coat and sleeves concealed the existence of the handcuffs until they were called to my attention. No prospective juror on voir dire examination testified that he saw the cuffs on defendant or that he was prejudiced in any way by the incident.”

Assignment 8 (Violation of sequestration by a juror)

La.C.Cr.P. art. 791 provides: “ * * * In capital cases, after each juror is sworn he shall be sequestered. * * * ”

The purpose of the sequestration is to insulate the jurors from outside influence or the possibility thereof, even unconscious ; and, in capital cases especially, the sequestration is strictly enforced, so that, upon a separation of a juror after he is sworn, reversible error will be presumed. State v. Luquette, 275 So.2d 396 (La.1973); State v. Craighead, 114 La. 84, 38 So. 28 (1905); 1 Marr’s Criminal Jurisprudence of Louisiana, Section 466 (2d ed. 1923).

Nevertheless, where circumstances are such as to reasonably overcome the presumption of prejudice and where it affirmatively appears that no prejudice to the accused can have resulted, the presumption may be rebutted, so that the mere separation of a juror briefly may be held to be insufficient ground to set aside a verdict. State v. Sharbino, 194 La. 709, 194 So. 756 (1940); State v. Craighead, cited above; Marr’s Criminal Jurisprudence, cited above. See also: State v. Davis, 237 La. 577, 111 So. 2d 778 (1959); State v. Fuller, 218 La. 872, 51 So.2d 305 (1951); 5 Wharton’s Criminal Law and Procedure, Section 2106 (Anderson ed., 1957).

The trial court found adequately rebutted the presumption of reversible prejudice arising from this brief separation of a juror, which occurred before any evidence was taken. Its ruling was correct, for the reasons stated by its per curiam:

“As each juror was selected in this case, he was sworn and sequestered. At that time each juror was told what being sequestered meant. — that is, that they must remain together under the supervision of the officer in charge, that they must not discuss the case in any manner or with anyone, and that they must not receive any communication in any form and from any source concerning the case.

“These same instructions were repeated to the jury each time Court recessed and each time the jury left the jury box.

“Here, before the selection of the jury was completed, Juror Blackmon was accepted, sworn and sequestered. Court recessed for the evening meal and the jurors that had been accepted were again instructed as to being sequestered. However, Juror Blackmon separated from the other jurors for a few minutes and went to his home a few blocks from the court house. There are two elevators in the Richland Parish court house, neither being large enough to accommodate the jury and officer. Therefore, in transporting the jurors, they were divided, some going with one deputy, and the others going with another deputy. When the jurors got to the ground floor of the court house, Juror Blackmon was missed and within a few minutes he was found at his home a few blocks from the court house, after he had just arrived there.

“This incident was not known to the court until after the trial was completed and the defendant filed a motion for a new trial alleging the separation of jurors. Had the incident' been made known to the court, the juror could have been easily replaced, in fact, an alternative juror was selected and sat with the jury during the entire trial and then dismissed and not used.

“Juror Blackmon testified on the motion for new trial that he left the other jurors .only a few minutes, did not speak to anyone on the street before reaching his home, and had just arrived at home and spoken to his wife and relatives when [within five minutes] officers came and picked him up. He testified that he discussed this case with no one and received no communications concerning the case. Therefore, no prejudice resulted to defendant.”

Other Assignments of Error

The other assignments present issues which were correctly decided under clearly applicable legal principles or clearly appropriate findings of facts.

Assignment 1 (Denial of motion to suppress identification testimony) :

The state’s case shows that, following the murder and rape, the sheriff’s office secured a description of the perpetrator from Mary K. About five days later, at about 9:30 in the morning, at her motel room she was shown five photographs, in the record, of persons similar to her described appearance of the murderer. The group included a photograph of the present accused, whom the sheriff’s office had determined was a suspect for reasons not reflected by the record.

Mary K. immediately picked out the defendant’s photo as that of her attacker, with whom she had spent some time and had had full opportunity to observe. The sheriff shuffled the photographs of persons of generally similar appearance, and she immediately picked out the accused’s photograph again.

Based on that information, the sheriff’s office issued word to pick up the defendant for questioning and in order for the accused to be viewed by Mary K. at a physical line-up.

The accused was contacted at his work at about 3 :00 p. m. He was asked to come to the courthouse for a line-up. At the courthouse, after a voluntary 'waiver of Miranda rights, he appeared in a line-up at about 5:00 p. m. with four other men of similar appearance and build (not the same as in the photographs). Again, Mary K. immediately identified him as her attacker and as the man who-had killed the decedent. Also, at the trial (subject to the objection that her identification was the product of impermissibly suggestive procedures) she again positively identified the accused as the murderer, on the basis of her full opportunity to observe him over a period of time.

The chief argument made by the defense is that the line-up identification was the result of an illegal arrest, so that as the fruit thereof it is inadmissible. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L. Ed.2d 416 (1975). This argument is based upon the contention that the photographic identification by Mary K. of the accused at 9 :00 a. m. did not take place (since she denied it, see below), so that the arrest at 3:00 p. m. solely based on this identification was illegal.

We pretermit considering that any primary taint of illegality may have been purged so as not to invalidate the line-up identification. Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972). For, even aside from this, the trial court did not err in finding that the initial detention of the accused at 3 :00 p. m. was properly based upon the probable cause represented by Mary K.’s photographic identification at 9:30 a. m. of him as the murderer.

The contention that the photographic identification did not take place is based on the testimony of Mary K. at the preliminary hearing. She denied that she had been shown the photographs at the motel, but insisted that she had been shown them twice at the courthouse and had not selected the defendant from among them but, instead, from seeing a photograph on the wall at the courthouse of another parish. However, this witness likewise admitted she was confused and in a state of shock during the days immediately following the murder and that “nobody brought me no pictures out there that I can remember. Like I said, I was pretty upset a couple of days.” Tr. 144.

On the other hand, the deputy positively testified of her identification by the photographs. Other corroborating circumstances support the credibility of his account — the testimony of other witnesses that he left with the group of pictures, the pictures themselves (which had been selected and reproduced for the interview at the motel), and the testimony of other witnesses as to what they did after the deputy returned with the report of Mary K.’s photographic identification. We also note that Mary K.’s testimony, although clear and unwavering as to the main events of the evening, showed confusion and inaccuracy as to many details of the minor incidents before and after the murder.

We are unable to find factual error in the trial court’s holding that, prior to the detention of the defendant, Mary K. had made a photographic identification of him from among a group of photographs of similar-appearing men chosen on the basis of her prior description of the murderer immediately after it had occurred, despite her failure to recollect it when questioned at the preliminary examination.

In addition, the evidence reflects no impermissibly suggestive identification procedures. It further reflects a basis for her identification of the accused entirely independent of the photographic and line-up identification procedures.

The motion to suppress Mary K.’s identification of the defendant was properly denied.

Assignment 2 (Denial of motion to suppress physical evidence) :

The trial judge correctly held that the affidavit by a deputy sheriff, upon which the search warrant was issued (J-2), was sufficient to support a lawful search of the accused’s residence. As a result of that search, a pistol (S — 2) was introduced into evidence, which (ballistics tests indicated) had fired the slug which killed the decedent. As a basis for the search, the affidavit stated that Mary K. “has made positive identification” of the accused as the killer of the decedent and that he had “in his possession at the time of the murder two different pistols.”

As earlier noted, Mary K. was an eyewitness of the murder. (Further, this circumstance may reasonably be implied from the wording of the affidavit.) The statement of an eyewitness as to certain facts —that the accused was the killer of the victim and that he possessed two pistols at the time of the murder — is not a mere con-clusory allegation by the affiant. It adequately establishes a factual basis of reliability both for the information asserted and for the informant’s credibility and possession of the information given to the af-fiant. See State v. Paciera, 290 So.2d 681 (La.1974).

We are unable to find any legal basis for the defendant’s further argument that the affidavit was insufficient because it did not more fully set forth that the informer had identified the accused Smith as the killer only on the basis at the time of a photographic identification of Smith as the man who had killed her companion. (The affidavit by the deputy was sworn out at 4:00 p. m. before the line-up identification by Mary K. of the defendant as the killer.) Further, for the reasons noted in our disposition of Assignment 1, we are unable to hold to have been false the information supplied by the affiant to the magistrate who issued the search warrant to the effect that Mary K. had (by photographic identification) identified the defendant as the victim’s killer.

Assignment 3 (Exclusion of women from the jury venires):

The effective exclusion of women under then-valid state law, subsequently declared unconstitutional by Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), does not retroactively affect the validity of the present jury, which was em-panelled prior to the Taylor decision. Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975); State v. Rester, 309 So.2d 321 (La.1975).

Assignments 4 and 9 (Constitutionality of the death penalty) :

The trial court did not err in denying motions to quash the indictment and for arrest of judgment, both of which urged the unconstitutionality of the statutory death penalty for first degree murder, allegedly within the trial jury’s discretion to impose or not as a punishment for the same criminal conduct. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L. Ed.2d 346 (1972). We have held that Furman does not require us to hold unconstitutional our responsive verdicts system, by which the trial jury may find an accused guilty of a non-capital lesser crime than the capital crime of first degree murder with which he is charged. State v. Hill, 297 So.2d 660 (La.1974).

Assignment 5 (Denial of continuance) :

The offense was committed on August 23, 1974. The accused was arrested August 28. His present counsel (retained by him) filed a motion for a preliminary examination on August 30. The defendant was indicted for first degree murder on September 4. On September 10, the defendant was arraigned and pleaded not guilty, with the assistance of retained counsel, and the trial on the merits was set for December 9, ninety days later, the date on which actually held.

Pre-trial motions to suppress, to compel disclosure of information, for change of venue .(later abandoned), etc., were filed in October, fixed for hearing in November, continued by agreement of counsel to December 3. On December 3, immediately prior to this hearing, the defendant’s counsel filed the present motion for continuance.

The sole ground urged was that counsel had insufficient time to prepare for the trial of December 9, since he also had to investigate and prepare defenses for other serious crimes with which the defendant was charged. Also included was a general allegation of the recent discovery of some new evidence which counsel had not yet had time to investigate at the time of the motion, a week before the trial.

In denying the motion, the trial court pointed out that retained counsel had had ninety days to prepare the defense and that the showing made by the testimony of counsel did not justify a continuance. We find no abuse of discretion in this ruling, nor is any prejudice reflected by the record in this case. The record, in fact, displays an extremely competent and resourceful defense conducted by retained counsel on behalf of the accused.

Assignment 7 (State cross-examination permitted of defense witness on irrelevant matter) :

This assignment is based upon the trial court’s failure to sustain a defense objection to the state’s questioning a defense witness as to why she had ceased doing business in another parish two years earlier. (She had lost her license to run the grocery store, as was developed by her short answer to the single question allowed.) The question appears to be improper impeachment, see La.R.S. 15:490, 491, 495, and not to relate to any impeaching bias or interest, La.R.S. 15 :492. Further, while a witness may be cross-examined on the entire case, La.R.S. 15:280, the issue upon which the present witness was cross-examined is not shown to be relevant to the case, La.R.S. 15:441, nor to her credibility, cf. La.R.S. 15:494.

Nevertheless, we are unable to find that the defendant sustained prejudice by permitting this short answer to this irrelevant question, or that any substantial violation of a constitutional or statutory right was thereby occasioned. Thus, reversible error is not shown. See La.C.Cr. P. art. 921.

Decree

For the reasons assigned, therefore, we affirm the conviction and sentence.

Affirmed.

      . The numbering followed is that adopted by the defendant in brief, in which he rearranged and renumbered the twelve errors originally assigned in the trial court.

      . The defendant had sought supervisory writs and immediate review by us of the denial of continuance. This court denied supervisory writs on December 6, 1974. La., 303 So.2d 749. A denial of supervisory review is merely a decision not. to exercise the extra-ordinary powers of supervisory jurisdiction, and it does not bar consideration on the merits of the issue denied supervisory review, when appeal is taken from final judgment. Gulf States Utilities Co. v. Dixie Elec. Mem. Corp., 248 La. 458, 179 So.2d 637 (1965) ; State v. Theard, 212 La. 1022, 34 So.2d 248 (1948) ; cf., Supervisory Powers of the Louisiana Courts of Appeal, 38 Tul.L.Rev. 429, 448-49 (1964). Thus, the ruling denying supervisory writs does not (as argued) bar reconsideration of the issue on appeal and there reaching a different conclusion at to it. Borden v. Lousiana State Board of Education, 168 La. 1005, 123 So. 655 (1929).


author: DIXON, Justice.

text:
    STATE of Louisiana v. Duane C. KING.
    No. 56517.
    Supremo Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.

      Wellborn Jack, Jack & Jack, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., R. Raymond Arthur, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant, Duane C. King, was charged by bill of information with the crime of manufacturing and/or producing marijuana, in violation of La.R.S. 40:966, subd. A(1). The case was tried on November 20 and 21, 1974; the jury returning a verdict of guilty as charged. The defendant was subsequently sentenced to four years imprisonment. On appeal, he relies on four assignments of error.

ASSIGNMENT OR ERROR NO. 1

Defendant’s first assignment of error relates to an alleged unconstitutional search of his vehicle and subsequent testimony at the trial about certain items uncovered during that search.

On August 17, 1973, officers of the Natchitoches Parish Sheriff’s office, acting on a tip, proceeded to a wooded area outside the city of Natchitoches, whereupon they discovered the defendant, his station wagon, and various pots, kettles, and stoves, in addition to a quantity of suspected marijuana. Also found near the pots and stoves were two empty Old Milwaukee beer cans.

After receiving no satisfactory explanation from the defendant for his presence in the area of the cooking operation, he was placed under arrest and advised of his rights. A loaded automatic pistol, which defendant alleged he was using as a target pistol, was seen on the front seat of defendant’s vehicle. A further search revealed an ice chest in an area between the rear seat and back door of the wagon. When an officer opened the ice chest, he found five unopened cans of Old Milwaukee beer.

At trial, one of the officers, over the defendant’s objection, testified about the beer cans found by the pots and those found in the station wagon. While the five cans found in the ice chest were not introduced into evidence, defendant alleges the trial judge committed reversible error in allowing the officer to testify about what he found, since the search itself was unconstitutional. We cannot agree.

Police officers may search, incidental to a lawful arrest, the defendant and, the area within his immediate control, for weapons or contraband. State v. Bradford, 298 So.2d 781 (La.1974). Having placed the defendant under arrest, one of the officers began to search the wagon next to which the defendant was standing at the time. Observing one loaded pistol in plain view on the seat, it was reasonable under the circumstances to search the rest of the vehicle. State v. Reed, 284 So.2d 574 (La.1973). As the United States Supreme Court stated in Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969):

A similar analysis underlies the “search incident to arrest” principle, and marks its proper extent. When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule.

We find that the search of the vehicle was incidental to a lawful arrest; therefore, the officer could properly testify about what he uncovered in that search.

Moreover, no contraband was in fact discovered in the car. The fact that two Old Milwaukee beer cans were found near the cooking paraphernalia and five in the defendant’s vehicle is some evidence, however slight, tending to connect the defendant with the cooking operation. Thus, while not contraband, the cans were relevant and hence the officer’s testimony admissible. La.R.S. 15:441.

Finally, the defendant argues that he was not under arrest for the alleged crime at the time of the search because an arrest warrant was not secured until the next day. One of the officers testified that he placed the defendant under arrest and advised him of his rights at the scene of the cooking operation. He was subsequently taken to the parish jail.

Arrest is defined in article 201 of the Code of Criminal Procedure:

Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.

Clearly, the defendant was under arrest at the time his car was searched. State v. Warren, 283 So.2d 740 (La.1974).

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that La.R.S. 40:966, subd. A(1), under which he was charged, is unconstitutional, because the term “manufacture” is vague and indefinite.

La.R.S. 40:966, subd. A(l) provides:

A. Manufacture; distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally :
(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute or dispense, a controlled dangerous substance classified in Schedule I;
(2) To create, distribute, or possess with intent to distribute, a counterfeit controlled dangerous substance classified in Schedule I.

“Manufacture” is defined in La.R.S. 40:961(19) as follows:

“Manufacture” means the production, preparation, propagation, compounding, or processing of a controlled dangerous substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis. “Manufacturer” includes any person who packages, repackages, or labels any container of any controlled dangerous substance, except practitioners who dispense or compound prescription orders for delivery to the ultimate consumer.

The statutes are quite clear in defining the proscribed conduct. The basis of the charge against the defendant is that he was boiling marijuana in order to extract its essence, thereby making it more concentrated, enabling a conversion into hashish. Such conduct clearly falls into the proscription against the “production or processing ... by extraction from substances of natural origin . . . .” La.R.S. 40:961(19).

A statute is void for vagueness only when it fails to give a person of ordinary intelligence fair notice of what conduct is criminal. State v. Lindsey, 310 So.2d 89 (La.1975); State v. Martin, 310 So.2d 544 (La.1975). La.R.S. 40:966, subd. A(1), taken together with La.R.S. 40:961(19), more than adequately gives a person of ordinary intelligence notice of what constitutes criminal conduct.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

The defendant assigns error to the trial judge’s overruling of his motion for a directed verdict at the close of the state’s case. The defendant argues that there was no evidence of the completed crime of manufacturing and/or producing marijuana, but, at best, the evidence showed an attempt.

One of the officers was qualified by the court as an expert in the field of narcotics. He testified that hashish is concentrated marijuana, and he further testified at length as to the method of converting marijuana into hashish. This officer examined the cooking operation at the scene, and testified that in his opinion, the operation was definitely intended to reduce the marijuana into hashish. At the time the operation was interrupted by the officers, the process was in the alcohol cooking stage.

This court has consistently held that the trial judge’s ruling on a motion for a directed verdict will be reversed only if we find, as a matter of law, that there is “no evidence” of an essential element of the offense in the record. State v. Ford, 315 So.2d 276 (La.1975); State v. Williams, 311 So.2d 850 (La.1975); State v. Douglas, 278 So.2d 485 (La.1973). The officer’s testimony is certainly some evidence that the defendant was engaged in the manufacture of hashish from marijuana.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant’s final assignment of error relates to the composition of the petit jury that tried him. The defendant contends that women were systematically excluded from the jury venire. In Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the United States Supreme Court held that Louisiana’s system of excluding women from jury venires unless they volunteered was unconstitutional. However, in State v. Rester, 309 So.2d 321 (La.1975), this court held that the Taylor decision will not be applied retroactively, in accord with the United States Supreme Court’s decision in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975). The defendant was tried in November of 1974, two months prior to the Taylor decision. Therefore, the Taylor decision is inapplicable.

Assignment of Error No. 4 is without merit.

Accordingly, the conviction and sentence are affirmed.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Reuben COLLINS.
    No. 56499.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.
    Carrick R. Inabnett, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Reuben Collins, with simple escape in violation of LSA-R.S. 14:110(A), in that on or about February 15, 1973, he unlawfully and intentionally departed from the legal custody of the Sheriff of Ouachita Parish and from the Ouachita Parish Jail, where he was lawfully detained after having been sentenced to a term of nine years imprisonment in the custody of the Louisiana Department of Corrections.

The defendant elected to be tried without a jury. Following the close of the State’s case, he moved for a directed verdict of' acquittal, which was denied. The judge found him guilty and sentenced him to five years imprisonment.

Defendant assigns as error the ruling of the trial judge denying his motion for a directed verdict based on the alleged failure of the State to prove that the defendant had been sentenced to the Department of Corrections.

The defendant was originally charged with the crime of simple burglary. On December 4, 1972, he was convicted and sentenced to nine years imprisonment with the Department of Corrections. On September 24, 1973, we reversed his conviction and sentence in State v. Collins, La., 283 So.2d 744 (1973). Trie wording of our decree was:

“. . . the conviction and sentence are annulled and set aside, and the case is remanded for a new trial.”

On February 15, 1973, while his appeal was pending but prior to our decision, the defendant escaped from the Ouachita Parish Jail.

The issue we must resolve is the effect of our later reversal of the burglary conviction and sentence on the crime of simple escape. We hold that it is of no consequence.

The simple escape statute, LSA-R.S. 14:110, provides in pertinent part:

“A. Simple escape is:
“(1) The intentional departure of a person, while imprisoned, whether before or after sentence, under circumstances wherein human life is not endangered, from lawful custody of any officer of the Department of Corrections or any law enforcement officer or from any place where he is lawfully detained by any law enforcement officer ;
* * *
“Whoever having been sentenced to the Department of Corrections commits the crime of simple escape, shall be imprisoned at hard labor for not less than two years and not more than five years; provided that such sentence shall not run concurrently with any other sentence, provided, however, that . . . .”

We construed the statute in State v. Morgan, La., 306 So.2d 701 (1975), when we were faced with the question of whether a defendant, who escaped while his appeal was pending, was properly sentenced under the penalty provision of the escape statute applicable to one who “has been sentenced to the Department of Corrections.” The defendant urged that since under Article 913 of the Louisiana Code of Criminal Procedure an appeal “suspends the execution of sentence,” he could not be classified as one sentenced to the Department of Corrections. We rejected that argument, stating:

“The word 'execution’ as it relates to criminal sentences, is defined as ‘the process of performing a judgment or sentence of a court.’ The Random House Dictionary of the English Language 498 (J. Stein ed. 1967). It is clear, therefore, that the effect of La.C. Cr.P. art. 913 is merely to defer or postpone the performance of a previously imposed sentence. Defendant has not cited any provision in the body of our criminal law which would warrant an expansion of the effect of an appeal beyond suspension of the performance of the sentence; nor are we aware of the existence of any such provision. We hold, therefore, that an extension of the effect of an appeal beyond the limits set forth in La.C.Cr.P. art. 913 is not warranted. We note that our law requires that a defendant who ‘ * * * is not or cannot be admitted to bail * * * ’ pending the outcome of his appeal be given credit for time served pending appeal. State v. Williams, 262 La. 769, 264 So.2d 638 (1972). We believe this lends additional support to our conclusion that the appeal does not in any material way alter the existence or nature of the sentence, only the execution.”

Although State v. Morgan, supra, is distinguishable since the conviction there was ultimately affirmed, the rationale is applicable to the present case. It is the factual existence of the sentence that is decisive. With the imposition of sentence, the incentive for escape is increased. In taking the risk of escape into account, the statute increases the penalty.

In the present case, the defendant escaped at a time when he was lawfully incarcerated under a court sentence. It is true that, because of our reversal of the conviction, the sentence was annulled and set aside, but this decree did not alter the factual circumstances existing at the time of the escape.

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


author: BOLIN, Justice.

text:
    STATE of Louisiana v. Quenton N. BROWN.
    No. 56480.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.

      Thomas L. Mahfouz, Morgan City, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Edward M. Leonard, Jr., Walter J. Senette, Jr., Asst. Dist. Attys., for plaintiff-appellee.
   BOLIN, Justice.

Quenton N. Brown was convicted after a trial by jury of armed robbery, a violation of La.R.S. 14:64, and was sentenced to thirty years’ imprisonment. Upon this appeal, defendant relies on sixteen bills of exceptions for a reversal of his conviction and sentence. We affirm.

The offense for which defendant was prosecuted took place on June 7, 1973. On that date, defendant, armed with a .38 caliber revolver, robbed a clerk of a Morgan City bread store. After accomplishing the robbery, defendant fled from the scene of the crime and hid under a raised house in the vicinity of the store. The police were notified of the robbery and defendant’s whereabouts by the victim and witnesses who observed him go into hiding. Within minutes of their arrival defendant was apprehended and disarmed. After several pre-trial proceedings, some of which are the subject of the bills of exceptions resolved below, defendant’s trial and ultimate conviction ensued.

Bills of Exceptions Nos. 1, 7, 10 and 14 are based on the trial court’s denial of various continuance motions made by defendant. Each bill of exceptions will be discussed separately in order to prevent confusion as to the times the continuances were sought and the various grounds therefor.

BILL OF EXCEPTIONS NO. 1

This bill was reserved to the trial court’s denial of a written motion for continuance filed on the morning of trial and argued orally prior to the time that jury selection commenced. The grounds which appear in the written motion are as follows:

“(1) — Counsel for defendant is not prepared for trial.
“(2) — Defendant has not had adequate time to prepare his defense of insanity at the time of the crime. Defendant was examined by an employee of the St. Mary Rehabilitation Center, Inc. on May 17th, 1974. The results of this examination have to be evaluated by Dr. Nathan M. Lubin before a definitive opinion can be reached. From a preliminary discussion with the examiner, counsel has good reason to believe that the conclusion reached shall differ from that expressed by the authority from the East Louisiana State Hospital.
“(3) — Defendant is not physically able at this time to assist in his defense, in that, his hearing has been impared [sic] to such a degree that he shall not be able to hear the testimony against him or any other proceeding in the court room.
“Counsel suggest that before the trial commences, defendant be examined by a physician.
* *

On the day of trial, in orally arguing the motion, defense counsel stated that the person from the rehabilitation center who examined the defendant three days before trial, on the morning the sanity hearing was held, had to have his examination results discussed with the doctor named in the written continuance motion. Counsel stated to the court, however, that the examiner had indicated to counsel that his conclusions would differ somewhat from those of the doctor who testified for the State at the sanity hearing. Defense counsel also argued that he had not had enough time to develop his insanity defense and explained that the earliest the examination given defendant at the rehabilitation center could be “taken” was the day of the sanity hearing. Additionally, counsel argued that Brown advised him he was having difficulty hearing, which would impair his ability to assist counsel during trial. Counsel stated defendant had “the same problem” at the sanity hearing three days earlier and requested that a hearing examination be conducted. Finally, counsel argued that he was unprepared to go to trial because he had been under the impression trial would not be had until after certain pre-trial motions had been heard. The defense attorney stated that since the motions had not been heard until “last Friday” (3 days before trial), he had been “under the impression” the trial date would have to be passed. In conclusion he related that he had only the intervening weekend to prepare for trial.

Invited by the court to respond, the State countered that defense counsel had been appointed eleven months earlier and had filed the motions which had been heard the Friday before trial on May 3, 1974. The prosecutor noted that nine months earlier the defense attorney had filed a motion to determine defendant’s sanity at the time of the offense and defendant’s capacity to stand trial and assist in his defense. After these comments, the prosecutor noted the State’s readiness to go to trial. The court responded by announcing its denial of the defendant’s motion for a continuance and this bill was reserved.

In brief defense counsel generally reiterates that more time was needed to obtain and evaluate the results of the examination conducted by personnel of the rehabilitation center just three days before trial and that additional time was needed to have the defendant examined in order to determine whether his hearing problem would affect his ability to assist in his defense.

In addressing itself to this issue in brief, the State notes that defense counsel failed to support his claim of unpreparedness by explaining why or in what manner he was unprepared to try the case. The State requests that this Court consider the chronology in the instant case in assessing the second ground contained in the motion and note that even though eleven months elapsed between counsel’s appointment and trial, counsel had defendant examined by an independent expert only three days prior to trial. The State points out that defendant’s evaluation at the East Louisiana State Hospital was concluded, and defendant returned from the hospital, more than four months before trial. Obviously addressing itself to the issue presented by ground (2) of the written motion, and construing this ground as one which renders the motion one for continuance based in part on the absence of a witness, the State argues that the provisions of La.C. Cr.P. art. 709 have in no way been met. Finally, the State argues that motion fails to conform to the requirements of La.C. Cr.P. art. 707 because the affidavit seeking to verify the motion is not signed by either defendant or his counsel.

From our careful consideration of all matters pertinent to the issue of the propriety of the trial court's denial of this motion for continuance, we conclude defendant failed to sufficiently show why, and in what manner, he was unprepared to try this case. In the absence of an explanation for what appears to be unreasonable delay, we do not believe that the incomplete nature of the independent examination of defendant by the rehabilitation center employee constituted compelling grounds for granting a continuance. Defense counsel admitted on the morning of trial, while arguing this continuance motion, that defendant experienced the hearing problem which he pleads as grounds for continuance at the sanity hearing three days earlier, and does not state he was unaware of the problem at that time. It therefore appears to us that defense counsel exhibited some lack of diligence in verifying defendant’s alleged physical ill in order to offer some objective substantiation in support of his third ground contained in the written motion for continuance.

Insofar as defense counsel’s orally stated “impressions” that trial would have to be passed over and a trial date reset, the record shows that on April 29, 1974, the trial date was set for May 20, 1974. Defense counsel does not state adequate reasons for having allowed these impressions to cause him to postpone trial preparations until the May 17, 1974 resolution of his various pre-trial motions. The various pre-trial motions were routine in nature and the preparation for trial did not have to be put off until after the hearings thereon, notwithstanding information secured thereby may have been helpful in formulating a defense.

The general rule which must govern our determination of the merit of this bill of exceptions is that a reviewing court will not disturb the trial court’s exercise of discretion unless there is a clear showing of abuse. See, e. g., State v. Carruth, 311 So.2d 866 (La.1975). No such showing has been made in the instant case. Additionally, we note that the procedure set forth in La.C.Cr.P. art. 707 has not been met, since neither the defendant nor his attorney signed the affidavit of verification. See, e. g., State v. Brewer, 301 So.2d 630 (La. 1974). The trial court did not err in denying this motion for continuance.

BILL OF EXCEPTIONS NO. 7

During the trial defendant orally moved for a continuance on the grounds that a subpoenaed witness was not present. The State objected, arguing that the defendant should have insured the presence of the witness he had subpoenaed on the morning of trial and the trial court denied the continuance. Bill of Exceptions No. 7 was accordingly reserved.

At the outset we note that a motion for continuance sought after commencement of trial is not timely (La.C.Cr. P. art. 708); it is apparent that defendant actually sought a recess in order to attempt to secure the witness’ presence. As in the case of proper motions for continuance, however, the decision to grant or deny a recess is within the discretion of the trial court, subject to review only in situations where an abuse has been shown. See, e. g., State v. Richmond, 284 So.2d 317 (La. 1973). In Richmond, this Court declined to find that a trial court had abused its discretion in denying a recess, request of which was based on the absence of the only defense witness. The Court held in Richmond that “ * * * where the defense did not make a showing of a compelling reason for granting a recess, at the time the motion was made, it cannot be said the trial court abused its discretion by refusing the recess.” 284 So.2d at 326. No “compelling reasons” were shown at the time that defendant moved for this “continuance” (recess).

This bill of exceptions cannot avail defendant.

BILL OF EXCEPTIONS NO. 10

At the commencement of the sanity hearing held three days prior to trial defendant orally moved for a continuance, stating that he had only one day’s notice of the hearing and had not had ample time for preparation of evidence or enough time to subpoena witnesses. The State rejoined that it had notified defense counsel several days prior to the hearing that it would attempt to hold the hearing. The State conceded that “* * * [i]t may have been that yesterday I told him the exact time that it would be held. * * * ” Bill No. 10 was reserved when the oral motion for continuance was denied by the trial court.

Initially, we note that the motion for continuance was not in the form prescribed by La.C.Cr.P. art. 707, i. e., the motion was not in written form and may therefore be denied on that basis. See, e. g., State v. Brewer, supra. Additionally, we find that defendant could have timely subpoenaed the witnesses he wished to present or requested that instanter subpoenas be issued. Absent a showing of an abuse of the court’s wide discretion in this matter, and considering that the motion was not presented in proper form, we find this bill lacks merit.

BILL OF EXCEPTIONS NO. 14

Bill of Exceptions No. 14 was reserved when the trial court denied defendant’s oral motion for continuance of the scheduled trial, made during the sanity hearing, on grounds that Dr. Lubin of the rehabilitation center had not had a chance to evaluate defendant. For the reasons supporting our findings in Bills of Exceptions Nos. 1, 7, and 10, we find this bill of exceptions lacks merit.

BILLS OF EXCEPTIONS NOS. 2, 5, and 9

These bills of exceptions were reserved when, twice during voir dire examination of prospective jurors and once during the court’s charge to the jury, the court overruled defendant’s objections to the court’s statement that defendant has the burden of proving his insanity at the time of the commission of the offense by a preponderance of the evidence. The defendant’s position is that the presumption of sanity which exists at law and requires that the burden of proving insanity fall to the defendant is unconstitutional, operating as a denial of due process guaranteed by the Fourteenth Amendment to the Constitution of the United States. It is contended that our statutory provision in La.C.Cr. P. art. 652, codifying the defendant’s burden of proving insanity, is unconstitutional.

The holding in Leland v. Oregon, 343 U. S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) renders without merit defendant’s argument that the presumption of sanity and concomitant burden of proving insanity violates the due process clause of the Constitution of the United States. In Leland, the Court held that an Oregon statute which placed upon a defendant relying on insanity as a defense the burden of proving insanity beyond a reasonable doubt was not violative of the due process clause of the Fourteenth Amendment. Likewise, our less stringent burden of proving insanity does not deprive a criminal defendant of due process.

4 BILLS OF EXCEPTIONS NOS. 3 and 4

These bills of exceptions were reserved when the trial court denied defendant the right to challenge for cause two prospective jurors who, during the early stages of their voir dire examination, indicated they might have some difficulty properly understanding and applying the law of insanity.

Dispositive of these bills of exceptions is the fact that the defendant did not exhaust all of his peremptory challenges during the jury selection process. La.C.Cr.P. art. 800 provides:

“A defendant cannot complain of a ruling refusing to sustain a challenge for cause made by him, unless his peremptory challenges shall have been exhausted before the completion of the panel.
“The erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law.”

A review of the record reveals that defendant did not exhaust all of his peremptory challenges; failure to do so precludes his complaint of the trial court’s denial of his two requested challenges for cause. See, e. g., State v. Rowell, 306 So.2d 668 (La.1975).

BILL OF EXCEPTIONS NO. 6

During the testimony of a police officer evidence was introduced relating to defendant’s attempt to hide under a house and escape apprehension and his action in pointing a pistol at the officer. Defendant objected to this line of inquiry, contending that the evidence was irrelevant and immaterial. The State pointed out that the temporal and spatial connexity between the commission of the armed robbery and the events to which the officer was testifying was very clear. The court overruled the objection.

Defendant complains that evidence concerning events subsequent to the armed robbery, especially those relating to his possession of a gun, were highly prejudicial. He concedes the admissibility of evidence of flight. While defendant’s objection in brief is vague, being no more than a general complaint that prejudice resulted from this testimony, his emphasis on the issue of the possession of the gun indicates that he is concerned with the propriety of admitting evidence which in fact may be construed as evidence of other criminal conduct. As the defendant concedes, the evidence dealing with flight and attempt to avoid apprehension is relevant and admissible in this criminal prosecution. See, e. g., State v. Lane, 292 So.2d 711 (La. 1974).

This bill lacks merit.

BILL OF EXCEPTIONS NO. 8

During the State’s closing argument the court found it necessary to interrupt the prosecutor’s remarks and remove the jury from the courtroom when defendant suffered a seizure. After removal of the jury defense counsel moved for a mistrial, arguing that since evidence had been placed before the jury indicating that the defendant had perhaps feigned seizures in the past, the seizure suffered in the jury’s presence could cause serious prejudice in the eyes of any juror who might have believed that earlier seizures had been feigned. The motion for mistrial was denied and this bill of exceptions reserved.

Defendant argues that the denial of the mistrial was improper in light of the mandate of La.C.Cr.P. art. 775, which provides, in pertinent part:

“Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.”

No particular prejudice resulting from the defendant’s “conduct” in the courtroom is specified by defense counsel. We are in agreement with the trial court’s conclusion that the defendant’s seizure did not cause such prejudice as would warrant the declaration of a mistrial. Inasmuch as no specific request for an admonition of any kind was alternatively made by defense counsel, we likewise deem without merit the argument that, at the least, a jury admonition by the trial court was indicated.

BILL OF EXCEPTIONS NO. 11

At the commencement of the sanity hearing, counsel for defendant objected that a doctor other than the physician appointed to the Sanity Commission would testify on behalf of the State. In the course of this objection counsel stated that he thought defendant should have the right to be confronted by the appointed physician, the other doctors who examined him and all available records concerning his examination by these persons. The trial court denied the defendant’s request for records and overruled defendant’s objection to the State’s failure to present the testimony of the appointed physician.

Defendant contends he was entitled to examine all of the medical records relating to his mental examinations. In support of this claim he cites La.R.S. 13:3714, which provides:

“Whenever a certified copy of the chart or record of any hospital in this state, signed by the director, assistant director, superintendent or secretary-treasurer of the board of administrators of the hospital in question, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination.”

It is readily noted that the statute cited lends no support to defendant’s position. An examination of the record reveals that the trial court stated, with reference to the various medical records, that the court and counsel would " * * * see about that [the request for records] when we have time to talk to the doctor who is here to testify.” Further in the transcript of the sanity hearing the testifying physician states: “ * * * [i]t’s written in the hospital chart. Counsel For Defense called me yesterday and asked me to bring the hospital chart, which I did. * * * ” Clearly, in accordance with the trial court’s earlier remarks, defendant was entitled to renew his request for his records during the testimony of the doctor. The request was not renewed and defendant has not sought to exhibit in what way he was prejudiced by the trial court’s initial statement that request for the records was denied. This portion of the complaint lacks merit.

Insofar as defendant’s complaint regarding the failure to call the appointed physician to testify, we need only refer to the provisions of La.C.Cr.P. art. 647, which reads, in pertinent part, as follows:

“ * * * The report of the sanity commission is admissible in evidence at the hearing, and members of the sanity commission may be called as witnesses by the court, the defense, or the district attorney. Regardless of who calls them as witnesses, the members of the commission are subject to cross-examination by the defense, by the district attorney, and by the court. Other evidence pertaining to the defendant’s mental capacity to proceed may be introduced at the hearing by ’the defense and by the district attorney.” (Emphasis supplied.)

It is clear that the State was not required to call the member of the sanity commission as a witness. Defendant could have called all doctors who examined him. This bill of exceptions is without merit.

BILL OF EXCEPTIONS NO. 12

Prior to the commencement of testimony at the sanity hearing defendant requested that the medications he was taking be brought into the courtroom but did not state the reason for the request. The trial court denied the request stating, “I will deny that unless Dr. Musso [the physician who had tended defendant’s ills while he was in jail and for whom the court had issued an instanter subpoena at defendant’s request] finds it necessary.” To the trial court’s ruling a bill of exceptions was reserved but at no time did defendant articulate reasons for the request.

In brief defendant argues that the denial of the request to have all of the medication brought into the courtroom deprived him of the right to have presented to the judge all of the evidence necessary to properly determine his sanity. This theory that the denial of the request resulted in that deprivation is not explained by the defendant and we are unable to accept the theory. At no time did defendant present the reasons for this request to the trial court; nor did he renew the request when it was realized the subpoena for Dr. Musso could not be served.

This bill has no merit.

BILL OF EXCEPTIONS NO. 13

In relating the course of defendant’s evaluation and treatment while a patient at the East Louisiana State Hospital, Dr. Mann, psychiatrist in charge of the Forensic Unit of the hospital, testified, in response to a question seeking to determine how long defendant remained on two drugs which the doctor had prescribed: “[h]e remained on them for approximately three weeks, from the day of admission which was September 7th to the 26th of September. However, if I may, he told the nurse the day after admission that he had faked the seizures — .” Defense counsel objected, arguing that the testimony was hearsay, and reserved a bill of exceptions when the trial court overruled his objection.

Defendant contends that allowing the physician to testify to this hearsay evidence violated his right to confront and cross-examine the nurse who claimed he stated he faked the seizures. The State counters that the doctor’s statement is not hearsay because it was not offered to show the truth of the assertion but, rather, to establish the foundation upon which this expert based his opinion that defendant was sane.

We disagree with defendant’s position that the trial court allowance of this alleged hearsay statement was reversible error on a number of grounds. First, as noted by the State, it is entirely consistent with the purpose and tenor of the physician’s testimony to find that the statement was offered not to show the truth of the assertion, but to show the basis for the expert’s opinion. La.R.S. 15:465 requires that “[e]very expert witness must state the facts upon which his opinion is based.” See State v. Watley, 301 So.2d 332 (La. 1974). Under this statutory provision, and in furtherance of his explanation of his course of treatment and his discontinuation of the antiepileptic medication, the allegedly hearsay statement was properly ruled admissible. Moreover, we note that during cross-examination the physician stated without objection that at some later point in time defendant stated to him personally that his seizures were feigned.

This bill of exceptions is without merit.

BILL OF EXCEPTIONS NO. 15

At the conclusion of the sanity hearing, defendant apprised the court that he believed he was entitled to be discharged under the provisions of La.C.Cr.P. art. 230.1, since he was not brought before a judge for the purpose of appointment of counsel within the time limit specified therein. Assuming that the sheriff having custody of defendant from the time of his arrest failed to comply with the provisions of this article and that, therefore, there may have been grounds for his release at the time of the motion for discharge on May 17, 1974 (three days before trial), the last paragraph of La.C.Cr.P. art. 230.1 renders the issue moot.

BILL OF EXCEPTIONS NO. 16

Prior to imposition of sentence defendant objected to his conviction under La.R.S. 14:64 because the conviction required that he be sentenced to a term of years “ * * * without benefit of parole, probation or suspension of sentence.” The stated basis for defendant’s objection was that the penalty provision constituted cruel and unusual punishment.

This issue has been resolved adversely to defendants’ position on many occasions. The status of the law is perhaps best articulated in the following language which appears in this Court’s decision in State v. Howard, 262 La. 270, 263 So.2d 32 (1972):

“There is no constitutional infirmity in such penalty provision for the crime of armed robbery. Imprisonment itself is clearly not ‘cruel and unusual punishment,’ reprobated by constitutional provision. See State v. Crook, 253 La. 961, 221 So.2d 473; State v. Dell, 258 La. 1024, 249 So.2d 118; State v. White, 254 La. 389, 223 So.2d 843; State v. Bellain, 225 La. 445, 73 So.2d 311. Mere length of sentence is not cruel and unusual punishment; most criminal systems provide for life terms.
“The defendant argues in brief that a sentence which deprives a defendant of the possibility of parole denies him equal protection of the laws, because the object of a criminal sentence is reform and rehabilitation of the criminal. Reform and rehabilitation are not the only legitimate objects of a sentence for crime. Deterrence, both to the accused and others, is a legitimate object of a sentence for criminal conduct. It is only in theory that rehabilitation is provided for those convicted of other crimes. All those convicted of armed robbery are treated alike. Defendant has not been denied the equal protection of the laws.” 263 So.2d at 35.

Defendant’s arguments in connection with this bill of exceptions do not warrant reversal.

In brief, defendant raises an additional complaint levelled at unsolicited remarks of a police officer which alluded to an unrelated criminal offense. Defendant contends that the trial court’s failure to declare a mistrial warrants a reversal of his conviction and sentence. A review of the record reveals that at the time the wit-/ ness made the unsolicited remarks defendant asked the trial court to strike from the record the offending remarks. In response to this request, the trial court properly admonished the jury. No objection was made to the trial court’s action in handling the matter because his action was in accordance with defendant’s request. Therefore, no objection which would form the basis for a proper bill of exceptions materialized. Since there was no request for a mistrial, there was no error in the trial court’s action. La.C.Cr.P. arts. 770 and 775. Moreover, since no bill of exceptions was presented to the Court, the alleged error is not properly before us for review.

Finding no reversible error in the record before us or in the bills of exceptions presented for our review, we accordingly affirm the defendant’s conviction and sentence.

SUMMERS, J., concurs in the result.

      . These included a motion to have pre-trial hearings continued from May 10, 1974, due to a conflicting court apjjearance, an application for a bill of particulars and a prayer for oyer.

      . La.C.Cr.P. art. 709 provides:
      “A motion for a continuance based upon the absence of a witness must state:
      “(1) Facts to which the absent witness is expected to testify, showing the materiality of tlie testimony and the necessity for the presence of the witness at the trial;
      “(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
      “(3) Facts showing due diligence used in an effort to procure attendance of the witness.”

      . La.C.Cr.P. art. 230.1 provides :
      “A. The sheriff having custody of an arrested person shall bring him promptly, and in any case within one hundred forty-four hours from the time of the arrest, before a judge for the purpose of aj)pointment of counsel. Saturdays, Sundays, and legal holidays shall be excluded in computing the one hundred forty-four hour period referred to herein. The time limit prescribed herein may be extended by written order of a judge for an additional maximum period of one hundred and forty-four hours upon a showing of good cause. The order shall state the reason for the extension and shall be communicated to the arrested person.
      “B. At this appearance, if a defendant has the right to have the court appoint counsel to defend him, the court shall assign counsel to the defendant. The court may also, in its discretion, determine or review a prior determination of the amount of bail.
      “C. If the arrested person is not brought before a judge in accordance with the provisions of Subsection A of this article, he shall be released forthwith, unless good cause is shown.
      “D. The failure of the sheriff to comply with the requirements herein shall have no effect whatsoever upon the validity of the proceedings thereafter against the defendant.”