author: DENNIS, Justice.

text:
    Robert RODRIGUEZ v. NORTHWESTERN NATIONAL INSURANCE COMPANY et al.
    No. 60408.
    Supreme Court of Louisiana.
    May 22, 1978.

      Judith Atkinson Chevalier, Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, for appellants.
    Frank L. Koles, III, Ponder & Ponder, Amite, Warren L. Mengis, Mengis, Roberts, Durant & Carpenter, Baton Rouge, for ap-pellee.
   DENNIS, Justice.

Plaintiff Robert Rodriguez instituted suit against Northwestern National Insurance Company of Milwaukee, Wisconsin and against Interstate Surplus Underwriters, Inc., Northwestern’s Louisiana agent, seeking to recover the sum of $25,000 together with 12% statutory penalties and $5,000 attorney’s fees, as compensation for the loss of a Case log skidder which was destroyed by fire on November 29,1973. The defendants’ answer acknowledged the existence of a policy of insurance covering the log skid-der, but denied coverage under the policy due to alleged violations of a warranty endorsement by the insured.

Subsequent to the filing of defendants’ answer, Crawler Supply Company, Inc., intervened in the litigation, alleging that it had sold the skidder to Rodriguez and that a balance of $13,374.06 was due under its financing agreement with plaintiff. After a judge trial, judgment was rendered in favor of Rodriguez and Crawler Supply in the amount of $25,000 together with legal interest and costs. The $13,374.06 owed to Crawler Supply was to have priority over the judgment rendered in favor of Rodriguez, who was to collect the balance of the $25,000 judgment after the payment to Crawler Supply.

Both defendants appealed suspensively from the judgment; plaintiff answered the appeal, seeking statutory penalties and attorney’s fees. A five-judge panel of the First Circuit Court of Appeal, with one judge concurring in the majority’s legal conclusions and two judges dissenting, reversed the trial court and rendered judgment dismissing the plaintiff’s suit. Rodriguez v. Northwestern National Insurance Company, et al., 347 So.2d 1238 (La.App. 1st Cir. 1977). We granted certiorari to examine the effect of the alleged breach of warranty upon the insurance company’s obligation under the contract.

The policy issued to Rodriguez by Northwestern National was denoted a “Special Floater Policy” designed to insure against certain specified perils. Among the risks covered by the policy was damage to the equipment by fire; a special endorsement, purporting to regulate the fire coverage, was attached to and made part of the policy, and provided in pertinent part:

“WARRANTY ENDORSEMENT
“It is understood and agreed by the assured that as respects the peril of Fire this insurance is NULL and VOID if any condition of this warranty is violated as respects equipment insured hereunder while operating or located in woods or forest or while land clearing.
il * * *
“2. It is warranted that an underwriters laboratory approved all purpose fire extinguisher with a rating of at least 1A or 10BC will be provided on each piece of equipment insured at all times such equipment is being operated and such extinguisher will be maintained in good working condition and recharged when necessary. The assured may remove the extinguisher when equipment is not in operation to prevent theft.
“3. It is warranted that all equipment operated in the woods or forest or while land clearing shall be shut down and inspected at frequent intervals during the working day to remove any accumulation of leaves, trash or fuel from the engine compartment and specifically from the exhaust manifold and protection belly pan. It is specifically a condition that such trash and accumulation shall be removed before discontinuing work for the day.”

On November 29, 1973, the skidder was being operated by Jack Lanier, an employee of Rodriguez, in a heavily wooded area some two and one-half miles from Springfield, Louisiana. Some time after noon, while engaged in normal operation of the equipment, Lanier noticed fire coming from beneath the floor of the skidder. He jumped from the machine and attempted to put out the fire using a fire extinguisher which had been provided with the skidder as standard equipment. Lanier could not get the fire extinguisher to work, so he drove to a telephone, called the Springfield fire department, and returned to the scene of the fire. The fire department eventually subdued the blaze, but the skidder by this time was virtually destroyed.

Plaintiff conceded at trial that the fire extinguisher which came as standard equipment with the skidder was in fact rated 5BC as opposed to the 1A or 10BC rating specified as a minimum requirement in the warranty agreement. Further, the testimony of Lanier indicated that, while he did conduct a daily inspection and cleaning of the skidder, this procedure was customarily carried out in the morning rather than the afternoon. Lanier further stated that other inspections were not done on a regular schedule, but were performed as needed or whenever a lull in the work schedule permitted. Rodriguez testified that the fire extinguisher which was present on the skid-der at the time of the fire had never been inspected or serviced. He further stated, however, that the extinguisher came new with the skidder, that it had never been used, and that he had no reason to believe that it was not in top working order. Rodriguez stated that he had never tested the extinguisher himself because to do so would render it inoperable in a subsequent fire.

Immediately after the fire the insurer’s adjuster took possession of the fire extinguisher. However, except for Lanier’s testimony that he could not get the extinguisher to work, the record is silent as to its actual working condition. Although the extinguisher was introduced into evidence at trial, the insurer offered no evidence as to whether any tests or inspections were performed on the extinguisher and no expert testimony as to its operability.

Legislative restrictions on warranty defenses are an outgrowth of the common law in insurance cases. Warranties in insurance contracts are divided into two classes. Affirmative warranties, sometimes referred to as representations, are “statements of supposedly existing facts, on the truth of which the insurer’s duty depends.” In contrast, promissory warranties, of the type involved in the instant contract, are defined as “agreements that the insurer’s duty shall be conditional on the future existence or happening of certain facts.” At common law, any breach of a warranty, however immaterial, was sufficient to avoid the contract.

Due to the increasing complexity of insurance policies and to the greater danger of overreaching by insurers — “their gaining an unconscionable advantage by the use of complex policy provisions concerning facts that the untutored purchaser would be surprised to find relevant to his insurance coverage,” — many states, including Louisiana, enacted “anti-technical” statutes designed to preclude denial of coverage through the assertion of defenses not materially related to the risk. The statutes, in general, are of two types: one requires that the violation of the warranty must increase the physical or moral risk protected by the policy; the other states that a violation, in order to constitute a defense, must contribute to the loss.

Prior to the time of the enactment of the anti-technical statutes, Louisiana courts followed the common-law rule of voiding an insurance policy upon a breach of warranty regardless of the materiality of the provision to the risk. Goicoechea v. Louisiana State Insurance Company, 6 Martin (N.S.) 51 (1827). Some insurance companies, however, included in the policy provisions further stating that the policy would be of no effect if the insured in any way increased the risk to the insured property during the tenure of the policy. Meyer v. Queen Ins. Co., 41 La.Ann. 1000, 6 So. 899 (1890). See, Dittmer v. Germania Insurance of New Orleans, 23 La.Ann. 458 (1871).

By Act 222 of 1928, the Louisiana legislature enacted an “anti-technical” statute to limit defenses on fire insurance policies. The legislation, after amendment and reenactment as Louisiana Revised Statute 22:692, provides:

“No policy of fire insurance issued by any insurer on property in this state shall hereafter be declared void by the insurer for the breach of any representation, warranty or condition contained in the said policy or in the application therefor. Such breach shall not avail the insurer to avoid liability unless such breach (1) shall exist at the time of the loss, and be either such a breach as would increase either the moral or physical hazard under the policy, or (2) shall be such a breach as would be a violation of a warranty or condition requiring the insurer to take and keep inventories and books showing a record of his business. Notwithstanding the above provisions of this Section, such a breach shall not afford a defense to a suit on the policy if the fact or facts constituting such a breach existing at the time of the issuance of the policy and were, at such time, known to the insurer or to any of his or its officers or agents, or if the fact or facts constituting such a breach existed at the time of the loss and were, at such time, known to the insurer or to any of his or its officers or agents, except in case of fraud on the part of such officer or agent of the insured, or collusion between such officer or agent and the insured.”

The court of appeal analyzed La. R.S. 22:692 and correctly determined that it belongs to the class of anti-technical statutes which requires that, in order to provide the insurer with a defense, the violation of the warranty must increase the physical or moral risk protected by the policy. As the appeal court indicated, our jurisprudence has held that an insurer is not required by the statute to show a causal relation between a breach of a warranty and a loss to avail itself of a warranty defense under a fire insurance policy. Thus, under the pertinent provisions of the statute, in order for the fire insurer to defend successfully in the instant case on a warranty provision, there must have been (1) a breach of a warranty; (2) the breach must have increased the physical hazard under the policy; and (3) both the breach and the resulting increase in hazard must have existed at the time of the loss.

We also agree with the court of appeal’s conclusion that La.R.S. 22:692 is applicable to the warranties contained in the insurance policy in the instant case. The insurer contends that La.R.S. 22:692 is inap-posite because the insurance contract is designated as a “special floater policy” and because the statute is applicable to a “policy of fire insurance issued by any insurer on property in this state.” La.R.S. 22:692. A review of the insurance code, however, reveals that such a narrow construction of the statute is unjustified. La.R.S. 22:692 does not apply exclusively to contracts which insure solely against loss through fire. It applies as well to warranty conditions upon fire insurance coverage included in contracts of insurance which cover a variety of risks. This Court has previously applied the statute to a policy covering accident and theft in addition to fire losses. Lee v. Travelers Fire Ins. Company, 219 La. 587, 53 So.2d 692 (1951).

However, the court of appeal evidently did not follow well settled principles pertaining to the construction of ambiguous insurance contracts, the burden of proving the warranty defense and the appellate review of factual determinations by the trial court. If there is any ambiguity in the insurance contract, it must be resolved in favor of the insured. La.C.C. art. 1957; Schonberg v. New York Life Insurance Company, 235 La. 461, 104 So.2d 171 (1958); J. K. Martin Pulpwood Company, Inc. v. Travelers Indemnity Company, 295 So.2d 886 (La.App.2d Cir. 1974). Breach of warranty is a special defense which the insurer has the burden of proving by at least a preponderance of evidence. Brough v. Presidential Fire & Marine Ins. Co., 189 La. 880, 181 So. 432 (1938); Knowles v. Dixie Fire Ins. Co. of Greensboro, N. C., 177 La. 941, 149 So. 528 (1933). The findings of fact by the trier of fact are entitled to great weight and shall not be disturbed by the court of appeal unless they are manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The insurer’s warranty defense was based upon four alleged violations of the policy’s warranty endorsement: (1) failure to provide a fire extinguisher on the insured equipment “with a rating of at least 1A or 10BC;” (2) breach of the warranty that “such extinguisher will be maintained in good working condition and recharged when necessary;” (3) failure to shut down and inspect the skidder for accumulation of trash “at frequent intervals during the working day;” and (4) failure to remove trash from the skidder before discontinuing work for the day. Therefore, each of these four contentions must be considered in light of the applicable principles of law heretofore stated.

At trial of the instant case, testimony elicited by both parties established that the fire extinguisher on the skidder had a rating of 5BC. The warranty provided that the extinguisher should have a rating of “at least 1A or 10BC.” There is no evidence in the record that a 5BC rating does not equal or exceed the minimum rating warranted. Nothing in the record demonstrates that a 5BC extinguisher is any less useful or effective than the type of extinguisher expressly required as a minimum safeguard by the policy. Moreover, no testimony whatsoever was introduced by the defendant insurer to show that the substitution of the 5BC extinguisher in any way increased the risk covered by the policy. Therefore, the trial court correctly rejected the insurer’s claim that the warranty was materially violated by the use of the 5BC extinguisher. It is clear that the insurer failed to sustain its burden of proof on this issue.

The warranty provides that “such extinguisher will be maintained in good working condition and recharged when necessary.” The intermediate appellate majority interpreted these words as a promise by the insured “to have an operable extinguisher” of at least the rating described on the machine. The court of appeal’s interpretation is a reasonable one. But the warranty is also susceptible to a rational interpretation that the insured promised merely to perform all maintenance reasonably required to keep the extinguisher in good working condition, including recharging it when necessary. Because the warranty is ambiguous, it must be presumed that the parties intended for its words to have the latter meaning, which is more favorable to the insured. The proper appellate inquiry, therefore, would have been whether the trial judge reasonably determined from the evidence that the insured had done all acts practicably within his power to maintain a workable fire extinguisher on the skidder.

Mr. Rodriguez testified that he obtained the extinguisher as standard equipment with his new skidder some eighteen months before the trial and that the extinguisher had never been used. He stated that the extinguisher had not been tested because to do so would deplete the chemical contents and render it useless until recharged. The insurer did not introduce any evidence to show what proper maintenance of a fire extinguisher entails or to demonstrate that the insured was derelict in assuming that the extinguisher would remain fully charged for over eighteen months. Despite the fact that the extinguisher was in possession of the insurer for approximately eleven months following the fire, no expert evidence was introduced to show that a mechanical defect existed in the extinguisher which could be attributed to a lack of proper maintenance on plaintiff’s part, or, for that matter, that the fire extinguisher was defective at all. Under these circumstances the trial judge reasonably could have inferred that the insurer’s unexplained failure to present evidence on this issue was due to the fact that it would have been harmful to its defense.

For all of these reasons a finding of fact that the insurer did not prove by at least a preponderance of evidence that the plaintiff failed to perform adequate maintenance or necessary recharging of the extinguisher was not manifestly erroneous.

The warranty endorsement required that the skidder “be shut down and inspected at frequent intervals during the day to remove any accumulation of leaves, trash, or fuel from the engine compartment and specifically from the exhaust manifold and protection belly pan” and specifically that “such trash and accumulation shall be removed before discontinuing work for the day.” Testimony adduced at trial indicated that Lanier, an employee of the insured, conducted the required inspections at morning rather than at night, and that the other inspections mentioned in the warranty were conducted on no particular schedule, but rather were performed as needed or whenever the schedule of work permitted.

No evidence was introduced by the defendant which tended to demonstrate that daily inspections made in the morning rather than at the end of the work day tended to cause an increase in the risk of fire existing at the time the loss occurred. The end-of-the-day inspection undoubtedly was designed to reduce the hazard of fire after working hours and not the risk of fire occurring during work after a morning inspection on the following day as in the instant case. The insurer’s failure to prove an increase of physical hazard existing at the time of the loss due to such a breach is evident.

The warranty provision requiring inspections for trash accumulation “at frequent intervals during the day” is ambiguous in that it does not define “frequent” or otherwise stipulate the length of time which may elapse between inspections. The only evidence adduced at trial, which may reasonably be termed as expert testimony regarding the construction and use of skidders, indicated that it would have been impractical and unreasonable during logging operations to shut the skidder down for inspection more than a few times each day. The parties may have intended by the term “frequent interval” to recognize the fact that the number of inspections required to keep the machine reasonably free of trash would vary each work day depending on the terrain, the amount of undergrowth, and other factors which might affect the rate of trash accumulation.

On the day of the fire Lanier inspected the skidder before starting to operate it at about 7:00 a. m. Lanier was not certain but testified that he thought the fire began shortly before noon. Under these circumstances, it is not at all clear that the insured’s employee had failed to inspect the skidder “at frequent intervals during the day” when the fire occurred. Such ambiguous insurance contract provisions must be construed liberally in favor of the insured. The trial judge reasonably could have found that the insurer did not prove a breach of the warranty because a reasonable construction in favor of the insured does not require a more rigorous inspection schedule than that followed on the day of the fire.

Even if we assume that the warranty was breached, the evidence will support a factual finding that the insurer failed to carry its burden of proving a consequential increase in the physical hazard. It is not every slight and insubstantial increase in the risk or hazard which will enable the insurer to void the insurance coverage contracted. The increase must be material or • substantial. If we were to assume that Lanier failed to inspect with the frequency required, the evidence does not demonstrate that the risk of loss caused by the breach was materially or substantially greater than the physical hazard which would have existed had inspections been performed at shorter intervals. Accordingly, the trial judge would not have erred manifestly by concluding that the insurer failed to prove that the lack of more frequent inspections was such a breach as would materially increase the physical hazard under the policy.

For the foregoing reasons, the judgment of the court of appeal is reversed and the judgment of the trial court is affirmed.

      . Williston on Contracts, § 673 at 172 (3d ed. 1961).

      . Id.

      . Patterson, Warranties in Insurance Law, 34 Col.L.Rev. 595 (1934).

      . Keeton, Insurance Law, § 6.5(b) at 373 (1971).

      . Id.

      . Id. at 382. See, Rodriguez v. Northwestern National Insurance Co., supra, at p. 1242.

        . See, American Indemnity Co. v. Newson, 79 So.2d 392 (La.App. 2d Cir. 1955); Terwilliger v. Union Fire, Accident & Gen. Ins. Co., 185 So. 43 (Orl.App.1938); Brough v. Presidential Fire & Marine Ins. Co., 189 La. 880, 181 So. 432 (1938); Knowles v. Dixie Fire Ins. Co. of Greensboro, N. C., 177 La. 941, 149 So. 528 (1933); Sigrest v. Federal Ins. Co., 14 La.App. 55, 129 So. 379 (1st Cir. 1930); cf. Fleet v.
        National Fire Ins. Co., 167 La. 74, 118 So. 697 (1928); Meyer v. Queen Ins. Co., 41 La.Ann. 1000, 6 So. 899 (1890); Dittmer & Pelle v. Germania Ins. Co., 23 La.Ann. 458 (1871). For examples of state statutes adopting the contribute-to-loss standard, see, Iowa Code § 515.101; Nebraska R.S. § 44-358; Texas Ins. Code Art. 6.14. See, Keeton, supra, at § 6.5(c). See also, Note, The Divisibility of Warranties in Insurance Policies, 18 Vanderbilt L.Rev. 719 (1965).

      . The defense on this issue was based almost entirely on the undisputed evidence that Jack Lanier was unable to activate the extinguisher at the time of the fire. This evidence alone, arguably, is not conclusive proof of the extinguisher’s defectiveness because of the possibility that failure of operation was due to Lanier’s excitement or lack of skill rather than to a defect in the extinguisher.

      . Jackson v. Jackson, 212 So.2d 265 (La.App. 4th Cir. 1968); Martin v. Lehmann, 147 So.2d 243 (La.App. 4th Cir. 1962); cf. Tubesales v. Champion Machine Works, Inc., 281 So.2d 459 (La.App. 4th Cir. 1973). Although the inference ordinarily does not arise when the evidence is equally available to both parties (see Austin v. Perry, 325 So.2d 722 (La.App. 4th Cir. 1976)), such is not the case here. The extinguisher was in the hands of the defendant’s employee from the time of the fire for some six months. Therefore the opportunity to ascertain the condition of the fire extinguisher immediately after the fire was exclusively within the defendant’s control.

      . See, Schonberg v. New York Life Insurance Company and J. K. Martin Pulpwood, Inc. v. Travelers Indemnity Company, cited supra.

      . Couch, supra, § 37:695. Cf. Knowles v. Dixie Fire Ins. Co. of Greensboro, N. C., supra.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Alfred LABOSTRIE.
    No. 60579.
    Supreme Court of Louisiana.
    May 22, 1978.

      Patrick D. McArdle, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Timothy W. Cerniglia, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Alfred Labostrie was charged by the grand jury in the same indictment with two separate counts of distribution of a controlled dangerous substance, to-wit: heroin, in violation of La.R.S. 40:966. After trial by jury, defendant was found guilty of possession on count one and guilty as charged on count two. Separate sentences were imposed by the court on defendant for each conviction. Subsequently, the district attorney filed an information accusing defendant of previous felony convictions under La.R.S. 15:529.1 (Habitual Offender Law). After hearing, the trial judge found defendant to be an habitual offender, vacated the previously imposed sentences, and sentenced him to serve ten years at hard labor on his conviction for possession and to life imprisonment at hard labor on his conviction for distribution. The court expressly directed the sentences to be served consecutively. Defendant was given credit toward service of his sentences for time spent in actual custody prior to imposition of sentences. On appeal, defendant relies on twenty-three assignments of error for reversal of his conviction's and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to quash grounded on a claim of misjoinder of offenses in the same indictment. He also contends the trial judge erred in denying his pretrial motion for a severance of offenses.

The record reveals that on April 16, 1975, defendant agreed to sell to Officer Larry Taplin, an undercover agent for the New Orleans Police Department, four bundles of heroin at a cost of $600. On the following day, Taplin met with defendant at the latter’s home at which time defendant informed the agent that he could obtain only two bundles of heroin for him at that time but would supply Taplin with the remaining two bundles either later that evening or on the following day. Taplin then purchased the two bundles of heroin for $300 and agreed to return at a later time for the other two bundles. On the next day (April 18), Taplin again met with defendant at the latter’s home and purchased from him the remaining two bundles of heroin for $300. Subsequently, defendant was arrested and charged in the same indictment with two separate counts of distribution of heroin.

The joinder of offenses is governed by La.Code Crim.P. art. 493 which provides:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

In the instant case, the two acts of distribution of heroin charged in the indictment were connected together and constituted parts of a common scheme or plan on defendant’s part to sell to Officer Taplin four bundles of heroin at an agreed price of $600. The two offenses constituted violations of the same statute (La.R.S. 40:966) which provides for a mandatory punishment of life imprisonment at hard labor; hence, each offense was triable before a jury of twelve persons, ten of whom must concur to render a verdict. Accordingly, the offenses joined were triable by the same mode of trial. In view of the foregoing, the two offenses were properly joined in the same indictment. The trial judge did not err in denying defendant’s motion to quash the indictment.

When an accused has been charged in the same indictment with two or more offenses pursuant to La.Code Crim.P. art. 493, he may apply for a severance of offenses under La.Code Crim.P. art. 495.1 which provides:

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.

Where the offenses joined are connected with or constitute parts of a common scheme or plan, the critical question which must be determined by the trial judge presented with a motion for severance of offenses is 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. La.Code Crim.P. art. 495.1; State v. Proctor, 354 So.2d 488 (La.1977).

In the case before us, defendant was charged in the same indictment with distribution of heroin on two separate occasions. The two acts of distribution were similar in nature in that in each instance the distribution was made to the same individual, Officer Taplin, at defendant’s home within a period of approximately twenty-four hours of each other as part of a scheme to sell to the individual a total of four bundles of heroin at an agreed price. The evidence adduced by the state to establish defendant’s participation in the offenses consisted primarily of the testimony of Officer Taplin and members of the surveillance team who witnessed the acts of distribution. Their testimony was presented in a clear and concise manner. Moreover, since the charges were for a violation of the same statute (La.R.S. 40:966), there should have been no confusion in the application of the law to the offenses. Under these circumstances, we find that the non-complex nature of the evidence and the singularity of the applicable law rendered the case appropriate for trial in a joined situation. We, therefore, conclude that in this case 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. La.Code Crim.P. art. 495.1; State v. Proctor, supra. Accordingly, the trial judge did not err in denying defendant’s pretrial motion for a severance of offenses.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OP ERROR NO. 3

Defendant contends the trial judge erred in denying ,his challenge for cause of prospective juror H. S. Darby. He argues that the prospective juror was not impartial.

On voir dire examination, Mr. Darby testified that, because he had served on a jury in a similar case on the previous day which case lasted until the early evening hours, he might find it difficult to give his undivided attention to the instant case. However, he stated that he would try and, upon questioning by the court, stated that he would give defendant a fair trial and would require the state to prove every element of the offenses charged before finding defendant guilty. Mr. Darby was then questioned by defense counsel as to whether, because of his prior jury service in a similar case, he had formed a predisposition as to these types of cases. The prospective juror, although at first expressing an uncertainty in the event Officer Taplin was involved since he was the undercover agent in the prior case and his testimony had been very convincing, concluded that he first would have to hear evidence presented at trial in deciding defendant’s guilt or innocence. Defendant’s challenge of Mr. Darby for cause was denied by the trial judge. Thereafter, defendant exercised a peremptory challenge against Mr. Darby and exhausted his peremptory challenges before the completion of the jury panel. La.Code Crim.P. art. 800.

La.Code Crim.P. art. 797 provides in relevant part:

The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;

This court has repeatedly held that the trial judge is vested with broad discretion in ruling on challenges for cause, and only where it appears, upon review of the voir dire examination as a whole, that the judge’s exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused, will this court reverse the ruling of the trial judge. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Passman, 345 So.2d 874 (La.1977); State v. Weathers, 320 So.2d 895 (La.1975).

The fact that Mr. Darby had served on a jury in another case in which Officer Taplin had testified and had considered his testimony in that case to have been convincing does not of itself make him partial. During voir dire examination, the prospective juror indicated that, although he had found Officer Taplin’s testimony to have been convincing in the prior case, he would decide defendant’s guilt or innocence in the instant case based on the evidence presented at trial. Furthermore, he stated that he would give defendant a fair trial and would require the state to prove every element of the offenses charged before finding defendant guilty. We are satisfied that Mr. Darby’s testimony on voir dire examination, taken as a whole, demonstrates that the trial judge did not abuse his discretion in denying defendant’s challenge for cause of this prospective juror.

Assignment of Error No. 3 lacks merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in sustaining the state’s challenge for cause of prospective juror Lillie B. DeLavallade.

During voir dire examination, Mrs. DeLa-vallade testified that her son had been charged with a drug-related offense based on information supplied by an undercover narcotics agent who testified against her son at trial. Her son was subsequently acquitted. Based on this personal experience with undercover narcotics agents, the prospective juror emphatically stated that, if an undercover agent was called as a witness in the instant case, under no circumstances would she believe his testimony. The trial judge excused the prospective jur- or for cause.

As previously stated, La.Code Crim.P. art. 797 provides that the state or defendant may challenge a prospective jur- or for cause on the ground that “[t]he juror is not impartial, whatever the cause of his partiality.” The trial judge is vested with wide discretion in determining the qualifications of jurors to serve at a trial and his ruling will not be disturbed on appeal absent a clear showing of abuse of discretion. State v. George, 346 So.2d 694 (La.1977). In view of the testimony of Mrs. DeLaval-lade on voir dire examination that under no circumstances would she believe the testimony of an undercover narcotics agent, we are satisfied that the trial judge did not abuse his discretion in sustaining the state’s challenge for cause of this prospective jur- or.

Furthermore, the record reveals that the state used only five of the twelve peremptory challenges allowed by law under the provisions of La.Code Crim.P. art. 799. Hence, even had we determined that the trial judge improperly sustained the state’s challenge, defendant would be entitled to no relief. It is well settled that the erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law. La.Code Crim.P. art. 800; State v. George, supra; State v. Ross, 343 So.2d 722 (La.1977); State v. Skelton, 340 So.2d 256 (La.1976).

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in permitting the state, over defense objection, to advert in its opening statement to statements made by defendant to Officer Taplin in arranging for the sale of heroin to the undercover narcotics agent. He argues that these conversations were inculpatory statements which the state was prohibited by law from referring to in its opening statement and which could not be admitted in evidence without prior written notice.

La.Code Crim.P. arts. 767 and 768 provide:

Art 767:
The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant.
Art. 768:
If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

As used in the above provisions, the term “inculpatory statement” refers to the out-of-court admission of incriminating facts made by a defendant after the crime has been committed. It relates to past events. State v. Miles, 339 So.2d 735 (La.1976); State v. Brumfield, 329 So.2d 181 (La.1976); State v. Williams, 326 So.2d 815 (La.1976); State v. Wells, 306 So.2d 695 (La.1975); State v. Crockett, 262 La. 197, 263 So.2d 6 (1972); State v. Fink, 255 La. 385, 231 So.2d 360 (1970).

In the instant case, Officer Taplin had been informed by defendant shortly before the commission of the crimes to call on him if the undercover agent ever wished to purchase heroin. Pursuant to this offer, Taplin made arrangements to purchase heroin from defendant. The out-of-court utterances made by defendant to the undercover agent occurred either prior to the commission of the offenses or as an incident to the criminal conduct and, therefore, were part of the res gestae. Since the statements were made by the defendant before or at the time the crimes were committed, they were not inculpatory statements and, hence, were not subject to the rules relating to inculpatory statements set forth in La.Code Crim.P. arts. 767 and 768.

Assignment of Error No. 5 is without merit.

DECREE

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

      . Defendant has neither briefed nor argued Assignments of Error Nos. 2 and 6 through 23. Hence, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . Since this is not a case which involves the joinder of offenses of the “same or similar character,” the severance issue in this case raises none of the issues raised in State v. Carter, 352 So.2d 607 (La.1977). State v. Proctor, 354 So.2d 488 (La.1977).


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Joseph STOLTZ, Appellant.
    No. 60926.
    Supreme Court of Louisiana.
    May 22, 1978.
    Michael F. Barry, New Orleans, for appellant. 1
    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 was convicted of gambling, La.R.S. 14:90, and sentenced to pay a fine of $450. His appeal to this court relies upon seven assignments of error.

Of these assignments, only Assignments 2 and 5 require comment. By them, the accused contends that a police witness improperly referred to items found in a search.' The defendant’s motion to suppress evidence seized in the search had earlier been declared moot, upon the state’s representation that it did not intend to introduce into evidence the objects seized in the search.

Whatever merit there may be to the defendant’s contention as stated on appeal, the defendant did not object on this basis to the policeman’s testimony at the trial.

The officer testified without objection to the forcible entry pursuant to a search warrant. However, when he testified that “we found small slips of paper, about three or four of them that had race horse wagers on it,” the defendant objected on the sole ground that it was “a conclusion as to whether it was race horse wagers on them.”

By examination as to his experience as a vice crime officer, the police witness was then qualified as an expert “qualified to say whether they were race bets or not.” We find no abuse of the trial court’s wide discretion in so qualifying this expert in this non-jury trial. La.R.S. 15:466; State v. Marks, 337 So.2d 1177 (1976); State v. DiVincenti, 232 La. 13, 93 So.2d 676 (1957).

Further, since this was the sole basis of the objection at the trial, the additional basis of objection now for the first time urged on appeal (i. e., that the reference to objects seized in the search was improper because of the disposition of the motion to suppress) cannot be considered on review. La.C.Cr.P. art. 841.

The other assignments are without merit. Assignment 1 concerns a failure to disclose evidence requested in a bill of particulars, which the state was not then required to furnish. Assignments 3 and 4 concern clearly correct evidentiary rulings. Since there was some evidence that the gambling was conducted as a business, Assignments 6 (failure to grant a directed motion of acquittal) and 7 (failure to grant a new trial) do not present reversible error.

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

      . The defendant was sentenced, and an appeal was taken by him, prior to the effective date of the Louisiana Constitution of 1974, by which appellate jurisdiction of misdemeanors was limited to instances where a fine exceeding $500 (or imprisonment exceeding six months) is actually imposed. Article V, Section 5(D)(2). Accordingly, his appeal from the $450 fine, which was properly taken under La.Const. of 1921, Art. VII, Section 10(5) (appealable where a fine exceeding $300 is imposed) is unaffected by adoption of the new constitution. (La. Const, of 1974, Art. XIV, Section 23).


author: DIXON, Justice.

text:
    STATE of Louisiana v. Clark E. COLVIN, Jr.
    No. 60940.
    Supreme Court of Louisiana.
    May 22, 1978.

      Robert P. McLeod, Law Offices of Robert P. McLeod, Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Charles D. Jones, Asst. Dist. Atty., for plaintiff-respondent.
   DIXON, Justice.

Between 8:00 and 10:00 a. m. on July 13, 1977 Sergeant Neil Wellbrink of the Oua-chita Parish sheriff’s office received a telephone call from a confidential informant whose information had led to at least one arrest and conviction in the past. The informant told Sergeant Wellbrink that he had seen a quantity of marijuana concealed in the glove compartment of Clark Colvin’s car within the preceding twenty-four hours. The informant described the car (information already in possession of the sergeant) and told the sergeant that Colvin would be driving along a certain route later that afternoon as he returned home from work. Three to four hours after receiving the call, Sergeant Wellbrink drove to the road on which, according to the informant, the defendant would be traveling. After a wait of twenty-five minutes the defendant appeared, driving the car described by the informant. Sergeant Wellbrink followed the defendant for ten to fifteen miles, called for assistance of other officers, stopped the defendant and searched his ear. The search resulted in the seizure of approximately twenty-five grams (less than an ounce) of marijuana from the glove compartment.

Defendant was arrested and charged by bill of information with possession of marijuana. A motion to suppress the marijuana was filed by the defendant and, after a hearing, was denied by the trial court. Defendant was tried before a judge, found guilty of possession of marijuana, and sentenced to pay a fine of $300.00 and court costs. We granted defendant’s application for writs in order to review the constitutionality of the warrantless search and seizure.

Under the Fourth Amendment of the United States Constitution and Art. 1, § 5 of the Louisiana Constitution of 1974, warrantless searches or seizures, absent the applicability of one of the well delineated exceptions, are in themselves unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Parker, 355 So.2d 900 (La.1978). In the recent case of State v. Parker, supra, we had occasion to discuss the so-called “automobile exception” to the warrant requirement. We stated:

“. . . the citizen’s interest in the privacy of his automobile, because of the nature of the device, is less than his interest in the privacy of his home or other structure. Accordingly, the Fourth Amendment does not afford as great a degree of protection to that interest. But the automobile is not entirely without the protection of the Fourth Amendment. While there are numerous cases upholding the validity of warrantless searches and seizures of automobiles, in each case there existed interests superior to those of the citizen, whether they be ‘exigent circumstances’ or the police interest in protection through inventory. Additionally, in each case, the initial intrusion into the protected area was justified by those interests. Therefore, it is clear that probable cause alone is not sufficient to justify a warrantless search or seizure, even where the object to be searched or seized is an automobile.” 355 So.2d at 906.

The existence of probable cause to search in the present case is not seriously disputed. The officer received a telephone call on the day of the search from a confidential informant whose reliability had been established by the accuracy of his past reports. The informant said that he had personally seen the marijuana in the defendant’s car within the preceding twenty-four hours and described the car in such detail as to include the license number and model. He told the officer that the defendant would be returning from work that afternoon along a certain route at a certain time.

The defendant argues, however, that the officer’s failure to obtain a search warrant was not justified and therefore the evidence should have been suppressed. The State argues that the circumstances surrounding the case made it impracticable to obtain a search warrant and therefore the warrant-less search and seizure were justified by the exigent circumstances.

Where the facts necessary to establish probable cause are known to the police, their failure to secure a search warrant may be justified only where circumstances make the obtaining of the warrant impracticable. State v. Williams, 347 So.2d 231 (La.1977); State v. Hearn, 340 So.2d 1365 (La.1976).

The State primarily relies upon the relatively short period, approximately four hours, separating the reception of the informant’s tip and the time at which the defendant was expected, as justification for the failure to obtain a search warrant. In support of its argument the State cites State v. Hearn, supra, and State v. Tant, 287 So.2d 458 (La.1973), in which delays of four hours and twenty-four hours, respectively, were held not to have invalidated the searches. An examination of those cases reveals that they are distinguishable from the instant case.

In State v. Hearn, supra, an officer from the Louisiana State Police received information from a reliable confidential informant to the effect that he had seen Robert Hearn in Lincoln Parish with a quantity of marijuana in a Dodge van and that Hearn and John Pruett made frequent trips from their home in Dallas, Texas to Lincoln Parish for the purpose of selling marijuana. Officers of the State Police then went to Dallas to establish a surveillance of defendants’ activities. There they saw that the van was being prepared for a trip and, later, saw the van leave Dallas on the Interstate Highway, headed for Louisiana. The officers, in combination with other Louisiana State Police troopers, followed the van until it entered Lincoln Parish. The van was stopped and searched a short time after it entered the parish. In discussing the legality of the warrantless search, we noted that:

“. . . Although probable cause need not arise ‘coincidentally with the occurrence of the exigent or unforeseeable circumstance,’ State v. Tant, 287 So.2d 458, 460, the facts which are alleged to constitute ‘exigent circumstances’ should not be considered as such if they are of a continuing nature giving ample opportunity for the law enforcement personnel to seek a neutral magistrate’s judgment as to the existence of probable cause.
However, the facts adduced at the motion to suppress reveal that during the four hour interval between the van’s departure from Dallas until it was searched it was not practicable for the police officers to secure a warrant. There was evidence that the police reasonably thought probable cause might not have been established until the informant’s tip was confirmed by the vehicle’s entry into its reported destination, Lincoln Parish. Although a number of police officers were utilized to carry out the surveillance of the van from Dallas to Lincoln Parish, the surveillance was not shown to have been a well organized, supervised and synchronized operation, as some officers along the route only had a portion of the information about the case. Finally, Trooper Payne had the information which would have to be conveyed via an affidavit to a magistrate in order to get a search warrant. However, Trooper Payne was an integral part of the surveillance operation following the van from Dallas and he did not have adequate time during the short four hour delay to secure a warrant. Although the vehicles involved had radios they were not compatible, and communications were imperfect. Under these circumstances the police acted reasonably, and, at the time the vehicle was searched, there existed both probable cause to search and exigent circumstances making the securing of a search warrant impracticable.” 340 So.2d at 1368.

In State v. Tant, supra, a deputy sheriff received information from a confidential informant which, in the deputy’s opinion, was sufficient to obtain a warrant for the search of defendant Carolyn Moffet’s automobile. Instead of immediately securing a warrant, however, the officer chose to place the car under surveillance. The surveillance had been conducted intermittently for nearly twenty-four hours when the defendants filled the car with gasoline and headed out on the Interstate, apparently with the intention of going on a trip. Fearful that the defendants would escape their jurisdiction, the officers stopped the car approximately four miles from the parish boundary and conducted a search. The defendants argued that the delay of nearly twenty-four hours could not be justified and that the officers should have procured a warrant for the search of the car. We rejected the argument, stating:

“The only pertinence, to the issue at hand, of delay in the procurement of a warrant is that it would be a violation of constitutional rights if a police officer deliberately set up a motor vehicle surveillance awaiting an ‘exigent circumstance’ for warrantless search in order to circumvent the requirement that an impartial magistrate pass upon the probable cause.
Here, only twenty-four hours elapsed from the time the police were told that the defendants’ vehicle contained drugs and the search. It is not unreasonable, and accordingly it is permissible for police to exercise discretion in not immediately obtaining a search warrant in numerous hypothetical circumstances among which is the effort to uncover further violations of the law. This is in keeping with the general aims and needs of law enforcement. Furthermore, by purposely imposing this restraint, the police afford themselves more time to gather information with which to convince an impartial magistrate that a search warrant should issue. Under the facts of this case a delay of 24 hours is neither unreasonable nor indicative of improper motive. . . . ” 287 So.2d at 461.

In both of the above cases there existed a reasonable justification for the failure to obtain a warrant during the delay: in Hearn, the delay was consumed in following the defendants to Lincoln Parish, and in Tant the delay was caused by the reasonable police practice of surveillance for the purpose of catching other offenders.

No such justification is present in the instant case. Sergeant Wellbrink stated at the hearing on the motion to suppress that it would have been possible to obtain a warrant during the four hour delay; When asked why he failed to do so, he stated:

“Well, I didn’t know that a search was to be made. I was going to see if the vehicle was there. Also, the description and all that I had, the time being limited, I didn’t know how the subject would be travelling or if he would be travelling with someone.”

Thus, the only additional information which the sergeant hoped to gain through the delay was confirmation of facts peripheral to the essential facts establishing probable cause, i. e., that the car contained marijuana. It is clear from the sergeant’s testimony and from the sequence of events leading to the warrantless search that he fully intended to search the car if it appeared with the defendant driving. Presumably, the information about the contraband in the vehicle would have been valid, regardless of where the car was found.

We find that no exigent circumstances justifying the failure to obtain a warrant during the four hour delay existed. Police may not circumvent the warrant requirement by sitting on cases until exigent circumstances arise.

Accordingly, the defendant’s conviction is reversed and the sentence set aside. The evidence seized is ordered suppressed, and the case remanded for further proceedings consistent with the views expressed herein.

      . The defendant also argues that his constitutional rights were violated by an alleged unauthorized entry into his car by the informant. While Art. 1, § 5, La.Const. of 1974 may well extend to searches by private individuals (see State v. Hutchinson, 349 So.2d 1252 (La.1977), we need not decide the case on this ground and pretermit discussion.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Willie D. DILWORTH.
    No. 60946.
    Supreme Court of Louisiana.
    May 22, 1978.

      W. Donald Cashio, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Willie Dilworth with theft of an iron fence valued at $300 and receiving stolen goods, violations of LSA-R.S. 14:67 and 69. After trial, the jury found defendant guilty of theft of property valued at $200. The State thereafter charged the defendant as a multiple offender, a violation of LSA-R.S. 15:529.1. After adjudicating the defendant a triple offender, the court sentenced defendant to four years at hard labor. Defendant appeals his convictions and sentence, relying upon four assignments of error.

The context facts are that:

On May 20,1974, Willie Dilworth stole an iron fence belonging to Mr. and Mrs. David Kleck from its location on Louisiana Avenue. About one month later, Mrs. Kleck found part of the fence at a store specializing in. antique architectural fixtures. The owner of the store, Mr. Laan, had purchased thirty-one feet of the stolen fence from Dilworth on May 28.

ASSIGNMENT OF ERROR NO. 1

In Assignment of Error No. 1, defendant complains of the trial court’s admission into evidence of a photograph of the stolen fence. Defendant objected on the basis that the best evidence is the fence itself.

The best evidence rule is contained in LSA-R.S. 15:436, which provides:

“The best evidence which from the nature of the case must be supposed to exist, and which is within a party’s control, must be produced.”

Where this same objection was raised in State v. Bennett, La., 341 So.2d 847 (1976), we stated: ,

“Even assuming that the best evidence rule should and does apply to real evidence, this assignment does not present reversible error. Defendant has simply not shown how the defense was impaired by the introduction of the picture of the watch as opposing to the watch itself. Absent a showing of some prejudice to the defendant, the ‘best evidence’ rule will not be applied unreasonably. See State v. Fallon, 290 So.2d 273, 290 (La.1974).”

In the instant case, the stolen fence is a four foot high pike wrought iron fence. The recovered portion of the fence is thirty-one feet long. Defendant has made nq showing that he was prejudiced by the introduction of the picture of the fence, rather than the fence, itself. It is obvious that it would be impractical to introduce the fence into evidence. Therefore, we conclude that the photograph of the fence was admissible. State v. Bennett, supra; State v. McQueen, La., 278 So.2d 114 (1973), overruled on other grounds, State v. Searle, La., 339 So.2d 1194 (1976). See also State v. Williams, La., 309 So.2d 303 (1975).

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

In Assignment of Error No. 2, defendant complains of the trial court’s admitting photographs marked S-8 into evidence over his objection that the photographs had been altered.

The objectionable alteration consisted of a cardboard backing placed on the back of four of the five identification photographs which the police showed Mr. Laan and from which he identified the defendant. The purpose of the alteration of the photographs was to obscure the markings which indicated that the photographs were “mug” shots.

Obviously this alteration was made to protect the defendant from undue prejudice which might result from a juror’s associating the defendant’s picture marked as a “mug” shot and the defendant as a criminal with a previous record. There was no alteration of the face of the photograph. This change could have had no prejudicial effect.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

In this assignment, defendant complains of the trial court’s overruling of his objection to the testimony of Mr. Kleck, Mrs. Kleck, and Mr. Laan regarding the value of the fence. Defendant argues that because the witnesses were not qualified as experts, the court should not have allowed them to testify as to the value of the fence.

This assignment is significant because the statute under which the defendant is charged, LSA-R.S. 14:67, provides increased penalties for theft of things valued at more than certain amounts. The State must prove the value of the stolen property. Upon this proof depends the determination of the severity of the offense, and the punishment for a convicted offender.

The State produced evidence that the thirty-one feet of wrought iron fence stolen from the Klecks was purchased by Mr. Laan, the owner of a store dealing in architectural details. He purchased it from Willie Dilworth at $1.50 per foot. Mr. Laan then offered the fence for sale at $7.00 per foot. The Klecks had attempted to find a replacement fence of the same kind and description, but had been unsuccessful. Therefore, they had planned to have a replacement made at a cost of $800. However, when Mrs. Kleck found the fence at Mr. Laan’s store, she could have purchased the thirty-one foot segment of the fence (approximately one-half of the entire length of the fence stolen) for $210. Thus, there is ample evidence that the item stolen was valued at over $100.

In State v. McCray, La., 305 So.2d 433 (1974), we stated:

“Unless it is shown the owner lacks knowledge of the value of a movable [furniture], his testimony as to value is generally admissible, with its weight being left to the jury. 3 Wigmore on Evidence, Section 716 (Chadbourn ed., 1970).”

As expressed in 3 Wigmore on Evidence, Section 716 (Chadbourn ed., 1970), the rule concerning the ability of the owner to place a value upon his movable property is:

“The owner of an article, whether he is generally familiar with such values or not, ought certainly to be allowed to estimate its worth; the weight of his testimony (which often would be trifling) may be left to the jury; and courts have usually made no objections to this policy.
“However, where it appears (either expressly or by reasonable inference) that the owner in fact lacks knowledge of the particular value at issue, his opinion may be ruled inadmissible.”

In the instant case, Mr. and Mrs. Kleck did not testify that they lacked knowledge of the value. The owners testified only that they were not experts in wrought iron fences. Both dealt with renovation of old residences and had particular interest in antique fixtures. It is not necessary that an owner be qualified as an expert in order to testify as to the value of the thing owned by him. Here the owner was not shown to lack knowledge of the value of the thing stolen. Thus, the owners’ testimony as to the value of the fence was properly admitted over his objection that they were not experts. State v. Curtis, La., 319 So.2d 434 (1975); State v. McCray, supra.

Regarding the defendant’s objection to Mr. Laan’s testifying to the value of the fence, we note that the defendant did not timely object to this testimony. Under LSA-C.Cr.P. Art. 841, his objection is, therefore, waived.

Regardless, Mr. Laan testified only that he “had a price tag of $7.00 per foot on it.” The owner of a store specializing in antique architectural details is certainly qualified to testify to the price at which he offered the fence for sale. His testimony is both relevant and admissible.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

In Assignment of Error No. 4, defendant complains that the court erred in permitting Mr. and Mrs. Kleck to “testify as to the value of the fence or a replacement thereof, which estimate was made by a third party who was not sworn and did not take the' stand and whose qualifications were not subjected to cross-examination.”

As defendant did not make timely objections to the testimony as hearsay, he is precluded from now objecting on that basis. LSA-C.Cr.P. Art. 841.

Assignment of Error No. 4 is without merit.

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

      . LSA-R.S. 14:67 provides as follows:
      “Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
      “Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.
      “When the misappropriation or taking amounts to a value of one hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.
      “When the misappropriation or taking amounts to less than a value of one hundred dollars, the offender shall be imprisoned for not more than six months, or may be fined not more than five hundred dollars, or both. If the offender in such cases has been convicted of theft two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than one thousand dollars, or both.
      “When there has been a misappropriation or taking by a number of distinct acts of the offender, the aggregate of the amount of the misappropriations or takings shall determine the grade of the offense.” [Emphasis added.]


author: TATE, Justice. SUMMERS, Justice

text:
    STATE of Louisiana, Respondent, v. Donald R. JONES, Relator.
    No. 60955.
    Supreme Court of Louisiana.
    May 22, 1978.
    Dissenting Opinion June 1, 1978.

      Kenneth D. McCoy, Jr., Whitehead & McCoy, Natchitoches, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Andrew S. Vallien, Asst. Dist. Atty., for respondent.
   TATE, Justice.

The defendant Jones was convicted of possession of marijuana, La.R.S. 40:966(C), fined $500, and sentenced to six months imprisonment. We granted certiorari, 351 So.2d 1213 (1977), because we believed that, on the showing made, the defendant was convicted on the basis of evidence seized as a result of an unlawful entry into and search of the apartment in which the defendant, his wife, and his two children lived. His motion to suppress evidence so seized was denied by the trial court.

The facts of the entry and search are as follows:

At about 7:00 p. m. the city police received a complaint of loud music in a ground floor apartment of the College Man- or Apartments. Two policemen went to the door of the apartment, accompanied as backup by a third officer with a canine.

A policeman knocked on the door. The defendant Jones opened it, and the policeman asked him to turn the music down. Jones closed the door and turned the music down. When he reopened it a crack, an officer put his foot in the door, and the officers forced their way in.

The policemen testified that they did so because they smelled marijuana smoke. They saw in the ashtray what they thought were (cold) stubs of marijuana cigarettes.

In the darkened living room, five young men were sitting listening to the music. Jones’ wife and two children were in the adjacent bedrooms.

The policemen sent for a narcotics officer. On the basis of their report, the latter executed an affidavit and secured a search warrant. However, since (for reasons to be stated) we find there was no initial probable cause for the warrantless entry into the apartment, the evidence seized pursuant to the warrant should have been suppressed: The affidavit and the warrant itself were based upon the product of an illegal invasion of a home without probable cause. State v. Kuhlman, 293 So.2d 159 (La.1974).

Essentially, the officers burst into this residential apartment because (they said) they smelled an odor which resembled marijuana smoke. The search warrant was secured on this basis, and because, after entry of the officers, they saw in the ashtrays what they believed to be marijuana roaches.

However, subsequent laboratory analysis did not identify the burnt cigarettes as containing marijuana. The cigarettes themselves were cold, when the officers burst in, seconds after they thought they smelled the odor. They found no substance or cigarette burning or warm anywhere in the apartment (although they thought the marijuana smell came from the cold butts in the ash- , trays).

In our opinion, the evidence proves beyond reasonable dispute that the odor, if any, smelled by the officers could not have been marijuana. It is apparent that, if indeed there was an odor, it resulted from some other source than any marijuana smoked in the apartment. Thus, in fact no actual probable cause existed for the police to invade this residential apartment, without a warrant as done (or even with a warrant).

In summary, probable cause for a forcible entry into a residential apartment is not supplied by the invading officers’ smelling non-existent marijuana smoke. Merely imagined smells cannot supply such cause to invade the sanctity of a home. Imagined facts based upon mere suspicion, like mere suspicion itself, cannot suffice as probable cause to do so.

To permit governmental agents to search on such a basis would undermine the right of individuals guaranteed by our state constitution “shall be secure . . . against unreasonable searches, seizures, or invasions of privacy.” La.Const. of 1974, Art. 1, Section 5. The constitutional sanctity of a home against unreasonable government intrusion should not depend on the unfounded imagination of police officers, or the potential for fabrication that thereby would result.

Further, no exigent circumstances are shown for these police officers to burst into the apartment without a warrant, even though there had been probable cause. As we reiterated in State v. Kuhlman, 293 So.2d 159, 161 (La.1974): “ ‘The search of a home without a warrant is banned notwithstanding probable cause to believe that it contains contraband or other seizable articles. Such a search, moreover, is not validated by what it brings to light. The tradition of time immemorial sustains this firm constitutional policy protecting the privacy of the home.’ ”

DECREE

Accordingly, the denial of the motion to suppress is overruled, and the conviction and sentence are reversed; the case is remanded for a new trial in accordance with law.

Reversed and remanded.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

Defendant Donald R. Jones was charged by bill of information, tried and found guilty of possession of marijuana. La.Rev. Stats. 40:966(C). He was sentenced to pay a fine of $500 and costs and to serve six months in jail, the jail sentence to be suspended and defendant to be placed on supervised probation upon payment of the fine and costs.

Certiorari was granted on defendant’s application.

In the beginning of the trial, after a colloquy between counsel and the trial judge, the judge concluded that the testimony of the criminologist was to the effect that certain items which were not suppressed were identified as a dangerous substance, marijuana. No objection was made to this finding. Thereafter the trial proceeded. The State’s witnesses testified, and at the close of the State’s case the defense moved for a judgment of acquittal, on the basis that the State had not introduced the marijuana in evidence. The motion was denied. No evidence was presented on behalf of the defendant.

According to the trial testimony of Officers Dyson and Spencer of the Natchitoches City Police, on November 30, 1975 they were together on patrol in a marked patrol car. A radio call received from headquarters instructed them to investigate a complaint at the College Manor Apartment. Five minutes later they arrived at the apartment of the complainant. He invited them in and complained that loud music was disturbing him and his wife. Loud music from the apartment below could be heard by the officers, and they advised the complainant that they would go there and ask the occupants to turn the music down.

Officers Dyson and Spencer then approached the downstairs apartment and knocked at the door where the loud music was heard. Defendant Jones came to the door and opened it four or five inches. Dyson asked him if he would mind turning the music down and advised that they would like to talk to him, whereupon Jones shut the door. By knowing glances the officers both indicated that the smell of marijuana smoke was coming from the room — “an odor of marijuana coming from the apartment.” Shortly thereafter the sound of music was lowered and Jones returned to the door, opened it about six inches and tried to shut it again. Dyson then pushed the door open and the officer walked into the apartment. They were followed by Officer Beal, their back-up. There were five people in the dark, smoke-filled room. The officers shined their flashlights, Dyson directing his to a coffee table where he observed numerous marijuana seeds and remnants of a marijuana cigarette in an ashtray, while Spencer shined his light on the room’s occupants.

Occupants of the room were told to remain seated and Officer Dyson telephoned Detectives Silvie and Dove who hurried to the scene and took over the investigation.

Detective Silvie had been at the police station and heard the complaint and the radio operator’s call dispatching Officers Dyson and Spencer to the apartment house. When Silvie was called to the scene he entered the dimly lighted apartment where the music was playing and the officers still had their flashlights on. Officer Dyson ■ pointed out the substance on the coffee table which appeared to Silvie to be gleanings of marijuana, a burned roach.

Detective Silvie then read the Miranda warning to the five occupants of the room. Having been informed that the apartment belonged to Jones, he asked Jones to step outside where he inquired if Jones would consent to a search of his apartment. After he thought awhile, Jones answered he would not consent to a search. Silvie then prepared an affidavit to serve as an application for a search warrant, sought out the District Judge, signed the affidavit in his presence and obtained a search warrant. He then returned to Jones’ apartment with the warrant. In the meantime Officers Dyson and Spencer had secured the scene of the investigation.

After displaying the warrant to Jones the officers conducted a search of the apartment. The substance on the coffee table and in the ashtray was collected. From a jacket hanging on the back of a chair occupied by one of the suspects two plastic bags of suspected marijuana were obtained. Another plastic bag of suspected marijuana and rolled cigarettes were found at the bottom of a trash container. The seized material was brought to the police station by Detective Silvie who marked it and delivered it to the crime lab.

Insofar as this dissent is concerned, the defense asks: Can a police officer’s mistaken belief that marijuana smoke is present constitute probable cause to justify war-rantless entry into a residence?

During presentation of the State’s evidence the trial judge ruled that Officer Dyson could testify that the substance observed by him on the coffee table was marijuana. “It is what he may, because of his training, suspect,” the judge ruled. “. . .1 would say probable cause had already developed, because he smelled what he recognized as marijuana.”

Although Dyson admitted on cross-examination having heard the criminalist testify that she was unable to detect any evidence of marijuana from the contents of the ash tray, he would not concede that he was wrong about what he thought was in the ash tray. He stated that because of a defense objection the criminalist did not have a chance to explain her statement relating to the contents of marijuana in the seeds. The trial judge then ruled that his recollection of the testimony given by the criminalist was that the seed was not live seed subject to germination, and therefore, no report could be made. He ruled that probable cause for the entry was established when the officers smelled marijuana smoke, and the question then became one of possession.

Officer Spencer also testified that he thought that the smoke which filtered through the partly open door was marijuana smoke. Although he had received no special instruction in detecting marijuana, he had “been around a lot of it” when he was overseas, where “they grew it . like wild.” He testified, “I know what it is.” Both officers had had occasion in their police duties to participate in investigations which involved suspected marijuana.

Smell is, of course, an important sense, commonly employed by laymen to identify substances. Often the sense of smell is as reliable, if not more so, than the sense of sight or touch. This much is common knowledge. The odors of marijuana and opium have served as the principal factors establishing probable cause to arrest in a number of cases. United States v. Miramontes, 494 F.2d 808 (9th Cir. 1974); United States v. Ogden, 485 F.2d 536 (9th Cir. 1973), cert. denied, 416 U.S. 987, 94 S.Ct. 2392, 40 L.Ed.2d 764 (1974); United States v. Troise, 483 F.2d 615 (5th Cir. 1973); cert. denied, 414 U.S. 1066, 94 S.Ct. 574, 38 L.Ed.2d 471; Hernandez v. United States, 353 F.2d 624 (9th Cir. 1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1972, 16 L.Ed.2d 1021 (1966); United States v. Fischer, 38 F.2d 830 (3rd Cir. 1930). Detection of drugs by dogs was a sufficient basis for an arrest in United States v. Venema, 563 F.2d 1003 (10th Cir. 1977).

It is evident from this record that the trial judge was impressed with the sincerity of Officers Dyson and Spencer and with their knowledge of, and experience with, marijuana. Their unqualified statement that they smelled marijuana was direct evidence that a dangerous drug was in the apartment. These factors, combined with the Jones’ actions in attempting to close the door, the loud music and dimly lighted room, and the delay in opening the closed door, furnished the ingredients of probable cause which satisfied the trial judge that the officers were justified in entering the apartment to prevent destruction of the marijuana and to search for the cause of the smoke.

These facts and circumstances were sufficient to warrant a reasonably prudent man to believe that marijuana was present in Jones’ apartment. The reasonableness of the attitude of the officers was further manifested by their refusal after entry to seize what they believed to be marijuana in plain view or to press for a more extensive search without a search warrant.

In resolving this question I am guided by settled standards recognized by adjudications of our highest courts relating to search and seizure under both State and Federal Constitutions.

An officer may break and enter with or without a warrant to arrest if he in good faith believes that evidence is threatened with destruction or removal. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); State v. Tarver, 324 So.2d 382 (La.1975).

Louisiana’s standard is set by the legislature. Article 213 of the Code of Criminal Procedure permits an arrest by a peace officer without a warrant when the peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in his presence. This standard is compatible with Federal standards.

The probable cause the law requires for the issuance of a search warrant under the Fourth Amendment is determined by the same standards applicable to probable cause for an arrest. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).

Reasonable cause — or “probable cause”, as it is termed under the federal standard— to make an arrest without a warrant exists when the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonable trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that an offense has been or is being committed. U.S. Const. Amend. 4; La.Const. art. I, § 5; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); State v. Marks, 337 So.2d 1177 (La.1976); State v. Johnson, 249 La. 950, 192 So.2d 135 (1966); State v. Green, 244 La. 80, 150 So.2d 571 (1963); State v. Aias, 243 La. 945, 149 So.2d 400 (1963); State v. Calascione, 243 La. 993, 149 So.2d 417 (1963).

Compliance with these standards is, in the first instance, a substantive determination to be made by the trial court 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. McIlvaine, 247 La. 747, 174 So.2d 515 (1965).

And in determining compliance with these standards it is not the proof required for conviction which concerns us. Proof required to satisfy the requirement of reasonable cause or probable cause is less and is what the terms imply: probabilities and practical considerations of everyday life on which reasonable men could reasonably be expected to act. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Bourg, 248 La. 844, 182 So.2d 510 (1966).

A grudging or negative attitude by reviewing courts will tend to discourage police officers from submitting their evidence to a judicial officer before acting. Probable cause must therefore be tested and interpreted by magistrates and courts in a common sense and realistic fashion. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Magistrates should not be confined to niggardly limitations or by restrictions on their common sense. Their determinations of probable cause should be paid great deference by reviewing courts, and the resolution of doubtful or marginal cases should be largely determined by the preference accorded to warrants. State v. Sierra, 338 So.2d 209 (La.1976).

In such cases, because only factual issues are presented by the contentions, the setting in which the arrest took place becomes a factor of prime importance; facts and circumstances known to the arresting officers from which they might draw conclusions warranted by their training and experience becomes the focus of our attention with due allowance for the discretion vested in the trial court.

Based upon these recognized legal standards, and the facts and circumstances of this case, the finding that there was probable cause for the officers to enter Jones’ apartment to arrest him is well-founded.

I would uphold the ruling of the trial judge.

      . As of a result of the consequent painstaking search of the premises, the police found one plastic baggie and two unburned cigarettes of marijuana in the trash containers, and two plastic baggies of marijuana in a blue jean jacket that did not belong to Jones. After Jones was arrested because of the product of this painstaking but illegal search (see text below), gleanings were removed from his clothing, which, upon laboratory analysis, appeared to be marijuana.


author: PER CURIAM.

text:
    STATE of Louisiana v. Charles EDWARDS.
    No. 60957.
    Supreme Court of Louisiana.
    May 22, 1978.
    Loyola Law School Clinic, William J. O’Hara, III, Supervising Atty., New Orleans, Gwendolyn Thompson Robein, Student Practitioner, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Howat A. Peters, Jr., Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Charles Edwards was indicted on September 17, 1975 by the Orleans Parish Grand Jury on three counts of distribution of a controlled dangerous substance, heroin, in violation of R.S. 40:966. -Following a trial by jury defendant was found guilty as charged and was sentenced to life imprisonment at hard labor on each of the three counts. On appeal defendant relies on only one assignment of error but also requests an examination of the record for discoverable errors.

We find no merit in the assignment of error (a request that the jury be instructed on entrapment), and we have found no error discoverable by an inspection of the pleadings and proceedings which would warrant a reversal of defendant’s conviction.

Decree

Accordingly, we affirm defendant’s conviction and sentence.

AFFIRMED.


text:
    STATE of Louisiana v. Bryant M. JACKSON and Don L. Williams.
    No. 61032.
    Supreme Court of Louisiana.
    May 22, 1978.

      Milton P. Masinter, New Orleans, for Don Williams.
    Orleans Indigent Defender Board for Bryant M. Jackson.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Bryant M. Jackson and Don L. Williams were charged in the same information with the crime of simple burglary in violation of La.R.S. 14:62. After a joint trial by jury, defendants were found guilty as charged. After the convictions but prior to sentencing, the district attorney filed an information accusing Jackson of a previous felony conviction under La.R.S. 15:529.1 (Habitual Offender Law). After hearing, the court found Jackson to be an habitual offender and sentenced him to serve eighteen years at hard labor. Williams was sentenced to serve nine years at hard labor.. Credit was given toward service of defendants’ sentences for time spent in actual custody prior to imposition of sentences. On appeal, defendants rely on two assignments of error for reversal of their convictions and sentences. Finding merit to Assignment of Error No. 1, we reverse the convictions and sentences.

In Assignment of Error No. 1, defendants contend the trial judge erred in curtailing their examination of prospective jurors on voir dire. They argue that they were thereby denied their right to full voir dire examination of prospective jurors as guaranteed by the state constitution.

At the commencement of the selection of the jury panel, twelve prospective jurors were called and sworn. Thereafter, the state examined the prospective jurors collectively with reference to the elements of the crime charged, the state’s burden of proving defendants’ guilt beyond a reasonable doubt, any relationship existing between any of the prospective jurors and defendants or counsel for either the state or defendants, and the prospective jurors’ ability to serve in a fair and impartial manner. The panel was next examined collectively by counsel for Williams particularly concerning their attitudes toward the presumption of innocence, what constitutes guilt beyond a reasonable doubt, a defendant’s right not to testify at trial, any affiliation with police organizations on the part of any of the prospective jurors, and their relationships with members of police organizations. Counsel for Williams further questioned the prospective jurors generally as to whether they could render a verdict without fear of criticism, whether they or members of their family had been victims of a simple burglary, and whether they were familiar with the details of the crime charged. Counsel for Jackson also examined the panel. At the conclusion of the examination of these twelve prospective jurors, nine were peremptorily challenged by the state and defendants. Nine additional prospective jurors were then called and sworn. They were questioned collectively by the state on substantially the same matters as the previous panel of prospective jurors. Counsel for Williams then examined them collectively relative to certain matters which had formed the basis for his examination of the first panel of prospective jurors. The trial judge interrupted this examination and the following colloquy occurred between the trial judge and counsel for Williams:

BY THE COURT:
Well, why don’t we do it this way, Mr. Masinter. Ask them if they heard the questions that you asked the other jurors so we don’t have to repeat all of these questions.
BY MR. MASINTER:
Your Honor—
BY THE COURT:
Ask them if their questions would be the same.
BY MR. MASINTER:
Your Honor—
BY THE COURT:
I mean, we got to save time, sir.
BY MR. MASINTER:
But, it doesn’t take that much longer—
BY THE COURT:
Yes, it does.
BY MR. MASINTER:
—to ask just a few questions.
BY THE COURT:

I’m ordering you to do it that way, sir. Counsel for defendant Williams objected to the trial judge’s ruling. Thereafter, he attempted to comply with the ruling but was again warned by the trial judge that he was repeating questions previously asked to the earlier group of prospective jurors. The trial judge then stated: “. . . I’m ordering you not to do it again.” When counsel for Williams reurged his objection, the trial judge replied: “You are wasting time.” The nine prospective jurors were then examined by counsel for Jackson who likewise conformed his method of examination to that ordered by the trial judge. After one juror was excused on a challenge for cause by the state and six others by the exercise of peremptory challenges by the state and defendants, seven additional prospective jurors were called, sworn and examined by the state at which time the trial judge similarly instructed the prosecution to ask the panel if they had heard the questions previously addressed to the first panel of prospective jurors and if their answers would be the same. The prosecutor agreed. The trial judge stated: “Let’s save some time here.” When counsel for Williams began to examine the new panel, the following colloquy occurred between counsel for Williams and the trial judge:

BY MR. MASINTER:
Were you able to hear all the questions I asked who preceded you? Would your answers by substantially the same if those questions were asked of you? Is there—
BY THE COURT:
The people in the back can’t hear you, Mr. Masinter. That is why I’m asking you to talk louder so you don’t have to repeat.
BY MR. MASINTER:
Your Honor, I’m talking to these prospective jurors—
BY THE COURT:
You are talking to everybody in the panel—
BY MR. MASINTER:
Then, I would like—
BY THE COURT:
—so you don’t have to rdpeat. Put the microphone close to you so they can hear you better.
BY MR. MASINTER:
I would like to ask each question individually.
BY THE COURT:
You’re not going to do it.
BY MR. MASINTER:
Please note an assignment of error.
BY THE COURT:
You already took that assignment of error. Why clutter up the record.
BY MR. MASINTER:
I hope not to clutter up the record, Your Honor.
BY THE COURT:
Well, you certainly are.
BY MR. MASINTER:
Well, in my opinion, I’m not—
BY THE COURT:
Proceed, and do as I say.

The remainder of the voir dire examination was conducted as ordered by the trial judge by asking the newly called prospective jurors if they had heard the questions previously asked to the first panel of prospective jurors and if their answers would be the same. This abbreviated method of conducting voir dire examination was continued until a jury of twelve persons was selected.

La.Const. art. 1, § 17 guarantees that “[t]he accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily.” La. Code Crim.P. art. 786 further provides that the court, the state, and the defendant shall have the right to examine prospective jurors and the scope of the examination shall be within the discretion of the court. We have recognized that the purpose of voir dire examination is to determine qualifications of prospective jurors by testing their competency and impartiality. State v. Ford, 349 So.2d 300 (La.1977); State v. Nero, 319 So.2d 303 (La.1975). It is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. State v. Ford, supra; State v. Sheppard, 263 La. 379, 268 So.2d 590 (1972). The scope of voir dire examination is within the sound discretion of the trial judge and his rulings will not be disturbed on appeal in the absence of a clear abuse of discretion. State v. Ford, supra; State v. Clark, 325 So.2d 802 (La.1976). However, although the trial judge is vested with discretion to limit the voir dire examination, he must afford wide latitude to counsel in the conduct of voir dire examination to effectuate the accused’s right to full voir dire of prospective jurors embodied in La.Const. art. 1, § 17. State v. Holmes, 347 So.2d 221 (La.1977); State v. May, 339 So.2d 764 (La.1976). See State v. Monroe, 329 So.2d 193 (La.1976); State v. Brumley, 320 So.2d 129 (La.1975); State v. Crittle, 263 La. 418, 268 So.2d 604 (1972); State v. Hills, 241 La. 345, 129 So.2d 12 (1961). In order to determine whether a trial judge has in fact afforded a sufficiently wide latitude to the defendant in examining prospective jurors, a review of the trial judge’s rulings should be undertaken only on the record of the voir dire examination as a whole. State v. Ford, supra; State v. Roach, 338 So.2d 621 (La.1976); State v. Monroe, supra.

After a review of the record of the voir dire examination, we consider that the trial judge failed to afford sufficiently wide latitude to counsel for defendants in their examination of prospective jurors on voir dire. The record does not reflect that, prior to the commencement of voir dire, the trial judge instructed the prospective jurors that they were to listen carefully to the questions directed by the prosecutor and the defense to the first panel of prospective jurors so that they might later indicate their understanding of those questions. However, despite this lack of instruction, the trial judge ordered defense counsel to limit their examination of subsequently called prospective jurors to matters previously covered on voir dire by questioning the prospective jurors collectively concerning whether they had heard and understood the questions earlier asked. The record does not demonstrate that the prospective jurors, with the exception of those examined to fill the last remaining vacancy on the jury panel, affirmatively indicated that they had heard and understood the questions asked earlier during voir dire. By so restricting the voir dire examination, the trial judge effectively prohibited defense counsel from probing-into the prospective jurors’ understanding and attitudes concerning pertinent legal issues which had been previously covered during voir dire examination and thereby hindered the defense in the discovery of bases for challenges for cause and the securing of information for an intelligent exercise of peremptory challenges. Thus, defendants were denied their right to full voir dire examination of prospective jurors as guaranteed by La.Const. art. 1, § 17. Under the facts and circumstances of this case, we conclude that the trial judge abused his discretion in curtailing defendants’ voir dire examination of prospective jurors. Accordingly, we must reverse defendants’ convictions and sentences and remand the case to the trial court for a new trial.

DECREE

For the reasons assigned, the convictions and sentences are reversed, and the case is remanded to the trial court for a new trial.

SUMMERS, J., dissents.

      . Defendants have neither briefed nor argued Assignment of Error No. 2. Therefore, we consider this assignment of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . La.Code Crim.P. art. 842 provides that, if an objection has been made when more than one defendant is on trial, it shall be presumed, unless the contrary appears, that the objection has been made by all the defendants. In the instant case, although the objection to the ruling of the trial judge was made only by Williams, it will be presumed to have been made by Jackson as well since the record does not reflect the contrary.


author: PER CURIAM: DIXON, Justice

text:
    STATE of Louisiana v. Charles QUINN.
    No. 61077.
    Supreme Court of Louisiana.
    May 22, 1978.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Vincent Paciera, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM:

The defendant was convicted of two counts of armed robbery and ultimately sentenced as a multiple offender to fifty years imprisonment on each count.

He has appealed to this Court, relying on one assignment of error made to the denial of his motion for a new trial.

We have reviewed the motion and concluded that it presents no reversible error.

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

SUMMERS, J., concurs.

DENNIS, J., dissents.

DIXON, J., dissents with reasons.

CALOGERO, J., dissents. State v. Carter, 352 So.2d 607 (La.1977) require a reversal here.

DIXON, Justice

(dissenting).

I respectfully dissent.

The offenses (two dissimilar armed robberies) should have been severed. State v. Carter, 352 So.2d 607 (La.1977).