text:
    STATE of Louisiana v. Charles HOLSTEAD.
    No. 59474.
    Supreme Court of Louisiana.
    Dec. 27, 1977.

      John S. C. Massey, West Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Charles Holstead was charged by bill of information with seven counts of indecent behavior with juveniles in violation of La. R.S. 14:81. After trial before a judge, defendant was found guilty as charged on all seven counts and was sentenced to pay a fine of two hundred dollars on each count, in default of which he was to serve forty days imprisonment on each count, plus court costs as to count one.

Because the total of the sentences imposed on the accused exceeds five hundred dollars (and in event of default, exceeds six months), defendant has a right of appeal. La.Const. art. V, § 5(D); State v. McCarroll, 337 So.2d 475 (La.1976). On appeal, defendant relies upon seven assignments of error for reversal of his convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in denying his motion for a severance in which he alleged that he could not obtain a fair trial if tried simultaneously on the seven counts contained in the bill of information. In that motion he alleged that the fact that he was accused of seven lewd acts with seven young girls would create an atmosphere in which he would be found guilty of all charges because of the abhorrent nature of the crimes involved and the difficulty on the part of the trier of fact of keeping separate the evidence of seven distinct crimes.

When a criminal defendant has been charged in a single indictment with multiple offenses pursuant to Code of Criminal Procedure Article 493, he may, should he wish to have those consolidated charges tried separately, move for a severance under Article 495.1. That article provides in full that:

“The court, on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever:
(a) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(b) if during the trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The Court shall consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.”

Because we now consider this article in relation to a pretrial motion for severance, it is the standard of section (a) which applies: namely, whether severance is “deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.” C.Cr.P. art. 495.-1(a). In such a situation, we have held that one of the critical questions to be determined by the trial judge presented with a severance motion is “whether, in view of the number of offenses charged and the complexity of the evidence ... offered, the trier of fact [could] distinguish the evidence and apply the law intelligently as to each offense.” C.Cr.P. art. 495.1; State v. Proctor, 354 So.2d 488 (La.1977). A second issue to be decided in a case such as this one is whether the offenses joined because they are of the “same or similar character” under Article 493 (as opposed to “same transaction” or “common plan” join-der), are admissible as similar acts under R.S. 15:445 and 446. State v. Carter, 352 So.2d 607 (La.1977). We will consider these issues seriatim.

In relation to the first question, when a defendant claims that the number and complexity of the charges against him should cause the trial judge to grant him a severance of the offenses for separate trials, we have said that an appellate court evaluating the judge’s denial of defendant’s motion will examine the case for these problems:

“the jury may become confused in trying to apply the applicable law and evidence to the correct offense; that the jury may consider that a person charged with doing so many things is a bad man who must have done something, a feeling that might lead to a cumulation of the evidence; that the judge might find it difficult to adequately charge a jury as to the law with respect to each offense; that the prosecutor may find it troublesome to present his evidence in a compartmentalized and understandable manner; and that a defendant may be confounded or embarrassed in his defense because of the sheer number or complexity of the charges against him. See: United States v. Catena, 500 F.2d 1319 (3rd Cir. 1974); United States v. Clayton, 450 F.2d 16 (1st Cir. 1971); Daly v. United States, 119 U.S.App.D.C. 353, 342 F.2d 932 (1964); Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964); United States v. Quinn, 365 F.2d 256 (7th Cir. 1966); United States v. Lotsch, 102 F.2d 35 (2nd Cir. 1939); United States v. Moreton, 25 F.R.D. 262 (W.D.N.Y.1960); Wright, 1 Federal Practice and Procedure § 222, p. 435; 8 Moore’s Federal Practice §§ 8.05[2], 14:03. Moreover, there is no doubt that the greater the number of offenses charged and the degree of their complexity, the greater the likelihood of the occurrence of any or all of these dangers. 8 Moore’s Federal Practice § 8.02[1].” State v. Proctor, supra at 491.

In the case now before us, defendant Holstead was charged with committing on separate occasions lewd and lascivious acts with seven young girls. The evidence in the case consisted primarily of the testimony of the seven victims who each described a number of occurrences which were simple, clear and largely identical in nature. The offense proscribed by R.S. 14:81 and with which defendant was charged is a fairly simple one which has only a few elements. See State v. Edwards, 283 So.2d 231 (La.1973). And since all charges were for a violation of the same statute, there should have been no confusion in the application of the law to the various incidents. Under these circumstances and irrespective of the fact that seven offenses might normally be viewed as too large a number for one trial, we find that the simplicity of the violations and non-complex nature of the evidence rendered the case appropriate for trial in a joined situation. We therefore find in this case that the trier of fact could compartmentalize the evidence and apply the law intelligently as to each offense, and that defendant was not unfairly convicted on the basis of prejudice or confusion instead of on the evidence of his crimes. C.Cr.P. art. 495.1; State v. Proctor, supra.

We next turn to a consideration of the second question: whether the offenses, joined under Article 493 because they are of the “same or similar character,” are admissible as similar acts under R.S. 15:445, 446. State v. Carter, supra. In the Carter case confronted for the first time with having to interpret the offense severance statute, we held that “if evidence of the two robberies of which defendant Carter stands convicted would have been respectively admissible at separate trials as ‘res gestae’ or ‘other crimes,’ such evidence in support of the two crimes in a single trial would be equally permissible.” 352 So. at 613. There we found error in the judge’s denial of severance because the two robberies, joined only because they were of the “same or similar character” under Article 493, were not admissible as res gestae and were not so similar as to be mutually admissible for identity purposes as “similar offenses” under Revised Statute 15:446. We found that severance was appropriate to promote a fair determination of defendant’s guilt or innocence of each offense, and reversed the trial judge’s denial thereof. C.Cr.P. art. 495.1. The considerations which caused us to reverse defendant Carter’s convictions are not present in the instant case.

Revised Statute 15:445 tells us that evidence is admissible of similar acts independent of the act charged as a crime in the indictment in order to show intent. And Revised Statute 15:446 says that when intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent. In this case intent indeed forms an essential part of the inquiry, for defendant is charged with R.S. 14:81 which proscribes doing a lewd or lascivious act upon the person or in the presence of any child under the age of seventeen with the intention of arousing or gratifying the sexual desires of either person. One cannot be found guilty of violating this statute unless he has formed the requisite specific intent. Since intent is subject of inquiry in the case, similar acts throwing light on that intent are admissible. R.S. 15:445, 446. State v. Ledet, 345 So.2d 474 (La.1977); State v. Frederick, 340 So.2d 1353 (La.1976); State v. Hicks, 301 So.2d 357 (La.1974).

In the case at bar, defendant Holstead was accused of committing lewd and lascivious conduct with and in the presence of seven young girls, all of whom were about twelve years old.

The respective incidents with each of the children, or one or more such incidents, however seemingly sexually oriented, might nonetheless have been viewed by the fact-finder, constrained to acquit absent proof beyond a reasonable doubt, as not fully purposeful or clearly designed to arouse or gratify sexual desires. It was therefore advisable and proper for the state to introduce other similar incidents to strengthen the state’s effort to prove that defendant’s conduct was with the required specific criminal intent. As we have already related, the Code of Criminal Procedure specifically allows the admission of similar acts in order to show intent. R.S. 15:445. We therefore find that the similar acts in question were relevant to the issue of intent on each of the other crimes. We further find that the prejudicial effect of the evidence of the extraneous crimes in a severed situation would not have outweighed their probative value as to any of the other crimes and likewise would not in the joined trial. State v. Carter, supra; State v. Ledet, supra; State v. Frederick, supra. Each crime was of approximately the same character on its facts (none was more aggravated than the others) and each was a violation of the same criminal statute.

For these reasons, we find that the crimes in question were mutually admissible as similar acts under R.S. 15:445 and 446, and that the trial judge’s denial of defendant Holstead’s severance motion was correct in that no severance was needed “to promote a fair determination of the defendant’s guilt or innocence of each offense.” C.Cr.P. art. 495.1. Assignment of error number one lacks merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 4

Defendant contends that the trial judge erred in denying his motion to quash the bill of information. In that motion he alleged, inter alia, that the statute pursuant to which he was charged, namely La.R.S. 14:81, is vague and indefinite in violation of the federal and state constitutions in that it failed to adequately inform him of the nature and cause of the accusation against him. He argues that the words “lewd” and “lascivious” contained in the statute have reciprocal meanings and thus in fact have no meaning at all. In turn the state asserts that the terms “lewd” and “lascivious” have been previously interpreted by this Court and that La.R.S. 14:81 has been held to be constitutionally acceptable.

Indecent behavior with juveniles is defined in La.R.S. 14:81:

“Indecent behavior with juveniles is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child’s age shall not be a defense.” (emphasis added)

Defendant’s contention that the terms “lewd” and “lascivious” in La.R.S. 14:81 are vague and indefinite has been met by this Court in previous decisions. In State v. Prejean, 216 La. 1072, 1078-79, 45 So.2d 627, 629-30 (1950), it was stated:

The words “lewd” and “lascivious” found in the statute are not vague and indefinite. On the contrary, they have a well defined, well understood, and generally accepted meaning, and by their use an accused is informed of the nature of the act he is alleged to have committed. The word “lewd” means lustful, indecent, lascivious, and signifies that form of immorality which has relation to sexual impurity or incontinence carried on in a wanton manner. The word “lascivious” means tending to excite lust, lewd, indecent, obscene, relating to sexual impurity, tending to deprave the morals in respect to sexual relations. See Black’s Law Dictionary (DeLuxe Ed.). Moreover, we are entitled to study these words in their context, and, when we do this, there can be no possible doubt as to their import here. These words are used in the statute to describe an act done “with the intention of arousing or gratifying the sexual desires”, so that, by the bill of information as worded, the accused is fully informed of the nature and cause of the offense charged, that is, that he is charged with having done an act upon the person of a juvenile which is lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a wanton manner.

Likewise in State v. Milford, 225 La. 611, 73 So.2d 778 (1954), and State v. Saibold, 213 La. 415, 34 So.2d 909 (1948), La.R.S. 14:81 was held to be certain and definite enough to withstand constitutional attack on the basis of vagueness. In Saibold the court explained that when the term “lewd” is associated with the word “lascivious” it connotes actions or gestures of a lustful or lecherous nature. Moreover, the necessity that the act be committed with the intent of arousing sexual desires gives to the words an even more confined meaning. Therefore, La.R.S. 14:81 adequately informs a defendant of the nature and cause of the charge against him, and is thus not constitutionally infirm. The trial judge did not err in denying defendant’s motions to quash the bill of information. Assignments of error numbers two and four are without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 6

Defendant contends that the trial judge erred in denying his motions to quash the bill of information and his motion in arrest of judgment. He argues that the motions should have been granted in that the bill of information was fatally defective since it omitted an essential element of the crime of indecent behavior with a juvenile, namely that defendant was over the age of seventeen. The state contends that defendant did not raise this alleged deficiency timely in that it was not asserted by him at the hearing on the motion to quash the bill of information. Rather the state argues that because defendant raised the specified deficiency in the bill of information for the first time at the close of the state’s evidence in his motion for a directed verdict of acquittal the issue was not timely raised and was thereby waived.

The bill of information charged defendant with seven counts of committing lewd and lascivious acts upon the persons and in the presence of seven named juveniles under the age of seventeen with the intention of arousing and gratifying the sexual desire of either him or the respective seven persons in violation of La.R.S. 14:81. Although defendant is admittedly over forty years old, the bill of information failed to allege that defendant was over the age of seventeen as is required by the statute. R.S. 14:81. In his motion to quash and in his argument at its hearing, defense counsel did not assert that the bill of information was defective in that it omitted the fact that defendant was over the age of seventeen. Rather in argument he contended that the specific acts of indecent behavior should have been described in the bill of information.

As stated in State v. Edwards, 283 So.2d 231 (La.1973), the fact that a defendant is over the age of seventeen is an essential element of the crime of indecent behavior with juveniles in violation of La.R.S. 14:81. Therefore, defendant’s contention has some merit. However, defendant did not assert this defect until during trial. No surprise or prejudice of any kind has been shown by defendant to have resulted from the omission in the bill of information. In view of the reference to the charge as being in violation of La.R.S. 14:81, there was no doubt as to the offense charged. Moreover no defense to the charge was available to defendant, a forty-eight year old man, on the basis of his age which might have been prejudiced by the omission. Based on these facts we find that our decision in State v. James, 305 So.2d 514 (La.1974) is applicable to the instant situation, and hence the trial judge did not err in denying defendant’s motions to quash the bill of information and in arrest of judgment. Assignments of error numbers three and six are without merit.

ASSIGNMENTS OF ERROR NOS. 5 AND 7

Defendant contends that the trial court erred in admitting in evidence the testimony of Deputy Sheriff Alfred Calhoun which related a statement made by defendant as to his age at the time of the commission of the offenses with which he was charged on the grounds that such testimony constituted hearsay and pertained to facts beyond the allegations contained in the bill of information. Defendant further argues that his statement was not admissible in that it was elicited prior to his being informed of his Miranda rights. But for the improper admission of Calhoun’s testimony in evidence, defendant contends, there was no evidence contained in the record as to his age and hence the verdict of the trial court was contrary to the law and the evidence.

The minutes reflect that prior to trial the state gave notice of its intention to introduce inculpatory statements made by defendant. Although such notice was not filed in the record, the transcript of the trial reveals that such statements were made by defendant on May 12, 1976 at approximately 4:45 p. m. at the Ouachita Parish Courthouse. At trial Deputy Sheriff Alfred Calhoun testified that about 3:45 p. m. on the above mentioned date he questioned defendant at the courthouse in the presence of Deputy John Rutledge and Louis George. He testified that prior to this questioning defendant was orally advised of his Miranda rights. Defendant indicated that he understood them and expressed a desire to speak. Defendant then was asked his age and date of birth, to which he responded that he was forty-eight years old and was born on September 12, 1927. After about an hour of questioning defendant was presented with a waiver of rights form which he read and signed. A recorded statement was then taken from him.

Defense counsel objected to this testimony solely on the grounds that defendant’s statement as to his age was an inculpatory statement of which the state had failed to give adequate notice of its intention to introduce, and that such statement had been made prior to defendant’s being informed of his Miranda rights. In overruling these objections the trial court noted that the notice given by the state was sufficient in that it stated that inculpatory statements made by defendant on May 12, 1976 at approximately 4:45 p. m. would be introduced and that the evidence established that defendant was advised of his Miranda rights prior to interrogation.

Defendant did not object to the testimony of Deputy Sheriff Calhoun on the grounds that such testimony constituted hearsay and went beyond the allegations contained in the bill of information. Rather, these bases of the objection were raised for the first time on appeal. It is well settled that a new basis for an objection cannot be raised for the first time on appeal. State v. Marks, 337 So.2d 1177 (La.1976); State v. Powell, 325 So.2d 791 (La.1976). Hence, they are not subject to review.

The record clearly indicates that defendant was questioned concerning his age and date of birth after he was advised of his Miranda rights. With respect to his contention that the notice which was served upon him as required by Art. 768 C.Cr.P. covered only a recorded statement and did not include an oral statement made prior to the recorded statement, we conclude that the argument is non-meritorious.

In the first place, we doubt that an admission of one’s age is an inculpatory statement that must be noticed under Article 768. Secondly, since both oral and recorded statements were taken at the same sitting and since counsel had knowledge of both, there was no prejudice to the defendant regardless of the technicality of the difference in times listed. State v. Sneed, 316 So.2d 372 (La.1975).

In view of Deputy Sheriff Calhoun’s admissible testimony as to defendant’s age and date of birth, there was some evidence as to the complained-of element of the crime of indecent behavior with juveniles, namely, defendant’s age.

For the above reasons, assignments of error numbers five and seven are without merit.

Decree

Por the reasons assigned, we affirm defendant’s convictions and sentences.

AFFIRMED.

DIXON, J., concurs.

      . In assignment of error number 2 defendant had also contended that the bill of information was duplicitous in that it charged him with committing lewd and lascivious acts “upon the person” of a juvenile and “in the presence of” a juvenile. However, in brief, defendant expressly abandons this contention.


source: Caselaw Access Project

author: TATE, Justice.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Gerald ELLENDER, Defendant-Appellant.
    No. 60113.
    Supreme Court of Louisiana.
    Jan. 10, 1978.
    Rehearing Denied Feb. 17, 1978.
    Joseph A. Koury, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Mitchell B. Lansden, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Ellender was convicted of aggravated criminal damage to property, La.R.S. 14:55, and sentenced to ten years’ imprisonment at hard labor.

We reverse. We find merit to the defendant’s Assignment of Error No. 5.

This assignment complains of the denial of a new trial, sought on the basis of the state’s introduction of perjured testimony greatly prejudicial to the accused in the jury’s determination of his innocence or guilt of the crime charged. The prejudicial impact of this perjured rebuttal testimony may best be evaluated in the light of the following detailed summary of the evidence in chief introduced by both sides.

Evidence in Chief

The prosecution arises out of a violent incident of January 15,1976, during a labor dispute. The incident itself is undisputed and abhorrent: a heavy-equipment vehicle (a forklift) was driven into the premises of a construction site, occupied by at least two men firing weapons, and crashed into trailers, trucks, etc., causing the death of an individual in one of them. The forklift was followed into the plant by a group of 20-40 men, who smashed automobiles, slashed tires, and did other damage.

The issue of this prosecution is whether the accused Ellender, one of about 150-300 pickets assembled outside the gate, participated in or was a principal in the assault.

As the state concedes, except for the small band who did violence, most of the large number of pickets assembled outside the gates were gathered in a peaceful demonstration to protest the termination the day before of building and construction union contracts at the construction site. (Commencing with the day before the incident, the construction work was to be done by laborers signed on by “Local 102,” a multi-craft organization not affiliated with recognized labor units. It supplied workers to contractors who did not wish to contract with the building and construction unions of organized labor.)

On the day of the incident, the evidence shows, pickets from the various locals of the building and construction trades councils commenced arriving at about 6:00 a. m. These locals were of the various building-trades crafts: carpenters, electrical workers, operating engineers, painters, pipefit-ters and welders, etc. The pickets arrived pursuant to word of mouth or upon suggestion from the professional employees (business agents) of their respective locals. El-lender, a pipefitter, was among those then present.

The incident occurred at plant-opening time of 7:00 a. m. The forklift drove up the road and turned in through the plant gate. The state produced the testimony of several witnesses, members of locals other than El-lender’s, who had participated in planning the incident the previous evening. All of these witnesses admitted that Ellender did not participate in this preliminary planning, nor was he referred to in these previous discussions.

Prior to the appearance of the forklift, a bearded man had, according to the state’s witnesses, instructed the assembled pickets to follow equipment into the plant when it appeared. Some of the state witnesses testified that this bearded man had called for equipment operators earlier in the morning, following which they left the scene to get the forklift. One or two of the state witnesses testified that Ellender had participated in the trespass onto the plant-site, but the others had seen him only on the picket line prior to the incident.

Seven of the state witnesses identified the bearded man as the defendant Ellen-der — five positively, and two with some reservations. One of the state witnesses (Ryder) could not so identify Ellender, and one (Kerry) testified that the bearded man was not Ellender.

The defense witnesses, members of the picket line, testified that Ellender was present solely as a peaceful picket. Two of them had observed a bearded man giving directions; they testified that the bearded man was not Ellender. (The evidence shows that there were approximately 20-30 bearded men in the crowd.)

Ellender testified that he was present on the scene as a peaceful picket. He denied any advance knowledge of or participation in the violent invasion of the plant-site. He stated that he, like most of the peaceful pickets, left the scene in dismay after it.

Ellender’s testimony shows that he is a pipefitter, engaged in pipeline construction work, who has been active as a member of the pipefitter’s union and in building-construction trade-union activities. He was immediate past president of his local (an elected, non-professional position).

Ellender admitted that he had served upon approximately 50-60 building-construction picket lines, some of them as picket captain. He testified positively that he had never been a picket captain when violence occurred.

Rebuttal Testimony

The state introduced the rebuttal testimony of John Jensen primarily to counter this testimony of entirely peaceful past picket activities on the part of the defendant Ellender.

Ellender’s guilty knowledge, criminal intent, as corroborated by past such systematic activities, La.R.S. 15:445, 446, was obviously a central issue of the prosecution. Was he, as he and his witnesses testified, just a member of the picket line indulging in a peaceful mass demonstration, as were most of the some 300 pickets there assembled? Or was he, on the contrary, a member of the small band of 6-10 conspirators who planned the violent incident prior to their appearance on the scene, and who incited some 20-40 of the assembled pickets to invade the plant-site premises?

The testimony of even some of the state witnesses is at least ambiguous on this central issue. If Ellender had never before engaged in violence, in his extensive history of union activity and picket-line (50-60 times) participation, then doubts arising from possibly mistaken identification or testimony might more readily be resolved in his favor. If on the contrary Ellender’s pro-union sympathies had induced him to commit hoodlum violence in the past, his present innocent explanation of his presence on the scene is far less plausible.

Because of the central importance of the issue to Ellender’s principal defense under all of the' evidence, we cannot accept the state’s contention that Jensen’s perjured testimony (to be recounted below) pertained merely to a collateral issue, not to the accused’s guilt or innocence. (The state so contends in urging that, for such reason, the trial court did not abuse its discretion in denying a new trial, despite the perjured rebuttal testimony.)

On rebuttal, Jensen testified: (1) that there was violence on a Boise Cascade incident at DeRidder, and that he had seen Ellender there on the picket line (although his testimony did not otherwise link Ellen-der to any violence); and (2), far more damaging, that on a Panama Williams pipeline construction job near Vinton in 1974, Jensen at Ellender’s instructions had gone to the construction site to tear up all the equipment, “every piece of equipment out there, where they can’t work and lay the line,” and that accordingly Jensen “tore up all the equipment along the line . everything we could get . . . get close to,” “about a million dollars worth of damage.” Tr. 723. He testified that Ellen-der had directed him to do so at a meeting at the pipefitters’ local’s hall.

Motion for a New Trial

In moving for a new trial, the defendant alleged that he had discovered since the trial new and material evidence not discoverable before or during the trial, attaching 21 affidavits, to the effect that: (a) the only union meeting held before or during the Panama Williams picketing for three days concerned peaceful picketing; (b) that only peaceful picketing occurred during this period, with no member of Ellender’s local participating in or knowing of any violence; and (c) that Jensen was not present at the meeting.

At an evidentiary hearing on the motion, eight witnesses so testified, with the state stipulating that an additional nine defense witnesses would so testify. The only state witness called at this hearing (held two months after the motion was filed) testified to the same effect.

The witnesses were uniform in testifying that the three days of peaceful picketing were without incident, except for one occasion when a pickup truck window was broken and another when a busload of entering workers were verbally harassed. Some of the witnesses had read newspaper reports of a pre-picketing incident when valve-grinding substances were poured into motors, idling the equipment; but all witnesses were uniform in their account that the picketing itself was generally peaceful and that there was no massive destruction of property, such as had been described by Jensen as occurring consequent to non-peaceful picketing.

Thus, the uncontradicted evidence at the evidentiary hearing shows Jensen’s rebuttal testimony to be false, that there was massive property destruction in violent picketing of the Panama Williams’ construction job. The purpose of the rebuttal testimony, it is to be remembered, was solely to rebut the defendant Ellender’s testimony that he had served on some 50-60 picket lines without violent incident — and we have previously noted the central importance to Ellen-der’s defense in inferences to be drawn from such testimony on his behalf.

Under these circumstances — where not until rebuttal did the state introduce crucial testimony regarding an important issue, which turned out to be perjured — , the trial court abused its discretion in denying a new trial. The defense could not of right rebut this perjured testimony, La.C. Cr.P. art. 765(5), La.R.S. 15:282 (1966), nor (the testimony being perjured) could it reasonably anticipate such testimony so as to counter it prior to verdict, La.C.Cr.P. art. 854. More important, fundamental fairness, if not due process, is violated when the state secures a conviction partially based upon crucial testimony known to be perjured. See: Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 238 (1959); 4 Wharton’s Criminal Procedure, Section 597 (Torcia ed., 12th ed., 1976); cf., Annotation, 34 A.L.R.3d 16 (1970).

We do not mean to intimate that, at the time Jensen was called as a rebuttal witness, the state prosecutors knew that Jensen was going to testify falsely. However, the state knew of factors which tended to affect adversely his credibility; while perhaps it was not required to verify the accuracy of Jensen’s crucial rebuttal testimony before introducing it, neither can it claim exculpation on the basis of innocent surprise when Jensen’s testimony turned out to be perjured. As stated in a similar context, fundamental fairness to an accused (i. e., due process) is offended “when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 238 (1959).

Decree

For the reasons assigned, therefore, we reverse the conviction and sentence, and we remand this case to the district court for a new trial in accordance with law.

REVERSED AND REMANDED.

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

      . Jensen was a principal participant in the incident, having driven the forklift which accomplished the heaviest damage. He had been permitted to plead guilty to the charge of aggravated criminal damage the day before the present trial. He was a principal state witness. However, he had previously been convicted of negligent homicide, forgery (twice), and theft. Following his arrest for the present incident, he had been in federal custody as a witness, drawing $800 monthly as expenses.


author: PER CURIAM. DIXON, J., MARCUS, Justice

text:
    ALLSTATE INSURANCE COMPANY v. LOUISIANA GAS SERVICE COMPANY.
    No. 59892.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Andrew P. Carter, Eugene G. Taggart, George F. Riess, Monroe & Lemann, New Orleans, for defendant-appellant.
    Rudolph R. Schoemann, New Orleans, for plaintiffs-respondents.
   PER CURIAM.

We granted certiorari for the purpose of considering whether Louisiana Code of Civil Procedure Article 1153 and Louisiana Revised Statute 9:5801 were applied correctly with regard to allowing amended pleadings to relate back so as to interrupt prescription. After carefully considering the arguments and briefs of counsel and examining the record, we conclude that all issues presented in this Court were ably and correctly decided in the court of appeal opinion. Allstate Insurance Company v. Louisiana Gas Service Company, 344 So.2d 386 (La.App. 4th Cir. 1977). Therefore, the judgment of the court of appeal is affirmed.

AFFIRMED.

SUMMERS, J., dissents.

DIXON, J.,

concurs, only because first plaintiff’s claim was a subrogation from second plaintiff. Further, the “amendment” purporting to add a new plaintiff should have been treated as an intervention.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I consider that the claim of William Coughran is barred by prescription. La. Civil Code arts. 3459 and 3536. Accordingly, I would overrule National Surety Corporation v. Standard Accident Insurance Company, 247 La. 905, 175 So.2d 263 (1965). I respectfully dissent.


author:
TATE, Justice.
      SANDERS, Chief Justice

text:
    STATE of Louisiana, Respondent, v. David ROME, Defendant-Relator.
    No. 60129.
    Supreme Court of Louisiana.
    Jan. 30, 1978.

      Ronald P. Herman, Metairie, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Asst. Dist. Atty., for respondent.
   TATE, Justice.

The defendant is charged with possession of phencyclidine, La.R.S. 40:967, a felony. He moved to suppress the drug, claiming that it was the product of an illegal search of his vehicle following a stop for an alleged traffic violation.

We granted his writ application, 349 So.2d 875, to review the trial court’s denial of his motion. The issue before us is whether the drugs were found as a result of a valid “inventory search.”

The defendant was stopped shortly after midnight on a rainy evening. The state trooper had observed him driving slightly in excess of the speed limit, with his rear tires spinning and his vehicle fishtailing as he had accelerated on the wet pavement.

The trooper stopped the vehicle and caused it to pull over in a service station area. He asked the defendant, the driver, to step to the rear of the vehicle. Noticing that the defendant had stumbled and that there was “a hint of alcohol” on his breath, Tr. 16, he gave him a “field sobriety test”— asked him to touch the tip of his nose with his eyes closed, walk in a straight line. Feeling that the results indicated intoxication, the trooper then arrested the defendant for driving while intoxicated and for failing to maintain reasonable control of his vehicle.

The trooper then proceeded to make an inventory search of the vehicle. The italicized portion of the following statement of facts are indicia that the search did not meet the constitutional test for validity thereof, to be summarized below.

Without asking the defendant whether he could make other arrangements for his vehicle (such as with the service station personnel, or by calling a member of his family), the trooper determined to take the vehicle into custody. Accordingly, he called a private wrecker service and proceeded to make what he called a routine or mandato-rily required inventory search.

The trooper did not request permission of the defendant before doing so. In the console area of the front seat, the trooper found two aluminum packets. The trooper thereupon opened them, found they contained a white powdery substance, and sent them on for laboratory analysis. (Such subsequent laboratory analysis is the basis of the present charge.)

In State v. Jewell, 338 So.2d 633 (La.1976), we noted that the warrantless search of a vehicle or its contents, without probable cause to suspect its contents and exigent circumstances, offends constitutional guarantees against unreasonable searches and seizures. However, we noted there that true inventory searches may not offend the constitutional prohibition, if restricted to the practical purposes which necessitate them. We cautioned, however, that law enforcement officials may not use this procedure as a subterfuge for a warrantless search without probable cause, for the primary purpose of seizing evidence for criminal proceedings. See also State v. Jones, 315 So.2d 270 (La.1975).

In Jewell, we distinguished inventory from other searches as follows, 338 So.2d 636:

“As contrasted with a search of a vehicle based upon probable cause that its contents offend the law, an inventory search is conducted not to secure evidence but merely to inventory the vehicle’s contents in order to safeguard them, as an incident to the vehicle’s being taken into lawful custody (impounding) by the police for the purpose of storage or safekeeping until the owner is located or until, if he is arrested, he is released. The search should be by virtue of a standard procedure and reasonably limited in scope to accomplish only the sole purpose for which authorized.”

In that case, we struck down as constitutionally invalid what was claimed to be an inventory search. Pertinent to the present facts, we observed that no attempt was made to obtain the consent of the motorist (or an alternative to impounding from him), and we further noted that no inventory-search value was served by inspecting inside an innocuous closed container (here, the aluminum packets) to discover their contents and whether their possession offended the criminal statutes. Such circumstances, we noted, were indicia that the search was not reasonably restricted in scope so as to constitute a true inventory search.

For similar reasons, we find the present “inventory” search to be unreasonable and in violation of constitutional guarantees against unreasonable searches and invasions of privacy. Upon arrest for a traffic violation, the motorist’s vehicle cannot constitutionally, solely because of the traffic arrest, become the subject of an unlimited criminal investigation in order, if possible, to charge the motorist with more serious crimes.

The police officer in the present case claimed that he was mandatorily required by department regulation to take the vehicle into custody and to make the inventory search. If so, under the circumstances shown, the search was nevertheless invalid. “Unconstitutional searches cannot be con-stitutionalized by standardizing them as part of normal police practice.” Jewell, 338 So.2d 640.

Accordingly, we grant the defendant’s motion to suppress the evidence unconstitutionally seized from his vehicle, after he was stopped and arrested for a traffic offense; we reverse the trial court ruling to the contrary. The case is remanded for further proceedings in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., dissents with written reasons.

SUMMERS, J., dissents for the reasons assigned by the Chief Justice.

MARCUS, J., concurs.

SANDERS, Chief Justice

(dissenting).

One rainy night at 12:30 a. m., State Trooper Bertaut observed the defendant, David Rome, driving approximately 55-60 m.p.h. in a 45 m.p.h. zone, spinning his rear tires, and fishtailing. The trooper stopped the defendant and ordered him to step to the rear of the car. As the defendant complied, he stumbled and leaned on the car. When asked to produce his driver's license, he fumbled for it. From the smell of alcohol on his breath and his poor physical coordination, the trooper determined that the defendant had been drinking. To ascertain the extent of his intoxication, he conducted a field sobriety test. Defendant failed the test. Trooper Bertaut then arrested him and issued a citation for driving while intoxicated and failing to maintain proper control of his vehicle. The trooper then searched and handcuffed the defendant and placed him in the rear of the police car. During the arrest, Trooper Seaverson happened on the scene.

The troopers summoned a wrecker service. Pursuant to mandatory State Police orders, they inventoried the contents of the car’s interior, glove compartment, console, and trunk. (They did not present the defendant with a consent to search form to sign.) Trooper Bertaut discovered two aluminum packets containing off-white powder in the console between the two front seats. As the troopers inventoried the contents of the vehicle, or shortly thereafter, the wrecker arrived.

At the station house, forty-five minutes after he was stopped, the defendant registered .05g% of blood-alcohol concentration on a photo-electric intoximeter test.

The issue here is whether the dangerous substance, phencyclidine, seized during the inventory must be suppressed.

Standard police procedures in making inventory searches of automobiles impounded or in lawful police custody do not offend federal and state constitutional provisions against unreasonable searches and seizures. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); State v. Jewell, La., 338 So.2d 633 (1976). However, law enforcement officials may not use this procedure as a subterfuge for a warrantless search aimed at seizing evidence for criminal proceedings. State v. Jones, La., 315 So.2d 270 (1975). They must inventory and secure the contents of the car to safeguard the defendant’s property, to protect the police department from claims that property from the car was stolen, and to protect the police from potential danger. South Dakota v. Opperman, supra.

Factors indicative of a true inventory procedure are: that the officers conduct the inventory after the car is in lawful police custody; that they summon the tow truck prior to the inventory; that they act pursuant to standard practices of the local police department; that they act in good faith, and not use the inventory as a subterfuge for a warrantless search; that they discuss the disposition of the car and its contents with the owner in order that he might give his permission to search; that the officers use standard inventory forms listing the car’s contents and keep it for future reference; that they maintain a place of safekeeping for valuables inventoried; that the evidence seized was in a place in the car likely to hold something of value; and that the scope of the search is consistent with the objectives of collecting and safeguarding the defendant’s property. South Dakota v. Opperman, supra; State v. Jewell, supra; Annot., 48 A.L.R.3d 537 (1973).

From the circumstances of the present case, I conclude that the evidence was seized pursuant to a valid inventory procedure.

As this Court recognized in State v. Jewell, supra, the trooper properly took custody of the car because the defendant appeared intoxicated. There were no other passengers to drive the car. Thus, the troopers had legal custody of the vehicle prior to the inventory. The record contains no allegation or evidence that the troopers were in bad faith. Their testimony is un-contradicted that they acted according to mandatory procedures. The troopers called the tow truck before they inventoried the car. It is inconsequential that the officers failed to present the defendant with a written consent form to search the car, since he appeared to be intoxicated. Finally, the extent of the inventory was consistent with the objectives of their inventory; they searched only areas likely to hold valuables. In this limited search, they discovered the evidence located in the console storage area between the bucket seats.

The majority, in my opinion, has erroneously imputed bad faith to the police officers.

For the reasons assigned, I respectfully dissent.

      . In actual fact, the subsequent formal PEI test indicated an alcoholic level of .056, well below the .10 which gives rise to a presumption of intoxication. La.R.S. 32:662 (1970). The statute provides that a level of .05 or less gives rise to a presumption “that the person was not under the influence of alcoholic beverages.”

      . The level of his blood-alcohol content registered only .05g% on PEI test taken forty-five minutes later at the police station. However, the trooper’s immediate determination that he was intoxicated was reasonable since he failed the field sobriety test, had alcohol on his breath, and had poor physical coordination. Furthermore, as the trial judge noted, the defendant could have also been under the influence of drugs at the time of the arrest for the PEI test only indicates the presence of alcohol.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Stanley GILBERT.
    No. 60227.
    Supreme Court of Louisiana.
    Jan. 30, 1978.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Marvin Opotowsky, Asst. Dist. Atty., for plaintiff-relator.
    David F. Craig, Jr., W. Miriam G. Waltzer, New Orleans, for defendant-respondent.
   DIXON, Justice.

By bill of information Stanley E. Gilbert was charged with possession of an unregistered sawed-off shotgun having a barrel of less than twenty inches in length, in violation of R.S. 40:1784. Gilbert was arrested when a search of his residence pursuant to a search warrant turned up the shotgun. Defendant moved to suppress the evidence and, after hearing, the trial judge granted the motion. On application of the State, we granted supervisory writs to review the ruling. State v. Gilbert, 350 So.2d 890 (La.1977).

The sole issue presented for our review is whether the affidavit sufficiently set forth facts and circumstances from which the magistrate could reasonably have concluded that probable cause existed for issuance of the search warrant. C.Cr.P. 162.

Detective Elliot Fassbender submitted an affidavit in support of his application for a search warrant which stated, in relevant part:

On March 2, 1977, at or about 8:00 PM, Officer Fassbender met a confidental (sic) informer, whose information has led to arrest and convictions in the past, who stated that he had information on who was committing burglaries of businesses in the Third District Police area.
Informant then stated that Paul Varona and Randy Gilbert committed two burglaries, namely Lakeshore Shoe Store on Prentiss Avenue and Tusa’s Drug Store on Elysian Fields Avenue. Informant also stated that Varona told him that when he and Gilbert hit the drug store they almost got caught by the Police, but managed to run away and had to leave Varona’s motor bike at the drug store. Varona also bragged about how stupid the Police was because he later that night he called the Police and reported his bike stolen from the front of his house and the Police believed him. Varona also told the informer that when he and Gilbert ripped the shoe store they knew that the Police would come looking for them so they stored the property at Shaune Richardson’s house for a few days and then later divided the property up giving Richardson a share.
On March 8, 1977, Officer Fassbender secured two Police Reports of Business Burglaries, one at Lakeshore Shoe Store, 2413 Prentiss Avenue under Item #B-33-77, which occurred 02-01-77 at approximately 1:25 AM, and two at Tusa’s Drug Store, 5215 Elysian Fields Avenue under Item #B-10578-77, which occurred 02-13-77 at approximately 1:05 AM. Upon checking the body of the report concerning the shoe store it was learned that $178.00 in U. S. Currency and coins, five dozen dress belts, colors brown and black, five plain wood sticks, and assorted colored shoe laces were taken. Also in the report it was learned that Desk Officer R. Hankenhof had received an anonymous phone call at the Third District Station on 02-01-77 at or about 1:30 AM that Varona and Randy Gilbert were breaking into the shoe store on Prentiss Avenue. However, upon arrival of the reporting officers the subjects had already fled the scene. Also reporting officers made checks of the residences of Varona and Gilbert, but neither subject was at home nor could the officers determine there (sic) whereabouts.
Officers then checked the report concerning the drug store and learned that all the property stolen had been recovered by officers at the scene after the subjects were chased by the Police from the drug store. A short distance from where the stolen property was recovered and (sic) abandoned motorbike was found. At 4:10 AM the reporting officers were notified by the subject, Paul Varona that someone had stolen his Honda 350 Motorcycle LA. license # 7503 from in front of his residence reported under Item #B-10695-77. It should be noted that this was the same motorcycle by the scene of the burglary.
A N.O.P.D. Computer Check revealed that Shawn Richardson, W/M, age 17, resides 5411 Paris Avenue, that Randy Gilbert, W/M, age 19, resides 1712 Lark Street and that Paul Varona, W/M, age 16, resides 5535 St. Roch Street. The above addresses were then checked and it was verified that the subjects still resided at these residences.
On March 10, 1977 at approximately 1:00 PM, Officer Fassbender again spoke to the informer. The informer stated that since he last talked with the officer that he had gone to all three subjects’ houses and had observed new various brown and black hand-made leather belts at all three houses. '
For the above reasons and facts the officer feels that the Search Warrant should be signed and executed.

Based upon the affidavit a warrant was issued for search of the premises at 1712 Lark Street, specifically naming as concealed property five dozen brown and black dress belts, five plain wood sticks, and assorted shoelaces. The shotgun was uncovered behind a bed in defendant’s room in the course of the search.

Although the trial judge did not assign reasons for granting the motion to suppress, he apparently found that the affidavit did not provide a sufficient basis for a finding of probable cause. For the reasons set forth below, we hold that the affidavit was adequate and thus the trial court erred in suppressing the evidence.

In State v. Paciera, 290 So.2d 681, 685-86 (La.1974), we established the following rule to scrutinize a supporting affidavit which relies upon informant supplied information to obtain a search warrant:

“ . . . The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the creditability of the information reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information. See State v. Linkletter, 286 So.2d 321 (La.Sup.Ct.1973).” (Emphasis added by author).

At the outset we note that the affidavit which sets forth that the confidential informant has supplied information which has led to arrests and convictions in the past is sufficient to establish the reliability of the informant. See State v. Smith, 350 So.2d 1178 (La.1977); State v. Martin, 318 So.2d 25 (La.1975); State v. Humble, 309 So.2d 138 (La.1975).

Defendant makes various arguments in brief to show that the underlying facts and circumstances set forth in the affidavit were insufficient to support a finding that the information was reliable.

Defendant first contends that there is nothing in the affidavit to link him to the crime; he argues that the only connection between him and the criminal activity described in the affidavit is that he is Randy Gilbert’s brother and lives at the same address. The affidavit need not make such a connection. As long as the affidavit sets forth facts sufficiently establishing that evidence of a crime is presently on the premises to be searched, defendant cannot object that the affidavit does not establish probable cause as to each occupant of the house. State v. Porter, 344 So.2d 1031 (La.1977).

Defendant next argues that the statements allegedly made by Paul Varona in regard to his and Randy Gilbert’s participation in burglaries of the Lakeside Shoe Store and Tusa’s Drug Store should not be credited as reliable. However, in State v. Turner, 337 So.2d 1090 (La.1976), we held that an admission against penal interest made by the possessor of property to an informant indicates credibility. See also State v. Ballansaw, 350 So.2d 146 (La.1977). Although this information alone could not serve as a basis for establishing probable cause that certain stolen goods could be found at 1712 Lark Street such an admission can be considered reliable and, along with other facts and circumstances set forth in the affidavit, may constitute probable cause.

Defendant further contends that the magistrate could not determine from the affidavit the credibility of an anonymous individual who tipped Desk Officer R. Hankenhof on February 1,1977 that Randy Gilbert and Paul Varona were breaking into the shoe store. The reliability of that anonymous tipster is not at issue, however. The purpose of including the report of the tipster’s phone call was to corroborate the information provided by the confidential informant to the affiant, Officer Fassbender, that there had been a burglary in which Varona and Randy Gilbert were involved. It is the reliability of the latter informant that must be, and has been, established by the affidavit.

We are satisfied that the reliability of the information and its sufficiency for a finding of probable cause were established in the affidavit. Contained in the affidavit were boasts made by Paul Varona, a participant in both burglaries, connecting him and defendant’s brother to the crimes. In addition Varona admitted leaving his motorbike at the drug store and reporting it stolen to the police. Corroborating this claim was a police report that an abandoned motorbike was found near the drug store on the night of the burglary and that Paul Varona later notified the officers that his motorbike, the same that had been located at the scene, had been stolen. Police reports were checked showing that burglaries had occurred at the two locations and that five dozen brown and black dress belts, five plain wood sticks, assorted colored shoelaces, and some currency were taken from the shoe store. The shoe store burglary report also contained the anonymous phone tip regarding Varona and Randy Gilbert’s involvement. Computer checks located the residences of Gilbert, Varona and Shawn Richardson (an individual implicated by Va-rona’s statement to the informant that the stolen property from the shoe store had been stored at Richardson’s home before being divided up).

This information alone might be insufficient to establish probable cause that the stolen property could be found at the Gilbert residence at 1712 Lark Street. However, personal observation by the confidential informant of “new various brown and black hand-made leather belts” at the homes of all three persons named in the affidavit supplied the necessary connection. Paciera, supra, sets forth as criterion for supporting the credibility of information reported the direct personal observation of the informant, indicating that that alone would be sufficient. In the instant case, however, the observation of belts, which are not contraband nor suggestive of criminal activity, would not be enough. Therefore the other information provided in the affidavit which tied the possession of the belts to a burglary accomplished by these individuals was necessary. In Turner, supra, an affidavit which set forth merely the fact that an informant had seen certain clothing on the premises to be searched and had been told by a possessor of the clothing that it had been stolen from a store was found to be sufficient to establish probable cause for issuance of a search warrant. In the instant case there is a similar admission against penal interest by a possessor of stolen property and personal observation of some of the goods by the informant. There is also information in the affidavit corroborating the possessor’s admissions and identifying the missing property. Thus, the facts set forth in the affidavit were sufficient to establish the reliability of the information and to establish the requisite probable cause for a search.

Defendant makes the additional argument that the affidavit’s facts were stale. In other words, he alleges that the affidavit does not show that the facts relied upon in the affidavit still continued to exist at the time the application for a search warrant was made. As the United States Supreme Court stated:

“ . . . it is manifest that the proof must be of facts so closely related to the time of the issue of the search warrant as to justify a finding of probable cause at that time. Whether the proof meets this test must be determined by the circumstances of each case.” Sgro v. United States, 287 U.S. 206, 210-11, 53 S.Ct. 138, 140, 77 L.Ed. 260, 263 (1932).

The burglaries mentioned in the affidavit occurred at the shoe store on February 1, 1977 and at the drug store on February 13, 1977. Officer Fassbender had his first contact with the informant on March 2, 1977. On March 10, 1977 the confidential informant notified Officer Fassbender that since they last spoke he had seen belts in the homes of Randy Gilbert, Varona and Richardson. The application was made and the search warrant was issued on March 17; the warrant was executed March 18. Thus there was a lapse of anywhere from one to two weeks between the time the belts were seen and the search warrant was issued (the affidavit does not establish exactly when between March 2 and March 10 the informant saw the belts). It is necessary, therefore, to determine if there was reasonable cause to believe the property would still be on the premises one to two weeks after being observed.

Paul Varona’s statement to the informant that the goods obtained in the shoe store burglary were stored a few days at Shawn Richardson’s and then were later divided indicates that the individuals were in possession of the property not long after the burglary on February 1. The belts were seen in each'individual’s home at least one month after the burglary. The items were of the kind that the possessors could have been using personally. The passage of an additional week or two from the time the belts were seen on the premises would not necessarily lead to the conclusion that the belts would no longer be there. In People v. Superior Court for County of Colusa, 49 Cal.App.3d 160, 122 Cal.Rptr. 459, 463 (Dist.1975), a California appellate court upheld a one month lapse between the time of a burglary and the issuance of a search warrant finding that it was reasonable to believe that the stolen property (small antiques and credit cards) would be at the burglar’s residence since such items “would require protection from the elements and fortuitous harm.” Similarly, the items in the instant case could reasonably be expected to still be found where seen one to two weeks previously.

An allegation that the police had no authority to seize the sawed-off shotgun because it was not specifically listed in the search warrant is likewise without merit. The police officers engaged in their search under a valid search warrant issued upon a proper finding of probable cause. A thorough search of the premises identified in the warrant could include checking behind furniture. Police lawfully executing a search warrant have a right and duty to seize contraband discovered during the search.

The ruling of the district judge on the motion to suppress is vacated and reversed, and the case is remanded to the district court for further proceedings not inconsistent with this opinion.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Jack W. THOMPSON.
    No. 60251.
    Supreme Court of Louisiana.
    Jan. 30, 1978.

      Wellborn Jack, Jr., Jack & Jack, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., R. Harmon Drew, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Jack W. Thompson, with four counts of simple burglary and three counts of receiving stolen things, violations of LSA-R.S. 14:62 and 69. Pursuant to a plea bargain agreement, the defendant pled guilty to two counts of simple burglary and one count of receiving stolen things and reserved his right to appeal the denial of his motion to suppress, and the State nolle prosequied the remaining charges. See State v. Crosby, La., 338 So.2d 584 (1976). The court sentenced him to three four-year terms of imprisonment at hard labor, running concurrently.

The defendant appeals. He assigns one error — the denial of the motion to suppress.

We adduce the following facts from the hearing on the motion to suppress:

William Bilbray told deputies that he burglarized the Patterson residence and “turned over” three weapons taken during the burglary to the defendant. On October 15, 1975, a city judge issued Deputy Stephens a search warrant for the defendant’s home based on the following affidavit:

“Before me, the undersigned authority, personally came and appeared the person whose name is hereunto subscribed, who being by me duly sworn, deposes and says: That certain articles have been stolen from the residence of Mark Patterson. 1005 7th Southeast. Springhill, Webster Parish. Louisiana which articles are as follows: 1-22 cal, single shot rifle with homemade stock. 2-double barrell 12 gauge Belgium shotguns with hammers and that he has good reason to believe and does believe that said articles are now situated in residence of Jackie Thompson, located just off Avera Street in Sarepta. Webster Parish. Louisiana because: of a statement made by William Bilbray to Webster Parish Sheriff’s Deputies that he (Bilbray) committed the burglary of the Patterson residence and turned the above described weapons over to the said Jackie Thompson, and that a search warrant is necessary to recover same.”
[Underlined portions indicate information supplied to the printed form.]

On October 15,1975, the officers searched the defendant’s home. They seized the guns described in the affidavit and numerous other items. During the search, the defendant returned home and the officers arrested him. In response to Deputy Blox-om’s on-the-scene questioning, the defendant admitted receiving some of the seized items from Bilbray.

On October 16 and 17, the following days, Deputy Bloxom obtained two additional warrants to search the defendant’s home. The affidavits recite that the deputy observed certain items at the defendant’s home' during the October 15 search and that he later learned that they were stolen. These searches produced tools and bikes.

The defendant complains of the denial of the motion to suppress all tangible evidence seized in the three searches and his oral inculpatory statements. Specifically, he alleges that the October 15 search was illegal because its supporting affidavit failed to set forth facts sufficient to establish probable cause, and further, that the subsequent seizures and inculpatory statements must be suppressed as fruits of the poisonous tree.

We agree.

A search warrant will withstand an attack of “staleness” if the facts contained in the affidavit have not become so attenuated with the passage of time so as to render those supporting facts non-existent. Stated another way, “. . . the proof [of probable cause] must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.” Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932). State v. Brawley, La., 347 So.2d 238 (1977); State v. Humble, La., 309 So.2d 138 (1975); State v. Boudreaux, La., 304 So.2d 343 (1974). See Annot., 100 A.L.R.2d 525 (1965); Mascolo, 43 Conn.B.J. 189, The Staleness of Probable Cause in Affidavits for Search Warrants: Resolving the Issue of Timeliness (1969).

The information establishing the “timeliness” of the facts relied on to support probable cause should be in the affidavit. See State v. Thomas, La., 329 So.2d 704 (1976); State v. Chaffin, La., 324 So.2d 369 (1975). Nevertheless, in State v. Boudreaux, supra, we stated:

‘■‘The absence of a date for each episode described in the affidavit is not fatal, however. The language of the affidavit, including the use of the present tense, indicates that the affiants are describing a course of conduct continuing to the date of the warrant. * * *
“Such an affidavit has been held to be adequate if, in a commonsense construction, it can be said from the face of the affidavit that the information received by the affiant was current and not stale. [Citations deleted.]” See also State v. Turner, La., 337 So.2d 1090 (1976).

The facts set forth in the October 15 affidavit are that Bilbray told deputies that he had burglarized the Patterson residence and “turned over” three weapons taken therefrom to the defendant. The affidavit lacks a time frame: it does not supply the issuing judge with the date of the burglary, the date of Bilbray’s statement, or the date Bilbray gave the defendant the weapons. The sentences containing the supporting facts are in the past tense. Moreover, there are no detailed facts, such as Bilbray’s personal observation of the weapons at the defendant’s home or of a continuing course of conduct. These latter factors preclude application of the Boudreaux rationale. Thus, we hold that the affidavit failed to provide information sufficient for the issuing judge to determine that the proffered facts were current. The October 15 search was, therefore, invalid and all evidence seized pursuant thereto must be suppressed.

We must now determine whether the October 16 and 17 seizures and the inculpatory statements must also be suppressed. In State v. Jenkins, La., 340 So.2d 157 (1976), we formulated the following rule:

“In determining whether information obtained by officers in the conduct of an unlawful search was used to acquire other evidence against an accused, the test to be applied is not whether, but for the illegal search the evidence would not have been obtained, but rather ‘ “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” ’ Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1971), quoting Maguire, Evidence of Guilt 221 (1959).”

When the officers illegally searched the defendant’s home on October 15, the defendant told Officer Bloxom that he received some of the items from William Bil-bray. The supporting affidavits for the October 16 and 17 search warrants recite the following facts in support of probable cause: during the October 15 search, Officer Bloxom observed several tools and bikes at the defendant’s home which he later learned were stolen.

Under the principle announced in Jenkins, supra, we hold that the evidence seized at the October 16 and 17 searches and the inculpatory statements made during the October 15 search must be suppressed. The officer’s observations at the initial illegal-search formed a major portion of the facts supporting probable cause. The single other fact, that the officer later learned that the objects were stolen, falls extremely short of establishing probable cause for issuance of the warrants. See State v. Tapp, La., 353 So.2d 265 (1977). As the inculpatory statements were made during the illegal search, they were obtained “by exploitation of the illegality.” There is no evidence in the record to indicate that the evidence could have been discovered from independent sources. See State v. Jenkins, supra. In any event, there are no intervening events sufficient to purge the evidence of the primary taint.

In conclusion, we hold that the trial court erred in denying the motion to suppress.

For the reasons assigned, the guilty pleas and sentences are set aside, and the case remanded to the trial court for a new trial or further proceedings.


text:
    STATE of Louisiana, Appellee, v. Alvin BROWN, Appellant.
    No. 60279.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant Brown was convicted of simple burglary, La.R.S. 14:62, and sentenced, as a multiple offender, La.R.S. 15:529.1, to three years imprisonment at hard labor. For reasons to be stated, we find no merit to the four assignments of error argued on appeal. Accordingly, we affirm.

According to the state’s evidence, Brown and his brother (Otha Simmons) were arrested after they had removed a cabinet from a house through its front door and loaded it into their automobile.

Otha Simmons testified at the trial that he had picked up an abandoned cabinet from the front yard of the residence to bring it home, and that he had asked his brother to help him. The defense tendered by his testimony was that there had been no unauthorized entry of the dwelling — and thus no burglary had been committed, only a trespass or a theft of property outside an un-entered building. (Simmons testified that, as part of a plea bargain, he had pleaded guilty to the burglary only in order to receive probation instead of imprisonment.)

Assignment 6 presents the most arguable issue. It concerns the cross-examination of Simmons, when he was asked why he had not informed the police of this exculpatory version of the incident at the time of the arrest of himself and the accused.

Arguably, this cross-examination constituted an impermissible prosecutorial reference to the witness’ post-arrest silence, in derogation of his right to remain silent after police accusation. State v. Montoya, 340 So.2d 557 (La.1976); State v. Smith, 336 So.2d 867 (La.1976). The cited decisions held that an accused, at least, may not be so questioned.

However, the objection to this questioning was not made until the prosecutor concluded two pages of cross-examination concerning it. (Following the objection, the witness was not cross-examined further as to his failure to give the arresting police his present exculpatory version of the incident.) The objection was therefore not timely; the defendant cannot complain on appeal of the alleged error, to which he did not object until after the witness had already fully answered all of the prosecutor’s queries on the subject. La.C.Cr.P. art. 841.

The remaining assignments present only insubstantial issues: The arresting officer’s testimony as to the fact of a radio communication, to explain his presence on the scene, is not hearsay evidence inadmissibly introduced to prove the communication’s content. State v. Monk, 315 So.2d 727 (La.1975) (Assignment 5). The prosecutor’s comments, giving reasons to question the credibility of Simmons (the accused’s brother) and his exculpatory version, were not improper or reversible (Assignments 7, 8).

Decree

Accordingly, we affirm the defendant’s conviction and sentence.

AFFIRMED.

SUMMERS, J., concurs.


text:
    STATE of Louisiana v. Cleve BOLTON.
    No. 60288.
    Supreme Court of Louisiana.
    Jan. 30, 1978.

      John M. Lawrence, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., John N. Gallaspy, Second Asst. Dist. Atty., for plaintiff-appel-lee.
   DIXON, Justice.

Defendant Cleve Bolton was charged by bill of information with the offense of armed robbery. After trial before a jury he was found guilty as charged and sentenced to serve twenty-five years imprisonment at hard labor. Five arguments on assignments of error are urged by defendant for the reversal of his conviction.

During the evening of August 23, 1973, Raymond Mattox and Jimmy Martin were approached by a young boy as they were on their way to a Bogalusa bar. The boy asked for a dollar and offered to arrange dates for Mattox and Martin. They declined the offer and went on their way. Later in the evening they were approached a second time by the young boy and this time they agreed to meet the women. The two women soon arrived, got into Mattox’ pickup truck and suggested that they all go to a nearby ball park. The men agreed so they drove to the ball park and stopped in the middle of the field. The women got out of the truck, yelled and ran. When Mattox and Martin got out of the truck they found that they were surrounded by other men. Mattox was shot in the neck by one of these men and testified that his wallet, watch and keys were taken from him. Mattox also stated that the defendant was the one who shot him and that he had seen the defendant earlier in the evening in a pool hall. Several days after the incident the defendant turned himself in to the police and was subsequently charged with armed robbery.

Assignments of Error Nos. 2 and 6

Through Assignment No. 2 defendant argues that the trial court erred (1) in denying his motion for a change of venue and (2) in allowing the State to use its peremptory challenges to excuse only black prospective jurors. Assignment No. 6 was taken to the denial of a motion for a new trial based on the use of the peremptory challenges.

(1) Change of Venue

Defendant contends that the trial court erred in not holding a contradictory hearing on the motion for a change of venue. Defendant argues that by referring the motion to the voir dire of the jury, he was denied the right to call independent witnesses to demonstrate the community prejudice.

The record does not support defendant’s contentions. On the morning of the first day of trial the defendant made an oral motion for a change of venue. The trial court, in a commendable exercise of its discretion, allowed the motion to be filed in spite of the defendant’s failure to comply with the procedural requirements of C.Cr.P. 621. Defense counsel was then allowed to introduce evidence in support of the motion. The only witness called was the defendant who stated that “I’ve lived a fast life in my past and I don’t think that the peoples (sic) of this parish will give me a fair trial.” After hearing the testimony of the defendant the court referred the motion to the voir dire. The defendant failed to either object to the procedure or indicate to the court that he desired to call other witnesses in support of the motion. He cannot now be heard to complain of an issue that he failed to bring to the attention of the trial court. C.Cr.P. 841. It does not appear from the record that the trial court erred in denying the motion for a change of venue. See State v. Bell, 346 So.2d 1090 (La.1977); State v. Madison, 345 So.2d 485 (La.1977); State v. de la Beckwith, 344 So.2d 360 (La.1977).

(2) Peremptory Challenges

Defendant contends that the trial court erred in overruling an objection made to the State’s use of its peremptory challenges. He argues that the State used the challenges to exclude only blacks and thus prevented the defendant from obtaining a fair and impartial jury.

In order to demonstrate a denial of due process through the State’s use of peremptory challenges, the defendant must show a historical pattern of exclusion. State v. Rhodes, 351 So.2d 103 (La.1977); State v. Trudell, 350 So.2d 658 (La.1977); State v. Johnson, 343 So.2d 155 (La.1977); State v. Bennett, 341 So.2d 847 (La.1977); State v. Haynes, 339 So.2d 328 (La.1976). The minute entries in the present case indicate that thirty-one prospective jurors were called, ten of whom were black and that two blacks actually served on the jury. The defendant failed to make the requisite showing.

These assignments are without merit.

Assignment of Error No. 3

On the morning of trial defendant filed a motion for a continuance so that he could secure retained counsel. This assignment was taken to the denial of that motion.

The record reflects that the defendant filed an affidavit of indigency on August 12, 1976. On November 24, 1976 defendant’s first appointed attorney withdrew so that the defendant could be represented, as requested on September 22, 1976, by public defender Herb Alexander. Defendant’s trial began on January 3, 1977.

Because the defendant had over four months after he executed the affidavit of indigency in which to retain counsel and because he waited until the morning of trial to move for a continuance, it is clear that the trial court did not abuse its discretion in denying the motion for a continuance. State v. Hopkins, 351 So.2d 474 (La.1977); State v. Hegwood, 345 So.2d 1179 (La.1977); State v. Austin, 258 La. 273, 246 So.2d 12 (1971).

This assignment is without merit.

Assignment of Error No. 4

During his opening statement the prosecuting attorney stated “. . . we will also propose to introduce evidence that Bolton later fled from the courtroom, that he fled from here.” Defense counsel immediately objected and moved for a mistrial. This assignment questions the denial of that motion.

The statement made by the prosecuting attorney apparently is in reference to the failure of the defendant to appear on January 9, 1975, the original date set for trial. Defendant’s bail bond was revoked on January 21, 1975 and he was subsequently picked up in San Francisco on July 30,1976.

Evidence of flight at the time of arrest is generally admissible as relevant to show consciousness of guilt. See State v. Smith, 351 So.2d 1191 (La.1977); State v. Davies, 350 So.2d 586 (La.1977); State v. White, 329 So.2d 738 (La.1976); State v. Brown, 322 So.2d 211 (La.1975); State v. Lane, 292 So.2d 711 (La.1974). When flight takes place after arrest but prior to trial, the same rule obtains, provided there is a sufficient connection between the flight and the prosecution. State v. Neal, 231 La. 1048, 93 So.2d 554 (1957); State v. Croxton, 173 La. 699, 138 So. 513 (1931); United States v. Myers, 550 F.2d 1036 (5th Cir. 1977); United States v. Serio, 440 F.2d 827 (6th Cir. 1971) cert. den. 404 U.S. 838, 92 S.Ct. 129, 30 L.Ed.2d 71; United States v. Crisp, 435 F.2d 354 (7th Cir. 1970) cert. den. 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116; State v. Wilcynski, 111 Ariz. 533, 534 P.2d 738 (1975); People v. Terry, 2 Cal.3d 362, 85 Cal.Rptr. 409, 466 P.2d 961 (1970) cert. den. 406 U.S. 912, 92 S.Ct. 1619, 32 L.Ed.2d 112; Johnson v. State, 312 A.2d 630 (Del.1973); People v. Gary, 42 Ill.App.3d 357, 1 Ill.Dec. 135, 356 N.E.2d 135 (1976); State v. Collett, 542 S.W.2d 783 (Mo.1976); State v. Andrial, 150 N.J.Super. 198, 375 A.2d 292 (1977); Commonwealth v. Graham, 375 A.2d 161 (Pa.Super.1977); Chapple v. State, 528 S.W.2d 62 (Tenn.App.1975); Hodge v. State, 506 S.W.2d 870 (Tex.Cr.App.1974); State v. Piche, 71 Wash.2d 583, 430 P.2d 522 (1967); McCormick, § 271 (2d Ed.); 2 Wigmore, § 276 (3d Ed.); 2 Underhill’s Criminal Evidence, § 373 (5th Ed.).

From the record before us it appears that the only charges pending against the defendant at the time he fled the jurisdiction of the trial court were those arising out of this single incident. The defendant had been released on bail prior to his flight. Thus the inferred consciousness of guilt was not blurred by other factors, such as other criminal charges or an inability to cope with the rigors of prison life, which might have encouraged the defendant to flee. While we are not convinced of the validity of the inference in all cases of post-arrest flight, we cannot say that the evidence in the present case was so prejudicial as to require a reversal of the conviction.

Assignment of Error No. 5

Defendant contends that the trial court erred in overruling objections made to the State introducing into evidence (1) defendant’s testimony at a previous trial and (2) minute entries concerning the failure of the defendant to appear at his earlier trial and the bond forfeiture hearing.

(1) Defendant’s Testimony

Defendant argues that the testimony given at an earlier trial of one of his partners in the offense should not have been admitted because it was inculpatory and the State failed to establish that it was given voluntarily. The argument is without merit. The record reflects that the defendant was fully advised of his rights by his attorney and by the court prior to giving the testimony. The State satisfied its burden of establishing the voluntariness of the confession. State v. Cobbs, 350 So.2d 168 (La.1977); State v. Schamburge, 344 So.2d 997 (La.1977); State v. Bias, 337 So.2d 426 (La.1976).

(2) Minute Entries

The minute entries were introduced by the State to show defendant’s flight from the jurisdiction. (See discussion of Assignment No. 4). Defendant argues that the minute entries reveal multiple docket numbers and therefore informed the jury of other charges pending against the defendant. The other charges were apparently those arising out of the same criminal incident. Further, the reference to the “other offenses” was so oblique that the defendant was certainly not so prejudiced as to require a reversal of his conviction.

For the reasons assigned, defendant’s conviction and sentence are affirmed.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Nolan L. TUCKER.
    No. 60368.
    Supreme Court of Louisiana.
    Jan. 30, 1978.

      Otha Curtis Nelson, Sr., Simmons, Nelson & Dunn, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Anthony J. Marabella, Jr., Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   SUMMERS, Justice.

Nolan Lee Tucker and Anthony L. Marshall were jointly charged and tried for simple burglary. La.Rev.Stat. 14:62. They were convicted and both were adjudged habitual offenders. Defendant Tucker was sentenced to imprisonment for eighteen years, all of which was suspended except five years. Marshal! was sentenced to eighteen years, all of which was suspended except three years. Only Tucker’s appeal is before the Court.

Assignment 1

While Officer Lambert was testifying he was asked what caused him to go to the scene of the burglary on the night of its occurrence. He replied, “I received a call on the radio that there was a burglary in progress.” Whereupon defense counsel objected and asked that the response be stricken from the record. The objection was overruled.

In the assignment of error to the court’s ruling the defense asserts that the information, received by Officer Lambert via radio that a burglary was in progress, was hearsay.

The officer’s testimony was offered, not for the purpose of vouching for the truth of the utterance (a burglary in progress) but to explain the sequence of events leading to the arrest of the defendant from the viewpoint of the arresting officer. As such it was not hearsay. State v. Calloway, 324 So.2d 801 (La.1976); State v. Singleton, 321 So.2d 509 (La.1975); State v. Monk, 315 So.2d 727 (La.1975).

Assignment 2

After his ruling on the statement quoted in Assignment 1, the trial judge admonished the jury:

“Let me interrupt Mr. Marabella. I just ruled that the statement that came over the radio was an exception to the hearsay rule. It is an exception, ladies and gentlemen. The fact that a burglary was in progress is not to be considered by you as a fact, only a report which this officer got which caused him to react. It’s not evidence that a burglary was in progress. Only that statement is offered to show why he reacted like he did, not the truth of what the statement contained. Proceed.”

No objection or motion for a mistrial was made to this admonition, and none was in order, for there was no comment on the evidence as the defense contends in brief. La.Code Crim.Pro. art. 770-72, 841.

The trial judge admonished the jury on his own initiative to explain the limited purpose for which the radio call was admitted. As such his was a wholly correct statement made in order that the jury would not consider the reference to a burglary in progress as evidence that a burglary was in fact in progress. The admonition was designed to protect the defendant.

There is no merit to this assignment.

Assignment 3

Defendant urges on appeal that the trial court committed error when it denied a motion to quash the bill of information charging him as a second offender. The motion is based on the contention that one cannot be sentenced as a second offender under Section 529.1 of Title 15 of the Revised Statutes, the Habitual Offender Law, if he had been pardoned for the first offense.

It is argued that the automatic pardon provision of Section 5(E)1 of Article IV of the Constitution of 1974, effective January 1, 1975, had the effect of granting defendant an automatic pardon for his first offense, to which he pled guilty on October 16, 1974. Therefore, his conviction on March 30, 1977, in the instant prosecution was, in effect, a first offense. Consequently, he could not be charged as a second offender under the Habitual Offender Law.

The Constitution of 1974 provides:

“[A] first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.” La.Const. art. IV, § 5(E)1 (1974).

On at least three occasions this Court has held that the automatic pardon provision in the 1974 Constitution is not retroactive. State v. Harvey, 329 So.2d 731 (La.1976); State v. Maduell, 326 So.2d 820 (La.1976) and State v. Williams, 326 So.2d 815 (La.1976). See also State v. Selman, 343 So.2d 720 (La.1977).

The Constitution is explicit in this respect. Section 23 of Article XIV provides that “All . . criminal liabilities . judgments, sentences, orders, decrees . existing on the effective date of this constitution shall continue unaffected.” And Section 26 of Article XIV reads:

“Except as otherwise specifically provided in this constitution, this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.”

Since the automatic pardon is not retroactive, the October 16, 1974 conviction was properly considered as the first of two felony convictions in charging defendant as a second offender.

Assignment 4

In a motion for a new trial the defense alleged there was no evidence that defendant “entered” any dwelling, vehicle, watercraft or other structure, movable or immovable as set forth in Article 62 of the Criminal Code. Hence there was no evidence of an essential element of the crime of simple burglary.

It was further alleged that it had been discovered since the verdict that the code-fendant Marshall would testify under oath that he alone burglarized the structure at 1110 North 31st Street in Baton Rouge; that defendant Tucker had nothing to do with it and he should not be punished. This testimony was alleged to be newly discovered evidence, which, notwithstanding the exercise of reasonable diligence by defendant, could not have been discovered before or during trial, and it would probably have changed the verdict.

Marshall filed his affidavit corroborating the allegations of the motion, and the motion was denied.

The first ground of the motion is without merit. This Court’s appellate jurisdiction is limited to questions of law, and it will not reverse a conviction on a question of guilt or innocence unless there is no evidence of an essential element of a crime—a situation which presents a question of law, it being illegal to convict a person of crime on no evidence. When there is some evidence, no matter how little, the Court will not inquire into the sufficiency of the evidence, that being a question of fact for the trial judge or jury. State v. Douglas, 278 So.2d 485 (La.1973).

Here the State’s witnesses Linda Freeman and Lee Ester Dennis, testified that they saw two individuals burglarizing the automobile repair shop of Prince Dennis at 1110 North 31st Street. Officer Lambert, who responded to the call that a burglary was in progress, apprehended defendant and Marshall as they walked away from the burglarized building; both were covered by a fine layer of dust. Marshall was positively identified as one of two individuals who were seen prying loose the shop door with a crowbar.

Investigation of the premises required that the officer crawl through the damaged and pried-open door. In doing so, he too was covered with dust similar to that observed on the suspects. A soft drink machine had been broken inside the building. There was therefore some evidence upon which the jury could rationally find that defendant “entered” the automobile repair shop, a structure as contemplated by Article 62 of the Criminal Code, thereby satisfying that element of the crime which required that they “enter”.

Marshall’s affidavit, that he alone burglarized the structure and defendant was not involved, does not suffice as reliable newly discovered evidence. The affidavit was executed on June 17, 1977, some three months after he and Tucker were tried and convicted. No further prosecution for the burglary threatened at that time, and no meaningful declaration against penal interest existed. Furthermore, Marshall testified at the trial that he and his cousin Milton Wright were walking on North 31st Street on the night of the burglary when they were apprehended. He denied burglarizing the auto shop, stating that he had never been near it.

His affidavit was therefore a recantation of his trial testimony, not newly discovered evidence. As such the affidavit presented a pure case of the credibility of a witness the trial judge had seen and heard testify to the contrary at the trial.

Where credibility is involved the trier of fact is undoubtedly better situated to make the determination. Experience teaches that recantations of trial testimony should be looked upon with the utmost suspicion. And, as a legal proposition, a new trial should not be granted where the trial judge has satisfied himself that false swearing has been resorted to for the purpose of obtaining a new trial. State v. Tyler, 342 So.2d 574 (La.1977); State v. Brandle, 187 La. 945, 175 So. 628 (1937).

Obviously Marshall is a perjurer and there is no merit to the motion.

Assignment 5

At the sentencing hearing the trial judge made reference to the lengthy record of twenty-four offenses committed by defendant while he was a juvenile. Apparently this record of juvenile offenses was contained in a presentence report furnished to the sentencing judge. Although conceding that no objection was made at the time, defense counsel now contends that the court committed reversible error by violating the statutory mandate that “[a]ll information obtained in cases of children brought to the attention of the court shall be privileged information and shall not be subject to public inspection . . La. Rev.Stat. 13:1586 (emphasis added).

In his lecture to the defendant, the trial judge stated that he was referring to these juvenile offenses for defendant’s own “edification” and that these offenses would not be considered in imposing sentence. From the tenor of the judge’s talk, it may be inferred that these numerous juvenile offenses were mentioned as one of the reasons why the trial judge denied bail, pending appeal.

Article 875 of the Code of Criminal Procedure authorized the probation officer to inquire into “the defendant’s history of delinquency” and “other matters deemed relevant by the officer”. Prior juvenile offenses, then, are a proper subject for pre-sentence reports. While the open-court disclosure of the juvenile record may have been improper, inclusion of that record in the presentence report was authorized. The impropriety of the disclosure, however, does not affect the legality of the sentence.

This assignment has no merit.

Assignment 6

Tucker was sentenced to imprisonment for eighteen years with all but five years suspended. His codefendant Marshall was sentenced to imprisonment for eighteen years with all but three years suspended. Defendant contends this disparity of two years imprisonment constitutes cruel and unusual punishment in contravention of Section 1 of Article 20 of the Constitution of Louisiana (1974). This defense contention is not properly presented for review. No objection was made when the sentence was imposed. La.Code Crim.Pro. art. 841.

Assignment 7

A claim that the trial judge improperly denied defendant bail, pending appeal, is not well-founded. The granting or denial of bail, pending appeal, after a sentence of eighteen years is a matter within the sound discretion of the trial judge. La.Const. art. I, § 18; La.Code Crim.Pro. art. 314. The trial judge found that because of his twenty-four juvenile offenses Tucker was an “habitual burglar”, and his incarceration was necessary to protect the public. The trial judge also noted that his experience indicated that releasing convicted persons on bail, pending appeal, was not a good idea. Some he had released were found to have committed other offenses while the appeal was pending.

There was no abuse of the trial judge’s discretion.

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

      . La.Crim.Code art. 62:
      “Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, other than as set forth in Article 60.
      “Whoever commits the crime of simple burglary shall be imprisoned at hard labor for not more than nine years.”