source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Robert M. SCHWARTZ and Henry F. Jacomb.
    No. 57254.
    Supreme Court of Louisiana.
    May 17, 1976.
    Nathan S. Fisher, Williams & Fisher, Baton Rouge, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Warren Hebert, Asst. Dist. Atty., for defendant-respondent.
   DIXON, Justice.

Defendants Robert M. Schwartz and Henry F. Jacomb filed a motion to set aside their arrest and annul their bond obligations. The basis of the motion was that the nonresidents were in this State in response to a federal subpoena to testify at a federal grand jury investigation, and were therefore exempt from arrest for matters which arose before the issuance of the summons. After a hearing the motion was denied, and we granted writs to consider the applicability of C.Cr.P. 743, the statute under which the defendants claim immunity from arrest.

Defendants were arrested under warrants issued by a State court judge for violation of R.S. IS :706 and 716, which define certain dealings with unregistered securities as felonies. Although the warrants had issued at the request of State authorities, the investigation which preceded both the issuance of the State warrants and the federal subpoena to attend a grand jury hearing in Baton Rouge was the result of the combined efforts of federal and State law enforcement authorities.

The rule in Louisiana is that an arrest warrant may be executed anywhere in this State. C.Cr.P. 204. This State has not recognized a rule of immunity from process or arrest for nonresidents appearing in this State under compulsion. (For applications of such rule see Northumberland Ins. Co., Ltd. v. Wolfson, Del., 251 A.2d 194; Dwelle v. Allen, 193 F. 546). Defendants rely solely upon C.Cr.P. 743, which provides:

“If a person comes into this state .in obedience to a summons directing him to attend and testify in this state, he shall not, while in this state pursuant to such summons or order, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.
“If a person passes through this state while going to another state in obedience to a summons or order to attend and testify in that state or while returning therefrom, he shall not, while so passing through this state be subject to arrest, or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons or order.”

The 1931 Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings was adopted in Louisiana with only slight changes in 1936 by Act 285. C.Cr.P. 743 is identical with § 4 of that act, and appears in Chapter 3, Title XXV, Compulsory Process, Code of Criminal Procedure, where Act 285 of 1936 appears as enacted, except for a rearrangement of its sections.

The argument is that the exemption from process and arrest in C.Cr.P. 743 is not restricted to persons in this State in obedience to a State summons, but is broad enough to include all persons present in Louisiana pursuant to a federal summons.

The argument overlooks the clear purpose of the act — to facilitate the production of witnesses in criminal cases in the judicial systems of the states and territories, as well as the District of Columbia. The federal system requires no such cooperation, since its compulsory process extends to the entire country.

Our interpretation of C.Cr.P. 743 is that it does not extend the immunity to persons in this State in response to a federal subpoena, but only to persons appearing in this State pursuant to the provisions of C.Cr.P. 741. Northumberland Ins. Co., Ltd. v. Wolfson, supra, is not controlling, since we do not recognize the common law doctrine of immunity from arrest when appearing in a foreign jurisdiction.

More persuasive is a New York decision which decided the issue adverse to defendants. In People v. Aloi, 74 Misc.2d 263, 342 N.Y.S.2d 740 (1973), Aloi, a Florida resident, was subpoenaed to appear before the federal grand jury sitting in and for the Southern District of New York. He appeared in New York pursuant to the federal subpoena. After his appearance before the federal grand jury, he was served with a state subpoena to appear before the Nassau County grand jury. Tri rejecting his contention that he was immune from service of the subpoena to appear before the state grand jury, the New York court stated:

“The petitioner also claims that even if he were in New York involuntarily, he would be immune from service of the Nassau County Grand Jury subpoena. He relies upon Section 640.10 subd. 4 of the New York Criminal Procedure Law.

The section provides in part:

“ ‘4. Exemption from arrest and service of process. If a person comes into this state in obedience to a subpoena directing him to attend and testify in this state he shall not while in this state pursuant to such subpoena or order be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the subpoena. . . . ’
“Mr. Aloi was not brought to New York State pursuant to a subpoena of a court of New York State. He came to New York pursuant to Federal Grand Jury subpoena. Article 640 of the Criminal Procedure Law is the Uniform Act to Secure Attendance of Witnesses From Without the State In Criminal Cases. If the Federal government was a signatory to such act, the petitioner’s claim might be viable. However, the Federal government has not enacted such legislation or agreed to be bound by it. Nor has petitioner cited any federal case law which adopts a similar provision of law. Therefore, this court holds that Article 640 of the New York Criminal Proced-dure Law is inapplicable to the case at bar.
“Based upon the foregoing, this court holds that the petitioner herein was properly served with the subpoena of the Nassau County Grand Jury, and was not exempt or immune from the service of the said subpoena.” 342 N.Y.S.2d 740, 742.

The construction given the Uniform Act by the New York court in Aloi, supra, is consistent with its purpose. Since Schwartz and Jacomb were under federal compulsion to appear in this State, there is no logical reason to hold that the State may not validly seek to enforce its criminal laws by service of State arrest warrants. The State of Louisiana did not compel their presence. Therefore, the protection afforded by the Uniform Act is inapplicable. Any interference. by the states with federal proceedings by the arrest of foreign witnesses will be adequately protected in that system.

Therefore, the judgment of the trial court denying the motion to set aside the arrest of defendants is affirmed, and the case is remanded to the district court.

      . In Louisiana, the general rule is that a nonresident may be served with civil process wherever he is found within the State. C.C.P. 6. Cf. C.Cr.P. 204. The absence of any articles in the Code of Civil Procedure granting immunity from service of process in favor of any class of persons indicates an intent to make all persons subject to service of process. See 25 Tul.L.Rev. 296, 299 (1951); Gillan v. Jones, 157 So.2d 598 (La.App.2d Cir. 1963), cert. den. 245 La. 569, 159 So.2d 284 (1964) Nonetheless, “fraudulent” service on a nonresident will be set aside. Fidelity and Deposit Co. of Maryland v. Bussa, 207 La. 1042, 22 So.2d 562 (1945); Forbess v. George Morgan Pontiac Co., 135 So.2d 594 (La.App.2d Cir. 1961).


author: MARCUS, Justice.

text:
    NASSAU REALTY CO., INC. v. Mrs. Edna Joann Guidry, wife of/and Alvarez A. BROWN, Sr.
    No. 57222.
    Supreme Court of Louisiana.
    May 17, 1976.

      Arthur C. Reuter, Reuter & Reuter, New Orleans, for plaintiff-respondent.
    John F. Robert, Garon, Brener & Mc-Neely, New Orleans, for defendant-relator.
   MARCUS, Justice.

Upon application of Mr. and Mrs. Alvarez A. Brown, Sr. to this court for remedial writs and a stay order, we granted an order staying the sale of their property seized under a writ of fieri facias following a default judgment rendered against them. Relators contended that the execution of this judgment by the judgment creditor (Nassau) was premature in that the delay for a suspensive appeal therefrom had not elapsed. We granted certio-rari to review the merit of their contentions.

A recitation of the procedural history of this case is necessary for a proper understanding of the issues presented. Plaintiff filed suit against defendants on a mortgage note on October 18, 1974, claiming the balance due thereon and recognition of the mortgage securing same. Personal service was made on Mrs. Brown; domiciliary service was made on Mr. Brown. A judgment by default was entered against them on November 12, 1974 and was confirmed in accordance with the demands in plaintiff’s petition on November 19, 1974. The judgment creditor (Nassau) filed two motions to examine the defendants (judgment debt- or rules), one dated January 16, 1975 and the other dated May 16, 1975. These motions were personally served on defendants on January 23 and May 21, respectively. Request for issuance of a writ of fieri fa-cias was filed on September 25, 1975 by the judgment creditor (Nassau). Pursuant thereto, the Brown home was seized and the sale was set for December 11, 1975. On November 3, 1975, the Browns filed a “Motion for New Trial and to Annul Judgment.” The motion alleged that defendants were lulled into a false sense of security by the president of Nassau, Rene J. Brunet, who advised them not to answer the lawsuit and who accepted several payments on the indebtedness after suit was filed. Defendants claimed that they were entitled to a new trial as well as to have the judgment annulled on the ground of fraud and ill practices. A hearing was held on this motion on November 7, 1975. It was denied by the district court on November 25, 1975 and notice of judgment was mailed by the clerk of court to counsel of record for each party on that date. On December 5, 1975, the Browns filed a petition for injunction to arrest the seizure and sale, to annul the default judgment and for damages. They also sought attorney fees.

In this petition, the Browns alleged that, since no notice of the signing of the default judgment, which was based on domiciliary service, was ever served on them pursuant to the provisions of article 1913 of the Code of Civil Procedure, the delay for applying for a new trial never commenced to run. Therefore, their application for a new trial filed on November 3, 1975 was timely, and the thirty-day delay for taking a suspensive appeal did not commence to run until the date of the notice of the refusal to grant the new trial was mailed on November 25, 1975. Thus, they claimed that their property had been seized before the delay for taking a sus-pensive appeal had elapsed. Injunctive relief was sought to prohibit the sheriff from proceeding with the sale of the property seized. The Browns also sought nullity of the default judgment reurging the same allegations contained in their previous motion for a new trial and nullity of judgment. They claimed damages and attorney fees resulting from this illegal seizure. The district court refused to sign an order restraining the sale of the property on December 5, 1975. Application made to the Fourth Circuit Court of Appeal was denied. Upon application to this court asserting the same allegations made in the courts below, we granted a stay order and certiorari to review the validity of the proceedings. In this court, Nassau filed a motion to dismiss for mootness, pointing out that the relators had never moved for a suspensive appeal in the district court and the time had now elapsed for such an appeal, i. <?., more than thirty days had elapsed since the notice of the refusal to grant a new trial had been mailed by the clerk of court.

We first address ourselves to relators’ primary contention that the seizure of their property under a writ of fieri facias was a premature execution of the default judgment rendered against them in that the delay for taking a suspensive appeal therefrom had not elapsed.

The default judgment rendered against the Browns on November 19, 1974 was based on personal service on Mrs. Brown and domicilary service on Mr. Brown. Article 1913 of the Code of Civil Procedure requires that notice of the signing of a default judgment against a defendant on whom citation was not served personally shall be served on the defendant by the sheriff, by either personal or domiciliary service. Therefore, since Mrs. Brown was personally served, no notice of judgment was required to be served on her. On the other hand, since Mr. Brown was not served personally, notice of judgment was required to be served on him. Article 1974 provides that the delay for applying for a new trial shall be seven days, exclusive of legal holidays, and commences to run on the day after the judgment was signed except when notice of the judgment is required under article 1913 in which event the delay for applying for a new trial commences to run on the day after the sheriff has served the notice of judgment. Thus, the delay for applying for a new trial commenced to run on November 20, 1974 insofar as Mrs. Brown is concerned; however, it never commenced to run in regard to Mr. Brown, as he was not served with a notice of judgment as required by article 1913.

Since the delay for taking a new trial never commenced to run for Mr. Brown, his motion for a new trial filed on November 3, 1975 (some eleven months after rendition of the default judgment) was timely. Likewise, his action for nullity of judgment was also timely. La.Code Civ.P. arts. 2004, 2005 (I960). Hearing on the motion for a new trial and nullity of judgment was conducted on November 7, 1975 and was denied by the trial judge on November 25, 1975, on which date notice of judgment was mailed by the clerk of court to counsel of record for each party in accordance with article 1913. Article 2123 provides that a suspensive appeal may be taken only within thirty days of the date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under article 1914. The latter article provides that the delay for appealing suspensively from a judgment refusing to grant a new trial commences to run only from the date of mailing such notice as provided in article 2123. Therefore, the delay for taking a suspensive appeal by Mr. Brown did not commence to run until November 25, 1975 (date the notice of the court’s refusal to grant his timely application for a new trial had been mailed by the clerk of court) and did not elapse until thirty days later (December 24, 1975). However, prior to the expiration of the delay for taking a suspensive appeal, Nassau (judgment creditor) proceeded with the execution of the judgment by requesting the issuance of a writ of fieri facias (September 25, 1975) under which the Brown property was seized and ordered to be sold on December 11, 1975.

Respondent, Nassau, argues that notice of the signing of the default judgment as required by article 1913 was supplied by the personal service upon Mr. Brown of the judgment debtor rules (January 23 and May 21, 1975); therefore, the delays for applying for a new trial and taking a suspensive appeal under articles 1974 and 2123 had expired at the time of the seizure and ordered sale under the writ of fieri facias. We do not agree.

In aid of execution of a judgment, a judgment creditor may examine the judgment debtor upon any matter relating to his property. La.Code Civ.P. art. 2451 (1960). Such action is clearly a form of execution of judgments. Article 2252 provides that a judgment creditor may proceed with the execution of a judgment only after the delay for a suspensive appeal therefrom has elapsed. Therefore, it would be contrary to the provisions of this article to permit a judgment debtor rule to supply the notice of judgment required by article 1913 to commence the delays for applying for a new trial and taking a sus-pensive appeal. A notice of seizure was found not to be sufficient for notice of judgment as required by article 1913 so as to commence the delays for applying for a new trial and taking a suspensive appeal. Moses v. American Security Bank of Ville Platte, 222 So.2d 899 (La.App.3d Cir.1969). Even actual knowledge has been held not to waive service of the notice of judgment required by law. Hampson v. Hampson, 271 So.2d 898 (La.App.2d Cir.1972).

In the instant case, therefore, the delay for taking a suspensive appeal by Mr. Brown had not elapsed when the Brown property was seized and ordered sold under a writ of fieri facias. Hence, it was premature and constituted a wrongful seizure. La.Code Civ.P. arts. 1913, 1974, 2123, 2252. Mr. Brown is entitled to have this illegal seizure dissolved as prayed for in his petition for injunctive relief filed on December 5, 1975 and rejected by the district court. La.Code Civ.P. art. 2298(1).

We next consider relators’ application for a new trial and nullity of judgment which was included in our grant of certiorari. A review of the evidence adduced on the motion convinces us that there is no merit to their contentions. The testimony of the Browns was vague and uncertain. They simply claim that they were lulled into a false sense of security by the assurances of' Rene J. Brunet, president of Nassau, not to worry about the lawsuit and that it was unnecessary for them to go to court. They further contend that this was evidenced by his acceptance of payments after suit was filed. Mr. Brunet denied that he made any such assurances to the Browns. On the contrary, he testified that he constantly warned them both verbally and in writing about the seriousness of the situation and that they were'about to lose their house. In view of this factual dispute, resolution of which is based upon the credibility of the witnesses, we cannot say that the trial judge either abused his discretion in refusing to grant a new trial or erred in finding insufficient evidence to support relators’ claim for nullity of judgment on the ground of fraud or ill practices. La.Code Civ.P. arts. 1973, 2004.

As previously noted, relators also sought damages and attorney fees for the illegal seizure of their property in their application for injunctive relief. Since the courts below did not find a wrongful seizure, they never reached these issues. The general rule in Louisisana is that attorney fees are not allowed except where authorized by statute or contract. Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1959); Moses v. American Security Bank of Ville Platte, supra; Morein v. G. J. Deville Lumber Co., Inc., 215 So.2d 208 (La.App.3d Cir.1968). Although statutory provisions do permit the allowance of attorney fees for dissolution of improper seizures under writs of attachment, sequestrations or injunction (Louisiana Code of Civil Procedure, articles 3506, 3608), there are no provisions in law made for the recovery of attorney fees for damages for dissolution of a wrongful seizure of property under a writ of fieri facias. When such claim has been made, it has been rejected by the courts. Dubois v. Travelers Indemnity Company, 261 So.2d 94 (La.App.3d Cir.1972); Moses v. American Security Bank of Ville Platte, supra. Thus the claim for attorney fees in the instant matter for wrongful seizure of the Brown property under the writ of fieri facias cannot be allowed.

The demand for other damages is a different matter. A party agrieved by the wrongful seizure is entitled to recover not only special damages caused him thereby, but also general damages (if proven) by way of mortification, humiliation, mental worry, etc. caused by this intentional violation of his property rights. Hernandez v. Harson, supra; Dubois v. Travelers Indemnity Company, supra; Moses v. American Security Bank of Ville Platte, supra. Hence, the right to claim these damages will be reserved to relators.

Finally, we find no substance in Nassau’s motion for mootness filed in this court. Within the delay for taking a sus-pensive appeal, we granted a stay order and certiorari under our supervisory jurisdiction. Our review of the issues presented herein was therefore under these supervisory powers. Hence, whether or not the delay for taking a suspensive appeal has now expired is of no moment.

DECREE

For the reasons assigned, the judgment of the district court denying relators’ motion for a new trial and nullity of judgment is affirmed; the judgment of the district court refusing to enjoin the sheriff from proceeding with the sale of the rela-tors’ property is reversed; the seizure of relators’ property is dissolved and the writ of fieri facias issued pursuant to Nassau Realty Co., Inc.’s request dated September 25, 1975 is recalled and set aside; the right of Mr. and Mrs. Alvarez A. Brown, Sr. to claim damages for the illegal seizure is reserved. Nassau Realty Co., Inc. is cast with the cost of these proceedings.

      . In regard to Mrs. Brown, the delay for applying for a new trial as well as the delay for a suspensive appeal had expired. Article 2123 provides that a suspensive appeal must be taken within thirty days of the expiration of the delay for applying for a new trial, as provided by article 1974, if no application has been filed timely. Hence, the default judgment was final as to her. However, her action for nullity of judgment was timely. La. Code Civ.P. arts. 2004, 2006 (1960).

      . It is conceded that the mortgage note which is the subject of this suit is a community debt. Hence, Mr. Brown, as head and master of the community, was the proper party defendant. La.Code Civ.P. art. 735; of. La. Civil Code art. 2404. It is also conceded that the property seized is community property. If a judgment is to serve as a basis for seizure of community property, the delay for taking a suspensive appeal from that judgment by the husband must have elapsed before the judgment creditor may proceed with the execution of the judgment. La.Code Civ.P. art. 2252; cf. R.D.M. Corporation v. Patterson, 255 La. 301, 230 So.2d 820 (1970).


text:
    STATE of Louisiana v. Irving Joseph JACKSON.
    No. 57388.
    Supreme Court of Louisiana.
    May 17, 1976.
    Jon A. Gegenheimer, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, Richard J.' Boutall, Research Atty., Research and Appeals Div., Metair-ie, for plaintiff-appellee.
   DIXON, Justice.

The defendant, Irving Jackson, was charged by bill of information with the crime of armed robbery in violation of R. S. 14:64. After a jury trial he was found guilty and subsequently sentenced to forty-five years imprisonment. Upon an application for a writ of habeas corpus, this court ordered an out-of-time appeal which is now before us.

Defendant and two accomplices committed an armed robbery in broad daylight in the parking lot of a supermarket. Both victims testified. The nicknames of two of the robbers were known to the victims. One victim followed the robbers’ car, obtained police help and located the car. The prosecution was straightforward. The witnesses were cross-examined. Few objections were made. Hardly any opportunity arose for reserving assignments of error.

No assignments of error were perfected as required by C.Cr.P. 844. Therefore, this court is limited to a review of the record for errors that are discoverable by a mere inspection of the pleadings and proceedings. C.Cr.P. 920; State v. Gerald, 325 So.2d 574 (La.1976). We have reviewed the record and find no error.

Accordingly, the conviction and sentence are affirmed.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Warren MAYES.
    No. 57315.
    Supreme Court of Louisiana.
    May 17, 1976.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff appellee.
   SUMMERS, Justice.

Warren Mayes and Debra Lucien were charged with public bribery by giving and offering to give $35 to Archie Keyser, a police officer, with intent to influence the officer’s conduct in relation to his position, employment and duty. La.R.S. 14:118. Mayes was tried alone, found guilty of public bribery, charged as an habitual offender under Section 529.1 of Title 15 of the Revised Statutes, and sentenced to serve four years at hard labor and pay a fine of $1,000 and costs.

During the early morning hours of December 16, 1974, the police on the Bourbon Street Promenade beat were engaged in picking up street walkers, prostitutes, and placing them in a patrol wagon. Mayes was standing nearby and watching the operation. When Officer Foster asked him what he wanted, he said one of his girls was in the wagon and he wanted to see if he could get her out. Officer Foster told him he would have to see the sergeant. When Mayes said he wanted to see the sergeant, Officer Mendoza summoned him from the 400 block of Bourbon Street.

Sergeant Keyser arrived shortly thereafter in his car and Mayes was allowed to enter the car to confer with Sergeant Key-ser. Then, in the presence of Officer Mendoza, Mayes asked Sergeant Keyser how much it would cost to get [his girl] Debra Lucien out so that she could work the street as a prostitute. He said he understood the price was fifty dollars a week for a girl, but he was short and he would give Sergeant Keyser thirty-five dollars and “cash him up” later with the balance.

Debra Lucien was then released and Mayes was allowed to depart. Since the police operation was a continuing one, no arrests were made at that time in order not to alert other suspects.

Soon thereafter Sergeant Keyser, Officer Mendoza and Officer Foster met in a hotel room nearby — in use as a base for the operation — and Sergeant Keyser placed the money in a brown envelope. There was a twenty-dollar bill, a ten and five ones. The serial numbers of the bills were recorded on the envelope, together with a reference to the date and place of the transaction, and it was initialed by Sergeant Keyser, Officer Foster and Officer Mendoza. The envelope was then delivered to Captain Dupre. At the hotel room the serial numbers of the bills were also recorded in the evidence book by Officer Mendoza.

Captain Dupre retained the envelope in a safe in his office. It was produced at the trial, identified by Sergeant Keyser and Officers Foster and Mendoza.

Defense counsel objected to the introduction of the envelope and money, arguing that the State had failed to prove the chain of custody. The objection was overruled. Thereupon, the State closed its case and the defense moved for a directed verdict on the ground that the testimony of the police officers was contradictory and for that reason the proof was not beyond a reasonable doubt as the law requires.

The defense claim that the chain of custody was not established is based, as the motion for directed verdict is, upon the inability of Sergeant Keyser, at the hearing on a motion to suppress the money, to recall specific dates, times and the exact amount of money involved in the bribe. Hearing on the motion to suppress was held on April 1, 1975, an interval of four months after the December 16, 1974 bribe. Sergeant Keyser had had no opportunity at that time to refresh his memory from his report of the incident. At the trial, however, he testified in detail to all aspects of the bribe transaction — the time, date, amount of money, etc. Understandably, he was unable to recall the details when other matters of a similar nature occurred on the same night, approximately four months previously, without refreshing his memory from his report.

In our view a proper explanation was furnished for Sergeant Keyser’s inability to recall the details at the motion to suppress, and, therefore, there were in fact no unusual contradictions in the testimony of the officers on any of the elements of the crime or on the issue of chain of custody. A proper foundation for reception of the evidence was therefore established. La.Code Crim.Pro. art. 773; State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972).

Relevancy of the money as evidence in the case is obvious. When the trial judge satisfies himself of the relevancy of the evidence, the question of chain of custody and identification is principally one of the weight of the evidence rather than one of its admissibility. State v. Franks, 284 So.2d 584 (La. 1973).

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


text:
    STATE of Louisiana v. Michael ANTHONY.
    No. 57337.
    Supreme Court of Louisiana.
    May 17, 1976.

      Joel B. Dickinson & Associates, Joel B. Dickinson, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Michael Anthony was charged by bill of information with the crime of simple burglary in violation of La.R.S. 14:62. After trial by jury, he was found guilty as charged and was subsequently sentenced to serve seven years at hard labor. On appeal, he relies upon three assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

On direct examination the victim of the burglary, who had scuffled with defendant as the latter was escaping from his house, testified that defendant' had a prominent scar on his chest. On redirect examination, defendant was required to open his shirt and expose the scar, which the victim recognized. Defendant contends that forcing him to expose the scar violated his privilege against self-incrimination.

It is settled that the privilege against self-incrimination protects an accused only from being compelled to testify against himself, or from otherwise providing the state with evidence of a testimonial or communicative nature. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The privilege does not mandate an exclusion of the accused’s body as evidence when it may be material. State v. Wilson and Francis, 329 So.2d 680 (La.1976). The instant case is virtually indistinguishable from State v. Junius, 257 La. 331, 242 So.2d 533 (1971), where we held that the accused’s privilege against self-incrimination was not offended when he was compelled to exhibit an identifying scar to a witness at trial, and from Wilson and Francis, supra, where we upheld the state’s right to compel the accused to expose an identifying tatoo on his arm. Similarly, the trial judge in this case did not commit error when he required defendant to expose the identifying scar on his chest.

Defendant also urges in this assignment that the trial judge erred in allowing the state, over his objection, to examine the victim of the burglary about the scar on redirect, when the victim had not been questioned concerning the scar on cross-examination. La.R.S. 15:281 allows the trial judge to permit extension of the scope of redirect examination beyond the subject matter of the cross-examination, provided that the opportunity be not denied to recross on the new matter brought out on the redirect. La.R.S. 15:281; State v. Monk, 315 So.2d 727 (La.1975). The decision to permit extension of the scope of redirect examination, since it is within the trial judge’s discretion, must be upheld unless an abuse of discretion can be shown. State v. Watson, 301 So.2d 653 (La.1974). We find that there has been no showing of an abuse of discretion in the instant case. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant alleges that the victim’s in-court identification of him as the intruder in his home on the day of the burglary was tainted by an improperly suggestive photographic identification, particularly inasmuch as no corporeal line-up was conducted prior to trial.

We find no substance to this allegation. The victim of the burglary, Ronald Sykes, testified at trial that Jack Pierce, an investigator for the district attorney’s office, came to his home about a month before the trial and presented him with five photographs for his inspection: The victim testified that the officer did not indicate which photograph was that of defendant, nor did the officer tell him that a photograph of the person arrested for the burglary was included among the group of photographs. Rather, the victim testified that the officer did not “in any way” indicate which photograph he wanted him to select. Pierce testified that he selected the photographs which were presented to Sykes after reviewing the mug books and picking therefrom four photographs of black males who most closely resembled the photograph of defendant. It was from this group of photographs that Sykes selected defendant. Pierce also stated that he did not prompt Sykes in any way during his selection of defendant from the photographic display.

Even if we assume arguendo that the out-of-court identification was tainted, it is settled that the in-court identification does not violate the accused’s due process rights where it has a source independent of the out-of-court identification. State v. Price, 325 So.2d 780 (La.1975); State v. Newman, 283 So.2d 756 (La.1973). In the instant case, the victim testified that he had a face-to-face encounter and struggle with defendant in the well-lighted hallway of his home. He further testified that he "got a good look” at defendant’s face. At trial, he was able to recall in detail the clothes that defendant wore on the day of the burglary, as well as the prominent scar on his chest.

The in-court identification clearly had a source independent of the out-of-court identification. There is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 3

Defendant finally contends that the sentence imposed in the circumstances of this case, imprisonment for seven years at hard labor, inflicts cruel, unusual, and excessive punishment in violation of article I, section 20 of the Louisiana Constitution of 1974.

This contention does not present an issue that this court may consider on appeal. The allegation that a sentence imposes cruel, unusual, or excessive punishment in the particular circumstances of the case does not present an error that is discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. La.Code Crim.P. art. 920(2) (1966), as amended, La. Acts 1974, No. 207, § 1; State v. Williams, 322 So.2d 177 (La.1975). Since defendant did not object to the sentence at the time of its imposition as required by article 841 of the Code of Criminal Procedure, we do not reach the issue of whether this court can pass upon the excessiveness of a sentence under the particular circumstances of a case. State v. Williams, supra. Hence, this assignment of error lacks merit.

DECREE

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

SUMMERS, J., concurs.

DIXON, J., concurs, disagreeing with the treatment of assignment No. 3.


text:
    John RICHARDS v. TRAVELERS INSURANCE COMPANY.
    No. 57881.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: John Richards, applying for Cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Plaque-mines.

Writ denied. The result is correct.

DIXON, J., is of the opinion the writ should be granted.

CALOGERO, J., dissents from denial of this writ.

DENNIS, J., is of the view that the writ should be granted.


text:
    STATE of Louisiana v. Ronald J. DAVIS.
    No. 57932.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: State of Louisiana applying for Certiorari, Prohibition or Mandamus.

Writ denied. The ruling of the trial judge is correct.

SANDERS, C. J., is of the opinion that a writ should be granted.


text:
    Louella M. WALKER v. Joseph T. FONTENOT et al. Carol Wells CLARK v. Joseph T. FONTENOT et al.
    No. 57954.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re; Willie E. Wild, d/b/a Wild’s Insurance Agency applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Livingston.

Writ denied. On the assignment of error, we find no error in the judgment of the court of appeal, 329 So.2d 762.

DENNIS, J., is of the opinion the writ should be granted.


text:
    John L. HOPPE et al. v. CITY OF SHREVEPORT et al.
    No. 57849.
    Supreme Court of Louisiana.
    April 30, 1976.
   No. 212205 on the docket of the First Judicial District Court for the Parish of Caddo, and Nos. 12830 and 12831 on the docket of the Court of Appeal, Second Circuit, State of Louisiana, 327 So.2d 548.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.

DIXON, J., recused.


text:
    STATE of Louisiana v. Mack Charles GAY and Michael O’Shea Cook.
    No. 57922.
    Supreme Court of Louisiana.
    May 26, 1976.
   In re: Michael O’Shea Cook applying ■ for writ of Certiorari, Prohibition and Mandamus.

Writ granted. It is ordered that the trial judge’s order be set aside to the extent that it revokes the previously appointed sanity commission, reserving the right of defendant to be examined by said commission as to his mental capacity as of the time of the offense.

SUMMERS, J., is of the opinion the writ should be denied. There is no showing that the trial judge abused his discretion in the ruling complained of.


text:
    CITY OF BATON ROUGE v. Dora PARKER and Mercedes Miller.
    No. 57909.
    Supreme Court of Louisiana.
    May 26, 1976.
   In re: Dora Parker and Mercedes Miller, applying for writ of review.

Not considered. As to the assignments of error, the remedy is by appeal to the District Court. See LSA-R.S. 13-.1896B.

DIXON, J., dissents from the refusal, being of the opinion the ordinance is broader than the State Statute (R.S. 14:103 A (4) and therefore unconstitutional.

CALOGERO, J., is of the opinion the writ should be granted.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Paul Alcide TRAHAN.
    No. 57240.
    Supreme Court of Louisiana.
    May 17, 1976.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Metairie for plaintiff-appellee.
    Ross T. Scaccia, New Orleans, for defendant-appellant.
   DENNIS, Justice.

Defendant Paul Trahan was convicted of attempted murder, a violation of La. R. S. 14:30.1 and La. R.S. 14:27, and sentenced to ten years imprisonment at hard labor. Although defendant reserved five assignments of error to rulings by the court during the trial, he urges but one as a basis for reversal of his conviction.

That assignment of error was taken when the trial court sustained an objection by the State to the introduction of defendant’s medical records from a mental hospital in which he had been treated. The defense attempted to introduce these records as evidence in order to use them to impeach the testimony of two psychiatrists on the lunacy commission appointed to examine defendant. Both doctors testified that in their opinion defendant knew the difference between right and wrong at the time of the commission of the crime. The defense claims that the reports of doctors who had examined defendant in the institutions classified him as a “borderline psychotic” and that these opinions should have been admissible to contradict the findings of the lunacy commission.

Ordinarily, the written or oral testimony of an expert witness cannot be introduced in evidence unless he is present in court to submit to cross-examination. Otherwise, his testimony would be inadmissible hearsay. However, there are jurisprudential and legislative exceptions to the hearsay rule, one of which applies to hospital records. The exception relied on by the defendant was established by La. R.S. 13:3714:

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

This provision augments the general rule of La. R.S. 15:457, which provides:

“A copy of a document, certified to by the officer who is the legal custodian of the same is equivalent to the original in authenticity; but the certificate of an officer to any matter not under the general powers vested in him is no evidence at all.”

Since State v. Kelly, 237 La. 956, 112 So.2d 674 (1959), this Court has applied La. R.S. 13:3714 in criminal as well as civil cases. Moreover, we have held that, when the statutory requirements have been satisfied, introduction of certified copies of hospital records does not deny a defendant the right to confront witnesses against him. State v. O’Brien, 255 La. 704, 232 So.2d 484 (1970). However, because the medical records rule is an exception to the hearsay rule created by statute, it is essential that all of the formalities prescribed in the statute be followed before such records are admissible in evidence.

The hospital records defendant sought to introduce in the instant case were not certified by any of the authorities named in La. R.S. 13:3714. Consequently, the records did not quality for introduction under the hospital records exception to the hearsay rule. The trial judge correctly sustained the State’s objection to their admission.

We note that the purpose for which the defendant sought to admit the records was to show that one psychiatrist who had previously examined him concluded that defendant was a “borderline psychotic.” This conclusion does not contradict the testimony of the two members of the lunacy commission as to whether defendant knew the difference between right and wrong. One of the psychiatrists on the commission stated during questioning that he disagreed with the conclusion that defendant was a borderline psychotic, and the fact that another doctor held a different view would not change his opinion. The other psychiatrist who testified on behalf of the State at trial agreed that defendant possibly could have been a borderline psychotic, but she stated that such a diagnosis was not inconsistent with her conclusion that defendant knew the difference between right and wrong at the time of the commission of the crime.

Thus, no great prejudice was suffered by defendant because of his inability to introduce the medical records in question. The assignment of error has no merit.

For the reasons assigned, we affirm defendant’s conviction and sentence.


author: SANDERS, Chief Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. Jay Archie VICTORIAN.
    No. 57252.
    Supreme Court of Louisiana.
    May 17, 1976.

      Vanue B. Lacour, Holt B. Harrison, La-cour & Calloway, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Jay Archie Victorian, with armed robbery in violation of LSA-R.S. 14:64. The jury found him guilty as charged, and the trial judge sentenced him to forty-five years imprisonment without benefit of parole, probation, or suspension of sentence. On appeal to this Court, the defendant assigns two errors, attacking the constitutionality of the statute under which he was sentenced. We find no merit in his arguments and, accordingly, affirm his conviction and sentence.

LSA-R.S. 14:64, the armed robbery statute, provides in pertinent part:

“Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.”

Defendant’s first assignment of error complains that LSA-R.S. 14:64 violates the equal protection and due process clauses of the federal constitution because it delegates to the trial judge excessive discretion in fixing sentences, without any well-defined standards to guide that discretion.

Defendant further contends that delegating such broad discretion to the trial judge amounts to empowering him to legislate, in violation of the separation of powers clause of the Louisiana Constitution. La. Const. Art. II, § 2 (1974). Finally, defendant relies upon Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), arguing that the unrestrained discretion of the trial judge in his case is analogous to the unrestrained discretion of a jury condemned in Furman.

We reject the defendant’s arguments. This Court has held numerous times that the sentencing provision of LSA-R.S. 14:64 is not violative of equal protection and due process guarantees. See e. g., State v. Hawkins, 263 La. 36, 267 So.2d 185 (1972); State v. Howard, 262 La. 270, 263 So.2d 32 (1972). In this case, we broaden those holdings to include a holding that the statute also does no violence to the separation of powers doctrine of the Louisiana Constitution. In United States v. McGhee, 488 F.2d 781 (5th Cir.), cert. denied, 417 U.S. 949, 94 S.Ct. 3077, 41 L.Ed.2d 670 (1974), the Fifth Circuit Court of Appeals rejected a similar argument directed to a sentencing provision in a federal statute which provided no maximum term.

In Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), the United States Supreme Court stated:

“. . . Sentencing judges are vested with wide discretion in the exceedingly difficult task of determining the appropriate punishment in the countless variety of situations that appear. The Constitution permits qualitative differences in meting out punishment and there is no requirement that two persons convicted of the same offense' receive identical sentences.”

The case of Furman v. Georgia, supra, is inapposite because it involved the unrestrained discretion of a jury on the issue of the death penalty and the potential for discrimination as to capital punishment. Those factors are not present in the instant case.

In his second assignment of error, defendant contends that LSA-R.S. 14:64 is unconstitutional both on its face and as applied to him, because it violates the prohibition in Article 1, § 20 of the Louisiana Constitution of 1974 against “cruel, excessive, or unusual punishment.” We adhere to our prior holdings that the penalty provision of the armed robbery statute is not constitutionally infirm. See, e. g., State v. Fisher, La., 321 So.2d 519 (1975); State v. Witherspoon, La., 292 So.2d 499 (1974); State v. Rose, La., 271 So.2d 863 (1973).

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

DIXON, J., concurs.

CALOGERO, J., concurs and assigns reasons.

TATE, J., concurs for the reasons assigned by CALOGERO, J.

CALOGERO, Justice

(concurring).

I respectfully concur.

Under the facts of this case and on the record before us, the forty-five year sentence imposed was not an excessive penalty for armed robbery. But see discussion in State v. McClinton, 329 So.2d 676 (La.), decided March 29, 1976; State v. Whitehurst, 319 So.2d 907 (La.1975).


text:
    STATE of Louisiana v. Renard BELL.
    No. 57335.
    Supreme Court of Louisiana.
    May 17, 1976.
    Vincent Wilkins, Jr., Director, Roland T. Huson, III, Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Warren J. Hebert, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant was charged by indictment with second degree murder in violation of La.R.S. 14:30.1. He first pleaded not guilty to the charge, but later was allowed to withdraw that plea and to plead guilty to the lesser included offense of manslaughter. The plea was accompanied by the usual Boy km examination, and the record indicates that defendant understood and waived his right against self-incrimination, his right to trial by jury and his right to confront witnesses against him.

On the basis of his guilty plea, defendant was sentenced to serve twenty-one years at hard labor. No objections were made during the proceedings.

Defendant urges only one specification of error in this appeal. He argues that La.C.Cr.P. art. 920, limiting a defendant to appeals based on error designated in the assignment of errors and errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence, restricts a defendant’s right of appeal established by La.Const.1974 art. I, § 19, which provides:

“No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.”

However, the State correctly points out that we cannot reach this issue because of the defendant’s guilty plea. Under our jurisprudence established before the adoption of the Louisiana Constitution of 1974, a plea of guilty waives all defects prior to that plea except those jurisdictional defects which appear on the face of the pleadings and proceedings. State v. Coats, 260 La. 64, 255 So.2d 75 (1971). Recently, in State v. Spain, La., 329 So.2d 178, decided February 23, 1976, we sustained this jurisprudential rule against an attack based upon Article I, § 19 of the Louisiana Constitution of 1974. In that case we held that a defendant’s plea of guilty constitutes an intelligent waiver of appellate review of the merits of the prosecution’s case against him.

We have reviewed the record for jurisdictional defects appearing on the face of the pleadings and proceedings and have found none.

Accordingly, defendant’s conviction and sentence are affirmed.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Charles E. LEWIS.
    No. 57336.
    Supreme Court of Louisiana.
    May 17, 1976.

      David W. Robinson, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Richard E. Chaffin, James E. Boren, Asst. Dist. Attys., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant was charged with the knowing and intentional distribution, on October 24, 1973, of a controlled dangerous substance, namely, phenmetrazine, a drug the bill of information suggests is commonly known as Preludin, in violation of La.R.S. 40:968(A). The recipient was one A1 Burns, a Baton Rouge City Police Officer. Defendant was tried and found guilty as charged by a twelve member jury. He was sentenced to serve three years at hard labor.

On October 12, 1973, twelve days prior to the incident giving rise to the charge, Officer Albert Burns went to the residence of Wilbert Marcel for the purpose of purchasing a controlled dangerous substance. He informed Marcel that he wanted some Preludin. Marcel then asked defendant, who was present, to get a container of pills. Officer Burns testified that defendant handed him the pills, but defendant contended that he handed the pills to his uncle, who had been ill. Officer Burns said he then gave some money to Marcel; defendant testified that he did not see an exchange of money.

On October 24, 1973, Officer Burns returned to the residence of Wilbert Marcel. Officer Burns testified that he went to purchase drugs from anyone present on the premises; that only defendant Charles E. Lewis was there; and that Lewis was carrying a shotgun and pointing it at Officer Burns. Burns testified that he asked for five Preludin pills, that Lewis gave them to him, and that he gave Lewis twenty dollars. Burns then went back to his car where Earl Wright, an investigator with the District Attorney’s office was waiting and Burns showed Wright the pills. This was confirmed by Wright.

Defendant took the stand in his own defense and testified that on October 24, 1973, when Officer Burns returned to the apartment of his uncle, Wilbert Marcel, Officer Burns asked where his uncle was, and when told he was not in, left without asking for or being given any pills. He stated that he was holding a carbine rifle, in contrast to a shotgun, when Officer Burns came to the door, but that he did not point it at Burns and that he put it on the dresser while he was talking to Burns.

Defense counsel perfected five assignments of error but briefs and argues only three before this Court.

ASSIGNMENT OF ERROR NO. 1.

By assignment of error number one, defendant argues that it was error for the trial court to allow evidence to go to the jury concerning the distribution of “prelu-din” since “preludin” is not a controlled dangerous substance classified as such by La.R.S. 40:964. The bill of information charging defendant stated that “he knowingly and intentionally distributed a controlled dangerous substance, to wit: Phen-metrazine (commonly known as Preludin) to one A1 Burns, a Baton Rouge Police Officer” (emphasis added).

La.R.S. 40:968(A) provides as follows:

“§ 968. Prohibited acts — Schedule III; penalties
A. Manufacture'; distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule III;

La.R.S. 40:964 provides in pertinent part as follows:

“SCHEDULE III
A. Stimulants. Unless specifically excepted or unless listed in another Schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:
(1) Phenmetrazine and its salts

At trial, Ms. Marta Finolit, a chemist with the Louisiana Police Crime Laboratory, was qualified as an expert and testified that the pills allegedly taken from defendant by Officer Burns were phenmetrazine. She further testified that phenmetrazine is the chemical name for Preludin, or conversely, that Preludin is a trade name and phenmetrazine is a chemical name for the same thing.

From the outset of trial, defense counsel objected to the admissibility of any evidence having to do with the identification of Preludin on the grounds that the statute does not proscribe the distribution of such a drug. He argues that a statute must give a person of ordinary intelligence fair notice of what conduct is criminal, and points out in conjunction with this argument that guilty knowledge on the part of the accused is an essential element in controlled dangerous substances cases. The thrust of this contention is that the statute is vague and indefinite.

It is true as pointed out by counsel that both defendant and Officer Burns referred to Preludin in their testimony, and in response to questions, asserted or admitted that they were not familiar with the term phenmetrazine. However, it was shown as an evidentiary matter that Preludin is a trade name and a common name for a pill or capsule which is a form of phenmetra-zine.

The question thus presented is whether a statute is vague and indefinite which identifies a controlled dangerous substance by its chemical name alone, and without reference to its trade, brand or “street” name or names as well.

We conclude that the statute is not vague and indefinite, as a constitutional proposition, or otherwise. If anything, it is overly precise and specific.

Defendant’s actual complaint is more properly the subject of the defense that he did not knowingly and intentionally distribute a controlled dangerous substance, a defense which was duly presented to, but not accepted by the trial jury, and which is presented to this Court in connection with a motion for directed verdict by Assignment of Error number four.

ASSIGNMENT OF ERROR NO. 4.

By this assignment, defendant argues that the trial court erred in denying his motion for directed verdict since there was no evidence to establish defendant’s knowing and intentional distribution of a controlled dangerous substance. Defendant’s argument is that “guilty knowledge” is an essential element of the crime of distributing a controlled dangerous substance, that the state failed to present any evidence tending to prove that defendant knew he was distributing a controlled dangerous substance and that, therefore, the trial court should have directed a verdict for defendant.

The law of this state is clear that “insufficiency of the evidence is not a question of law and may not be reviewed by this Court” and that a denial of a motion for directed verdict will be reversed only when there is a total lack of evidence to prove the crime itself or an essential element of the crime. State v. Douglas, 278 So.2d 485 (La.1973).

In order to prove a violation of La.R.S. 40:968 (A) it must be shown that defendant knowingly or intentionally distributed a controlled dangerous substance classified in Schedule III.

There is, of course, evidence that defendant knew it was a controlled dangerous substance, for Officer Burns testified that defendant charged him $4.00 per pill for five pills in a transaction which took place with defendant holding a shotgun on him.

The assignment is without merit.

ASSIGNMENT OF ERROR NO. 5.

In support of this assignment, defendant argues that the trial court erred in permitting the assistant district attorney to read to the jury portions of the criminal code applicable to the law of principal in connection with a prior incident for which defendant was neither charged nor being tried. Defense counsel contends that this unduly prejudiced defendant in the eyes of the jury, and gave them a means of convicting defendant on the basis of his “relationship” with an accused in other case. Perhaps more pertinently he is contending that the court’s allowing the district attorney to read the law of conspiracy in connection with the prior incident inferentially suggested to the jury that they could find defendant guilty if satisfied that defendant was a principal in the prior incident even if they did not believe that he committed the charged offense of October 24.

To better comprehend the substance of this argument and the reasons for our resolution hereinafter it is necessary that a series of events which took place at the trial be related.

In the taking of evidence there was testimony concerning a prior incident in which the same officer went to the same apartment and purchased Preludin from Wilbert Marcel while defendant was present. Testimony relative to this October 12, 1973 incident was initiated by defense counsel on cross-examination of Officer Burns. Defense counsel also introduced into the trial the fact that Marcel had been arrested and was coming up for trial and that defendant had been asked to testify against him.

In the opening half of the state’s closing argument the assistant district attorney referred to the incident of the 12th of October apparently hoping that this incident where defendant handed five pills to Officer Burns, or as defendant contended, to his uncle Wilbert Marcel, for, or in the presence of Officer Burns, tended to show that on October 24 defendant knew what he was doing when he sold Burns five pills of Preludin.

In closing argument defense counsel made the following basic argument:

Officer Burns went out on October 12 to make a “buy” from Marcel. He paid the money to Marcel but to his surprise received the pills from Lewis. Therefore he had not made a “good buy,” i. e., one which would support a prosecution. Realizing this, he went out a second time, discovered Marcel absent, received nothing from Lewis. Inasmuch as he had the five pills from the first “buy” he located Lewis, asked him to help the state prosecute Marcel. Lewis refused, so Burns made up the October 24 story of a “buy” and charged Lewis.

In rebuttal, the assistant district attorney countered part of the defense argument, about the officer’s bad case of October 12, by reading La.R.S. 14:24, Principals.

It was over defendant’s objection that the district attorney was permitted to read R.S. 14:24. Counsel contends that any definition of principals could only be for the purpose of showing culpability in connection with that incident.

On the contrary, the purpose of reading R.S. 14:24 was to expand upon and counter an argument presented by defense counsel. In effect it was defense counsel who raised for jury consideration the quality of the state’s case or cases relative to the October 12 incident.

It was therefore appropriate and for this reason not error, for the court to permit the district attorney to read the article on principals. Furthermore, while allowing the district attorney to read R.S. 14:24, the trial judge, in a situation, incidentally, in which the other crime or other incident was brought into the trial by defendant, admonished the jury that defendant was on trial only for the October 24 incident and that they could “return a verdict only in regard to that offense and no other offense.”

The district attorney in his concluding remark in rebuttal, highlighted the incidents of both October 12 and October 24, but reminded the jury that defendant was on trial for only the latter incident. Two reasons dictate our conclusion that reversible error did not here occur. For one thing, the comment added no element in the trial which had not earlier been introduced. Equally important no objection, request for mistrial, or request for admonition was made by counsel for defendant with respect to this concluding remark of the district attorney.

There is no merit to this assignment.

For the foregoing reasons, the conviction and sentence of defendant Charles E. Lewis, is affirmed.

DIXON, J., concurs.

      . La.R.S. 14:24 provides:
      “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”


text:
    STATE of Louisiana v. Ellison C. SHEPHERD.
    No. 57385.
    Supreme Court of Louisiana.
    May 17, 1976.

      Joel B. Dickinson, Joel B. Dickinson & Associates, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Anthony J. Graphia, James E. Boren, Asst. Dist. Attys., for plaintiff-appellee.
   SUMMERS, Justice.

Ellison C. Shepherd was charged in an indictment filed by the grand jury of East Baton Rouge Parish on July 23, 1974 with the second degree murder of Eddie C. Robinson, Jr., on June 9, 1974. After a trial by jury on February 18, 19 and 20 of 1975, a verdict of guilty of manslaughter was returned. Shepherd was sentenced to be confined in the custody of the Louisiana Department of Corrections at hard labor for fifteen years. Seven assignments of error are urged on this appeal.

Assignment 1

Prior to trial, on February 14, 1975, defendant filed a motion to quash the indictment, alleging as grounds therefor that the grand jury which indicted him was illegally constituted because women were systematically excluded therefrom.

In his brief, defense counsel relies upon the decisions in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) and this Court’s decision in State v. Gaines, 315 So.2d 298 (La.1975).

This grand jury was empaneled prior to July 23, 1974 when it rendered its indictment. At that time Section 41 of Article VII of the Louisiana Constitution of 1921 provided that “no woman shall be drawn for jury service unless she shall have previously filed with the clerk of the District Court a written declaration of her desire to be subject to such service.” Article 402 of the Code of Criminal Procedure at that time was to the same effect. Repeated decisions of this Court affirmed these enactments. Their constitutionality had been supported by the decision of the United States Supreme Court in Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961).

Louisiana’s Constitution of 1974 became effective at midnight on December 31, 1974. La.Const. art. XIV, § 35 (1974). Any citizen of the State who has reached the age of majority is eligible, under Section 33 of Article V of that Constitution, to serve as a juror within the parish in which he is domiciled. This constitutional provision is not retroactive. La.Const. art. XIV, § 26 (1974).

Provision for exemptions from jury duty was, by Section 33 of Article V, to be provided for by rule of this Court. Rule 25 of this Court which became effective January 1, 1975, provides that no citizen of this State shall be excluded from jury service on account of sex. Thus, it will be seen that on January 1, 1975 and thereafter women could no longer be exempt from jury service in this State on the basis of sex, while prior to that time they could not be compelled to serve without their expressed desire to do so.

Then, on January 21, 1975, the United States Supreme Court decided Taylor v. Louisiana, 419 U.S. 522, 95. S.Ct. 692, 42 L.Ed.2d 690, holding that in a trial by jury in 1972 the Sixth and Fourteenth Amendments were violated by Article VII, Section 41, of the Louisiana Constitution of 1921 and Article 402 of the Code of Criminal Procedure.

Six days after the decision in Taylor v. Louisiana the United States Supreme Court decided Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975) and held that the Taylor decision was not to be applied retroactively, as a matter of Federal law, to convictions which were obtained by juries empaneled prior to the date of the Taylor decision — January 21, 1975.

On June 23, 1975 this Court decided, in State v. Gaines, 315 So.2d 298, that two grand jury indictments returned on January 6, 1975, were illegally returned where no women were included in the general venire, even though the grand jury had been empaneled prior to January 1, 1975. On that same day we decided State v. Lewis, La., 315 So.2d 626, holding that a trial by jury commenced and concluded during the month of April 1974, in which no women served, was not subject to constitutional attack. The decision recognized that the validity of the Louisiana constitutional and statutory provisions, exempting women unless they declared their intention to serve, were not affected by the decisions of the Taylor and Daniel cases prior to the effective date of the Taylor decision — January 21, 1975.

Also, in State v. Rester, 309 So.2d 321 (La.1975) and State v. Devore, 309 So.2d 325 (La.1975), we decided that, as a matter of state law, the rule of the Taylor case would not be applied retroactively. In State ex rel. James v. Parker, 308 So.2d 284 (La.1975), writs were denied in a case where the trial court refused to quash an indictment returned before the Taylor case was decided by a grand jury empaneled prior to January 1, 1975, but where the trial was scheduled to take placed after the Taylor decision on January 21, 1975.

Upon this authority we conclude that the indictment rendered prior to January 1, 1975 by a grand jury, on which women have not served because none had declared her willingness to do so, resulting in a conviction in a February 1975 trial, where women served, is not infirm as a matter of federal or state law. For the reasons stated, defendant’s Assignment 1 is without merit.

Assignment 2

James G. Joseph testified for the State. He was a picketer at a strike being staged at Schuylkill Metal Corporation where Shepherd and Walter Brumfield also worked. All of them were on strike. Larry Butler, although he was not employed there, associated with the strikers and walked the picket line with Shepherd and Brumfield.

Some time prior to June 9, 1974, according to the defense, there was a discussion among the strikers about “scaring” employees who refused to honor the strike. Eddie Robinson was one who was mentioned.

On Saturday night, prior to the shooting, Brumfield and Butler met. Brumfield had a pistol. They agreed to carry out their plan to “scare” the strike breakers. They agreed to go in Butler’s car and to pick up Shepherd. After picking up Shepherd, they decided that Robinson would be the subject of their plan.

They drove to Robinson’s house, and stopped the car nearby, Shepherd remaining in the car while Butler and Brumfield approached Robinson’s house. Butler went up on the porch and knocked on the door. When Odette Louis, Robinson’s sister-in-law, answered, she was asked if Robinson lived there. She said yes and went to awaken him.

Butler then left the porch, and as Robinson approached the door, Butler unloaded an automatic pistol into the door, shooting five times. One of the bullets struck Robinson in the neck, and he died from the wound shortly thereafter.

Joseph was at the picket line on the morning of June 9 shortly after the slaying. He left the site in his automobile around 7 o’clock and met Butler, Brumfield and Shepherd near the reform school about four blocks away. Butler, who was driving, stopped, waved Joseph down, and they entered into conversation.

When the State’s attorney asked Joseph, “Tell us what the discussion was about?” defense counsel objected, saying, “The only thing he can tell is what Shepherd might have said, and he can’t tell what the other two said,” because it was “[hjearsay as to the other two . . . . ”

After another question and answer, the State’s attorney asked, “All right. Now, tell us what conversation took place.” Defense counsel again objected “to anything except what Shepherd told him.” The objection was overruled and this ruling is relied upon as error in support of this assignment. The witness then testified to conversation with Brumfield and Shepherd in which they told him they had been to Robinson’s house and had shot at the house and “they might’ve hit someone.”

An almost identical question was considered in State v. Brumfield, 329 So.2d 181 (Decided February 23, 1976) involving this same testimony of Joseph, who testified in both trials. The only difference is that in State v. Brumfield Joseph testified that only Shepherd spoke, whereas in the instant case he seems to attribute the conversation to both Brumfield and Shepherd. (Under our holding the difference is immaterial.) A finding was made in the Brumfield decision that a prima facie case of conspiracy between Butler, Brumfield and Shepherd was established by the State’s evidence. There, considering the fact that Shepherd’s remarks were made to Joseph immediately after the accomplishment of the crime, while the three coconspirators were still together in the automobile used in the crime, it was held that the statement to Joseph was properly admitted into evidence. The same holding is applicable here. La.R.S. 15:455. This assignment is without merit.

Assignment 3

While the . State’s attorney continued questioning Joseph, he asked if Brumfield and Shepherd had said how they knew they might have hit someone. Then he asked:

“Q. They didn’t tell you it’s because they shot into the door?
A. No, they said they fired at the house.
Q. And ‘it seemed like somebody was hit.’ that’s what was said?
A. Right.
Q. ‘It seemed like somebody was hit?’
A. Right.”

Defense counsel objected, saying “I don’t believe he said that to start with, and I ask that ... the jury disregard it.” The trial judge then instructed the State’s attorney to ask him what was said. When asked, Joseph testified Brumfield and Shepherd said, “Maybe somebody might’ve been hit.”

In brief defense counsel argues the question was leading and prejudicial..

“A leading question is one which suggests to the witness the answer he is to deliver, and though framed in the alternative, is inadmissible when propounded to one’s own witness, unless such witness be unwilling or hostile.” La.R.S. 15:277.

Here the State’s attorney was asking the witness if “It seemed like somebody was hit.” While Joseph had testified, “[t]hey might have hit someone.” The two phrases are essentially the same in meaning. There was no suggestion of any fact which had not been proven. The State’s attorney was trying to obtain a substantiation of Joseph’s previous testimony. It is not a leading question to ask a witness what he said previously. There is no merit in this assignment. State v. Sneed, 328 So.2d 126, 134 (La.1976).

Assignment 4

In this assignment, defense counsel claims error in overruling his objections to questions propounded by the State’s attorney to Joseph on redirect examination. These questions, it is contended, amounted to cross-examination of Joseph about testimony he gave in the Brumfield trial, which amounted to browbeating by the State’s attorney of his own witness in an attempt to make him change his testimony. Other than to refer to five pages of the transcript and two questions and one answer, the defense does not point out wherein the errors lie. The questions and answer referred to in brief are:

“Q. You were here at Brumfield’s trial, weren’t you?
A. Yes, I was here.
Q. And you know what Brumfield claimed at the trial, don’t you?”

Defense counsel objected that the question was too broad and should, instead, refer to specific testimony. Thereafter the State’s attorney questioned Joseph about what Brumfield claimed at his trial and how many times Joseph had talked to him about the case. To the latter question Joseph answered, “about a half a dozen, I guess.”

Again- defense counsel objected, presumably because of the prosecutor’s tone of voice, saying he was antagonistic to his own witness. The objection was overruled.

Joseph was then asked if the State’s attorney had asked him what they (Brum- ■ field and Shepherd) had told him on the morning of the 9th. Defense objection was again overruled.

Continuing, the State’s attorney asked Joseph if he had testified at the Brumfield trial and if he had given the same testimony about Brumfield saying Butler fired the gun. Joseph answered, “No.”

Finally Joseph was asked if he was present when the prosecutor argued the case to the jury in the Brumfield trial and if he talked to anybody about the case or read about it, to which Joseph replied in the negative. He did say, though, that he knew Butler testified against Brumfield at the Brumfield trial.

All of the foregoing followed the cross-examination of Joseph by defense counsel in which he elicited from Joseph that he was not told on the morning of the 9th that “they shot at the door” but learned that since. He also said, contrary to his testimony on direct, that only Brumfield mentioned the shooting. Joseph also indicated uncertainty about his testimony on direct, saying at times that he didn’t remember. He also, on cross-examination, admitted that some of his testimony was contrary to his testimony at Brumfield’s trial.

From the testimony it appears that this witness was probably illiterate and experienced difficulty expressing himself properly. Also, he apparently found himself in an untenable position testifying against his co-worker, and this caused him to vacillate. Under these circumstances we find nothing wrong with the questions of the State’s attorney, believing that he was attempting to straighten out the confused testimony and seeking to assist the witness in recollecting the events. These efforts did not amount to an attempt to impeach his own witness, and 'because of the witness’ inability to express himself, the questions were not leading. Where the prosecutor’s alleged antagonistic attitude is relied upon, because of his tone of voice and attitude, the ruling of the trial judge is entitled to great weight. State v. Sneed, 328 So.2d 126, 134 (La.1976).

This assignment is without merit.

Assignment 5

Error is claimed because the trial judge overruled defendant’s objection to three photographs, allegedly made through a mail slot in the wall near the front door of the Robinson house.

It was the State’s theory that Butler and Brumfield viewed Robinson within the house through the mail slot as he approached the front door and, when he was at the proper spot, shot at him through the door. It was to show that a person approaching the door from within the house could be viewed through the mail slot from the outside that the photographs were offered.

The objection that this evidence is not relevant is not well-founded. If the evidence tends to show the commission of the offense or establishes facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, the evidence is admissible. La.R.S. 15:441; State v. Vince, 305 So.2d 916 (La.1974).

This assignment is without merit.

Assignment 6

Again the defense complains that the State’s attorney was guilty of browbeating and ridiculing a witness. This time, however, the witness, Margie Evans, was a defense witness on cross-examination. The principal defense complaint seems to be that the State’s attorney repeatedly referred to the contradictions in the witness’ testimony at the Brumfield trial.

Aside from the latitude allowed in cross-examination, a review of the questioning complained of fails to warrant reversal of the ruling of the trial judge. The cross-examination was aimed at showing that the witness was biased, had an interest, or had been, corrupted. Thus it was competent to question her as to any particular fact showing or tending to show such bias, interest or corruption. La.R.S. 15:492. For instance:

“Q. You know that Larry Butler testified against Walter Brumfield in his trial, don’t you?
A. Yes.
Q. That upset you?
A. No.
Q. Did Butler tell the truth?
A. No.
Q. Butler testified falsely against your fiance and that didn’t upset you?
(Defense objection overruled)
A. Yeah, it upset me to an extent.
Q. I think it did, didn’t it ?
A. Uh-huh.
Q. ,Why did you tell the jury it didn’t?”

In another instance the State’s attorney referred to the witness’ testimony at the Brumfield trial in order to clarify her testimony on direct. No objection was entered by the defense to the entire cross-examination except the one referred to above. At no time during the cross-examination did the defense complain that the witness was being browbeaten or ridiculed. La.R.S. 15:275, 15:280.

This assignment is without merit.

Assignment 7

Defendant’s motion for a new trial is

“ . . . predicated upon the fact that although he was found guilty of manslaughter, the jury had to base its verdict strictly on ‘guilt by association,’ as there was no conspiracy shown and no agreement between the parties that anyone would be hurt much less killed, and that by a preponderance of the evidence, it was proven that defendant did not commit any overt action that could possibly constitute guilt on his part.”

And,

“The only evidence against defendant was the testimony by Larry Butler an accomplice, who was the one who actually pulled the trigger that resulted in the death of Eddie Robinson, and he was rewarded handsomely by the District Attorney for turning state’s evidence.”

As we understand this contention, the defense contends that except for Butler’s testimony there would be no evidence to convict Shepherd. This, of course, is a fact question concerned with credibility — a matter exclusively within the province of the jury, dealing as it does with guilt or innocence.

As it applies to this case, “Manslaughter is: . . . (2) A homicide committed, without any intent to cause death or great bodily harm.” La.R.S. 14:31 (2). The 'brief review of the evidence incorporated in this opinion alone demonstrates that there is some evidence of all elements of the crime of manslaughter as defined above.

Only when there is no evidence at all of the crime or an essential element thereof may this Court upset a jury finding of guilty. State v. Snedecor, 294 So.2d 207 (La.1974). And an allegation that the verdict is contrary to the law and evidence presents no question of law for review. State v. Bowen, 292 So.2d 197 (La.1974).

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

CALOGERO, J., concurs.


text:
    STATE of Louisiana v. Nolan John BOURG.
    No. 57263.
    Supreme Court of Louisiana.
    May 17, 1976.
    Prentiss B. Cox, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., William G. Yates, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant Bourg was charged by bill of information with possession with intent to distribute marijuana, in violation of La. R.S. 40:966A(1). He was convicted and sentenced to serve two years imprisonment. This appeal is based on one assignment of error, which was reserved when the trial court refused defendant’s motion to suppress the marijuana seized at the time of his arrest.

At the hearing on the motion to suppress, the arresting officers testified on behalf of the State while the defendant, the person with him at the time of his arrest, and another friend who had been in defendant’s car shortly before the arrest, testified for the defense. According to the testimony of the arresting officers, on the morning of January 12, 1973, at approximately 12:30-l :00 A.M., they were on a routine patrol of the stores in Montegut, Louisiana, when they noticed a car travel-ling away from town at an excessive rate of speed. It had been snowing and the roads were icy, so the officers began following the car.

The deputies testified that the car turned onto a bridge after leaving Montegut and fishtailed several times. At that point, the police vehicle’s flashing light was turned on, and the defendant pulled over to the side of the road. Defendant and the person with him alighted from the car, and one of the officers asked defendant for his driver’s license. The defendant responded that his license was in the front seat of the car, and the officer asked him to get it. Deputy Johnson followed the defendant to his car, and, according to the officer’s testimony, shined his flashlight into the vehicle to lielp defendant find his wallet when he realized defendant was “fumbling around” looking for it.

Deputy Johnson stated that he inadvertently saw by the illumination of his flashlight a cellophane bag containing green vegetable material lying on the floorboard. He asked what was in the bag, and the defendant stated, “pot.” Then the officer arrested defendant and seized the evidence.

Under the well-established “plain view” doctrine, “ * * * obj ects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. * * * ” Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968). Such evidence is not the product of a search, and therefore its introduction into evidence does not offend the Fourth Amendment to the United States Constitution or Article 1, § 5 of the Louisiana Constitution of 1974. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Hargiss, 288 So.2d 633 (La.1974).

The trial judge in the instant case accepted the testimony of the arresting officers as to what transpired before defendant was arrested, and concluded from these facts that the plain view rule was applicable. Although the defense witnesses contradicted the testimony of the arresting officers, and although on some of the details of the incident the officers contradicted one another in their testimony, we conclude that the trial court did not abuse its discretion in accepting the officers’ testimony. Moreover, we conclude that Officer Johnson was in a place where he had a right to, be at the time he saw the marijuana on the floorboard of the car and that the evidence was therefore in plain view. Thus, the trial court properly allowed the evidence to be introduced and did not err in refusing the motion to suppress.

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

       Officer Delaune, who accompanied Officer Johnson at the time he arrested defendant, testified that Johnson had checked the vehicle’s inspection sticker before he shined the flashlight in defendant’s ear. Johnson testified that neither he nor Delaune checked defendant’s inspection sticker. They also disagreed as to where there was a dome light working in defendant’s car at the time of the arrest.


text:
    STATE of Louisiana v. Billy Clay CLARK.
    No. 57342.
    Supreme Court of Louisiana.
    May 17, 1976.

      Lonny A. Myles, 21st Judicial Dist., Amite, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yokum, Dist. Atty., William M. Quin, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant was indicted for second degree murder in violation of La.R.S. 14:-30.1. A jury found defendant guilty as charged, and he was sentenced to serve twenty years in the custody of the Department of Corrections. On appeal, defendant urges two assignments of error, both relating to alleged improper statements made by the prosecuting attorney in his closing argument. A review of the record discloses that defense counsel did not object to the statements complained of at the time they were made, nor did he request a mistrial or an admonition of the jury. Consequently, these assignments present nothing for our review.

Defendant relies upon article 774 of the La. Code of Criminal Procedure which defines the permissible scope of the argument:

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

However, as Official Revision comment (c) notes, the article provides no sanction for violations. If the argument goes beyond the scope of this article, it falls within the ambit of La. Code of Criminal Procedure Articles 770 and 771. These articles authorize the trial judge to correct prejudicial remarks made by the district attorney by either ordering a mistrial or admonishing the jury, upon a proper motion or request of a defendant. By failing to seek corrective measures or make a timely objection, defendant waived his right to attack the judgment of conviction on grounds of error. La.C.Cr.P. art. 841. State v. Marcell, 320 So.2d 195 (La.1975). Article 841 of the La. Code of Criminal Procedure provides:

“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence . . It is sufficient that a party, at the time the ruling' or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
* *

Our review is therefore limited to an inspection of the pleadings and proceedings for errors discoverable without inspection of the evidence. La.C.Cr.P. art. 920. We have perused the record and find no errors patent on its face.

Accordingly, defendant’s conviction and sentence are affirmed.


text:
    STATE of Louisiana v. Deeotis FRANKLIN.
    No. 57391.
    Supreme Court of Louisiana.
    May 17, 1976.
    William M. Shaw, Shaw & Shaw, Homer, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whitten, Dist. Atty., Paul A. Newell, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant was convicted by a jury of aggravated burglary of a dwelling, in violation of La.R.S. 14:60 and sentenced to serve twenty years at hard labor.

Defendant urges two assignments of error in this out of time appeal. Both relate to testimony elicited by the State during direct examination of one of the deputies who arrested defendant. Officer Ceccarelli stated that when the defendant was arrested he said to' a woman who was present at the time: “I was trying to teach Butch to stay away from someone.” The record reflects that the house which was burglarized belonged to a friend of the defendant named “Butch.” This out-of-court statement by defendant was admitted without objection as an admission that he had committed the crime, in that the statement could be interpreted as an attempt to justify or explain his motivation in committing the burglary.

Later, defense counsel attempted to sell the woman to whom the statement was allegedly made. Upon motion of the defense, all witnesses had been placed under a rule of sequestration, and the State objected to the defense calling this particular witness because she had been in the courtroom throughout the trial. The defense counsel argued to the judge that she should be allowed to testify because he was not aware that such a statement had been made to her until the arresting officer testified. Therefore, counsel maintained, the need to call the witness to impeach the testimony of the arresting officer could not have been anticipated prior to trial, and the failure to sequester her should not prevent the defense from using her testimony.

However, while the court was deliberating and before it ruled on the State’s objection, defense counsel withdrew his request that the witness be called and stated:

“I’ll waive it and I’ve decided that I am not going to use this witness, Your Honor.”

ASSIGNMENT OF ERROR NO. 1

The failure of the witness to testify is the subject of this assignment.

An irregularity or error cannot be availed of after verdict unless it was objected to at the time it occurred and the party objecting thereto makes known to the court the action he desires the court to take or his objection to the court’s action and the grounds therefor. La.C.Cr.P. art. 841. The transcript in this case reveals that the defendant’s attorney specifically withdrew his contention that he had a right to call the witness before the court had ruled on the question. Thus, clearly, the requisites established by La.C.Cr.P. art. 841 for preservation of objections have not been met.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error defendant complains that the trial court erred in not sustaining his objection to a portion of the State’s closing argument, during which the prosecutor referred to the statement allegedly made by defendant after his arrest in the presence of Officer Ceccarelli. The following exchange occurred during the district attorney’s closing argument:

“[District Attorney]: * * *
By admission, uncontradicted admission, a spontaneous statement by the man when he was arrested as Deputy Cec-carelli testified. He said something to the effect, I did it to teach Butch a lesson. Now are we going to allow someone, anyone .
“[Defense counsel]: * * *
I’m going to object to that, Your Honor, and reserve the bill on that. I don’t think that was in the testimony that he was going to teach Butch a lesson.
“THE COURT: Let the bill be noted.”

Although the district attorney did not use the precise words of Deputy Ceccarelli, his argument to the jury was not a misrepresentation of the gist of that testimony. We find that the statement of the prosecutor was a proper conclusion of fact drawn from the evidence under La. C.Cr.P. art.' 774:

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

This assignment has no merit.

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