author: SUMMERS, Justice. DENNIS, Justice

text:
    STATE of Louisiana v. Roy HOLLINGSWORTH.
    No. 57690.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Bernard A. Horton, Metairie, 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.
   SUMMERS, Justice.

In an indictment returned by the grand jury of Orleans Parish, Roy Hollingsworth was charged with the murder of Clifton Solar. La.R.S. 14:30. In a trial before a twelve-man jury a verdict was returned on May 16, 1973 finding Hollingsworth guilty without capital punishment, or benefit of parole, probation, commutation or suspension. He was sentenced to imprisonment at hard labor for life without benefit of parole, probation, commutation or suspension of sentence.

On this appeal eleven assignments of error are relied upon by Hollingsworth to reverse his conviction and sentence.

Assignments 1, 2 and 3

When the State sought to have the victim’s wife identify him from a photograph of his corpse, defense counsel offered to stipulate that the photograph did depict the body of Clifton Solar, who was killed around 2:30 on the morning of October 15, 1972. Without objection from the State, the stipulation was entered into the record. Thereafter the State offered to introduce the photograph into evidence. Defense counsel then objected that the photograph was redundant and punitive and served no other purpose than to inflame the emotions of the jury. The objection was overruled, and a bill of exceptions was reserved, which, with other bills reserved thereafter, is treated under these assignments of error, this being number one.

Later, a former assistant coroner, a medical doctor, testified that an autopsy was performed on the victim by the coroner’s office. He was asked by the State’s attorney to show the jury the location of the gun wounds on the victim by referring to, among others, the photograph of the corpse previously referred to. Defense counsel offered to stipulate that the victim died and the photograph correctly depicted what was shown thereon. The State refused to enter into the stipulation, and the doctor proceeded to explain the location and nature of the wounds on the photograph and the cause of death. Although this reference to the photograph is called assignment number two by the defense, the record does not disclose that a contemporaneous objection was made to any ruling by the trial judge, (for that matter, no ruling of the trial judge on this situation appears) nor did defense counsel object to the refusal of the State’s attorney to join in his proposed stipulation. However, when the State later offered the photograph into evidence, defense counsel did object, and, when the objection was overruled, he reserved a bill of exception to the ruling. This is referred to as assignment 3.

Defense counsel argues that his offers to stipulate would serve to establish the identity of the victim, the fact of death and the time of death. The photograph, he contends, had no other value. It was, therefore, unnecessary to the prosecution’s case and served only to inflame the jury to the prejudice of the defendant.

As the brief recital of fact demonstrates, the photograph, however, did serve to assist the doctor in explaining the nature and location of the wounds and to demonstrate and explain the cause of death.

According to the State, the defense cannot prevent the introduction of photographs of substantial probative value by the simple expedient of offering to stipulate to all matters which could be shown by the picture, unless the defense also admits and stipulates that the accused produced these wounds and injuries on that person. As authority for this position 3 Scott, Photographic Evidence § 1225 (2d ed. 1969) is cited.

In this State courts rely upon the rule that the trial judge is to exercise his discretion in allowing the admission of photographic evidence. Unless there is an abuse of discretion in the ruling of the trial judge, that ruling should stand. State v. Gibson, 271 So.2d 868 (La.1973).

The test of admissibility of photographs of a dead body is whether their probative value outweighs their probable prejudice. Generally, photographs are admissible which illustrate any fact or which shed light on an issue, or are relevant to describe the person, place or thing involved. State v. Johnson, 198 La. 195, 3 So.2d 556 (1941).

In a criminal prosecution the State must sustain the heavy burden of proving every element of the crime charged. In the instant case it was necessary, because the evidence was available, to establish the identity of the victim, his death and the cause of death. The probative value of these photographs in proving the crime and its seriousness far outweigh the emotional impact on the jury. State v. McCauley, 272 So.2d 335 (La.1973).

Although it is the defendant’s position that the photograph would inflame the jury, it is not more gruesome than any photograph of the upper extremity of a dead body. The body was not mutilated and the wounds were small. There was no error in the ruling of the trial judge admitting the photograph. State v. Curry, 292 So.2d 212 (La.1974); State v. Gibson, 271 So.2d 868 (La.1973); State v. Hall, 256 La. 336, 236 So.2d 489 (1970) and State v. Rideau, 249 La. 1111, 193 So.2d 264 (1966).

Assignment 4

Defendant objected to the trial judge’s ruling which permitted the State, on redirect examination, to question a witness, the second victim of this offense, concerning the length of time he spent in the hospital. It is his contention that although the subject was brought out by the State on direct examination, the subject was not referred to by the defense on cross-examination. Therefore, it was improper for the State to bring that subject up again on redirect examination.

On cross-examination defense counsel did make an issue of the fact that the witness, who was a second victim, was not called by the police to appear at a lineup. On redirect the prosecuting attorney sought to show that the reason the witness was not called to attend a lineup was because he was recuperating in the hospital for three months.

The rule of law controlling this issue is found in Section 281 of Title 15 of the Revised Statutes:

“The redirect examination must be confined to the subject matter of the cross-examination and to the explanation of statements elicited on cross-examination; but the application of this rule is within the discretion of the trial judge, provided that the opportunity be not denied to recross on the new matter brought out on the redirect.”

Questioning of the witness by the State on redirect examination was for the announced purpose of eliciting an explanation for testimony brought out by the defense on cross-examination. As such, the redirect examination was proper. State v. Wright, 301 So.2d 616 (La.1974).

Assignments 5 and 8

Detective Peterson was called as a witness by the State and was asked if, in connection with the homicide of Clifton Solar, he had occasion to effect the arrest in the case. He answered that he arrested Hollingsworth on October 17, 1972. In answer to the question, “Was anyone with you at the time of his arrest?” he answered that his partner Detective McCracken and the complainant Mr. Lenheimer were with him. At this time defense counsel moved for a mistrial. He objected to the denial, and the ruling is the subject of assignment 5.

As we understand the contention, the reference to Lenheimer brought to the jury’s attention the fact that defendant had been involved in offenses of burglary and assault. These offenses, according to the defense, were unrelated to the offense for which defendant was being tried. For this reason, evidence of these unrelated offenses was not admissible to show knowledge or intent under Sections 445 or 446 of Title 15 of the Revised Statutes, or for any other purpose.

The mere fact that the jury heard that Mr. Lenheimer was the complainant who caused Hollingsworth’s arrest does not support the defense contention. The jury was not told, and the record does not show, that Lenheimer was connected with an unrelated burglary and assault as the defense contends.

Assignment 8 is based upon a statement of Lieutenant O’Donnell who was testifying as a state witness. He was asked to describe a conversation with Hollingsworth after his arrest and while he was in custody at the detective bureau. While Hollings-worth was describing the details of the crime, he told O’Donnell that about two weeks before Clifton Solar was killed he, Hollingsworth, stole a pistol from a couple he met at “Eddie Price’s”. This statement is said to be inadmissible evidence of another offense unrelated to the offense for which Hollingsworth was being tried. The contention has no merit. The theft of the murder weapon two weeks before the shooting of Solar was certainly relevant to the charge against Hollingsworth as it tended to show that he was in possession of a gun at the time of the killing.

This Court has repeatedly held that highly probative evidence is not to be excluded simply because its introduction also relates to another offense. La.R.S. 15:445 and 446; State v. O’Conner, 320 So.2d 188 (La.1975); State v. Hatch, 305 So.2d 497 (La.1975) and State v. Wright, 301 So.2d 616 (La.1974).

Assignment 6

During the trial the jury was retired and the State proceeded to lay the predicate for the introduction of oral confessions. The defense charges that the oral confessions were inadmissible because the defendant refused to sign the rights of arrestee form containing the Miranda warnings, and the confessions were the product of persistent efforts by police officers to persuade defendant to incriminate himself. The charge is not supported by the record.

Detective Peterson testified that Holl-ingsworth was arrested about 2:37 o’clock on the afternoon of October 17, 1972, two days after. Solar’s murder. Hollingsworth was told that he was being arrested “as a perpetrator of a murder”. He was taken to the detective bureau by Peterson and Detective McCracken. During, the trip to headquarters Hollingsworth was not questioned, nor was he abused in any way. Upon arrival he was advised of his Miranda rights, but remained silent and refused to sign the rights of arrestee form.

Hollingsworth was transferred to the homicide division about three o’clock that afternoon. There Lieutenant O’Donnell again advised him of his rights, and Holl-ingsworth signed the rights of arrestee form in his presence. O’Donnell testified that no one abused or struck the accused; nor did anyone promise him any reward for cooperating with the police. O’Donnell told Hollingsworth that he was suspected of robbing and murdering Clifton Solar and that he was identified as the killer from his picture by Harold Merritt, one of the victims of the robbery in which Solar was killed.

When Hollingsworth denied any involvement in the matter, the officers suggested that he take a polygraph test, but he refused. About an hour later, when asked by O’Donnell how he spent his time the night of the crime, he stated he was at “Eddie Price’s” with Edward Bell, but had left the place about ten o’clock, leaving Bell there.

Bell, having been taken into custody with Hollingsworth, was immediately interviewed in a nearby room. When he was told what Hollingsworth had said, he exclaimed, “He’s not going to put that God damned murder on me, he’s the one that did it. I wasn’t there.” Hollingsworth was then booked with Solar’s murder. O’Donnell explained that the delay in booking was because the officers wanted more substantiation of Hollingsworth’s implication in the crime.

When Hollingsworth was told of Bell’s statement he admitted to O’Donnell that he, Martin Shelby and Edward Bell had robbed “Eddie Price’s”. While Bell stayed outside as a lookout, he and Shelby went inside and Shelby shot Solar and Merritt. He was then confronted by Shelby, and then confessed “O.K., I was the triggerman. He didn’t do it; I did it.”

Sergeant Knight was present when Holl-ingsworth ga-ve the inculpatory statements. He testified that no one mistreated the accused in any way or promised him anything. The next day he accompanied Holl-ingsworth to the coroner’s office where Dr. Rabin gave him a physical examination. The doctor testified that Hollingsworth told him that the police had not mistreated him, and the physical examination failed to reveal any evidence of recent injury. Holl-ingsworth, he said, did not appear to have been intoxicated or drugged as he had alleged.

Hollingsworth took the stand on the predicate for introduction of the statements and testified that after his arrest he was not advised of his Miranda rights, he refused to sign the form, and said he wanted to see his attorney and call his mother. He said O’Donnell gave him “a coke and some red pills”, which were said to be pain pills. Thereafter he remembered nothing until he realized he was in Baton Rouge in some kind of jail. He testified he was beaten and terrorized by every officer on duty that night, and told Dr. Rabin he had not been mistreated because he feared more mistreatment. O’Donnell repudiated these claims in rebuttal. The trial judge found the confessions to be free and voluntary and they were admitted into evidence.

Before a confession or inculpatory statement can be introduced into evidence in a criminal trial, the State must affirmatively show that the confession or statement was voluntarily given and was not obtained through fear, duress, intimidation, menaces, threats, inducements, or promises. La.Const. art. I, § 16 (1974); La.R.S. 15:451-452.

Further, since the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the State must establish that prior to being questioned the accused was told by the police officers that he had the right to remain silent, that anything he might say would be used against him in court, that he had a right to consult with an attorney and to have an attorney during interrogation, and that if he could not afford an attorney one would be appointed to represent him free of charge.

Admissibility of a confession is a question for the trial judge, its weight is for the jury. Conclusions of the trial judge on the credibility and weight of the testimony relating to the voluntariness of a confession is a question peculiarly within his province, and his findings will not be overturned on appeal unless they are not supported by the evidence. State v. Stewart, 325 So.2d 819 (La.1976); State v. Sims, 310 So.2d 587 (La.1975); State v. Vessel, 260 La. 301, 256 So.2d 96 (1971); State v. Cripps, 259 La. 403, 250 So.2d 382 (1971).

The record fully supports the trial judge’s ruling that Hollingsworth freely and voluntarily confessed to killing Clifton Solar.

Assignments 7 and 9

Assignment 7 is based upon rulings of the trial judge admitting Exhibit 32, the Coroner’s report, over defendant’s objection that the testimony of the coroner was the best evidence and not the report.

Assignment 9 is based upon a similar ruling which admitted a ballistic report, over defendant’s objection, after the State ballistic expert had testified concerning its content. It was contended that the testimony, not the report, was the best evidence.

The best evidence rule requires that “[t]he 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.” La.R.S. 15:436.

In our view the best evidence rule is not violated here. To the contrary, it is observed by the production of the written reports. Written reports are favored for their reliability as the best evidence. They are less likely to contain errors than a witness’ testimony, especially when the time lapse between the recorded facts and the testimony is appreciable. Without the testimony of the doctor and the ballistic expert, these documents may not have been admissible. Admissibility of a writing usually depends upon the establishment of a connection between the writing and the particular individual who executed it. Cf. State v. Christian, 160 La. 525, 107 So. 393 (1926). These reports were also admissible in corroboration of the testimony of the witnesses. These assignments have no merit.

Assignment 10

Ruby Lee Davis was called as a character witness on behalf of the defendant. She testified that she and Hollings-worth lived in the same neighborhood and that she knew him and that his reputation for truth and veracity and as a law abiding citizen was good. She gave no other direct testimony.

On cross-examination she was asked who she talked to about his reputation and replied, “his friends”. When questioned further she could not name anyone, but said “They never talked about him telling the truth, but they don’t say he lies.” The cross-examiner then asked, “But, they don’t discuss him telling the truth either?” The defense then objected.

The contention is that the State improperly implied to the jury that some affirmative community discourse concerning a defendant’s good reputation was necessary, when, as a matter of fact, a lack of discussion of bad character is sufficient evidence of good character.

Notwithstanding the merit or demerits of the contention, a witness testifying to the good character of the accused may properly be cross-examined regarding particular facts to test the soundness of his opinion and the data upon which it is based. La.R.S. 15:479; State v. Ivy, 307 So.2d 587 (La.1975); State v. Harris, 247 So.2d 847 (La.1971); State v. Powell, 213 La. 811, 35 So.2d 741 (1948).

Assignment 11

Hollingsworth was sentenced to imprisonment at hard labor for life without benefit of parole, probation, commutation or suspension of sentence in accordance with Act 502 of 1972 (La.Code Crim.P. art. 817). Defense counsel correctly contends that denying Hollingsworth the benefit of commutation of sentence was erroneous. The Legislature is without power to provide for a qualified verdict which infringes upon the constitutional authority of the Governor to commute sentences. La.Const. art. IV § 5(E) (1974); State v. Triplett, 313 So.2d 227 (La.1975); State v. Ramsey, 292 So.2d 708 (La.1974); State v. Varice, 292 So.2d 703 (La.1974).

Accordingly, for the reasons assigned, the conviction is affirmed, but the case is remanded to the trial court for the purpose of correcting the sentence by deleting therefrom the provision denying defendant the benefit of commutation of sentence. Otherwise the sentence is to remain in full force and effect. La.Code Crim.Pro. art. 882.

DENNIS, J., concurs, disagreeing with the treatment of assignments 1, 2 and 3 and will assign additional concurring reasons.

DENNIS, Justice

(concurring).

Although I concur in the result reached by the majority, I find the disposition of Assignments of Error Nos. 1, 2 and 3 unsatisfactory in light of State v. Gilmore, 332 So.2d 789 (La.1976), recently handed down by this Court.

In Gilmore, we held that where the defense stipulates to all the facts which a photograph is offered to prove, it is within the trial court’s discretion to exclude the photograph from evidence if it determines that the particular admission by the defendant is so plenary as to render the State’s evidence wholly needless under the circumstances. Although it does not appear from the record that the trial judge was guided by the precepts established in Gilmore when he ruled this photograph admissible, I cannot say that this was reversible error since the trial was conducted long before the decision in Gilmore was rendered. I cannot condemn the trial court’s failure to follow guidelines of which it was not aware, but neither can I understand the majority’s failure to discuss the Gilmore issues which this case clearly raises.

The majority adverts to the State’s argument that “the defense cannot prevent the introduction of photographs of substantial probative value by the simple expedient of offering to stipulate to all matters which could be shown by the picture, unless the defense also admits and stipulates that the accused produced these wounds and injuries on that person.” It should be noted that this is merely argument and does not represent the view of this Court. State v. Gilmore, supra. It would be a paradoxical rule which required a defendant presumed innocent to admit guilt in order to avoid unnecessary prejudice. I cannot, nor does this Court, subscribe to such a rule.


source: Caselaw Access Project

author: SANDERS, Chief Justice.

license: Public Domain

text:
    STATE of Louisiana v. Barry BALLARD.
    No. 57692.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Crawford A. Rose, Jr., Rayville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The Ouachita Parish Grand Jury indicted Barry Ballard for second degree murder in violation of LSA-R.S. 14:30.1. After a trial, the jury convicted the defendant of the crime charged. The trial court sentenced him to life imprisonment. The defendant appeals his conviction and sentence based upon the trial court’s denial of his motion in arrest of judgment.

In the motion in arrest of judgment, the defendant complains that the grand jury that indicted him was improperly composed. The grand jury was chosen from a jury venire selected pursuant to the Louisiana Constitution of 1921, requiring women to volunteer for jury duty. Defendant argues that because Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), was handed down during his trial, its holding is applicable, and his conviction should be reversed because it was obtained pursuant to an unconstitutionally empanelled grand jury indictment.

The State argues that defendant’s objection to the composition of the grand jury venire has not been properly raised by the motion in arrest of judgment and that the objection can only be raised by a motion to quash the indictment. A motion to quash must be filed prior to the commencement of trial. LSA-C.Cr.P. Article 535. Thus, even if the motion in arrest of judgment were treated as a motion to quash, it was not timely filed and should not be considered.

Without deciding whether the issue is properly raised, we consider it on the merits. The grand jury that indicted defendant was empanelled on October 21, 1974. The indictment was returned on October 30, 1974. On January 21, 1975, the United States Supreme Court handed down its decision in Taylor v. Louisiana, supra. In Taylor, the Court held that our former constitutional and statutory provision excepting women from jury service violated the federal constitution. However, Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), held that Taylor, as a matter of federal law, was not to be applied retroactively. Although both Taylor and Daniel involved the selection of petit juries, we have held that the rationale applies equally to the selection of a grand jury. State v. Gaines, La., 315 So.2d 298 (1975). Since the grand jury in the present case was empanelled and the indictment returned prior to the decision in Taylor, that decision is inapplicable here.

We have consistently held that Taylor v. Louisiana is not to be applied retroactively. State v. Gaines, supra; State v. Nero, La., 319 So.2d 303 (1975); State v. Rester, La., 309 So.2d 321 (1975); State v. Sonnier, La., 317 So.2d 190 (1975).

The trial court judge correctly denied defendant’s motion in arrest of judgment.

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

DENNIS, J., concurs.

      . There is no assignment of error contained in the record. However, the trial court judge wrote a “Per Curiam to Assignment of Error.” We will, therefore, assume that an assignment of error was filed in the trial court, although it is not included in the record.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Alfred FLOWERS.
    No. 57694.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Sargent Pitcher, Jr., Pitcher & French, Ltd., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Robert H. Hester, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Alfred Flowers was charged by bill of information with the armed robbery of Joseph Rickels, in violation of La.R.S. 14:64. After trial by jury, he was found guilty as charged and thereafter sentenced to serve forty-five years at hard labor. On appeal, defendant relies upon eleven assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1, 2, 4, 11 AND 15

These assignments of error relate to rulings of the trial judge permitting introduction of. evidence of other offenses to prove system, knowledge and intent under La.R.S. 15:445 and 446 after notice given in compliance with State v. Prieur, 277 So.2d 126 (La.1973). Defendant urges that the state’s notice of intention to use evidence of other offenses was not furnished within a reasonable time before trial and did not specify the details of the other offenses with the general particularity required of an indictment or information as required by the safeguards set forth in Prieur. .He further urges that during the trial the state introduced evidence of a crime not covered by the notice.

The pertinent portion of the safeguard in Prieur to which defendant refers is:

The State shall within a reasonable time before trial furnish in writing to the defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. No such notice is required as to evidence of offenses which are a part of the res gestae, . . . .

Defendant was charged by bill of information with the armed robbery of Joseph Rickels, an employee of Stop and Go Market on Old Hammond Highway in Baton Rouge on July 17, 1974. After various preliminary motions, the matter was assigned for trial for January 20, 1975. On January 16, 1975, the state served defense counsel .with a “Prieur Notice” informing him of the state’s intention to introduce evidence of the armed robbery of two other convenience stores committed a few hours earlier on the same day as the crime charged (July 17, 1974). The crime charged occurred at 11:00 p. m., whereas the other two robberies took place at 5:30 p. m. and 10:15 p. m., respectively. The notice recites that the offender in each of the three robberies was described as being a black male about 5'-9" in height, weighing approximately 150 pounds, armed with a .22 caliber revolver and wearing a dark colored hat or cap. In the crime charged and the one occurring at 5:30 p. m., the perpetrator was driving a yellow Vega with black trim. The money taken from the 10:15 p. m. robbery was placed in an Olincraft Evangeline No. 12 paper bag. The notice further sets forth that.when the accused was arrested for the crime charged, he was driving a yellow Vega with black trim, and an Olincraft Evangeline No. 12 paper bag containing money was found in the vehicle.

On January 20,1975 (date the matter was set for trial), the case was continued on defendant’s motion; however, the question of the sufficiency of the Prieur notice was argued and submitted. No ruling was made by the trial judge. Nevertheless, the state mailed an “Amending and Supplemental Prieur Notice” to defense counsel on March 14, 1975. The notice sets out the names and locations of the other convenience stores robbed, as well as the identity of the victims. There is a reiteration of the state’s intention to introduce evidence of these other two robberies in the prosecution of the crime charged to prove system, knowledge and intent. It also states that the offender in all three robberies was driving a yellow Vega, used a small caliber pistol and was described as a black male about 5'-9" and weighing approximately 150 pounds. Furthermore, at least one, if not both, of the victims would be able to make a positive identification of defendant as the perpetrator of the armed robberies.

The case was reassigned on several occasions but finally came up for trial on April 14, 1975. Prior to trial on that date, the state filed of record the “Amending and Supplemental Prieur Notice.” The matter was argued, and the court ruled that an adequate showing was made by the state to permit the introduction of evidence of the two other offenses set forth in the Prieur notice. The record does not reveal that defendant moved for a continuance after this adverse ruling.

In our view, the trial judge correctly ruled that the state had complied with the notice requirement in Prieur. The notice was certainly furnished within a reasonable time before trial. Defendant’s complaint that the original notice was insufficient in that it did not supply the locations of the robbed stores and the names of the victims is without substance. In Prieur, we stated that the notice must describe the other offenses with the same “general particularity required of an indictment or information.” This does not mean that every detail of the other offenses must be set forth in the notice. In any event, the lack of information about which defendant complains was furnished him in the “Amending and Supplemental Prieur Notice” which the state certified was mailed to defense counsel on March 14, 1975 (some thirty days prior to trial). The record does not contain any evidence to the contrary. It matters not that this supplemental notice was not filed of record until the date of trial when actual notice had been previously given. After all, the purpose of the notice is to prevent surprise on the part of a defendant. Moreover, even assuming defense counsel did not become aware of the additional information until the date of trial, there is no showing of surprise or prejudice, nor did defendant move for a continuance.

Likewise, there is no merit to defendant’s final contention that the state introduced evidence of a crime not covered by the notice, i. e., that Rickels, the victim of the crime charged, was shot by the perpetrator of the robbery and that money was taken from a customer at the time of this robbery. Clearly, the shooting of Rick-els and the taking of money from a customer during the course of the robbery are all part of the res gestae. La.R.S. 15:447-448; State v. Curry, 325 So.2d 598 (La.1976); State v. Matthews, 292 So.2d 226 (La.1974); State v. Jefferson, 284 So.2d 882 (La.1973). Prieur specifically recognizes that “[n]o such notice is required as to evidence of offenses which are a part of the res gestae,” . . State v. Mays, 315 So.2d 766 (La.1975).

Assignments of Error Nos. 1, 2, 4, 11 and 15 are without merit.

ASSIGNMENT OF ERROR NO. 10

Defendant contends that the trial judge erred in permitting the victim (Rickels) to make an in-court identification of him. He urges that, since this witness admittedly had poor eyesight without glasses and was required to remove his glasses during the robbery, his in-court identification was “tainted.” He claims that this resulted in a denial to him of a “fair and impartial trial.”

Rickels testified that he observed defendant face to face in a well-lighted store for some four minutes before he was required to remove his glasses. During this period, defendant pointed a gun at him and ordered him to remove the money from the cash register and put it into a paper bag. It was at this time that he was told to remove his glasses. Thereafter, he was instructed by defendant to take the money out of the safe and place it into the bag with other articles of merchandise. The victim was then ordered to put the bag into defendant’s car (yellow Vega with black stripes). As they left the store, defendant fired a shot at the store. When Rickels finished putting the stolen merchandise into the Vega, he was told to walk back to the store, at which time Rickels was shot in the hip by defendant. Rickels made a positive in-court identification of defendant. He testified that he had not attended any lineup nor were any photographs displayed to him for the purpose of identifying defendant.

The contention made by defendant in this assignment of error is completely without merit. First, defendant did not object to the in-court identification by Rick-els of defendant. An'irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La.Code Crim.P. art. 841. Hence, nothing is presented for our consideration. In any event, the question of the validity of the in-court identification is a question for the jury to decide. State v. Bland, 310 So.2d 622 (La.1975); State v. Williams, 310 So.2d 513 (La.1975).

Assignment of Error No. 10 is without merit.

ASSIGNMENT OF ERROR NO. 12

Defendant contends that the trial judge erred in permitting the • gun to be introduced in evidence when it had not been properly identified as having been related to the case.

When the gun was offered in evidence by the state, defense counsel, while objecting to the identification of other offerings, specifically stated: “I don’t object to the offering of the gun.” An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La.Code Crim.P. art. 841. Hence, nothing is presented for our review. In any event, the identification of the gun was amply established by the evidence. It was clearly more probable than not that the gun was related to the case. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

Assignment of Error No. 12 is without merit.

ASSIGNMENT OF ERROR NO. 13

Defendant contends that the trial judge erred in denying his request to have the state produce the identification slip signed by the witness Parnell when he viewed a lineup.

Charles F. Parnell was the victim-employee of Pak-a-Sak, one of the other convenience stores robbed on July 17, 1974. His testimony was offered by the state to prove system, knowledge and intent under La.R.S. 15:445 and 446. Parnell was not asked by the state on direct examination to identify defendant as the person who robbed him. On cross-examination, Parnell testified that he attended one lineup at which time he selected the man in the “No. 6” position as the person who robbed him. He marked his selection on a slip of paper and gave it to a deputy sheriff. The witness was then presented with two photographs of different lineups in which Parnell identified the man who robbed him as being in the “No. 1” and “No. 3” positions, respectively, and not in the “No. 6” position. He admitted that the man in the “No. 6” position in each of the pictures was someone other than the man who robbed him. The record is unclear as to whether there were two or three lineups. Finally, defense counsel elicited an in-court identification of defendant from this witness.

During the course of the cross-examination of Parnell, defense counsel sought to have the state produce the identification slip signed by Parnell at the lineup. The state’s objection was sustained by the trial judge, which ruling forms the basis of this assignment of error. We find no error in the trial judge’s ruling. First, the state made no reference to the identification of defendant during its direct examination of this witness. Rather, the issue was first raised during the cross-examination by defense counsel. Secondly, defense counsel got before the jury the fact that the witness had selected “No. 6” at the lineup he had attended, whereas the man who robbed him was “No. 1” and “No. 3,” respectively, in the two photographs of the separate lineups presented to him. Thus, the witness’ misidentification of defendant at the lineup was clearly before the jury, and the identification slip showing that he selected “No. 6” would have added nothing further to his testimony. We find no prejudice to defendant resulting from the ruling of the trial judge. Hence, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 14

Defendant contends that the trial judge erred in denying his motion for a directed verdict of acquittal made after the close of the state’s evidence. The motion was grounded on the lack of proper identification of the accused by the witnesses to the armed robbery charged.

There is no merit to this contention. This court can find error in the trial judge’s denial of a motion for directed verdict and reverse the conviction only when there is no evidence of the crime or an essential element thereof. La.Code Crim.P. art. 778 (1966); State v. Douglas, 278 So.2d 485 (La.1973). In the instant case, the victim (Rickels) specifically identified defendant as the person who robbed him. Clearly, this is some evidence that defendant was the person who committed the crime charged. State v. Williams, 310 So.2d 513 (La.1975). Hence, this assignment of error is without substance.

ASSIGNMENT OF ERROR NO. 16

Defendant contends that the trial judge erred in overruling his motion for a new trial. He urges that the verdict is contrary to the law and evidence for lack of identification of the accused. He also reurges objections made during the course of the trial. Finally, he argues that, when a motion for a new trial is grounded on the allegation that the verdict is contrary to the law and the evidence, it is the duty of the trial judge to pass upon the sufficiency of the evidence and that his failure to do so is reversible error, citing State v. Jones, 288 So.2d 48 (La.1974).

Considering the allegation herein as one claiming that there is no evidence of the identification of the defendant, we find no merit in the contention. As noted under the previous assignment of error, the victim (Rickels) made a positive identification of defendant as the person who robbed him. Certainly, this constitutes some evidence of defendant’s identification as the perpetrator of the crime charged. Secondly we have reviewed all objections urged under the assignment of errors and found them to be without merit. For the same reasons, we find the objections reurged in the motion for a new trial to be without substance. Finally, we do not find that the failure of the trial judge to assign reasons for the denial of a new trial constitutes a failure to decide whether the evidence supports the verdict of the jury. The minutes simply recite that the motion was overruled. It can be assumed, absent anything in the record to the contrary, that the trial judge, in denying defendant’s motion for a new trial, concluded that the evidence supported the verdict of the jury. State v. Strahan, 325 So.2d 231 (La.1976). State v. Jones, 288 So.2d 48 (La.1974) is clearly distinguishable from the instant case.

In sum, Assignment of Error No. 16 is without merit. •

ASSIGNMENT OF ERROR NO. 17

Defendant contends that the trial judge erred in sentencing him on the same day his motion for a new trial was denied, contrary to the provisions of article 873 of the Code of Criminal Procedure. He urges that the record does not affirmatively show that the delay was waived by him or his counsel.

Article 873 requires a twenty-four hour delay between overruling the motion for a new trial and sentencing. The article concludes: “If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.” According to the minute entry of September 12, 1975, defendant was present in court with his counsel at which time his motion for a new trial was denied and he was sentenced. While there is no indication in the minutes that the delay was waived, the transcript of the sentencing on September 12, 1975 clearly shows that the court asked defendant if he wished to be sentenced on that date, and his counsel replied in the affirmative. In our view, this constitutes an express waiver of the delay. See State v. Strahan, 325 So.2d 231 (La.1976); cf. State v. Jones, 288 So.2d 48 (La.1974). Hence, there is no merit in this assignment of error.

DECREE

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

SUMMERS, DIXON and DENNIS, JJ., concur.

      . Assignments of Error Nos. 3, 5, 6, 7, 8 and 9 have not been briefed nor argued by defendant and are therefore considered abandoned. State v. Blanton, 325 So.2d 586 (La.1976).

      . In State v. James, 305 So.2d 514 (La.1974), this court declined to hold invalid an armed robbery information which charged the robbery of a company, instead of a person, characterizing the defect as technical. See also State v. Randolph, 334 So.2d 687 (La.1976).

      . Article 778 was amended by Act 527, section 1 of 1975 to limit a motion for acquittal to judge trials; however, this amendment was not effective at the time of this trial and is there- • fore inapplicable.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Frank Brent McCARROLL and Earl McCarroll. STATE of Louisiana v. Bobby MOORE.
    Nos. 57695, 57728.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      L. B. Ponder, Jr., Ponder & Ponder, Am-ite, for defendants-relators Frank B. McCarroll and Louis E. McCarroll.
    Gordon W. Matheny, Cosner & Matheny, Hammond, for defendant-relator Bobby Moore.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yo-kum, Dist. Atty., William M. Quin, Asst. Dist. Atty., for plaintiff-respondent.
   DENNIS, Justice.

Defendants, Frank Brent McCarroll and Earl McCarroll, were charged by bill of information with nine counts of aggravated assault, violations of La.R.S. 14:37. After a jury trial, each was convicted of eight counts of aggravated assault and sentenced to serve six months on each count; Frank McCarroll’s sentences were made to run consecutively, amounting to a four year term, but Earl McCarroll’s sentences were made to run concurrently in part so that the time to be served totalled two years. Defendant Moore was charged with ten counts of aggravated assault and with the simple battery of one of the assault victims, a violation of La.R.S. 14:35. He pleaded guilty to all the charges against him and was sentenced to serve six months on each count with the sentences running concurrently on the charge of battery and on one count of assault, and consecutively on the remaining counts of aggravated assault, so that his total time to be served was four and one half years. This Court granted writs of review to consider defendants’ allegations that they were entitled to a trial by jury and the McCarrolls’ further claim that the multiple charges of aggravated assault deriving from the same occurrence offended the double jeopardy provisions of the state and federal constitutions.

On the evening of November 4, 1975, defendants, armed with automatic shotguns, entered ‘Lil Johnny’s Seafood Restaurant located south of Hammond where a group of men had gathered to discuss politics. Defendants brandished their weapons and warned that anyone who moved would be killed. They claimed to be looking for a particular individual, but even after they saw that he was not present, they remained threatening the group with their shotguns for some 20-30 minutes before leaving. The district attorney charged defendants with one count of assault for each victim present in the restaurant during this incident.

DOUBLE JEOPARDY

After their conviction but prior to sentencing defendants Frank and Earl McCar-roll filed a plea of double jeopardy and a motion in arrest of judgment based in part on the double jeopardy claim; these motions were denied following a hearing. Defendants maintain that further proceedings against them were barred by the State’s acceptance of their co-defendant Bobby Moore’s guilty plea or, alternatively, by the court’s directed verdict of acquittal on one count of aggravated assault granted on their motion after the close of the State’s evidence. These arguments are not well taken.

The Fifth Amendment to the United States Constitution provides, in pertinent part:

"* * * [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * *"

Correspondingly, Article I, § 15 of the Louisiana Constitution (1974) provides:

“No person shall be twice placed in jeopardy for the same offense, except on his application for a new trial, when a mistrial is declared, or when a motion in arrest of judgment is sustained.”

The federal guaranty, made applicable to the states in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), embodies a dual protection: against multiple prosecutions and against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

La. Code of Criminal Procedure article 592 provides that “when a defendant pleads guilty, jeopardy begins when a valid sentence is imposed.” However, we think it clear that jeopardy attaches only to that defendant pleading guilty; thus, when Bobby Moore pleaded guilty, jeopardy did not begin for defendants Frank and Earl McCarroll, who were not thereby subjected to the threat of punishment. Consequently, their subsequent trial did not offend the guaranty against double jeopardy.

Furthermore, defendants’ rights were not violated when their trial continued after the entry of a directed verdict on one count of assault. The restriction on multiple prosecutions is designed to promote judicial economy and to safeguard the defendant from the harassment and stigma of repeated prosecutions. See Comment, Statutory Implementation of Double Jeopardy Clauses: New Life for a Moribund Constitutional Guarantee, 65 Yale L.J. 339 (1956). The procedure involved in the instant case was neither harassing nor wasteful. To the contrary, the joinder of all the assault charges for trial obviated the dangers inherent in multiple prosecutions and is the constitutionally favored procedure. La.C. Cr.P. art. 493. See, Comment, Twice in Jeopardy, 75 Yale L.J. 262, 292 (1965); and Justice Brennan’s concurring opinion in Ashe v. Swenson, 397 U.S. 436, 448, 90 S.Ct. 1189, 1197, 25 L.Ed.2d 469 (1970). The disposition of the various counts at different stages in the trial did not segment this single proceeding into multiple prosecutions.

Of legitimate concern, however, is the question whether defendants were punished more than once for the same offense, since the multiplicity of charges involved here arose out of the same course of criminal conduct. It was early established that “the Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.” Ex parte Lange, 18 Wall. (85 U,S.) 163, 173, 21 L.Ed. 872 (1873); North Carolina v. Pearce, supra. This principle limits judicial interpretation of substantive criminal law: it prevents courts and prosecutors from creating several offenses where the legislature intended only one. It does not, however, curtail the authority of the legislature:

“The primary substantive problem is one of legislative intent, not legislative power, for the legislature can award as many different penalties as it deems desirable for a given act or transaction, or any aspect of an act or transaction, as long as the statute accords substantive due process of law and avoids the eighth amendment’s prohibition of cruel and unusual punishments. This authority is inherent in the power to make conduct criminal and to penalize it, and is not limited in any meaningful sense by the concept of double jeopardy.” Comment, 65 Yale L.J. 339, 363-64.

Thus, while we do not question the power of the legislature to multiply the number of offenses in this instance by the number of assaulted victims, we must examine whether it did in fact do so. The issue resolves itself into one of statutory interpretation.

Courts have had difficulty in determining whether a single statutory provision is violated more than once on a single occasion when the defendant was dealing with two or more subjects or victims.. Mr. Chief Justice Warren, dissenting in Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405, 1411 (1958), discussed the complexities of this and a related problem:

“The problem of multiple punishment is a vexing and recurring one. It arises in one of two broad contexts: (a) a statute or a portion thereof proscribes designated conduct, and the question is whether the defendant’s conduct constitutes more than one violation of this proscription. Thus, murdering two people simultaneously might well warrant two punishments but stealing two one-dollar bills might not. (b) Two statutes or two portions of a single statute proscribe certain conduct, and the question is whether the defendant can be punished twice because his conduct violates both proscriptions. Thus, selling liquor on a Sunday might warrant two punishments for violating a prohibition law and a blue law, but felo-niously entering a bank and robbing a bank, though violative of two statutes, might warrant but a single punishment.” 357 U.S. at 393, 78 S.Ct. at 1285, 2 L.Ed.2d at 1411.

In deciding whether a defendant’s conduct constitutes more than one violation of a federal statute the high court has held that when Congress has not explicitly stated the unit of offense, the doubt will be resolved in favor of lenity. This policy means that the court will not interpret a federal criminal statute so as to multiply the penalty that it places on an individual when the effectuation of any valid purpose of the statute would not require more than one penalty. Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958) (a single discharge of a shotgun would constitute only a single violation of a federal statute penalizing assault on a federal officer even though more than one officer was affected thereby); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (Mann Act did not expressly make the simultaneous interstate transportation of more than one woman for the purpose of prostitution liable to cumulative punishment for each woman transported).

In view of our well established doctrine that criminal and penal laws are to be strictly construed, La.R.S. 14:3, State v. Gyles, 313 So.2d 799 (La.1975), State v. Penniman, 224 La. 95, 68 So.2d 770 (1953), State v. Truby, 211 La. 178, 29 So.2d 758 (1947), we will adopt a similar approach in ascertaining what the legislature intended in enacting the aggravated assault statute.

We note first that the definition and proscription of this crime are included in Part II of the La. Criminal Code entitled “Offenses Against the Person.” Aggravated assault is defined by La.R.S. 14:36-37 as follows:

“§ 37. Aggravated assault is an assault committed with a dangerous weapon. * * *
“§ 36. Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.”
La.R.S. 14:33 defines battery as follows:
“Battery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.”

A reading of these statutes indicates that the legislature’s aim was to protect each citizen from the defined criminal conduct. Unlike the United States Supreme Court in reading the federal statutes in Bell and Ladner, supra, we cannot conceive of any other governmental purpose or interest to be served by our state aggravated assault statute. Consequently, we conclude that the legislature intended to create multiple offenses from a single act of aggravated assault affecting more than one person.

Therefore, we find no merit in defendants’ double jeopardy arguments.

RIGHT TO A JURY TRIAL

All three defendants argue that because each of their cumulated sentences exceeded six months they were entitled to a jury trial. The McCarrolls claim that the deprivation of this right rendered their conviction and sentence null. Moore asserts that because he was not apprised of his right to a jury trial his guilty plea was not a valid waiver of that right.

In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the United States Supreme Court held that the Sixth Amendment, as applied to the states through the Fourteenth, requires that defendants accused of “serious crimes” be afforded the right to trial by jury. Later, the Court defined serious crimes as those in which the possible penalty exceeds six months imprisonment. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). These principles are reflected in Article I, § 17 of the 1974 Louisiana Constitution, which provides in pertinent part:

“* * * A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict. * *”

And La. Code of Criminal Procedure article 779 likewise provides:

“A. A defendant charged with a misdemeanor in which the punishment may be a fine in excess of five hundred dollars or imprisonment ' for more than six months shall be tried by a jury of six jurors, five of whom must concur to render a verdict.
“B. The defendant charged with any other misdemeanor shall be tried by the court without a jury.”

Construing the predecessor of this article, we held that where two or more separate offenses were consolidated for trial, the penalties would not be aggregated in order to determine the right to a jury trial. City of Monroe v. Wilhite, 255 La. 838, 233 So.2d 535 (1970), cert. denied 400 U.S. 910, 91 S.Ct. 136, 27 L.Ed.2d 150 (1970). We stated that the right to a jury trial is tested by the punishment authorized for each particular offense, and declined to alter this rule where charges were joined for trial. See also, State v. Robertson, 310 So.2d 619 (La.1975).

However, we must disregard the holding in Wilhite in light of Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974) and Art. I, § 17, La. Const. (1974). In Codispoti the defendants had been tried before a judge on several charges of contempt which had arisen from a single proceeding. The trial judge imposed a separate sentence of six months or less for each contempt and also determined that the individual sentences were to run consecutively rather than concurrently. The United States Supreme Court found that “ * * * [i]n terms of the sentence imposed, which was obviously several times more than six months, each contemnor was tried for what was equivalent to a serious offense and was entitled to a jury trial.” 418 U.S. at 517, 94 S.Ct. at 2693. The Court also expressly rejected the reasoning which supported our decision in Wilhite:

“We find unavailing respondent’s contrary argument that petitioners’ con-tempts were separate offenses and that, because no more than a six months’ sentence was imposed for any single offense, each contempt was necessarily a petty offense triable without a jury. Notwithstanding respondent’s characterization of the proceeding, the salient fact remains that the contempts arose from a single trial, were charged by a single judge, and were tried in a single proceeding. The individual sentences imposed were then aggregated, one sentence taking account of the others and not beginning until the immediately preceding sentence had expired.” Id.

A jury trial was also required in this case by the wording of our constitutional provision, supra, which hinges the right not upon the penalty carried by the particular charge for which an accused is tried, but upon the punishment which may be imposed in each case. La.Const. Art. I, § 17 (1974). Therefore, where two or more charges are joined for trial the right to a jury must be determined by the total punishment which may be imposed in that case.

Although the right to a jury trial may be waived in a non-capital case, Art. I, § 17 requires that the waiver be “knowingly and intelligently” made. Therefore, we must indulge every reasonable presumption against waiver of this, fundamental right. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). The record in this case reveals that defendants were not informed of their right to a jury trial at the time of the arraignment nor at any other time. Indeed, according to our latest expressions on the subject at the time of the guilty plea and the trial herein, it was not apparent to the trial judge or counsel that defendants were entitled to a jury trial in this case. City of Monroe v. Wilhite, supra, State v. Robertson, supra. Under the circumstances of this case, therefore, we find that there was no “knowing and intelligent” waiver of the right to a jury trial by any of the defendants.

RIGHT TO APPEAL

Consistent with our decision that defendants were entitled to a jury trial by virtue of the aggregated penalty which might have been imposed in the case, we find that defendants had a right to appeal their convictions and should not have been required to seek a writ of review. Article V, § 5(D) of the 1974 Louisiana Constitution provides “ * * * a case shall be appeal-able to the supreme court if . (2) the defendant has been convicted of a felony or a fine exceeding five hundred dollars or imprisonment exceeding six months actually has been imposed.” (Emphasis supplied). As in the provision relating to the right to a jury trial, the constitutional right to a direct appeal depends on the seriousness of a particular case, rather than the individual charged involved, as determined by the punishment actually imposed in that case. Under the clear wording of the constitution, defendants, whose aggregated sentences totalled from two to four and a half years, were entitled to a direct appeal to this Court.

For the reasons assigned, the guilty plea and sentences of Bobby Moore are set aside, and his case is remanded to the trial court for rearraignment and further proceedings, including a new trial, according to law and consistent with the views herein expressed. The convictions and sentences of the McCarrolls are also reversed and their case is remanded for a new trial consistent with the views expressed herein.

SUMMERS, J., dissented.


author: TATE, Justice.

text:
    STATE of Louisiana v. Linza BALLARD.
    No. 57705.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Donald R. Miller, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Eugene W. Bryson, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Ballard was convicted of attempted aggravated rape, La.R.S. 14:27, 42, and sentenced to twenty years imprisonment. Upon his appeal, he relies upon three assignments of error.

Assignment One

The defendant contends that his motion for a continuance was improperly denied. It was based on the failure to secure the testimony of an alibi witness, despite timely subpoena.

The defendant subpoenaed three alibi witnesses, both for when the case was previously set for trial on September 29 and again for when it was actually tried on November 17. On the first occasion, on the defendant’s motion, the trial date was continued because at least one of the alibi witnesses did not appear. On the second occasion, the defendant filed his present motion on the ground that none of the three alibi witnesses had appeared despite their subpoenas.

At this time, immediately prior to the trial, the defendant’s motion was denied, but the court issued bench warrants for two witnesses, who did testify at the trial.

The record does not reflect why a bench warrant was not issued to secure the attendance of a third witness (Bolden), nor does it reflect any defense objection to the failure to attempt to secure his attendance by bench warrant along with the others. (We note also that when one of the witnesses (Watson) disappeared during the trial, the defendant secured another bench warrant to secure his testimony, but again did not at this time move to secure Bolden’s attendance too.)

However, because this third witness (Bol-den) did not testify at the trial, the defendant now claims that the denial of his motion for a continuance caused him prejudice.

The motion for continuance had claimed that the three then-missing witnesses would place the defendant at a pool hall from 3:00 p. m. to 7:00 p. m. on the day of the attempted rape, which took place at 5:00 p. m. At the trial, the two of these witnesses who did testify could not in fact place the accused at the pool hall at the time of the attempted rape, which took place six blocks away.

The defendant’s mother and brother did testify in support of his alibi that he was at the pool hall at 5:00 p. m., when the attempted rape took place six blocks distant.

The granting of a continuance is addressed to the sound discretion of the trial court, La.C.Cr.P. art. 711, save for those grounds peremptorily required by statute, La.C.Cr.P. art. 712 (which do not include the present). In the exercise of the trial court’s discretion, its denial of a continuance will be disturbed on review only in the instance of a clear abuse. State v. Polk, 258 La. 738, 247 So.2d 853 (1971).

Under the circumstances shown, we find no abuse of the trial court’s discretion in denying a continuance, nor any merit to this assignment of error complaining of this denial.

Assignment Two

The defendant contends that the trial court erroneously overruled his challenge for cause of a prospective juror. The challenge for cause is based on the alleged implied bias of the venireman, La.C.Cr.P. art. 797(3), because he served as an unpaid auxiliary policeman in connection with his civil defense duties. These principally consisted of occasionally riding on nighttime patrol with a policeman; the last such incident had occurred three weeks prior to the trial.

When the defendant’s challenge for cause was overruled, he exercised his right to challenge the venireman peremptorily. La. C.Cr.P. art. 799. The defendant subsequently exhausted all his peremptory challenges prior to selection of the jury.

Preliminarily, the state contends that the defendant sustained no prejudice because the allegedly biased juror did not actually serve on the trial jury.

However, the accused is entitled to complain on appeal of an erroneous overruling of his challenge for cause; for the effect of the ruling, if erroneous, is either to deprive him of a peremptory challenge to which he is entitled by law or else to force him to accept an obnoxious juror. La.C. Cr.P. art. 800 (see also Official 1966 Revision Comment, explaining the clear language of the article as having an intended effect to adopt the dissenting opinion of Chief Justice O’Niell in State v. Breedlove, 199 La. 965, 7 So.2d 221, 232 (1942) and to overrule legislatively the majority holding therein.) This being so, the merit of the ruling is before us.

The service on a criminal jury of one associated with law enforcement duties must obviously be scrutinized closely and may ordinarily justify a defense challenge for cause, although in absence of legal disqualification he is not incompetent to serve. Cf. Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), 4 Wharton’s Criminal Procedure, Section 452 (12th ed., Torcía ed., 1975), and 50 C.J.S. Juries §§ 210, 229.

We find no prohibition against jury service by an unpaid volunteer who peripherally and occasionally assists in law enforcement. The examination of this venireman showed no knowledge or connection by him with the acts involved with the present prosecution, nor with any of the officers participating in its investigation. We are unable to find that the trial court abused its discretion in overruling the defendant’s challenge for cause to this venireman (otherwise shown to be a fair and competent juror), which was based solely upon his occasional volunteer duties in civil defense work.

Assignment Three

The defendant complains that his motion for a new trial was erroneously denied. Upon examination of the trial record, we find no merit to the factual complaints to the effect that the state did not prove elements of the crime: That the accused was not the husband of the victim, and that the victim resisted to her utmost.

The final complaint of the motion is that the defendant was incapable of committing the crime because he did not obtain an erection. This contention overlooks that the defendant is tried for the undoubted attempted rape by force — the victim was thrown to the floor, her hand was broken, she was forced to disrobe at knife point and lie on a couch, the accused pulled his trousers down and attempted to have intercourse. For an attempted crime, “it shall be immaterial whether, under the circumstances, he [the accused] would have actually accomplished his purpose.” “ La.R.S. 14:27.

We find no merit to this assignment.

Decree

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

AFFIRMED.


text:
    STATE of Louisiana v. Milton Ray BROWN.
    No. 57708.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Haley M. Carter, Franklinton, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. W. Erwin, Dist. Atty., John N. Gallaspy, Second Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Milton Ray Brown was charged by bill of information with the distribution of marijuana, in violation of La.R.S. 40:966A(1). After trial by jury, he was found guilty as charged and was thereafter sentenced to serve three years at hard labor. On appeal, defendant relies on three assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant urges that the trial court erred in permitting in evidence a bag of marijuana which defendant allegedly sold to an undercover agent. The basis of this complaint is that the person who received the evidence at the state crime lab was not produced in court. Therefore, it is claimed that the state failed to establish an adequate chain of custody.

There is no merit to this contention. In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), we stated:

To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.
The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient, [citations omitted]
The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury, [citations omitted]

In the instant case, Officer Russell Milan, an undercover agent, testified that immediately after purchasing the bag of marijuana from defendant, he placed it into an envelope which he marked and locked in a rear compartment of his car where it remained until he delivered it three days later to Paul Cobb at the crime lab in Baton Rouge. James C. Harrison, an analyst at the crime lab, testified that he tested the marijuana in question which he obtained from the evidence room where it was placed in a sealed envelope for safekeeping upon its arrival and kept until taken by him to court. He identified the markings of Paul Cobb on the envelope, which indicated that Cobb had received the evidence at the crime lab. Russell Milan also made a visual identification of the bag of marijuana as that which he had purchased from defendant. He further identified his handwriting and signature on the envelope in which he had placed the evidence.

Identification of the bag of marijuana was amply established by this testimony. Clearly, it was more probable than not that the evidence was related to the case. The failure of Paul Cobb to testify went to the weight of the evidence and not to its admissibility. The trial judge properly permitted its admission in evidence.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in permitting the state to question defendant as to a prior conviction. He also urges that it was error for the trial judge to allow the district attorney to refer to his prior conviction in his closing argument to the jury.

There is no substance to this contention. Defendant took the stand in his own behalf. On cross-examination, the state questioned him as to whether he had any prior convictions. The trial judge correctly overruled defendant’s objection to this inquiry. Evidence of conviction of a prior crime is admissible for the purpose of impeaching the credibility of a witness. La.R.S. 15:495. Reference by the district attorney to the prior conviction in his closing argument to the jury was not objected to by the defendant at the time. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. La.Code Crim.P. art. 841. In any event, it was not error for the district attorney to refer to defendant’s prior conviction in his closing argument where evidence of such prior conviction had previously been received in evidence under La.R.S. 15:495. The scope of closing argument includes evidence admitted. La.Code Crim.P. art. 774.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial judge erred in denying his motion for a new trial on the grounds that there was “no evidence on which to convict the defendant, and that the verdict was contrary to the law and evidence.”

Article 858 of the Code of Criminal Procedure provides:

Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial, except for error of law.

Where a motion for a new trial is grounded on the assertion that there is no evidence at all on which the verdict of conviction can be supported, a question of law is presented for our review. However, it is well established that where there is some evidence to sustain the conviction, no matter how little, this court cannot pass on the sufficiency thereof. That comes within the exclusive province of the trial judge or jury. It is only where there is no evidence at all of some essential element of the crime charged that we have the right to annul the conviction. State v. Mims, 330 So.2d 905 (La.1976); City of Monroe v. Barfield, 246 La. 315, 164 So.2d 340 (1964); State v. Vines, 245 La. 977, 162 So.2d 332 (1964); State v. Bueche, 243 La. 160, 142 So.2d 381 (1962); State v. Copling, 242 La. 199, 135 So.2d 271 (1961); State v. Dunnington, 157 La. 369, 102 So. 478 (1924). In the instant case, Officer Russell Milan testified that he purchased a bag of marijuana for $10 from defendant. The evidence was identified as that related to the case. Clearly, this constitutes some evidence of the crime charged.

The refusal of the trial judge to grant a new trial grounded on the allegation that the verdict is contrary to the law and evidence presents nothing for our review. La.Code Crim.P. art. 858 (1966); State v. Jack, 332 So.2d 464 (La.1976); State v. Celestine, 320 So.2d 161 (La.1975); State v. Hollingsworth, 292 So.2d 516 (La.1974); State v. Gilbert, 286 So.2d 345 (La. 1973); State v. Plummer, 281 So.2d 716 (La.1973).

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

DECREE

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


text:
    STATE of Louisiana v. Roy FRANCIS.
    No. 57712.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Lyall G. Shiell, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Roy Francis was charged by bill of information with the crime of obscenity in that he did indecently and publicly expose himself to two unmarried girls, ages seven and eight, with the intent of arousing sexual desire, in violation of La.R.S. 14:106 A(l). After trial by jury, defendant was found guilty as charged and was sentenced to serve four years at hard labor. Thereafter, the district attorney filed a bill of information under La.R.S. 15:529.1 charging him with being an habitual offender. After a hearing, the trial judge found defendant guilty of being an habitual offender, vacated the previous sentence imposed, and sentenced him to twenty years at hard labor. On appeal, defendant relies upon eight assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 2

After examination, the trial judge ruled that Jennifer, age eight, had sufficient understanding to testify as a witness. Defendant objected to this ruling. He contends that the young victim lacked sufficient understanding to be a witness. La. R.S. 15:469 provides:

Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness.

The trial judge examined the child in full compliance with the statutory requirement. In response to questions asked of her, she stated that she knew what it meant to lie; that she understood the meaning of the oath when she swore to God to tell the truth; and that, if she lied, she would be punished. A review of the testimony of this witness reveals that she possessed that' degree of understanding and intelligence to qualify as a competent witness. Understanding, and not age, is the test of whether any person shall be sworn as a witness. The trial judge is vested with wide discretion in determining competency, and on appeal, his ruling is entitled to great weight as he had the advantage of seeing and hearing the witness. State v. Pace, 301 So.2d 323 (La.1974); State v. Nails, 255 La. 1070, 234 So.2d 184 (1970); State v. Milford, 225 La. 611, 73 So.2d 778 (1954); State v. Parker, 181 La. 635, 160 So. 123 (1935); State v. Warlick, 179 La. 997, 155 So. 460 (1934); State v. William, 130 La. 280, 57 So. 927 (1912). We find no abuse of discretion by the trial judge in his ruling that this eight-year-old girl, one of the victims of the offense, was competent to testify. This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 3, 4, 5, 6 AND 9

Defendant contends that the trial judge erred in permitting the prosecutor to propound certain leading questions to the victims of this offense, both of whom were eight years old at the time of trial.

A leading question, one which suggests to the witness the answer he is to deliver, is ordinarily prohibited when propounded to one’s own witness, unless such such witness be unwilling or hostile. La. R.S. 15:277. The reason for this is the danger that a witness may acquiesce in a false suggestion. However, exceptions to this general rule are recognized:

. Thus, the judge, when need appears, will ordinarily permit leading questions to children, or to witnesses so ignorant, timid, weak-minded, or deficient in the English language, that they cannot otherwise be brought to understand what information is sought. It is recognized, especially as to children, that in these cases the danger of false suggestion is at its highest, but it is better to face that danger than to abandon altogether the effort to bring out what the witness knows. .

McCormick, Evidence, sec. 6 at page 10 (Cleary, 2d ed. 1972).

In State v, Williams, 143 La. 424, 78 So. 662 (1918), this court held that it would not be objectionable to ask leading questions of the twelve-year-old victim of a rape. We stated:

[T]he rule forbidding leading questions is not so rigid that it should not yield somewhat to the discretion of the trial judge in the examination of a very young or timid witness.

Furthermore, notwithstanding the general rule against leading questions, the matter is largely within the discretion of the trial court and in absence of palpable abuse of that discretion resulting in prejudice to the accused, a finding of reversible error is not warranted. State v. Fallon, 290 So.2d 273 (La.1974); State v. Hollingsworth, 160 La. 26, 106 So. 662 (1925).

The first question objected to as leading was:

Jennifer, I want you to think back to August the seventh, 1973, towards the end of last summer, about six o’clock one evening—

After defense counsel’s objection was overruled, the witness did not answer the question. The prosecutor did not pursue the matter. Moreover, the question was directed at a preliminary matter (date and time of the offense) which was not in serious dispute. No prejudice resulted from this ruling.

The second question to which objection was made arose as follows:

Q. Where were ya’ll riding your bicycles?
A. I don’t remember.
Q. Were you riding in Audubon Park?
A. No.

Since the answer was “[n]o,” defendant was not prejudiced by the question. Moreover, the question was addressed to a preliminary matter (location of the offense) which was not in serious dispute. Also, since the witness was a child of tender years and her memory had been exhausted, a leading question was not improper.

The next question which drew an objection on the ground that it was leading was:

Was his pants — how were his pants?

The objection to this question was sustained by the trial judge. The witness did not answer the question, and the prosecutor then turned to an entirely different line of questioning. Hence, defendant’s argument is without substance.

The fourth objection to the leading nature of the question arose during the following colloquy:

Q. Did you notice anything particular about the car that stands out in your mind?
A. No.
Q. Was there any markings on the car?
MR. SHIELL:
Objection.
THE WITNESS:
Yea[h]; it had—

Although defense counsel’s objection was overruled, the witness never completed her answer. The prosecutor did not pursue this line of questioning. Moreover, the child was having difficulty remembering the details. While the question was arguably leading, it did not suggest the nature of the markings and it seems that the witness was prepared to supply the information from her own memory after the initial prodding. No prejudice resulted from this ruling.

The final question objected to as leading was:

Q. Susan, is this the same man that asked to suck and touch his penis, that you were talking about?
MR. SHIELL:
I object.
A. Yes.

The witness had previously testified that the offender had told her to “[tjouch this and suck this,” and when questioned about what he was talking about, she responded “[h]is penis.” She had also previously made a positive identification of defendant. It was at this time that the prosecutor asked the above quoted question. In view of the witness’ prior testimony and the fact that she was only eight years old, we cannot say that the trial judge committed reversible error in overruling defendant’s objection.

We do not find that the trial judge abused his discretion in the above rulings. No prejudice resulted therefrom. Accordingly, these assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 7 AND 8

Defendant contends that the trial judge erred in permitting the state to recall Jennifer to the stand. He claims that her subsequent testimony was simply a reiteration of her previous testimony.

After this witness was examined by the state, she was tendered for cross-examination. The defense declined cross-examination. The court recessed for lunch and, upon its return, the state indicated that it had a few more questions to ask Jennifer. Without objection at this time from defendant, the court allowed the witness to return to the stand. After the first question was answered, objection was made that this was a reiteration of the witness’ testimony and should not be allowed. The objection was overruled.

On her original examination by the state, Jennifer testified that the offender had asked her to “[s]uck this” and when questioned as to what he was talking about, she replied “[t]he thing.” Moreover, Jennifer did not identify defendant as the offender at this time. When she was recalled to the stand, she named his sexual organ (penis) as the “thing” she had previously testified was exposed to her on the day in question. Also, on re-examination, she identified defendant as the perpetrator of the offense. Defense counsel was allowed full cross-ex-animation after the state asked the additional questions.

The witness’ testimony when recalled was not a reiteration of her previous testimony. Rather, it only clarified that to which she had testified on her original examination. Moreover, similar testimony had been given by the other victim. Under the circumstances, we do not find that the trial judge abused his discretion in permitting the witness to be recalled to the stand. These assignments of error are without merit.

DECREE

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

      . Assignments of Error Nos. 1 and 10 were specifically abandoned in brief.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Winston FOE.
    No. 57714.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Phillip E. O’Neill, Orleans Indigent Defender Program, Metairie, 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.
   SUMMERS, Justice.

In this prosecution for armed robbery the defendant Winston Foe appeals from his conviction. and sentence to thirty years at hard labor. On this appeal he assigns two errors to rulings of the trial judge.

The first assignment of error relates to the- denial of a motion to quash the bill of information. The grounds alleged are mis-joinder of offenses, and, alternatively, the motion asks for severances of the offenses.

The bill of information charges that Foe on the 6th day of May 1975 “while armed with a dangerous weapon, to-wit: a pistol, robbed one Julia Kisiel and Bruno Kisiel of Fifty-Eight ($58.00) Dollars in the lawful money of the United States of America.”

To support the motion, defense counsel cites as authority Article 493 of the Code of Criminal Procedure as it existed on May 6, 1975 prior to its amendment by Act 528 of 1975. The Article recites that “No indictment shall charge more than one offense, except as otherwise provided in this Title, but the same offense may be charged in different ways in several counts.” The exceptions referred to in Article 493 are found in Articles 481 and 482 of the Code of Criminal Procedure and relate to joinder of theft charges, receiving stolen things, and manslaughter and abortion. Neither article is applicable to the instant case.

According to the facts conceded in argument before the trial judge, the victims were husband and wife who were robbed at the same time, in the same place and as part of one transaction. Based on these facts the trial judge overruled the motion to quash, holding that there was no misjoin-der of offenses, and defendant was not entitled to a severance of offenses. His per curiam reads:

“The Court found no merit in the motion to quash since this was one offense with simultaneous victims, at one time, and at one place. This was a single robbery, with a single set of facts, and therefore Article 493 is inapplicable.”

While duplicity results from a charge of more than one offense in a single indictment, “an indictment is not duplicitous because, in stating the elements of the offense charged or describing how it was committed, it alleges criminal acts which would separately constitute another offense or other offenses.” Act 310 of 1966, La. Code Crim.Pro. art. 492 (repealed by Act 528 of 1975).

The indictment before us does not charge two offenses. Only one offense is charged, but in reciting the facts the indictment alleges criminal acts (the robberies of Mr. and Mrs. Kisiel) which would constitute separate offenses. Here the acts against the husband and wife are joined and constitute but one offense. The State, therefore, cannot further prosecute for a separate offense arising out of this transaction. Two separate indictments should have been drawn if the State intended to prosecute the defendant for two robberies. State v. Cannon, 185 La. 395, 169 So. 446 (1936).

The case of State v. Richmond, 284 So.2d 317 (La.1973), relied upon by the defense, does not support its position. There a plea of double jeopardy was invoked by the defense to a charge of murder of Mrs. Vera Adams, defendant having previously been convicted of the murder of her husband. Both were murdered at the same time during the course of an armed robbery of their grocery store. Each prosecution was based upon a separate indictment. In that case we held that although the same evidence was used to convict the defendant of both murders, the purpose for which the evidence was used was different, and double jeopardy did not exist. Clearly that case is distinguishable on its facts. While the Court does make reference to the requirement of Article 493 that only one crime can be charged in a single indictment, the case at bar does not fall within that proscription, for only one offense is charged by the indictment before the Court.

Another case relied upon by the defense is also distinguishable. In State v. Giangrosso, 263 La. 275, 268 So.2d 224 (1972), the defendant was charged in a five-count indictment with the armed robbery of five different persons. He was convicted on four of the five counts and sentenced to serve fifteen years on each of four counts, the sentences to run consecutively. At that time the maximum penalty for armed robbery was thirty years.

Prior to trial the defendant moved to require that the district attorney select which charge he would prosecute. The motion was denied.

This five-count indictment clearly violated the principle announced in Article 493, prior to its 1975 amendment. Five distinct offenses were charged in one indictment over objection of the defendant and he was convicted on four and sentenced separately on each.

Nor does the case at bar fall within the objection that prejudice may result when a multiplicity of offenses are charged in one indictment and there is a simultaneous trial of those charges. Such an objection is predicated on a fact situation involving separate offenses occurring at separate places at separate times. In that factual situation the fear is that the jury is likely to use evidence adduced in support of one charge to convict the accused of another charge not independently or adequately proved. It is said that the jury, from the very nature of the human intellect, would unconsciously permit the two sets of facts to merge or blend together.

In the case at bar this cannot happen. There is only one transaction, involving the identical time, place and parties. There is only one set of facts. Either it supports a conviction or it does not. No prejudice can result under these circumstances. There is no merit to this assignment.

In the other assignment of error relied upon by the defendant it is contended that the written list of verdicts responsive to each offense charged with each separately stated was not given to the jury by the judge. The argument is that the indictment charged two separate offenses requiring that a separate list of verdicts responsive to each be furnished to the jury.

The list which was furnished to the jury by the judge read:

“VERDICTS POSSIBLE
“You may render any one of the following verdicts:
1. GUILTY AS CHARGED.
2. GUILTY OP SIMPLE ROBBERY.
3. NOT GUILTY.
“You are to attach no significance whatsoever to the order in which these verdicts are listed.”

Since the entire defense argument in support of this assignment of error presupposes that two separate offenses were charged in the indictment, and we have decided that only one offense is charged, this assignment of error is without merit.

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

DENNIS, J., concurs.


text:
    STATE of Louisiana, Appellee, v. Edgar HOLIDAY, Appellant.
    No. 57715.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Milton P. Masinter, 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.
   TATE, Justice.

The defendant was convicted of the illegal distribution of heroin, La.R.S. 40:966, and sentenced to life imprisonment. Upon his appeal, the defendant relies upon six assignments of error. The assignments for the most part relate to the availability of and the testimony of or relating to a confidential informer, Wilmer Dixon.

Facts

The distribution offense with which the defendant is charged took place as follows:

According to a police officer who accompanied him, Dixon located the defendant Holiday and arranged to purchase the drugs. Shortly thereafter, in the police officer’s presence Dixon gave Holiday $130 and received ten tin-foil bags. The informer Dixon then turned these bags over to the officer, and they were subsequently analyzed and found to contain heroin. Three other police officers, who followed and maintained surveillance of the couple, corroborated the testimony of the officer involved in the transaction.

Prior to trial, on appropriate motion by the defendant, the state revealed to him Dixon’s identity and agreed to produce him prior to trial “if possible”, upon subpoena through a specified government agent. Despite this agreement, the state was unable to locate Dixon prior to trial (the evidence shows he had been threatened with death). The record, however, reflects good faith but unsuccessful efforts by the state to locate Dixon prior to trial and make him available for defense interrogation.

Assignments of Error

Assignment 3 argues that the appellant was denied due process by the failure to afford him access to Wilmer Dixon prior to trial in the preparation of his defense. Assignment 6 relates to the sustaining of state objection to a defense question to a defense witness about a hearsay statement made by Dixon which exonerated the defendant of any implication in the incident charged.

Both assignments are without merit: the first, because of the good faith (although unsuccessful) efforts by the state to furnish pre-trial access to the missing witness; and the second, because Dixon’s hearsay statement to the witness was not admissible under any exception to the hearsay rule (it is not shown to be against Dixon’s penal interest, as contended).

Further, no prejudice is shown: In fact, Dixon’s location was ascertained by the defense during the trial, he was subpoenaed, and he testified that the defendant did not furnish drugs to him and denied the entire incident.

Assignment 9 relates to the admission of a written statement made by Dixon out-of-court which implicated the defendant on the state’s cross-examination of Dixon, he denied having made it, and that the signature was his. A police officer present when he signed it testified to this effect. Proper foundation for its introduction having been made, this hearsay statement was admissible as an out-of-court statement inconsistent with the witness’s trial testimony. La.R.S. 15:493. Its effect, of course, is limited to the impeachment of the witness’s credibility.

The contention that handwriting experts were necessary to identify the statement’s signature as Dixon’s is not supported by any authority cited. Sufficient proof was made of the authenticity of the written statement to permit its admission into evidence. The assignment is without merit.

Assignments 5 and 7 relate to the denials of motions for acquittal (a) at the close of the state’s case and again (b) at the close of the entire case. In part, they rely upon the failure of the state to produce Dixon, a principal witness against the accused (motion a) and upon Dixon’s denial of the incident in his trial testimony (motion b).

Four eyewitnesses testified to the heroin sale by the defendant to Dixon. Their testimony was found credible by the trial court. These motions cannot tenably rely upon the lack of evidence of the defendant’s guilt of the crime or any of its elements, the sole basis allowed for the motion.

Assignment 1 relates to a motion to quash the original indictment of January 9, 1975 on the ground of the unconstitutional exclusion of women from the grand jury venire. The indictment was dismissed by the district attorney, La.C.Cr.P. art. 691, and a new indictment filed on March 6, 1975. The present prosecution is based upon this latter indictment.

No motion to quash this latter indictment was filed prior to the trial as required for its timeliness, La.C.Cr.P. art. 535 B (or ever). Not until after conviction, was the present contention made that the motion to quash the superseded indictment should have been considered as also applying to the present indictment. We do not find merit in the assignment.

Decree

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

AFFIRMED.

      . The defendant had waived a trial by jury. Therefore, a motion for a directed verdict was available in this judge-trial. See La.C.Cr.P. art. 778, as amended in 1975.

      . Likewise verging on frivolity is the additional meritless contention that the evidence of the transaction was not fairly within the prosecutor’s opening statement. Aside from the contention’s lack of factual basis, the testimony was not objected to at the time, nor is there any authority for the argument that a motion for acquittal should be ordered if evidence proving guilt is admitted which is inconsistent with the opening statement.