text:
    STATE of Louisiana, Appellee, v. Gregory ROBINSON, Appellant.
    No. 57931.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      Ralph D. Hillman, Thibodaux, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis F. Dugas, Dist. Atty., Walker K. Naquin, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of armed robbery, La.R.S. 14:64, and sentenced to fifty years at hard labor. Upon his appeal, he relies upon two assignments of error.

Assignment No. 1 presents the most arguable issue.

The issue raised by it is whether a defense witness may be impeached for particular bias or interest, La.R.S. 15:492, through cross-examination as to whether she herself had been arrested for the crime for which the defendant is tried. Over objection (the predicate being first laid outside the presence of the jury), the trial court permitted the question and the witness’ affirmative answer.

The defendant contends that the trial court erred to permit impeachment of his witness by cross-examination of her as to the prior arrest. In so doing, the defendant relies upon the explicit provision of La.R.S. 15:495: “Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness.” (Italics ours.)

In so doing, the defendant overlooks that this limitation upon the use of arrests in impeachment applies only to the method of impeaching the credibility of a witness by his prior conviction of a crime. Irrespective of its relevance to the present prosecution, a conviction per se historically is a relevant factor for the jury’s evaluation of a witness’ credibility. See McCormick on Evidence, Section 43 (2d ed. 1972); Pugh, Louisiana Evidence Law 111-134 (1974).

However, other accepted methods of impeaching the credibility of a witness include: by a prior inconsistent statement, La.R.S. 15:493, McCormick, Sections 34-37, Pugh 104-110; by an attack on the witness’ character, La.R.S. 15:490, 491, McCormick, Sections 41, 42; or (relevantly to the present issue) by showing that the witness is biased or interested in the special case on trial because of partiality or of any acts, relationships, or motives reasonably likely to produce it, La.R.S. 15:492, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), McCormick, Section 40, Pugh 110-11.

With regard to this latter method of impeachment, the decisions of Louisiana jurisprudence have generally permitted full scope of cross-examination in the interests of exposing, for jury evaluation, any bias or interest of the witness which might influence his perceptions or color his testimony. See, e. g.: State v. Guidry, 319 So.2d 415 (La.1975); State v. Senegal, 316 So.2d 124 (La.1975); State v. Chambers, 263 La. 1080, 270 So.2d 514 (1972); State v. Lewis, 236 La. 473, 108 So.2d 93 (1959); State v. Elias, 229 La. 929, 87 So.2d 132 (1956); Pugh, Louisiana Evidence Law 110-11 (1974).

On the other hand, the bias permitted to be exposed must be personal against the defendant rather than general in nature, and the interest must be particular as to the case; therefore, general prejudices or special biases or interests too irrelevant to or too remote to the issues of the case at trial have been considered improper as impeachment for this purpose. State v. Lewis, 328 So.2d 75 (La.1976) (arrest for similar but unrelated offense); State v. Johnson, 322 So.2d 119 (La.1975); State v. Darby, 310 So.2d 547 (La.1975).

In the present case the question of the witness as to her arrest related to her particular interest in the case then on trial.

The question occurred in the following context:

The armed robbery of the convenience store occurred at 12:20 p. m. The defendant Robinson and his companion Jones were identified by two or three witnesses as going into and leaving the store at -About that time. One of these state witnesses was Shirley Jones, who lived in the second floor apartment in the house directly across the street from the store.

The defense witness, Sherill Henderson, lived on the first floor of the house across the street from the store. She testified that Shirley Jones had left for the welfare office about 11:00 a. m. and had not returned until 2:00 p. m. or thereafter. Miss Henderson was a step-sister of Jones, whom Jones and Robinson had visited on other occasions in her apartment.

In the present case, the state witness Miss Shirley Jones had seen Rodney Jones and the defendant Robinson go into the store (just before the robbery and then had finished dressing). About ten minutes later, she stopped by Miss Henderson’s apartment on her way out of the building and saw Jones there (but not Robinson). After the robbery, Rodney Jones was found by the police on the porch adjacent to her apartment. Another witness had seen Robinson and Jones go to her house after the robbery.

The objected-to question concerned whether Miss Henderson had been arrested for participation in the armed robbery. (The objection to the question was made in the predicate laid outside the presence of the jury.) She replied: “Yes. It was just an investigation. I never was charged for it.”

The cross-examination as to the arrest was proper to show her particular interest in the special case before the court. Because of her close association with Rodney Jones (one of the two identified robbers, the other being the defendant Robinson), she had a special interest in proving that neither Jones nor his companion Robinson had committed the robbery. If they were innocent, she was not subject to suspicion of participating with them in the crime. If, on the other hand, they were guilty, her close association with one of the robbers immediately after the crime arguably subjected her to reasonable suspicion that she had furnished sanctuary immediately after the robbery to one of the robbers in her apartment across the street from the store robbed.

Similarly, in State v. Lewis, 236 La. 473, 108 So.2d 93 (1959), we held, in reversing a conviction for the failure to allow such cross-examination, that the defense could cross-examine a state witness as to whether he had been indicted for the same offense as that with which the defendant was charged. We held that the defendant could properly cross-examine as to the indictment for the offense tried in order to show interest of the witness, i. e., a promise or hope of leniency for him if he testified for the prosecution.

In so holding, we pointed that the cross-examination as to an arrest or indictment for the same offense may be permissible to show bias, interest, or corruption (if the facts reasonably indicate such relevance), despite the provisions of La.R.S. 15:495 prohibiting use of indictments or arrest in impeachment of a witness when impeachment is based upon the witness’s prior conviction.

In approving this result, Professor Pugh noted, reprinted at Pugh, Louisiana Evidence Law 134 (1974): “Here, the fact of the witness’ arrest was not offered as tending to show that the witness was a ‘bad man’ and therefore unworthy of belief (which is prohibited by the 1952 amendment to Article [La.R.S.] 495), but for a completely different reason — as tending to show bias, interest, or corruption. This method of impeachment is clearly recognized by Article [La.R.S.] 492, and it is submitted that the 1952 amendment to Article [La. R.S.] 495 was not intended to limit the scope of Article [La.R.S.] 492.”

Thus, La.R.S. 15:495 permits cross-examination or evidence of a witness as to a conviction, regardless of when or what for, as theoretically relevant for jury evaluation of the witness’ credibility. However, when impeachment is sought on this ground, the mere fact that a witness has been previously arrested or indicted is not regarded as logically relevant to this purpose, being a mere accusation. See Pugh, Louisiana Evidence Law 133-34 (1974).

However, the present cross-examination as to the arrest was not within the prohibition of such statute, since it was independently relevant to show particular bias or interest in the special case before the court. It was thus permissible impeachment under La.R.S. 15:492, which recognizes another and a different basis of impeachment than that of La.R.S. 15:495.

Assignment 2 complains of the denial of a motion for a new trial. It was based upon the discovery of new and material evidence, being the witness Gaynelle Duncan.

At the hearing on the motion, Miss Duncan testified that she and Shirley Jones (the state witness) had been together from 10:45 to 12:00, at which time the two women rode together to the welfare office. Two other ladies corroborated her testimony that she and Shirley Jones had left for the welfare office at 12:00 p. m. (The effect of this testimony was to dispute the trial testimony of Shirley Jones that she had been in her apartment at the time of the robbery, when she testified that she saw Robinson and his companion enter the store.)

In refusing the new trial, the trial court pointed out that the names of two of the “new” witnesses had been brought out during the trial, as well as certain evidence which brought into question the reliability of their testimony as to the times involved.

In deciding a motion for a new trial based on newly discovered evidence, the trial judge is accorded considerable discretion in evaluating the potential impact of the testimony upon the verdict, if it had been offered at the trial, and its reliability. His ruling will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. State v. Porter, 330 So.2d 281 (La.1976); State v. Phanor, 325 So.2d 579 (La.1976); State v. Randolph, 275 So.2d 174 (La.1973); State v. Jackson, 253 La. 205, 217 So.2d 372 (1968). We find none here.

Decree

We affirm the conviction and sentence.

AFFIRMED.


source: Caselaw Access Project

author: TATE, Justice.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Eugene WIGGINS, Appellant.
    No. 57951.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Lyall G. Shiell, Jr., New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant was convicted of armed robbery, La.R.S. 14:64, and sentenced to twenty years at hard labor. None of the four assignments of error argued to this court possess reversible merit:

Assignment 1: On the morning of the trial, the defendant moved to discharge his retained counsel of five months and for another continuance, in order to obtain another counsel of his choosing. The accused had obtained three continuances previously, represented by his retained counsel, without previous complaint as to the latter’s representation of him. The trial court did not abuse its discretion by refusing to grant this obviously dilatory motion, which was not based upon any recognized ground for change of counsel or for continuance. State v. Alexander, 334 So.2d 388 (La.1976); State v. Stafford, 258 La. 523, 246 So.2d 849 (1971).

Assignments 2 and 3: The defendant sought to obtain a mistrial on the ground that prejudicial conduct inside the courtroom allegedly made it impossible for him to obtain a fair trial. La.C.Cr.P. art. 775.

The motions for mistrial are based on obstructive behavior and disrupting remarks by the defendant, which at one point forced the trial court to remove him from the courtroom. On the first occasion, the trial court specifically admonished the jury to disregard the defendant’s conduct as without bearing on the innocence or guilt of the defendant. On the second occasion, no such admonition was requested.

The motions for mistrial were properly denied. State v. Washington, 322 So.2d 185 (La.1975). A defendant cannot complain that prejudicial conduct requires a mistrial, when the alleged prejudice was created by his own obstructive conduct met by a reasoned and ordered reaction by the trial court in the interest of maintaining orderly procedure in the courtroom.

Assignment 6: The defendant had no right, as here claimed, to make surrebut-tal argument to the state’s closing rebuttal argument. La.C.Cr.P. art. 765(6). The defendant cites no legal authority in support of his contention that the statutory order of argument (state, defense, state rebuttal) provided by this article is unconstitutional.

This is, in fact, the prevailing statutory order of argument in American jurisdictions. 5 Wharton’s Criminal Law & Procedure, Section 235 (Anderson ed., 1957). The Uniform Rules of Criminal Procedure, 521(7) (1974) (Natl. Conf. Comm’rs. Uniform State Laws), recommend that rebuttal and surrebuttal be authorized within the discretion of the court, but there is no intimation that the prevailing procedure offends any constitutional guarantee to a fair trial.

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Mark TELLIFERO.
    No. 57953.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Robert B. Nichols, Jr., Kay, Stewart & Nichols, De Ridder, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., David W. Burton, Asst. Dist. Atty., for plaintiff-respondent.
   DENNIS, Justice.

Defendant, Mark Tellifero, was arraigned on February 15,1974 for possession of marijuana, a violation of La. R.S. 40:966(C). He entered a “limited” plea under the provisions of La. R.S. 40:983 which allows a conditional discharge for a first offense of unlawful possession, and was placed on supervised probation for a period of two years.

On February 6,1976, defendant was tried and convicted of a second offense of possession of marijuana. Shortly thereafter, a probation revocation hearing was held, wherein the court determined that the second conviction had violated the conditions of defendant’s probation and sentenced him to serve six months in the parish jail. We granted writs to consider defendant’s allegations that improprieties in the proceedings below rendered the sentence void. We find sufficient merit in one of defendant’s contentions to require reversal, and pretermit discussion of the others.

Defendant complains that he did not receive or waive the assistance of counsel at his 1974 arraignment, and the record substantiates his complaint. Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530, 538 (1972), held that “ * * absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” The Court indicated that the need for counsel is no less dire where an accused pleads guilty:

“Beyond the problem of trials and appeals is that of the guilty plea, a problem which looms large in misdemeanor as well as in felony cases. Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.” 407 U.S. at 34, 92 S.Ct. at 2011.

This case clearly demonstrates why the right to counsel is fundamental to our system of justice. Defendant was seventeen years old at the time of his arraignment. His plea was entered under a special statute, La. R.S. 40:983, which might leave the most sophisticated layman uncertain as to the effect of a guilty plea:

“Whenever any person who has not previously been convicted of any offense under this part pleads guilty to or is convicted of having violated Sections 40:966C, 967C, 968C, 969C, 970C of this part, and when it appears that the best interests of the public and of the defendant will be served, the court may, without entering a judgment of guilt and with the consent of such person, defer further proceedings and place him on probation upon such reasonable terms and conditions as may be required.
“Upon the defendant’s violation of any of the terms or conditions of his probation, the court may enter an adjudication of guilt and impose sentence upon such person.
“Upon fulfillment of the terms and conditions of probation imposed in accordance with this section, the court shall discharge such person and dismiss the proceedings against him.
“Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under R.S. 40:982.
“Discharge and dismissal under this section may occur only once with respect to any person.”

The arraignment proceedings were not recorded, and consequently we are forced to rely upon the terse record provided by the court minutes for an account of what transpired:

“Charge: Possession of Marijuana. The defendant is called to the bar; is arraigned and enters a limited plea under the provisions of Louisiana Revised Statute 40:983 with the understanding that there will be no adjudication or inference of guilt on the part of the defendant. At the expiration of the probation period, the defendant’s attorney will file a motion to dismiss the charges and ask for leave of court in order that counsel for defendant might submit to the court a dismissal of the charges. The Court accepts this limited plea under the Louisiana Revised Statute 40:983 with no inference of guilt and place the defendant on supervised probation for a period of two years. After the defendant serves out the supervised probation honorably, the charges will be dismissed.”

If the minutes accurately reflect the ten- or, as well as the substance, of the arraignment proceedings, the effect of the proceedings was to minimize, rather than properly emphasize, the serious consequences which could result from a guilty plea. Defendant’s plea was euphemistically referred to as a “limited” plea, and there was no apparent mention of the prospect of imprisonment. Under these circumstances, even an innocent defendant might choose to plead guilty rather than undergo a trial because, without the advice of counsel, he could not fully appreciate the potential effect of his actions.

Pursuant to a defense motion, the court ordered the minutes clarified “ * * to reflect that . . . Mark Tellifero did not have an attorney in Court with him on February 15, 1974, the date of his arraignment.” There is no affirmative indication that he waived his right to counsel, nor can we presume waiver from the silent record. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

Under the clear mandate of Argersinger, supra, that no sentence may be imposed as the result of an uncounselled guilty plea, we must reverse the order of the trial court revoking defendant’s probation and ordering him to serve a term of six months in prison.

REVERSED.

       In fact, pursuant to our inquiry the minute clerk subsequently filed an affidavit deposing that “the defendant was not questioned as to whether he had counsel and he was not questioned as to whether he waived the right of counsel and no such waiver was made.”


text:
    STATE of Louisiana, Appellee, v. Jimmy L. ANDREWS, Appellant.
    No. 57960.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      Truett West, Parmerville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ragan D. Madden, Dist. Atty., E. Joseph Bleich, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of negligent homicide, La.R.S. 14:32, and sentenced to three years imprisonment in the parish jail. Upon his appeal, he raises two principal contentions. They relate to (1) the denial of a directed verdict of acquittal and (2) his representation by appointed counsel.

(1)

With regard to the first contention (Assignment of Error No. 1):

“Negligent homicide is the killing of a human being by criminal negligence” La. R.S. 14:32. “Criminal negligence exists when, although neither specific nor general intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard care expected to be maintained by a reasonably careful man under like circumstances.”

The defendant contends that the record demonstrates no evidence proving “criminal negligence”, an essential element of the crime.

The motion for directed verdict of acquittal, La.C.Cr.P. art. 778, should be sustained only if there is a total lack of evidence to prove the crime or an essential element thereof. State v. Douglas, 278 So.2d 485 (La.1973). Thus, in the present case, the motion was properly overruled if there was some evidence from which the trier of fact could reasonably conclude that the defendant’s conduct under the circumstances constituted criminal negligence. State v. Williams, 310 So.2d 513 (La.1975); State v. Pryor, 306 So.2d 675 (La.1975).

From the state’s evidence to such effect, the trial jury could reasonably conclude that the defendant was driving at excessive speed around a curve in a small town, that he was intoxicated, that he lost control of his automobile, that it struck a small child three or four feet off of the road (the child subsequently died), that the driver may have momentarily slowed or stopped, and that the driver then drove away at an accelerating speed.

We cannot say there was a total lack of evidence from which the jury could conclude that the defendant, driver of the vehicle, was guilty of criminal negligence. The motion for acquittal was properly overruled.

(2)

With regard to the defendant’s second contention (Assignments 2, 3, and 4):

The defendant principally contends that the defendant was deprived of a fair trial because his single appointed counsel was opposed by two state attorneys much more experienced in the criminal field. Aside from the lack of factual merit to the contention (the record indicates an extremely able defense by the appointed counsel), and the lack of legal authority cited in support of it, no objection was made before or during the trial to the aspects of the legal representation now complained of. The contention therefore does not present an issue reviewable on the appeal. La.C.Cr.P. art. 841. See also State v. Wells, 324 So.2d 399 (La.1975).

Decree

Accordingly, we find no merit to the defendant’s assignments of error, and we affirm the conviction and sentence.

AFFIRMED.


author: MARCUS, Justice. CALOGERO, J.,

text:
    STATE of Louisiana v. Oliver MARKS and Herbert Jones, Jr.
    No. 57964.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      Kendall R. Moses, Jack E. Hoffstadt, Student Practitioners, Arthur A. Lemann, III, Supervising Atty., New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, District Attorney, Louise S. Korns, Vincent C. Cuccia, Asst. Dist. Attys., for plaintiff-appellee.
   MARCUS, Justice.

Oliver Marks and Herbert Jones, Jr. were indicted by the grand jury for the Parish of Orleans for possession with intent to distribute a controlled dangerous substance, to-wit: heroin, in violation of La. R.S. 40:966. After trial by jury, Oliver Marks was found guilty as charged and was sentenced to life imprisonment at hard labor. Herbert Jones, Jr. was found guilty of possession of heroin and sentenced to serve ten years at hard labor without benefit of parole, probation or suspension of sentence. On appeal, defendants rely on eight assignments of error for reversal of their convictions and sentences.

ASSIGNMENTS OF ERROR NOS. 1, 3 AND 8

Prior to trial, defendants moved to suppress certain physical evidence on the ground that it was obtained as a result of an unconstitutional search and seizure (Assignment of Error No. 1). Defendants also objected to the admission of the evidence at trial (Assignment of Error No. 3) and moved for a mistrial at the conclusion of the trial on the ground that the evidence was obtained in an unconstitutional search (Assignment of Error No. 8). The trial judge denied defendants’ motions and overruled their objection to the introduction of the evidence at trial. Defendants aver that the trial judge’s rulings on each of these occasions were in error. Since the merit of each assignment of error depends on the constitutionality of the search, we will treat them together for ease of disposition.

At the hearing on the defendants’ motions to suppress evidence, Officer Louis Dabdoub testified as follows:

At approximately 6:30 P.M. on that date (August 29, 1975) myself, Officer Haab was my partner, and Assistant Chief of Harbor Police Joseph Canatella met with a reliable confidential informer who has given us information in the past which has led to arrests and convictions. This informer told us that a Negro male whose name he did not know, who was big, heavy, and wearing flashy clothes and whom he thought had a gun was on the corner of Baronne and Clio. He stated this unknown Negro male was driving a red 1965 Pontiac, License No. 74L842, and the vehicle was parked on Clio just off Baronne Street. He stated the Negro male was waiting for another unknown Negro male driving a gold Pontiac to bring him two or three bundles of heroin.

The record further discloses that after, receiving the “tip,” Officer Dabdoub radioed the information to other narcotics units in the area. Two units responded to the alert and assisted Officer Dabdoub in setting up a surveillance in the area of Clio and Baronne. One unit, manned by Officer Branham was stationed on Carondelet Street. Another vehicle, occupied by Officers Schultz and Martin set up surveillance on Clio Street in a position enabling them to observe the corner of Clio and Baronne. Officer Dabdoub’s vehicle was stationed at the intersection of Clio and St. Charles. During the course of setting up the surveillance, the officers corroborated the informant’s tip as to the location and license number of the red Pontiac. They also observed a big, heavy set Negro male (Marks) wearing flashy clothes who fit the description given to Officer Dabdoub by the informant. At about 8:40 p.m., Officer Schultz saw a gold Pontiac pull up to the intersection of Clio and Baronne. An occupant of the gold car got out and spoke to a group of people standing on the corner where the defendant Marks had been observed. As soon as the occupant of the gold Pontiac reentered the car, the defendants Marks and Jones were seen getting into the red Pontiac. With Jones as driver, they followed the gold car to Carondelet and turned left out of Officer Schultz’s sight. Meanwhile, Officer Branham, who was stationed on Carondelet, saw the two vehicles and notified the other officers that they appeared to be together. He testified that he saw at least two heads in the red car as he followed the gold and red Pontiacs down Carondelet Street in his unmarked police unit. In the 1000 block, the gold car pulled over and parked alongside the curb. The red car pulled over and parked directly in front of it. Officer Branham watched as a heavy set Negro man (Marks) exited the red car and approached and met with the occupant of the gold ear, who had already gotten out and was standing on the sidewalk. Officer Branham observed an exchange taking place between Marks and the driver of the gold Pontiac as he slowly drove abreast of the surveilled vehicles. He then pulled over to block a possible escape by the red car and at the same time advised the other officers by radio that he thought the drug transaction had taken place. The two other police units waiting in close proximity arrived on the scene within seconds. All of the police officers got out of their vehicles and surrounded defendants’ car. Officer Dabdoub, with identification in his hand, called out: “Police. Get out and put your hands where I can see them.” Officers Dabdoub and Branham, realizing that the gold car had escaped in the confusion, immediately drove away in search of it. Officers Schultz and Martin ordered the defendants out of the car, had them assume a “spread eagle” position against the rear of the vehicle and proceeded to frisk them for weapons. During the course of the pat-down of the defendant Marks, Officer Schultz felt a bulge within the sock of the defendant along his left calf. The officer testified that it felt like a piece of tin foil. He then informed Marks that he was under arrest for a narcotics violation and began advising him of his Miranda rights as he retrieved the tin foil package. Upon opening the package, three smaller packages, each containing twenty-five packets of heroin, were found. He also placed Jones under arrest and advised him of his rights.

It is well settled under the fourth amendment that a search conducted without a warrant issued upon probable cause is per se unreasonable — subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of these exceptions is a search incident to a lawful arrest made of the person and the area in his immediate control. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Such a search is justified in order to discover weapons that may threaten the safety of the arresting officer and to prevent the concealment and destruction of evidence. It has recently been confirmed that an arrest made in a public place without a warrant is valid if founded on probable cause, regardless of the presence or absence of exigent circumstances. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). But in order to justify a search as incident to an arrest, an arrest must have already occurred and the arrest itself must have been lawful.

In order to resolve the issue in this case, therefore, we must determine when the defendants were actually arrested and whether the arrest was based upon probable cause to believe that they had committed a crime.

Article 201 of the Louisiana Code of Criminal Procedure defines “arrest” as follows:

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

The statutory definition of “arrest” is keyed to the concept of restraint. In this case, the defendants’ car was initially surrounded by three police vehicles, one of which pulled in front of the red Pontiac expressly to prevent its departure. The officers got out of their vehicles and closed in on defendants’ vehicle. They identified themselves as policemen and removed the defendants from their car, placing them “spread eagle” against the rear of the vehicle. At that point, the freedom of the defendants was unmistakably restrained; they were under arrest. It is the circumstances indicating an intent to effect an extended restraint on the liberty of an accused, rather than the precise timing of an officer’s statement: “You are under arrest,” that are determinative of when an arrest is actually made. State v. Warren, 283 So.2d 740 (La.1973). This principle was recognized in Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) wherein the Court noted that regardless of when Peters was “arrested” it was clear that an arrest, for purposes of constitutional justification, had taken place before the search commenced, when the subject was grabbed by the collar and his freedom of movement curtailed on the basis of probable cause to believe that he was engaged in criminal activity. Accordingly, under the circumstances in this case we find that the defendants were lawfully arrested when they were removed from their car and before the immediate weapons frisk was begun. The fact that the defendants were not verbally advised that they were under arrest until seconds later during the course of the pat-down alters nothing.

Article 213 of the Louisiana Code of Criminal Procedure provides in pertinent part:

A peace officer may, without a warrant, arrest a person when:
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense although not in the presence of the officer;

Reasonable cause, which we have treated as consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Wood, 262 La. 259, 263 So.2d 28 (1972). Reasonable or probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Sarrazin, 291 So.2d 393 (La.1974). Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Warren, 283 So.2d 740 (La.1973).

In the case at bar, the police had received information from a reliable informant who, on prior occasions, had given information leading to arrests and convictions. Moreover, the informant’s tip was highly detailed in its description of the build and clothing of the defendant Marks, his automobile’s license number and location, and the other car that would be involved in the drug transaction. Thus, although the informant did not specifically state the source of his information, the report was of a sort which in common experience may be recognized as having been obtained in a reliable way. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). When the defendants were stopped, virtually every bit of the information given by the confidential informant had been verified. Coupled with Officer Branham’s independent observation of an exchange between defendant Marks and the driver of the gold Pontiac, we are convinced that ample probable cause existed prior to the arrest of defendants. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Accordingly, since the arrest was constitutionally valid, the evidence seized during the course of the search incident thereto was properly admissible at trial. The trial judge did not err in overruling defendants’ motions to suppress the evidence, their objection to its introduction at trial, and their motion for a mistrial.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 2

Defendants contend that the trial judge erred in not requiring the state to furnish the names and addresses of the witnesses it intended to use in the prosecution of the case, which information was requested by defendants in their motion for a bill of particulars.

The function of a bill of particulars is to inform the defendant more specifically of the nature of the charge against him. It cannot be used as a device to secure the details of the state’s evidence or collateral information. La.Code Crim.P. art. 484; State v. Vince, 305 So.2d 916 (La.1974). It is well settled in the jurisprudence that the state is not required to furnish the defendant with a list of its witnesses. State v. Breston, 304 So.2d 313 (La.1974); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967).

In brief, defendants argue for the first time that they needed a list of state witnesses to determine the identity of the confidential informant who tipped off the police to the ensuing drug transaction. Even had the state complied with defendants’ request for a witness list, no information about the confidential informant would have been obtained; the informant was not among the state witnesses appearing at trial. Moreover, the trial judge noted that a full list of state witnesses had already been filed in the proceedings.

Furthermore, the court will order the disclosure of the name of the confidential informant only under exceptional circumstances for the prevention of an injustice. The burden is upon the defendant to show exceptional circumstances justifying disclosure. State v. Rhodes, 308 So.2d 770 (La.1975); State v. Howard, 283 So.2d 197 (La.1973); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971). The transcript of the hearing on the sufficiency of the state’s answer to defendants’ motion for a bill of particulars reveals no attempt by the defendants to demonstrate to the trial judge the importance of the informant’s identity to their defense. Hence, we have no showing of exceptional circumstances here.

In sum, we find no error in the trial judge’s ruling that the state was not required to furnish the requested information, This assignment of error is without merit,

ASSIGNMENTS OF ERROR NOS. 4, . 5 AND 6

Defendants contend that the trial judge erred in failing to sustain their objections to the testimony of Officer Frank Ben on three occasions as being irrelevant.

Defendants first objected on the ground of relevancy when Officer Ben was asked to testify for the state concerning the packaging, preparation and distribution of heroin. La.R.S. 15:441 provides:

Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.

In the instant case, defendants were being prosecuted for possession of heroin with the intent to distribute. We have recently held that the amount and form of a controlled dangerous substance found in the possession of an accused constitutes evidence from which a jury can properly infer an intent to distribute that substance. State v. Willis, 325 So.2d 230 (La.1975); State v. House, 325 So.2d 222 (La.1975); State v. Sibley, 310 So.2d 100 (La.1975). Therefore, testimony demonstrating the form and quantity of heroin usually associated with wholesale and street level distribution of that substance was highly relevant to support an inference that the heroin seized from the defendant Marks was intended for distribution rather than for personal use. Accordingly, the trial judge did not err in overruling the objection of the defendants to this testimony.

The second occasion on which the defendants objected to Officer Ben’s testimony occurred when the prosecutor questioned the officer on the formation of scar tissue in veins. The record reveals that no prejudice to the defendants resulted from this question since the district attorney abandoned this line of questioning after defendants objected that the officer was not a dermatologist and therefore was unqualified to testify as to the formation of scar tissue.

Defendants’ next objection was to the ruling of the court that Officer Ben was qualified to testify as an expert on narcotics paraphernalia and track marks. The ground urged before the trial judge was that the officer had no scholastic or medical training in this field. La.R.S. 15:466 sets out the guidelines for the qualification of expert witnesses.

The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.

We have consistently held that the competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge. His rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error. State v. Vassel, 285 So.2d 221 (La.1973). The record discloses that Officer Ben had observed thousands of track marks during the course of his work as a police narcotics agent. Moreover, he had on numerous occasions been qualified as an expert in the field of track mark identification in Louisiana state and federal courts. We cannot, therefore, find that the trial judge abused his discretion in overruling defendants’ objection to Officer Ben’s qualifications as an expert.

Defendants urge for the first time on appeal that the testimony concerning track marks was irrelevant and prejudicial. Article 841 of the Code of Criminal Procedure provides that an irregularity or error cannot be availed of after verdict unless the defendant has made known to the court his objection and the grounds therefor. A new basis for an objection cannot be raised for the first time on appeal. State v. Powell, 325 So.2d 791 (La.1976); State v. Forbes, 310 So.2d 569 (La.1975); State v. McCormick, 272 So.2d 692 (La.1973); State v. Evans, 249 La. 861, 192 So.2d 103 (1966). Had the defendants in this case urged the ground of relevancy during Officer Ben’s testimony, the trial judge would have had the opportunity to consider the nature of the objection. Additionally, the state would have had an opportunity to demonstrate the relevancy of the testimony or introduce further evidence to lay a more adequate foundation had the trial judge deemed it necessary. Since the defendants did not raise the ground of relevancy at trial, that issue is not properly before us for review.

Assignments of Error Nos. 4, 5 and 6 are without merit.

ASSIGNMENT OF ERROR NO. 9

Defendants contend that the trial judge erred in overruling their motions for a directed verdict of acquittal. Both defendants claim that the state failed to produce any evidence of an essential element of the offenses for which they were convicted.

There is no merit to their contention. This court can find error in the trial judge’s denial of a motion for a directed verdict and reverse the conviction only where there is no evidence of the crime or an essential element thereof. State v. Douglas, 278 So.2d 485 (La.1973). Defendant Marks avers no evidence was adduced as to intent to distribute heroin. He argues that the mere possession of a controlled dangerous substance does not constitute “some evidence” of an intent to distribute. While he is correct is his argument to this extent, we have held that proof of possession of a large quantity of a controlled dangerous substance is evidence from which an intent to distribute can be inferred. State v. Willis, 325 So.2d 230 (La.1975); State v. House, 325 So.2d 222 (La.1975); State v. Sibley, 310 So.2d 100 (La.1975). Additionally, evidence of the form of the substance possessed, as well as expert testimony relative to its use and usual methods of distribution, are factors to be considered in inferring intent to distribute. State v. House, supra. In the instant case, the quantity and form (three bundles or seventy-five papers) of heroin possessed by Marks, together with Officer Ben’s testimony concerning the normal wholesale and street level operation in the distribution of heroin, certainly constituted “some evidence” from which the jury could have inferred that defendant Marks’ possession was with the intent to distribute.

Defendant Jones contends that the state presented no evidence of his constructive possession of the heroin seized from Marks. This court held in State v. Smith, 257 La. 1109, 245 So.2d 327 (1971), that one need not actually possess the controlled dangerous substance to violate the prohibition thereof; constructive possession is sufficient. We further stated in Smith that a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion if he willfully and knowingly shares with the other the right to control of it. Guilty knowledge is an essential ingredient of the crime of possession of a controlled dangerous substance. State v. Porter, 296 So.2d 302 (La.1974). Whether the accused knew the substance was a narcotic drug is a matter of proof by direct or circumstantial evidence. However, the question of sufficiency of the evidence is a matter, not for this court, but for a jury. It is only where there is no evidence at all of an essential element of the crime charged that this court may legally set aside the conviction on appeal. State v. Knight, 298 So.2d 726 (La.1976).

The record discloses that there was some evidence that the defendant Jones had knowledge of the heroin bundles seized from Marks and that he shared the right to control them. Jones was in the area of the corner of Clio and Baronne when the gold Pontiac pulled up and an occupant spoke to Marks. Jones immediately accompanied Marks to the red Pontiac. Jones, the driver, followed the gold Pontiac to the 1000 block of Carondelet where he pulled over and waited as Marks and an unidentified man from the gold Pontiac met on the sidewalk. He was in a position to observe any transaction that occurred. After Marks concluded his meeting with the unknown man and reentered the red Pontiac, Jones attempted to drive away from the scene. We are of the opinion that these circumstances constituted “some evidence” that the defendant Jones knowingly and constructively possessed heroin.

Since we find some evidence of the offense and each element thereof as to both defendants, the trial judge properly denied defendants’ motions for a directed verdict of acquittal. Hence, this assignment of error lacks merit.

DECREE

For the reasons assigned, the conviction and sentence of Oliver Marks are affirmed. The conviction of Herbert Jones, Jr. is affirmed, but the case is remanded to the trial court for the purpose of correcting his sentence by deleting therefrom the provision denying him the benefit of consideration for parole; otherwise, the sentence of Herbert Jones, Jr. is to remain in full force and effect.

DIXON, J., concurs, not agreeing with treatment of assignments 4, 5 and 6.

CALOGERO, J.,

concurs in affirmation of the conviction of defendant Marks, dissents from affirmation of Jones’ conviction, believing there was no evidence to prove his guilt of the crime charged.

      . We note, under the authority of article 920(2) of the Code of Criminal Procedure, that the sentence imposed by the trial judge on Herbert Jones, Jr. included “without benefit of parole.” La.R.S. 40:966 provides only that the term of imprisonment be “without benefit of probation or suspension of sentence.” The trial judge is not authorized to exclude a person convicted under La.R.S. 40:966 from consideration for parole. Hence, the case must be remanded to the trial court for the purpose of correcting the sentence by deleting therefrom the provision denying defendant, Herbert Jones, Jr., the benefit of consideration for parole. La.Code Crim.P. art. 882 (1966).

      . Assignment of Error No. 7 was neither briefed nor argued to this court. Hence, we consider it to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . Act No. 527, § 1 of 1975, effective September 12, 1975, amended article 778 of the Code of Criminal Procedure to eliminate the authority of the trial judge to direct a verdict of not guilty in a jury trial. Defendants herein were indicted by the grand jury on September 4, 1975 (prior to the effective date of this amendment). The trial judge, without objection from the state, stated that since the indictment was returned prior to the effective date of the amending statute, he would permit defendants to make the motions for a directed verdict of acquittal. The trial judge was incorrect in considering the merits of these motions. Since the amendment eliminating the authority of the court to grant a directed verdict of not guilty in a jury trial is a procedural matter attached to trial, the amendment did not affect any substantive rights of the accused. In other words, there was no divesting of a substantive right as a result of this amendment. Nevertheless, in fairness to the defendants, we will review the merits of these motions since the trial judge’s incorrect consideration of them might have caused defendants not to have subsequently raised the issue of no evidence of an essential element of the crime charged in their motions for a new trial.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Patricia MITCHELL.
    Nos. 57977, 58012.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Gretna, Abbott J. Reeves, Metairie Director, Research and Appeals Division, for plaintiff-relator in No. 57977 and No. 58012.
    Ralph L. Barnett, Gretna, for defendant-respondent . in No. 57977 and No. 58012.
   DIXON, Justice.

On March 28, 1974 Patricia Mitchell was arrested for forgery and on April 17, 1974 she was formally charged by a bill of information with violating R.S. 14:72 in that she allegedly forged and attempted to cash an American Express Traveler’s Check in the amount of $40.00. On April 3, 1974 Ms. Mitchell posted bond in the amount of $1500.00, with Adam C. Hebert, respondent herein, signing as surety and obligating himself in solido on the bond undertaking.

Arraignment was originally scheduled for May 3,1974. Notice thereof was personally served on the surety on April 23, 1974, but personal service on Ms. Mitchell was attempted without success since she could not be located. Since neither the accused nor her surety appeared at the arraignment, it was rescheduled for May 10, 1974. Once again the surety was personally served with notice of the arraignment date but Ms. Mitchell could not be located so that the attempted service on her was unsuccessful. Neither the defendant nor her surety appeared at the second attempt to arraign the accused. The trial judge, setting forth the defendant’s failure to appear as the reason, entered a judgment against the defendant and her surety in solido decreeing forfeiture of the bond on May 15, 1974.

The surety filed a motion to rescind the bond forfeiture judgment almost two years later. He alleged that the bond forfeiture procedure was violative of due process and, in addition, pleaded “equitable estoppel” on the ground that he was not given a customary notice of the entry of the bond forfeiture judgment. On the basis of the equitable claim, the trial judge granted the surety’s motion on March 18, 1976. On June 2, 1976 this court granted the State’s application for remedial writs to review the trial judge’s action.

C.Cr.P. 337 provides:

“When a bail bond does not fix the appearance date, and the presence is required of a person who has been released on bail in a felony case, his surety shall be given written notice of the time, date, and place the principal is required to appear. The notice shall be delivered to the surety by an officer designated by the court, at least two days prior to the day set for the appearance, or may be mailed to the surety at least three days prior to the day set for the appearance. If the principal appears as ordered and the proceeding is continued to a specific date, the surety need not be given notice of the new appearance date. Failure to give notice, as required by this article, relieves the surety from liability on a judgment of forfeiture for the defendant’s nonappearance on that particular date.”

R.S. 15:85 provides:

“A. All bonds taken to secure the appearance of any person before any district court, otherwise than at a preliminary examination, shall be forfeited and collected as follows:
“(1) If, at the time fixed for appearance, such person fails to appear and answer when called, the judge shall, on motion of the district attorney, upon hearing of proper evidence including service or attempted service upon the defendant and service upon the surety, forthwith enter a judgment decreeing the forfeiture of the bond and against such person and his sureties in solido for the full amount thereof.
“(2) If within twenty-four hours after the rendition, under the provisions of this Section, of any judgment forfeiting any appearance bond, the judgment has not been paid, the district attorney shall cause the judgment to be recorded, and may, at any time, cause it to be recorded in every parish in which he thinks the recordation proper, and every such recor-dation shall be without cost and shall operate as a judicial mortgage against both the principal and his sureties.. If the judgment has not been paid, the district attorney shall, at the expiration of the time allowed by law for the taking of an appeal, and after the time allowed by law for the surety to return the fugitive to the jurisdiction of the court in which said charge was made, cause to issue a fieri facias against both the principal and his sureties.
“B. Any judgment forfeiting an appearance bond rendered under the provisions of this Section shall, at any time within six months after rendition, be set aside upon the surrender or the appearance and trial and conviction or acquittal of the defendant, or upon a continuance granted upon motion of the district attorney after such appearance.”

The surety does not contend that these requirements were not met nor that a notice of the bond forfeiture judgment is required under the applicable statutory law. However, the surety argues that in the absence of giving a notice of the judgment he was denied procedural due process because he was not given notification that the six months period provided by R.S. 15:85(B) had begun to run. This argument is not supported by authority nor reason:

In the surety contract the surety obligated himself, in solido, with the principal (the accused) to pay $1500.00 if the principal did not appear to answer to the charges brought against her. The surety was given notice that the accused was to appear on the given dates to be arraigned and that if she did not appear the surety contract would be enforced. In addition, R.S. 15:85(B) provides that if, after receipt of notice, the surety fails to present the accused, the court shall forthwith enter a judgment decreeing the forfeiture of the bond. Since the surety had knowledge of the terms of his contract and should be deemed to know the applicable statutes, the notice of the arraignment date he received gave him actual notice that his property would be in jeopardy unless he took steps to guarantee production of the accused or attended the arraignment himself to present any defenses he might have to the entering of the bond forfeiture judgment. At the most, procedural due process only guarantees that a person have prior notice and an opportunity to be heard before his property is taken. E. g. Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). These requirements were adequately complied with in this case.

The trial judge granted the surety’s motion to rescind the judgment decreeing the bond forfeited on the basis of “equitable estoppel.” He reasoned that due to the practice in the parish of serving a copy of the judgment on the surety, the district attorney was estopped from enforcing the judgment in the absence of sending the notice even though it was not required by law.

A court can only consider received usages when there is no express law on the subject. C.C. 21; Sublet v. United T. V. Rental, Inc., 284 So.2d 783 (La.App. 4th Cir. 1973). In the applicable statutes there is express law establishing the procedure for bond forfeiture, and no notice of the bond forfeiture judgment is required. In addition, “equitable estoppel” is not favored in our law (e. g. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975)) and properly applies only to representations of fact. American Bank & Trust Co. v. Trinity Universal Ins. Co., 251 La. 445, 205 So.2d 35, 40 (1967); Bigelow on Estoppel, 634 (6th ed. Carter, 1913). Under the circumstances of this case there was merely a forebearance in the application of the statutory provisions which may have resulted in an impression that the law required a notice of the entering of a bond forfeiture judgment. Since both parties were equally apprised of the actual law in this area, this is not a proper case for the invocation of the doctrine of equitable estoppel.

For the foregoing reasons the lower court’s judgment rescinding the bond forfeiture judgment is reversed, the judgment decreeing the bond forfeited is reinstated, and the case is remanded to the district court for further proceedings.


author: PER CURIAM.

text:
    STATE of Louisiana v Richard MAHOGANY and Lawrence Robertson.
    No. 58007.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    William J. O’Hara, III, Supervising Atty., New Orleans, Joseph G. Kopfler, Student Practitioner, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John J. Messina, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Martha MITCHELL.
    No. 58051.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Gordon A. Pugh, Breazeale, Sachse & Wilson, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Robert H. Hester, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Martha Mitchell, was charged by an amended bill of information with being an accessory after the fact to the commission of simple robbery in violation of La.R.S. 14:25. Defendant, having waived her right to a jury trial, was tried and convicted by the trial judge, who sentenced her to serve eighteen months in the parish prison.

Defendant has appealed her conviction and sentence relying on a single assignment of error.

The essential facts upon which defendant’s conviction was based are not in dispute, and may be summarized as follows:

On August 6, 1974, Mary Augusta was walking down Florida Street in Baton Rouge. She was stopped by two women who pulled up along side of her in an automobile. These two women shortly before had discussed a plan to rob Ms. Augusta. Diane Butler was driving the car, and Martha Mitchell, the car’s owner, was a passenger. Ms. Mitchell asked Ms. Augusta for a penny, and when she replied that she had no money, Ms. Mitchell forcibly took her purse. Ms. Butler and Ms. Mitchell hurried back to the car, switching positions, so that Ms. Mitchell drove and Ms. Butler rode as a passenger. Diane Butler removed some money from the purse, and threw the purse out of the car window.

Defendant contends that the trial judge erred in finding her guilty as an accessory after the fact to the crime of simple robbery, urging that the facts clearly established that she was guilty of the robbery as a principal. Defendant argues that an individual cannot be both an accessory and a principal to the same crime.

Defendant’s argument is based on the assumption that the facts established there was only one principal to the crime, Martha Mitchell. We find this assumption erroneous.

The undisputed facts justify the conclusion that Diane Butler, as well as Martha Mitchell, committed the crime of simple robbery as a principal. It is immaterial that Ms. Augusta’s purse was actually snatched by Martha Mitchell. La.R.S. 14:24 makes this conclusion inescapable; the statute provides:

“All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.’’

Thus, there were two principals to the robbery, Diane Butler and Martha Mitchell.

The bill of information as finally amended charged Martha Mitchell with aiding and abetting Diane Butler, knowingly and with reasonable grounds to believe that Ms. Butler had committed a felony. The State did not charge Martha Mitchell as an accessory for aiding and abetting herself, after the commission of the crime.

La.R.S. 14:25 provides inter alia:

“An accessory after the fact is any person who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment.
“An accessory after the fact may be tried and punished, notwithstanding the fact that the principal felon may not have been arrested, tried, convicted, or amenable to justice. * * * ”

The facts adduced at trial clearly justify the trial judge’s conclusion that Martha Mitchell, after Ms. Butler’s commission of a felony, aided Ms. Butler, knowing that she committed a robbery, and with the intent to aid her in avoiding arrest, trial, conviction and/or punishment.

La.R.S. 14:25 does not by its terms require specific criminal intent to aid the offender in avoiding detection or punishment. See La.R.S. 14:11. La.R.S. 14:10 defines general criminal intent as follows:

“ * * * General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.”

After taking Ms. Augusta’s purse Martha Mitchell and Diane Butler quickly returned to the car and sped away with Ms. Mitchell driving. Although Martha Mitchell’s primary motive may well have been to save herself from apprehension and prosecution, she must have adverted to the fact that she was also aiding another principal, Diane Butler, to “escape from arrest, trial, conviction, or punishment.”

We thus conclude that defendant’s assignment of error is without merit. Her conviction and sentence are affirmed.

AFFIRMED.

SANDERS, C. J., concurs.


author: MARCUS, Justice.

text:
    STATE of Louisiana ex rel. Buford MILLER v. John O. CRAFT, Sheriff of Vernon Parish, Louisiana.
    No. 58090.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      Roy B. Tuck, Jr., Leesville, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., T. R. Broyles, First Asst. Dist. Atty., for defendant-respondent.
   MARCUS, Justice.

On April 8, 1976, Buford Miller filed an application for a writ of habeas corpus in the Thirtieth Judicial District Court alleging that he had been confined in jail for approximately two years in violation of his constitutional rights to a speedy trial, to assistance of counsel, and to due process of law. The district judge granted a writ directed to the sheriff of Vernon Parish and fixed a date for an evidentiary hearing. The sheriff did not appear at the hearing. The district attorney appeared briefly but claimed that the state was not a party to the proceeding. After hearing evidence adduced by defendant, the trial judge took the matter under advisement and subsequently refused to discharge defendant from custody on the ground that he might be dangerous to himself or others and might not be capable of caring for his person. We granted certiorari to review the correctness of this ruling.

The record reveals that warrants of arrest for Buford Miller were issued on April 30, 1974 for resisting arrest and on May 2, 1974 for attempted aggravated burglary. Bail was fixed at $1,000 and $25,000, respectively, for the alleged offenses. On motion of the district attorney, an order was signed by the district judge on May 7, 1974 transferring defendant to the East Louisiana State Hospital at Jackson for the purpose of determining his present mental capacity to stand trial. The order was not directed to any physician in particular and called for a report to be submitted to the court in ninety days. Both the testimony of defendant and the record of the proceedings demonstrate that, in fact, defendant was never transferred to East Louisiana State Hospital, that he was never examined, and that no report was ever filed. Instead, defendant remained incarcerated in the custody of the Vernon Parish sheriff without ever having been appointed counsel and without having been charged with a crime. Defendant testified that during this time he complained orally to the deputy in whose custody he was confined about being held for such a long period of time without trial. Finally, over one and one-half years after the date of his arrest, a fellow prisoner prepared for defendant’s signature a letter addressed to a federal district court judge complaining of his lengthy imprisonment without benefit of counsel and without having been charged or tried for any offense.

On February 24, 1976, the district attorney notified Mr. John Ford, an attorney from Leesville, Louisiana, that the defendant would be arraigned on February 27, 1976. Mr. Ford testified that on receipt of this letter he examined the record in defendant’s case with the assistance of the minute clerk for the district court and could find no evidence that he had ever been appointed to represent defendant in any matter. He further testified that he did not know Miller and had never interviewed him as a client. On February 27, 1976, the district attorney for the first time filed a bill of information charging defendant with aggravated burglary. That same day, an associate of Mr. Ford represented defendant in court; defendant waived arraignment and entered a plea of “not guilty.” Trial was set for March 29,1976. When the case was called for trial, the court’s attention was directed to the fact that the question of defendant’s mental capacity to stand trial had never been disposed of; whereupon, the trial judge again ordered that defendant be examined. The results of this examination were filed with the court on March 30, 1976. At that time, the state moved to withdraw its motion for an investigation into defendant’s mental incapacity to proceed made in May of 1974. Defendant objected and requested that he be examined by a licensed psychiatrist. Without ruling on these motions, the court ordered that defendant be taken to Byrd Memorial Hospital for an examination and that a report be filed the next day regarding defendant’s mental capacity to proceed. The court further ruled that it would rely on the written reports of the doctors and refused to subpoena the doctors as requested by defendant. The first examination, conducted by the coroner, Dr. S. J. Jones, resulted in a report that defendant was capable of standing trial but was probably retarded. The second report made by Dr. Edwin H. Byrd of the Byrd Memorial Hospital, revealed that Miller was disoriented and confused about his imprisonment and recommended that he be sent to a state institution for a full psychiatric work-up. Based on these written reports, the trial judge ruled, on March 31, 1976, that defendant was presently unable to stand trial. He also relieved Mr. Ford of his representation of defendant and appointed Roy B. Tuck, Jr. as defendant’s new counsel. As aforesaid, Mr. Tuck filed an application for a writ of habeas corpus on behalf of defendant on April 8, 1976 and presently represents defendant before this court.

Defendant contends the trial judge erred in his ruling in three respects: (1) in failing to find that he had been denied his constitutional right to a speedy trial; (2) in declining to rule that he had been denied his constitutional right to assistance of counsel; and (3) in relying upon medical reports in refusing his discharge from custody. Because we find merit in defendant’s contention that he has been denied a speedy trial, we do not reach the other arguments urged before this court.

The right to a speedy trial is a fundamental right guaranteed by both the federal and state constitutions. We have recognized that this right attaches when the defendant becomes an accused, which, in this case, occurred on the date of his arrest. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Stetson, 317 So.2d 172 (La.1975). In determining whether this constitutional right has been violated, no fixed time period governs; rather, the conduct of both the prosecution and the defense are weighed in the light of several factors: the length of the delay; the reason for the delay; the defendant’s assertion of his right; and the actual prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Bullock, 311 So.2d 242 (La.1975).

In our consideration of the first factor to be assessed, the length of the delay, we note that there is no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months. Barker v. Wingo, supra. The record in this case reveals that on March 29, 1976, the date finally fixed for defendant’s trial, Buford Miller had been incarcerated for at least twenty-two months. While such a delay might not have been excessive under other circumstances, we find that the incarceration of defendant, an indigent, with bail fixed at an amount that he could not meet, without being afforded assistance of counsel, and without having been formally charged with an offense until February 27, 1976, requires an inquiry into the other factors.

The second factor to be weighed in determining whether defendant’s right to a speedy trial has been denied is the reason for the delay in bringing him to trial. At the habeas corpus hearing, the state made no attempt to introduce evidence which might have explained or excused its failure to prosecute. Defendant, on the other hand, offered evidence that there was ample trial time available to the prosecution had it sought to try his case soon after his arrest. Moreover, it is apparent from an examination of the record that defendant engaged in none of the dilatory tactics which so often render lengthy delays in the administration of justice excusable. The inordinate delay appears to have been caused solely by the order rendered at the request of the state on May 7, 1974 for an investigation into defendant’s mental incapacity. Throúgh oversight or neglect defendant was never examined by a lunacy commission and no report on his mental condition was ever filed in compliance with the May 7 order. Defendant simply remained incarcerated in the custody of the sheriff of Vernon Parish. Although La. Code Crim.P. art. 642 prohibits any further steps in the prosecution until the question of mental capacity to proceed is resolved, that article cannot provide a justification for the state’s inaction in this case. Where the state moved ex parte to secure a determination of the mental incapacity of the accused who was imprisoned without counsel, it had an obligation to see that an examination of defendant was, in fact, conducted and brought to a timely conclusion. Based on the evidence before us, we can only conclude that, as between defendant and the state, the state must bear full responsibility for the inexcusable delay in bringing defendant to trial or otherwise disposing of his case.

The third factor to be assessed in the balancing test mandated by Barker is the defendant’s assertion of his right to a speedy trial. Defendant in this case, an indigent black of questionable mental capacity and without assistance of counsel, was not reasonably in a position to make an effective legal assertion of his constitutional rights. He did, nevertheless, make oral complaints to his jailer concerning his lengthy imprisonment without trial and, with the assistance of a fellow inmate, addressed his grievances to a federal district court judge. We are satisfied that, in view of defendant’s lack of counsel and alleged mental incapacity, his efforts to assert his right to a speedy trial were more than adequate to dispel any claim that he knowingly waived his rights or acquiesced in the state’s delay in bringing him to trial.

The final factor we must weigh is the actual prejudice suffered by the defendant as a result of the lack of a speedy trial. In Barker, the United States Supreme Court indicated that the question of prejudice must be analyzed in the light of the interests sought to be protected. The Court identified three such interests: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern on the part of the accused; and (3) to limit the possibility that the defense will be impaired. In Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973), the Court reiterated its position that the prejudice- to a defendant caused by a delay in bringing him to trial is not confined to the possible prejudice to his defense in those proceedings. Inordinate delay may interfere with a defendant’s liberty, disrupt his employment, subject him to public obloquy, and create anxiety in him, his family and his friends. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). We are convinced that the lengthy incarceration of defendant in the instant case was particularly oppressive. The reports of the physicians who examined Miller in 1976 disclose that when interviewed he was disoriented and confused as to the reason he was being kept prisoner. The reports also indicate that defendant is probably mentally retarded. While we can only speculate on the degree of anxiety engendered in an accused of apparently low intelligence who is incarcerated for almost two years without financial resources, without appointed counsel, and without even having been formally charged with an offense, we are satisfied that the interests sought to be protected by the right to a speedy trial have been violated. Furthermore, since counsel was not appointed until February, 1976, no investigation was ever conducted on Miller’s behalf in an effort to exonerate him from guilt of the offense for which he was arrested. The defendant contends that after two years in prison he has forgotten the names of persons who might have been able to assist him in his defense. Under the particular facts and circumstances of this case, we are convinced that defendant is no longer in a position to provide his counsel with information that would be helpful in the preparation of his defense.

After weighing the facts and circumstances of this case in light of the above factors, we conclude that the state has failed to accord defendant, Buford Miller, his constitutional right to a speedy trial. It is now well established that once a violation of the right to a speedy trial is shown, the only remedy available is the dismissal of the charge pending against the defendant. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); State v. Bullock, 311 So.2d 242 (La.1975). Accordingly, we hold that defendant cannot now be prosecuted pursuant to the bill of information charging him with aggravated burglary. Moreover, any determination that defendant is not presently capable of standing trial for that offense is similarly without effect.

The state argues in opposition to defendant’s release from custody that the constitutional claim of denial of a speedy trial was not properly raised by a writ of habeas corpus. La.Code Crim.P. art. 362(2) provides that, pursuant to a writ of habeas corpus, a person held in custody by virtue of a court order shall be discharged if “the original custody was lawful, but by some omission . which has since occurred, the custody has become unlawful.” The state avers, however, that this rule is modified in the instant case by La.Code Crim.P. art. 642 which directs in relevant part that:

. When the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.

(Emphasis added.) It is clear from the official redaction comments that the purpose of this article was to protect from prejudice a defendant who might be incapable of safeguarding his own rights. In no sense can a petition for habeas corpus aimed at securing the defendant’s release be construed as a “further step in the criminal prosecution.” In any event, La.Code Crim.P. art. 642 could not operate to deprive a defendant of his right to a hearing on the legality of his detention in view of the unequivocal pronouncement that “the writ of habeas corpus shall not be suspended” embodied in Article 1, Section 21 of the Louisiana Constitution of 1974. Hence, this argument by the state has no merit.

DECREE

For the reasons assigned, the ruling of the trial judge refusing to discharge the defendant from custody is reversed, and the case is remanded to the Thirtieth Judicial District Court with instructions to the trial judge to dismiss the bill of information charging the defendant with aggravated burglary and, unless he is currently being held on charges for which he may be tried consistent with this opinion, to discharge him from the custody of the sheriff of Vernon Parish.

      . The order was defective in two respects. La. Code Crim.P. art. 644 (as it existed in 1974) mandated the appointment of a sanity commission consisting of at least one licensed physician. La.Code Crim.P. art. 645 provided in 1974 that the report of the sanity commission be filed within thirty days after the commission’s appointment.

      . The state represented in brief to this court that defendant was taken to East Louisiana State Hospital but was, for some unknown reason, refused admittance. There is no evidence in the record to support this assertion.

      .There is some evidence that during the construction of the new jail in Vernon Parish, defendant was transferred to a jail in Sabine Parish; however, he was returned to Vernon Parish after the new jail was completed and is presently incarcerated there.

      . In 1974, La.Code Crim.P. art. 643 provided that, if the defendant did not have counsel when a mental examination was ordered, the court should appoint counsel to represent him prior to and at the hearing on the question of present capacity to proceed. This article was amended by La.Acts 1975, No. 325, § 1 to require that, if a defendant had not already retained counsel, the court shall appoint counsel to represent him before ordering any mental examination of the defendant.


text:
    STATE of Louisiana v. Calvin YOUNG.
    No. 58099.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      Robert E. Piper, Jr., Piper & Brown, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., William L. Goode, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Calvin Ray Young was charged by bill of information with possession of marijuana, second offense, in violation of La.R.S. 40:966. After trial by jury, he was found guilty as charged and subsequently was sentenced to serve three years at hard labor. On appeal, defendant relies on five assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in denying his motion for mistrial based on comments on the evidence made by the trial judge in the presence of the jury.

Defendant had pleaded not guilty and not guilty by reason of insanity to the charge against him. During the defendant’s cross-examination of a physician who had served on the lunacy commission appointed to determine the defendant’s sanity at the time of the offense, the defendant propounded the following hypothetical question:

Let’s assume, Doctor, that another psychiatrist had examined Calvin Young, say, in May of 1975, given all the additional information that you didn’t have, sir, given the fact that he was giggly, went for walks, appearing nude and naked, the letters, the impression or the feeling that he was God and Jesus Christ and Muhammad Ali and all those people, and he had determined diagnostically that Calvin Young was a schizophrenic and mentally retarded? (Emphasis added.)

The state objected to the question on the ground that there was no basis for it in the record. The objection was sustained. In response to the defendant’s question as to the reasons for the court’s ruling, the trial judge made the following statement: “Well, you are assuming something not proven there was no evidence introduced.” At the court’s suggestion, the jury was then removed, whereupon the defendant moved for a mistrial claiming that the judge had improperly commented on the facts of the case. After denying the motion and returning the jury to the courtroom, the trial judge admonished the jury to ignore any remarks made in connection with his ruling and recall only that he had sustained the state’s objection.

Judicial comment on the facts or evidence in the presence of the jury is prohibited by La.Code Crim.P. art. 772 (1966). However, this court has consistently held that remarks made by the trial judge in the jury’s presence giving reasons for his rulings on objections, for admitting or excluding evidence, or stating the purpose for which evidence is offered or admitted are not objectionable as comments or expressions of an opinion provided they are not unfair and prejudicial to the accused. State v. Lane, 302 So.2d 880 (La.1974); State v. Fallon, 290 So.2d 273 (La.1974); State v. Hills, 241 La. 345, 129 So.2d 12 (1961), rev’d on rehearing on other grounds; State v. Nicolosi, 228 La. 65, 81 So.2d 771 (1955); State v. Childers, 196 La. 554, 199 So. 640 (1940); State v. Walker, 204 La. 523, 15 So.2d 874 (1943).

In the instant case, defense counsel was propounding a question which assumed facts not testified to in contravention of the evidence rule embodied in La.R.S. 15:278. Although parts of the defendant’s question were predicated on previous testimony, there had been no testimony or other evidence indicating that the defendant had been diagnosed as mentally ill or deficient by another psychiatrist. We conclude that the trial judge’s statement of his reasons for ruling was both correct and fair.

Moreover, we cannot say that the defendant in this case suffered prejudice from the trial judge’s remarks, particularly since the reasons for his ruling were explained only at the request of the defendant and the trial judge instructed the jury to ignore that explanation and recall only that he had sustained the state’s objection.

Accordingly, although the general intent of La.Code Crim.P. art. 772 is to prohibit judicial comment on the evidence, we are satisfied that the remarks of the trial judge in this case do not fall within the contemplation of that article, inasmuch as they were made at the request of the defendant in explanation of a ruling on an objection and were neither unfair nor prejudicial. Therefore, we find that the defendant’s motion for a mistrial was properly denied. There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in denying his motion for a mistrial based on the prosecutor’s reference to crimes committed by defendant as to which evidence was inadmissible.

During the state’s cross-examination of defendant’s mother, the following colloquy took place:

Q. Now, Mrs. Young, you have kept pretty close tabs on what your son has been doing for the last couple of years? A. Yes.
Q. Are you aware of what has been going on between him and the law? (Emphasis added.)

Before the witness answered the question, the jury was retired at the request of defendant, who then argued that the district attorney’s question constituted an improper reference to prior criminal activity on the part of defendant, entitling him to a mistrial. In response to defendant’s contention, the prosecutor argued that his question was directed to an earlier conviction of defendant for possession of marijuana, the arrest for which dated back to 1974. This was the same conviction which formed the basis of the charge of marijuana, second offense, for which defendant was then on trial. While denying the motion for a mistrial, the trial judge refused to allow the state to pursue that line of questioning and admonished the jury to disregard the question to which defendant had objected.

Louisiana Code of Criminal Procedure article 770 provides in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed by the defendant as to which evidence is not admissible;
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a niistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

(Emphasis added.)

In the instant case, defendant was being tried as a second offender for possession of marijuana pursuant to La.R.S. 40:966. Therefore, evidence of the first conviction of possession was properly before the jury. Pretermitting the issue of whether or not the question of the prosecutor as to what had been “going on between him and the law” constituted a direct or indirect reference to a crime, we note that the only prior crime of the accused that had been before the jury was possession of marijuana, a crime as to which evidence was admissible because of the nature of the charge. The jury had already been apprised of the prior conviction by the reading of the bill of information charging defendant with possession of marijuana, second offense. No suggestion of any other illegal conduct on the part of defendant was ever made. Consequently, it would have been unreasonable for the jury to conjecture that the prosecutor’s question had reference to any criminal activity of defendant other than either the previous conviction which formed part of the present charge or the second offense for which he was being tried. Hence, the prosecutor’s question did not constitute a reference to another crime as to which evidence was not admissible. La.Code Crim.P. art. 770(2) (1966); cf. State v. Price, 325 So.2d 780 (La.1976). This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial judge erred in denying his motion for mistrial wherein the defendant alleged that comments made in the state’s closing argument improperly appealed to the passion and prejudice of the jury.

Louisiana Code of Criminal Procedure article 774 provides:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

The first statement that defendant urges as a ground for granting a mistrial was made in the following argument of the prosecutor:

The judicial system is like a chain. The police form the first line. The prosecution forms the second link, and the jury forms the third line. The police have done all they could do. They have been fair and honest in presenting testimony to you. I have put on the case, every available witness to you. Now comes your time, and what I am asking you is this: I am asking you to use your God-given common sense that you all have to weigh the evidence, to weigh the facts, look at what has been presented to you and based on that evidence I am certain you will

(Emphasis added.) Defendant contends that the prosecutor’s comments amounted to his personally vouching for the credibility of the state witnesses.

There is no merit to this contention. We do not consider that the prosecutor’s remarks, taken in their proper context, constitute an expression of his opinion as to the credibility of the state witnesses. He simply argued that the police had done their duty and fairly and honestly presented the evidence which he had put on for their consideration. He made it clear to the jurors that it was their duty to weigh the evidence in reaching their verdict. Moreover, the comments of the prosecutor were counteracted by the trial judge who admonished the jury both during the state’s closing argument and his final charge that they, the jury, were to determine the facts based on the evidence adduced and not upon statements made by either counsel in their argument of the case. Hence, under these circumstances we find no prejudice resulted to the defendant.

The second remark of the prosecutor cited as constituting improper closing argument occurred when reference was made by the district attorney to a “promise” of the jurors (during voir dire examination) that they would return a verdict of guilty if such verdict was warranted by the facts. The mere use of the word “promise” by the prosecutor in reminding the jury of its sworn duty was not prejudicial to the accused.

In sum, there was no abuse of discretion by the trial judge in denying defendant’s motion for a mistrial. Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends that the trial judge erred in denying his motion for a new trial grounded on the errors assigned in Assignments of Error Nos. 1, 2 and 3. We have already determined that those assignments of error lack merit. Since nothing further has been presented for our review, we cannot find that the trial judge abused his discretion in denying defendant’s motion for a new trial.

ASSIGNMENT OF ERROR NO. 5

Defendant contends that the trial judge erred in failing to comply with the provisions of La.Code Crim.P. art. 873 which provides that following a felony conviction sentence shall not be imposed until at least twenty-four hours after a motion for a new trial is overruled. If defendant expressly waives the delays provided in this article, sentence may be imposed immediately. The record discloses that defendant was sentenced on the same day that his motion for a new trial was denied and that he did not waive the required delay. The state concedes that defendant is correct in this contention. Defendant’s sentence was illegally imposed. La.Code Crim.P. art. 873; State v. Navarre, 302 So.2d 273 (La.1974). Even though defendant did not object at the time of sentencing, the error complained of shall be considered by this court on appeal since it is an error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. La.Code Crim.P. art. 920(2); State v. Quinn, 288 So.2d 605 (La.1974). Hence, the sentence must be vacated and the case remanded to the trial court with instructions that defendant be sentenced in accordance with law.

DECREE

For the reasons assigned, the conviction is affirmed but the sentence imposed is vacated and set aside, and the case is remanded to the First Judicial District Court, Parish of Caddo, with instructions to the trial judge to sentence defendant in accordance with law.

DIXON, J., dissents.