author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Edna Faye HATTER.
    No. 59329.
    Supreme Court of Louisiana.
    Sept. 19, 1977.

      Joseph A. Cusimano, Jr., Baker, Culpep-per & Brunson, Jonesboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ragan D. Madden, Dist. Atty., E. J. Bleich, J. T. Spencer, Asst. Dist. Attys., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Edna Faye Hatter was charged by grand jury indictment with manslaughter in violation of La.R.S. 14:31. After trial by jury, defendant was found guilty as charged. She was sentenced to imprisonment at hard labor for a period of nine years. Relying on four assignments of error, she appeals her conviction and sentence to this Court.

ASSIGNMENT OF ERROR NO. 1

By this assignment, defendant argues that the trial court erred in permitting the introduction of an oral inculpatory statement made to Alvin Allen of the Farmer-ville Police Department on the grounds that the state failed to advise the defendant in response to a bill of particulars that Deputy Marshal Allen would testify as to an oral inculpatory statement.

On October 5, 1976, defendant filed an application for bill of particulars requesting, inter alia, “Does the state intend to use any oral statement made by the defendant? If so, state the oral statement made by the defendant, which the state intends to use in connection with the prosecution of the above numbered and entitled matter.” The state responded that it intended “to use an oral statement of the defendant, Edna Faye Hatter, to one Milam Thornton and Red Phillips on July 27, 1976 at or near the residence of Fred Phillips where she stated that she had shot her husband and wanted them to call for help.” However, on October 14, 1976, by letter to her defense counsel, the state advised the defendant that it intended to introduce in evidence in addition to the oral inculpatory statement made by the defendant to Mr. Thornton and Mr. Phillips, another oral inculpatory statement made to Alvin Allen at approximately 10:47 p. m., on July 27, 1976, the substance of which was particularly recited in the letter. The state also gave notice that it intended to introduce a written inculpatory statement given by the defendant after she was apprised of her constitutional rights. A copy of that statement had apparently already been given to defense counsel, but another copy was enclosed. There was testimony at trial that this letter was received by defense counsel on October 18, 1976, two days prior to trial.

A hearing on the motion to suppress earlier filed was held on October 19, 1976. During the course of this hearing, testimony was taken with respect to the oral statement made by the defendant to Alvin Allen at the time he arrived at the scene, as well as with respect to the written statement at which the motion to suppress was directed. At the conclusion of the hearing, the trial court ruled that the oral inculpatory statement was admissible and that the written statement, with a minor deletion, was also admissible.

Trial commenced the following day. At that time Deputy Marshal Allen was called as a witness for the state. During direct examination by the prosecuting attorney, the defendant objected to the witness’ answering any questions concerning any oral inculpatory statement given him by the defendant on the grounds that the state did not in its answer to the application for a bill of particulars reveal that Allen had received any such statement. After discussion and argument, the objection was overruled and the witness testified that, in response to a call, he had gone to the address in question, had observed the body of Earl Hunter on the floor in the bedroom, and in response to a question of what had happened, the defendant stated “I shot him.”

It is well established that the state is not required to reveal in a bill of particulars its possession of or intent to use oral inculpatory statements by an accused. State v. Jenkins, 340 So.2d 157 (La.1976); State v. Sharp, 338 So.2d 654 (La.1976); State v. Nix, 327 So.2d 301 (La.1975). Nevertheless, if the defendant is misled by an answer to a bill of particulars relative to the state’s possession of oral inculpatory statements of any character, such that the defendant is lulled into a misapprehension of the strength of the state’s case and suffers prejudice when the statements are subsequently introduced at trial, basic unfairness, which constitutes reversible error, results. State v. Boothe, 310 So.2d 826 (La. 1975); see also State v. Jenkins, supra; State v. Sharp, supra.

It is apparent that the state’s response to the defendant’s application for bill of particulars in the instant case was incomplete in that it failed to include the oral inculpatory statement by the defendant made to Alvin Allen. This error, however, was corrected prior to trial when the state gave its notice of intent to introduce inculpatory statements by the defendant as required by Article 768 of the Code of Criminal Procedure. This notice was received by defense counsel two days prior to trial. Furthermore, on the day before trial commenced, a hearing on a motion to suppress was held at which time the trial judge ruled that the statement was admissible. Indeed at trial, during argument, on the admissibility of the statement in response to defense counsel’s objection, defense counsel admitted that he was not caught by surprise and that the error in the answer to the bill of particulars had not affected his preparation of the defense.

For these reasons assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

By assignment of error number two, defendant argues that the trial court erred in refusing to grant a motion for directed verdict of acquittal in that the state had failed to prove that the defendant had the capacity to stand trial, failed to prove the age of the defendant, and failed to prove necessary elements of the crime of manslaughter.

The incident on which the charges in the instant case arose occurred on July 27,1976, while the trial took place on October 20, 1976. On September 12, 1975, well before either the incident or the trial here involved took place, an amendment to Article 778 of the Code of Criminal Procedure eliminating directed verdicts in jury cases became effective. Therefore, the trial judge in the instant case did not have the authority to grant such a directed verdict and his ruling refusing to do so was proper.

This assignment of error, therefore, lacks merit.

ASSIGNMENT OF ERROR NO. 3

Defendant Hatter here claims that the trial court erred in admitting, over her objection, the rebuttal testimony of Raymond Cooper, a state ballistics expert.

In order to present defendant’s argument, it is necessary to detail some parts of the evidence presented at trial. It was agreed that defendant Hatter shot her husband on the evening of July 27, 1976, causing injuries from which he later died. The state contended that she shot Earl Hatter (from whom she was separated) in a fit of jealousy because of his relationship with another woman. Defendant contends, on the other hand, that the shooting was accidental. She took the stand at trial and testified that on the evening in question Hatter had forced her into his car at gunpoint; that they had driven around for awhile arguing; that at one point during the journey he had beaten her; that he forced her to go with him to the trailer; that while at the trailer he threatened her, stripped her of clothing (proposing to have intercourse) and beat her; that when someone came to the door and her husband went to answer it, she picked up the pistol intending to hide it; that he saw her with the pistol, moved towards her, and as she backed away she bumped into a coffee table and the pistol accidentally went off. She denied that the victim was at the door when shot, contrary to the testimony of a state witness who was just outside the trailer and who she contended lied. She denied that she was right beside him when the shot was fired, and estimated the distance between them at the time of discharge was four feet but did concede that she was not positive of the distance.

In rebuttal, the state called Raymond Cooper, a ballistics expert, who testified that he had test-fired the murder weapon to ascertain at what distance powder residue on a given target would be evident. He testified that visible signs of powder residue were not evident when the weapon was discharged over two feet from the target.

The defendant had objected to the rebuttal testimony on the basis that the state had intentionally saved a part of its case-in-chief for rebuttal so as to surprise and prejudice defendant. The trial judge allowed the admission of the testimony over defendant’s objection.

It is a matter of settled law that the state may not reserve part of its case-in-chief for rebuttal testimony, after the defense has put on its case and when it no longer has the right to rebut the state’s case. La.R.S. 15:282; State v. Hatter, 338 So.2d 100 (La.1976); State v. Turner, 337 So.2d 455 (La.1976); State v. Campbell 263 La. 1058, 270 So.2d 506 (1972). The state’s rebuttal evidence can include only evidence which explains, repels, contradicts or disproves facts given in evidence by defendant. State v. Hatter, supra; State v. Monroe, 205 La. 285, 17 So.2d 331 (1844). The state is not required to outguess the defendant’s case, and thereby rebut in its case-in-chief every conceivable defense to the charge, but at the same time it may offer in rebuttal only evidence which disproves the defense and contradicts the defense witnesses. State v. Hatter, supra; State v. Nix, 327 So.2d 301, 346 (La.1975); State v. Diggs, 261 La. 76, 259 So.2d 18 (1972).

The state here did not save any of' its case for rebuttal. In its case-in-chief, it offered proof that defendant fired the gun which killed her husband while standing next to him in a doorway and that powder burns appeared on his body. In response defendant testified that she was not standing beside the victim at the time the gun discharged, but was instead some distance away, about four feet she thought. It was therefore proper for the state to offer rebuttal evidence to disprove defendant’s factual contention about the distance between her and the victim at the time of the shooting. Such evidence was properly admitted because it contradicted the factual assertion made in defendant’s testimony.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4

By assignment of error number four, defendant argues that the trial court erred in refusing to grant a new trial because there was no testimony to show that the defendant acted in any way other than self defense, and because there was more than reasonable doubt of the defendant’s guilt.

In criminal cases, the scope of this Court’s appellate jurisdiction extends only to questions of law. La.Const. Art. 5, § 5(C) (1974). Sufficiency of the evidence is a question of fact. State v. Finley, 341 So.2d 381 (La.1976); State v. Gordon, 336 So.2d 793 (La.1976). This Court has consistently held that where error is assigned to the refusal of the trial judge to grant the motion for a new trial grounded upon the allegation that the verdict was contrary to law and the evidence, nothing is presented for review. La.C.Cr.P. art. 858; State v. Finley, supra; State v. Jack, 332 So.2d 464 (La.1976). Only where it is alleged that there is no evidence of the crime or of an essential element of the crime is reviewable error of law presented. State v. Woods, 327 So.2d 405 (La.1976).

Defendant in the instant case was charged with manslaughter in violation of La.R.S. 14:31. Manslaughter, as relevant to the instant prosecution, is there defined as a homicide which would be murder:

“but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce homicide to manslaughter if the jury finds that the offender’s blood has actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.”

Because the definition of manslaughter is predicated upon “a homicide which would be murder,” it is imperative to look at the pertinent statutory definition of murder at the time this offense was committed, which is the killing of a human being “when the offender has a specific intent to kill or to inflict great bodily harm.” La.R.S. .14:30.1.

The defendant’s basic contention before this Court is that the evidence indisputably showed that she killed in self defense. La.R.S. 14:20. It is well established that the state has the burden of proving beyond a reasonable doubt that the homicide was not perpetrated in self defense. State v. Collins, 306 So.2d 662 (La.1975); State v. Patterson, 295 So.2d 792 (La.1974). Before this Court will reverse a conviction on the basis that the state did not meet its burden, there must be a total lack of evidence that the killing was done other than in self defense. State v. Collins, supra; State v. Lane, 292 So.2d 711 (La.1974).

In the instant case, there was testimony adduced showing that the defendant and her estranged husband, who were legally separated at the time of the incident, had been having continued marital difficulties on and before the date of the homicide. There was testimony by the defendant herself that they had continued to have sexual relations, but that she was aware that her husband had been having an affair with another woman. Testimony further indicated that on the day in question an argument of some type had arisen between the two parties, with the defendant testifying the victim had brandished a gun at her and more or less forced her to accompany him in his automobile. The two eventually went to the home of the deceased. While there, defendant’s husband removed his clothes and partially removed her clothes, continuing to threaten her verbally and with the gun. She stated that her husband went to answer the door, that she picked up the pistol in order to hide it, and that as the deceased moved away from the door towards her she bumped into a coffee table and the gun accidentally went off. There was testimony by a witness for the state, Milam Charles Thornton, that he was driving by the residence in question when he heard what sounded like a gunshot. Mr. Thornton testified at trial that when he heard this sound, he turned and saw the victim standing in the doorway of the trailer. This testimony tends to refute the defendant’s statement that her husband was moving towards her across the living room of the trailer at the time the gun was accidentally fired.

The evidence presented to the jury in the instant case justified an inference that, as the defendant testified, she did not intentionally shoot the deceased, but rather shot accidentally and/or in self defense while in reasonable apprehension of receiving great bodily harm. However, the evidence also permits an inference that the defendant in sudden heat of blood responded to the victim’s provocations and threats by killing him without the justification of self defense. The evidence does not, therefore, reasonably exclude every hypothesis except that of self defense. For that reason there was some evidence that the killing was not justifiable. See State v. Collins, supra; State v. Patterson, supra.

The assignment is not meritorious.

Accordingly the conviction and sentence of defendant are affirmed.

DIXON, J., dissents.

MARCUS, J., concurs.

      . The motion for a new trial itself was addressed partially to the issue of the introduction of testimony by a deputy marshal regarding an oral inculpatory statement of which the state had failed to advise the defendant in response to the bill of particulars. This is the same issue which is the subject of assignment of error number one.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Van Raymond FRAISE.
    No. 59332.
    Supreme Court of Louisiana.
    Sept. 19, 1977.

      William J. O’Hara, III, Supervising Atty., New Orleans, John M. Standridge, Student Practitioner, Loyola Law School Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Van Raymond Fraise was convicted of the crime of aggravated rape and was sentenced to death. On appeal, defendant relies on one assignment of error for reversal of his conviction and sentence.

Defendant contends that the trial judge erred in denying his motion to quash the indictment which charged him with the crime of aggravated rape committed on June 16, 1971. He argues in his motion that he was denied his constitutional right to a speedy trial in that some thirty-nine months elapsed between his arrest and indictment by the grand jury.

The context facts are as follows. On June 16, 1971, a woman and her seventeen-year-old daughter were raped and battered in their home by an armed intruder. Four days later (June 20), another woman was raped allegedly by the same individual. Shortly thereafter, defendant was arrested in connection with these crimes, incarcerated, and subsequently identified as the perpetrator of the crimes at a lineup conducted about a month after the offenses.

On July 8, 1971, defendant was indicted by the grand jury for the Parish of Orleans for the aggravated rape committed on June 20 of that year. At the trial held on June 15, 1972, the state introduced evidence of the prior rapes committed on June 16, 1971 to show knowledge, system or intent on the part of defendant to commit the June 20 rape. The jury returned a verdict of guilty as charged. Thereafter, defense counsel filed a motion for a new trial which was taken under advisement by the trial judge. Prior to a ruling on the motion, the decision of State v. Prieur, 277 So.2d 126 (La.1973) was rendered in which this court outlined certain procedural safeguards to be followed when the state intends to introduce evidence of other offenses to establish knowledge, system or intent. Subsequently, on April 12,1973, the trial judge granted defendant’s motion for a new trial.

While this matter was still pending, the state sought an indictment charging defendant with the aggravated rape of one of the two victims committed on June 16,1971, which indictment was returned by the grand jury on October 17, 1974. Thereafter, in preparation for trial on this charge, defense counsel filed a motion to suppress certain evidence and a prayer for oyer which were ultimately disposed of by the trial judge. On November 20,1974, defendant was tried on the second indictment for the June 16, 1971 aggravated rape. Because of the inability of the jury to agree upon a verdict, a mistrial was ordered. Approximately two months later (January 1975), defense counsel filed a motion to quash the indictment which charged defendant with the June 16 aggravated rape alleging that the thirty-nine-month delay between his arrest (June 1971) and the finding of the second indictment (October 17, 1974) violated his constitutional right to a speedy trial. The motion was denied by the trial judge. After trial by jury (April 30, 1975), defendant was found guilty as charged and was sentenced to death.

Since the crime with which defendant was charged in the second indictment was a capital crime, there was no time limitation upon the institution of prosecution. La.Code Crim.P. art. 571. Thus, the institution of prosecution on October 17, 1974 was not barred by prescription. Nor was trial on the charge barred by the limitations of La.Code Crim.P. art. 578(1), which requires that the trial of a capital crime commence within three years of the day of the institution of prosecution, in view of the fact that trial (November 20, 1974) was held about a month and retrial (April 30, 1975) about six months after the institution of prosecution by the finding of an indictment on October 17, 1974.

Notwithstanding the fact that prosecution and trial were not barred by the applicable prescriptive periods, defendant contends that the thirty-nine-month delay between the date of his arrest (June 1971) and the institution of prosecution on the instant charge deprived him of his right to a speedy trial under the federal and state constitutions. U.S.Const. amend. 6; La.Const. art. 1, § 16 (1974). He argues that this inordinate delay prejudiced his defense in that the recollection of a potential alibi witness would be impaired by lapse of time. However, in spite of this broad assertion, the existence and identity of such witness is nowhere disclosed by defendant.

The right to a speedy trial is a fundamental right guaranteed by both the federal and state constitutions. We have recognized that this right attaches when a defendant becomes an accused which, in this case, occurred on the date of his arrest. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Neyrey, on rehearing, 341 So.2d 319 (La.1976); State ex rel. Miller v. Craft, 337 So.2d 1191 (La.1976); State v. Stetson, 317 So.2d 172 (La.1975). In determining whether this constitutional right has been violated, no fixed time period governs; rather, the conduct of both the prosecution and the defense are weighed in light of several factors: the length of the delay, the reason for the delay, the defendant’s assertion of his rights, and the actual prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Neyrey, supra; State ex rel. Miller v. Craft, supra; State v. Bullock, 311 So.2d 242 (La.1975).

Although the delay in instituting prosecution against defendant for the June 16, 1971 aggravated rape was considerable (about thirty-nine months), we must bear it in mind that we are dealing with a capital offense for which the legislature has deemed it appropriate to fix no time limitation for instituting prosecution. Moreover, after indictment, defendant was immediately brought to trial (about a month after indictment) and retrial (about six months after indictment). The state argues that the delay was caused by the pending prosecution of defendant for the June 20 aggravated rape for which defendant was also being held in custody. The record fully supports the active prosecution of this case by the state during the period in question. Except for the uncertainty created by our decision in Prieur, the case most probably would have been brought to a prompt conclusion. Defendant has not demonstrated, nor do we find, that the delay was due to any bad faith effort on the part of the state to hamper his defense. Moreover, there is no evidence that defendant in the thirty-nine-month period between his arrest and indictment asserted a demand for prompt disposition of the allegations of the June 16 aggravated rape which, along with the June 20 rape charge, occasioned his arrest. Indeed, defendant failed to urge his demand for a speedy trial until two months after prosecution on the second indictment ended in a mistrial. Finally, we find any claim of prejudice to be minimal at most. Although defendant was held in custody throughout the thirty-nine-month period on the June 16, 1971 aggravated rape charge, his incarceration was at least equally the result of the June 20, 1971 aggravated rape .charge for which he was being prosecuted during the thirty-nine-month interval. Furthermore, although defendant asserts in general terms that his defense has been prejudiced by the delay, he has failed to make any showing that he was deprived of favorable testimony of identifiable defense witnesses for reasons attributed to the delay, such as unavailability for trial or loss of memory of events at the time of the crime. The state’s case consisted primarily of the testimony of the rape victim named in the indictment (daughter), the other rape victim (mother), and another daughter present at the time of the crimes. Defendant did not take the stand nor offer any witnesses on his behalf. The rape victims had previously testified at the earlier prosecution for the June 20 aggravated rape. Hence, the details of the state’s case had been fully disclosed to defendant during the period in question.

After a consideration of these factors, we do not find that defendant’s constitutional right to a speedy trial has been violated. Hence, we conclude that the trial judge properly denied the motion to quash the indictment. Accordingly, this assignment of error is without merit.

In Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), the United States Supreme Court held that Louisiana’s mandatory death penalty for aggravated rape was unconstitutional. Since Selman, in cases where defendants have been convicted of aggravated rape and sentenced to death, this court, under the mandate of Selman, has set aside and vacated the death sentence but, finding no reversible error, has affirmed the convictions. For the reasons set forth in State v. Craig, 340 So.2d 191 (La.1976), State v. Lee, 340 So.2d 180 (La.1976), and State v. Sledge, 340 So.2d 205 (La.1976), we have held that, because the legislature obviously intended to impose the most serious penalty available under law for the crime of aggravated rape, the appropriate penalty since the invalidation of the mandatory death penalty is the most serious penalty for a lesser-included offense at the time of the commission of the crime. At the time of the commission of the present offense (June 16, 1971), attempted aggravated rape was punishable by imprisonment at hard labor for not more than twenty years while the crime of simple rape carried a penalty of imprisonment at hard labor for not less than one nor more than twenty years. Consequently, the most serious penalty is twenty years at hard labor. Therefore, in accordance with our decisions in Craig and Lee, we must vacate and set aside the imposition of the death penalty even though we affirm the conviction and remand the case to the trial court for resentencing.

DECREE

For the reasons assigned, the conviction is affirmed and the case is remanded to the criminal district court for resentencing of defendant.

DIXON, J., dissents.

      . On July 15, 1975 (after defendant’s conviction for the June 16 aggravated rape), the district attorney dismissed the indictment upon which this prosecution had been based (June 20 aggravated rape).

      . Compare the recent case of United States v. Evers, 552 F.2d 1119 (5 Cir. 1977), wherein the Fifth Circuit found no bad faith on the government’s part is dismissing an indictment and thereafter reindicting defendants based upon the government’s belief that the applicable law would be changed by a recent grant of certiora-ri by the Supreme Court. The Fifth Circuit found no bad faith in the government’s gearing its prosecution to the existing applicable litigation and stated that “[i]f uncertain law is to be made certain within the time frame of permissible prosecution, the Government may, within its discretion, await clarification.” The court concluded that “[p]rosecutorial delay, not barred by the statute of limitations, solely for the purpose of insuring the most fully developed view of the law, at the time of trial, cannot be said to be a denial of due process.”


author: DIXON, Justice. SANDERS, Chief Justice SUMMERS, Justice

text:
    PARISH OF JEFFERSON v. BAYOU LANDING LIMITED, INC., d/b/a Airline Highway Adult Books and Movies, et al.
    No. 59337.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Dissenting Opinion Oct. 11, 1977.

      Michael Silvers, Silvers & Tanet, New Orleans, Glenn Zell, Atlanta, Ga., for defendants-appellants.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Lee, Parish Atty., Robert H. Fray, Asst. Parish Atty., for plaintiff-appellee.
   DIXON, Justice.

On June 4, 1976 the Parish of Jefferson filed suit to enjoin the defendant, Bayou Landing Limited, Inc., from “the sale, distribution, exhibition and/or display of obscene materials.” Following trial, the district court rendered judgment permanently enjoining and restraining defendant from “selling, distributing, exhibiting and/or displaying obscene materials in and upon the premises located at 3936 Airline Highway, Parish of Jefferson, State of Louisiana.” The defendant appealed suspensively from that judgment and the Fourth Circuit Court of Appeal amended and affirmed the judgment of the district court. Parish of Jefferson v. Bayou Landing Limited, Inc., 341 So.2d 23 (La.App. 4th Cir. 1976). On March 9, 1977 this court granted writs to review the judgment of the Court of Appeal. 342 So.2d 868.

The facts surrounding the institution of this suit follow. The Vice Squad of the Jefferson Parish Sheriff’s Office were conducting an investigation into possible criminal violations concerning the sale of obscene materials at the premises occupied by Bayou Landing Limited, Inc., d/b/a Airline Highway Adult Books and Movies. On May 28, 1975 a detective of the Jefferson Parish Sheriff’s Office seized a quantity of books that he believed to be obscene. On May 29, 1975 another detective of the Jefferson Parish Sheriff’s Office seized a quantity of books, also believing that they were obscene. Neither detective had obtained a warrant for the seizure, but rather made the determination that these materials were obscene by reading and applying the applicable Jefferson Parish obscenity ordinance. Neither detective paid for the books. Approximately five cartons of materials were thus seized without benefit of a warrant.

On June 2, 1975 two other detectives of the Jefferson Parish Sheriff’s Office entered the defendant book store. Each officer viewed one movie, available to customers for showing in small movie viewing machines in the book store. After viewing the movies, the officers purchased three books with marked currency. On the basis of their observations the officers applied for a search warrant. In their affidavit the officers related that the books and movies depicted such acts as oral copulation, anal sex, masturbation, sadism, masochism, lesbian activity and cunnilingus. A search warrant was issued for the search of the book store, authorizing the seizure of “pornographic material to wit: Magazines, movies, projectors, recorded U. S. currency, obscene items displayed (dildos, stimulated (sic) items) . . .” The officers then executed the warrant and seized some two hundred books and magazines, seventeen 8 mm movies, two 8 mm projectors and one twenty dollar bill.

On June 4, 1976, over one year later, the Parish of Jefferson filed this action pursu.ant to R.S. 13:4711 to abate and enjoin the nuisance of obscenity (as defined in R.S. 14:106) alleged to exist at the defendant book store. Prior to trial on the merits, the defendant filed numerous pre-trial motions including a motion to suppress the seven cartons of material that were seized from the defendant book store. (Two cartons were seized pursuant to the warrant). After a hearing on the motion to suppress, the trial judge held that the search warrant was valid and ruled that the materials seized pursuant to the warrant were admissible in the injunction proceeding. (While the trial judge did not specifically suppress the materials seized in the warrantless searches, none of the items so seized were admitted into evidence at trial and do not form a part of this record).

The Court of Appeal affirmed the trial judge’s ruling that the evidence seized pursuant to the warrant was admissible. However, the appellate court did not consider the constitutional prohibitions against unreasonable searches and seizures of the Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution, holding that, since this was not a criminal proceeding, the constitutional proscriptions against unreasonable searches and seizures were inapplicable.

The questions thus presented by this review are: (1) are the constitutional prohibitions against unreasonable searches and seizures applicable to this proceeding and (2) if so, did the seizure of materials pursuant to this warrant comply with constitutional requirements?

The Court of Appeal held that in a civil action such as this, the Fourth Amendment relating to illegal searches and seizures was not relevant. The court reached this conclusion through an erroneous interpretation of Gulf States Theatres of Louisiana, Inc. v. Richardson, 287 So.2d 480 (La.1973).

The Fourth Amendment to the United States Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Article 1, § 5 of the Louisiana Constitution provides:

“Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.”

Neither constitutional provision restricts its applicability to criminal cases. The United States Supreme Court has specifically applied the protections .of the First and Fourth Amendments when allegedly obscene material is sought to be regulated in civil proceedings. In Marcus v. Search Warrant of Property, etc., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), the state had brought a civil forfeiture proceeding against the defendant due to his sale of allegedly obscene materials. In that case a circuit judge had signed numerous search warrants authorizing:

“ ‘. . . any peace officer in the State of Missouri * * * [to] search the said premises * * * within 10 days after the issuance of this warrant by day or night, and * * * seize * * * [obscene materials] and take same into your possession * * V ” 367 U.S. at 722, 81 S.Ct. at 1711, 6 L.Ed.2d at 1131.

The Supreme Court held that the evidence seized pursuant to the warrants must be suppressed and that states were not free to adopt whatever procedures they pleased to deal with obscenity without regard to constitutionally protected speech. Since Missouri’s civil procedure to condemn obscene material lacked safeguards to assure that non-obscene material received the constitutional protection to which it was entitled, the Missouri procedure was struck down. See also, A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964). For further cases applying the Fourth Amendment guarantees in civil proceedings see e. g., Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). See also, Annot. 5 A.L.R.3d 670 (1966).

Article 1, § 5 of the Louisiana Constitution gives standing to “any person adversely affected by a search or seizure” to “raise its illegality in the appropriate court.” Regardless of the fact that our Code of Civil Procedure does not provide for a motion to suppress illegally seized evidence, both the United States and Louisiana Constitutions require suppression of unconstitutionally seized material on motion by the affected party.

Plaintiff’s argument that obscene materials are unprotected by the First Amendment of the United States Constitution begs the question. The danger to restraint of protected expression requires the application of constitutionally sanctioned procedures for the seizure of printed materials. Printed material, offered for sale to the public, cannot constitutionally be seized for obscenity without a prior judicial determination that the matter to be seized is (at least probably) obscene.

Since constitutional procedures govern seizures of printed matter, we must determine whether the seizure here was unreasonable by established constitutional standards. The Court of Appeal held that as long as a speedy adversary hearing was available after the seizure (to litigate the issue of obscenity), allegedly obscene material could be seized prior to the initiation of the injunction suit without regard to the reasonableness of the search and seizure. In Gulf States Theatres of Louisiana, Inc. v. Richardson, supra, relied on by the Court of Appeal, the material was seized pursuant to a warrant issued by a magistrate; the question before this court was the constitutionality of the predecessor to R.S. 13:4711 et seq. Thus, the case did not and could not hold that a valid search warrant was not required when the evidence seized was to be used in a civil suit. In fact, the court indicated that in civil proceedings it might be necessary always to have a complete adversary hearing prior to seizure. The pertinent language is as follows:

“In State v. Eros Cinema, (262 La. 706, 264 So.2d 615 (1972)), this Court found that there was no way to preserve the best evidence in a criminal prosecution for exhibiting an obscene film except upon seizure of the film under search warrant. For this reason, we held that such a seizure is permissible in the limited quantity necessary where there are proper safeguards for establishing probable cause and for providing quick judicial determination on the merits, review, and final judgment. Our reason for believing this brief ex parte seizure, or, if you will, temporary suppression, was necessary in that criminal prosecution does not exist in this civil suit to abate a nuisance. We found there that in a criminal prosecution the Fifth Amendment right against self-incrimination would not permit a subpoena duces tecum. However, in a civil proceeding under the nuisance statute a subpoena duces tecum may be used to obtain materials desired as evidence in the proceeding. The compelling reasons for permitting a seizure for evidence under a constitutional warrant as provided in the Fourth Amendment, do not exist in a proceeding wherein suppression of the showing of the particular film alleged to be obscene and the closing of the theatre in which it is shown are sought.
“A thorough consideration of these cases leads us to conclude that in a civil proceeding to abate an obscene expression as a nuisance there can be no prior restraint without an adversary judicial adjudication.” 287 So.2d at 488-89.

However, in Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), the Supreme Court held that an adversary hearing prior to a seizure by lawful warrant was not required. Nevertheless, the court stated that “the necessity for a prior judicial determination of probable cause will protect against gross abuses, while the availability of a prompt judicial determination in an adversary proceeding following the seizure assures that difficult marginal cases will be fully considered in light of First Amendment guarantees . . . ” (Emphasis added). 413 U.S. at 493, 93 S.Ct. at 2795, 37 L.Ed.2d at 755.

It is clear that at the very least, prior to seizure, there must be a judicial determination as to the obscenity of the materials. In Marcus v. Search Warrant, supra, warrants were issued for the seizure of allegedly obscene materials, which warrants were based on the conclusory allegations of a police officer. The warrants authorized the police to seize any “obscene” materials located on certain premises. The Supreme Court struck down the procedure because the warrants were issued without any examination by the issuing judge of any of the materials alleged to be'obscene. The court used the following language in pointing out the infirmities in the warrants:

“We believe that Missouri’s procedures as applied in this case lacked the safeguards which due process demands to assure non-obseene material the constitutional protection to which it is entitled. Putting to one side the fact that no opportunity was afforded the appellants to elicit and contest the reasons for the officer’s belief, or otherwise to argue against the propriety of the seizure to the issuing judge, still the warrants issued on the strength of the conclusory assertions of a single police officer, without any scrutiny by the judge of any materials considered by the complainant to be obscene. The warrants gave the broadest discretion to the executing officers; they merely repeated the language of the statute and the complaints, specified no publications, and left to the individual judgment of each of the many police officers involved the selection of such magazines as in his view constituted ‘obscene * * * publications.’
“. . It is no reflection on the good faith or judgment of the officers to conclude that the task they were assigned was simply an impossible one to perform with any realistic expectation that the obscene might be accurately separated from the constitutionally protected. They were provided with no guide to the exercise of informed discretion, because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity. . . . ” 367 U.S. at 731-32, 81 S.Ct. at 1716, 6 L.Ed.2d at 1136.

Relying on the Marcus decision, this court in State v. Neal, 279 So.2d 172, 175 (La.1973) held fatally defective a search warrant which authorized the seizure of “lewd, lascivious, filthy and obscene books, magazines, pamphlets, pictures and films . . ” In holding the seizure of materials pursuant to that warrant to be impermissible this court said:

“However, in each instance, the Supreme Court held the seizure constitutionally invalid, and it did not reach the merits of the condemnation statutes nor of the obscenity of the seized publications. The decisions flatly hold that a blanket seizure of all publications, or one made upon the unilateral determination of obscenity by the seizing officer, is so constitutionally deficient as to invalidate totally the seizure. No authority is cited in support of the state’s contention that the First Amendment invalidates unconstitutional seizures in one type of proceeding and not in criminal proceedings; and we could find none.
“In short, the decisions cited hold that, while under limiting conditions a search warrant may be used to secure evidence in an area potentially within the reach of the First Amendment, nevertheless blanket or general search warrants shall not be used as a method of ex parte censorship by seizing all copies of all publications felt by some members of the public to be obscene. The decisions further hold that, in this sensitive area, seizures may be made only upon the constitutionally informed determination of a magistrate, rather than at the whim of a seizing police officer. Otherwise, a bookstore could be effectively closed, and publications effectively suppressed although entitled to the protection of our constitutional guarantees, without and while awaiting a judicial determination whether the publications seized were in fact ‘obscene’ ”. (Emphasis added).

See also, Lee Art Theater v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968).

The warrant and seizure in this case suffers from the same infirmity. Although the affiant police officers had purchased three specific books and had seen two films prior to applying for the search wárrant, there is no indication that any of those books had been scrutinized by the issuing magistrate. Even if the neutral magistrate had personally viewed the materials and determined that they were obscene, the warrant is defective because it did not limit its authorization to the seizure of materials already determined by the magistrate to be obscene. This warrant authorized precisely that type of “blanket or general search,” granting the unlimited discretion to the seizing officer which has been condemned in this cases discussed.

“. . . Such precipitate action by a police officer, without the authority of a constitutionally sufficient warrant, is plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards. The seizure is unreasonable, not simply because it would have been easy to secure a warrant, but rather because prior restraint of the right of expression, whether by books or films, calls for a higher hurdle in the evaluation of reasonableness.” Roaden v. Kentucky, 413 U.S. 496, 504, 93 S.Ct. 2796, 2801, 37 L.Ed.2d 757, 764 (1973).

Because of the specific constitutional guarantees of freedom of speech and press, state interference with activity which might be protected is more carefully limited by federal constitutional decisions than state interference with activities not presumably protected by specific constitutional provisions. States are not as free to regulate speech and printed matter as they are to regulate other conduct determined by legislatures to be criminal. Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). What is an “unreasonable” seizure may depend on the setting and the material seized. Roaden v. Kentucky, supra. Police seizure without a warrant is prior restraint of First Amendment freedoms, and is, in itself, unreasonable. Roa-den v. Kentucky, supra.

Not only must the police supply factual information in the application for the warrant sufficient to convince the magistrate that the material to be seized is probably obscene; the police are restricted in the execution of the warrant to specific materials the magistrate has determined, based on the facts supplied him, to be probably obscene. Neither the conclusory determination of the police before the warrant issues, nor after the warrant issues, that printed material is obscene, supplies the safeguards against possible invasion of specifically protected constitutional rights. There is no “plain view” doctrine in First Amendment cases. The warrant must particularly describe the material to be seized. As stated in Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431, 437 (1965):

“In short, what this history indispensably teaches is that the constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain. ... No less a standard could be faithful to First Amendment freedoms. The constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant is dramatically underscored by what the officers saw fit to seize under the warrant in this case.”

Therefore, the trial judge should have granted defendant’s motion to suppress the evidence seized pursuant to the warrant.

As noted above the injunction as amended by the Court of Appeal restrains the defendant from distributing any obscene materials and then defines “obscene materials” by using the language of R.S. 14:106. Thus, the injunction enjoins distribution of materials not yet published and not yet judicially determined to be obscene. The injunction is overly broad; it is a prohibited prior restraint upon the right of free speech protected by our federal and state constitutions.

The United States Supreme Court has stated on many occasions:

“. . . “ ‘Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’ ” New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971), quoting Bantam Books, Inc. v. Sullivan, 372 U.S. [58], at 70, 83 S.Ct. [631], at 639 [9 L.Ed.2d 584]; Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971); Carrol v. President and Comm’rs of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968). See Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).” Heller v. New York, 413 U.S. 483, 491-92, 93 S.Ct. 2789, 2794, 37 L.Ed.2d 745, 754 (1973).

Furthermore, the applicable decisions have “consistently recognized that the procedures by which a State ascertains whether certain materials are obscene must be ones which ensure ‘the necessary sensitivity to freedom of expression,’ Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 739, 13 L.Ed.2d 649, 654 (1965).” McKinney v. Alabama, 424 U.S. 669, 674, 96 S.Ct. 1189, 1193, 47 L.Ed.2d 387, 392 (1976).

Although the Supreme Court has recognized the constitutional validity of certain state obscenity injunction proceedings, see e. g. Kingsley Books v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957), none of these cases have approved of the use of broad injunctions such as the one issued in this case. In Kingsley Books a New York injunction statute was upheld because “as authoritatively construed, it studiously withholds restraint upon matters not already published and not yet found to be offensive.” Kingsley Books v. Brown, 354 U.S. 436, 445, 77 S.Ct. 1325, 1330, 1 L.Ed.2d 1469, 1476 (1957). Likewise, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 55, 93 S.Ct. 2628, 2634, 37 L.Ed.2d 446, 455 (1973), did not disapprove of the Georgia statute because it “imposed no restraint on the exhibition of the films involved in [the] case until after a full adversary proceeding and a final judicial determination by the Georgia Supreme Court that the materials were constitutionally unprotected.”

While these cases did not directly confront the issue before us, that is an injunction attempting to enjoin distribution of future publications not judicially determined to be obscene, other cases have clarified that such an injunction would be unconstitutional. Earlier United States Supreme Court cases appeared to hold that in civil proceedings concerning restraints upon distribution of allegedly obscene materials an adversary hearing was required before any restraint was placed upon the materials. A Quantity of Copies of Books v. Kansas, supra. However, in Heller v. New York, supra, the Court clarified the applicable principles:

“. . . This Court has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized. See Times Film Corp. v. Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 440-442, 77 S.Ct. 1325, 1327-1328, 1 L.Ed.2d 1469 (1957). . .”
“In United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971), and Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), we held that ‘“because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.” ’ 402 U.S., at 367, 91 S.Ct., at 1403, quoting 380 U.S., at 58, 85 S.Ct., at 738 (emphasis added). Those cases involved, respectively, seizure of imported materials by federal customs agents and state administrative licensing of motion pictures, both civil procedures directed at absolute suppression of the materials themselves. Even in those cases, we did not require that the adversary proceeding must take place prior to initial seizure. Rather, it was held that a judicial determination must occur ‘promptly so that administrative delay does not in itself become a form of censorship.’ United States v. Thirty-Seven Photographs, supra, 402 U.S., at 367, 91 S.Ct., at 1404 (1971); Freedman v. Maryland, supra, 380 U.S., at 57-59, 85 S.Ct., at 738-739 (1965). See Blount v. Rizzi, 400 U.S. 410, 419-421, 91 S.Ct. 423, 429-430, 27 L.Ed.2d 498 (1971); Teitel Film Corp. v. Cusack, 390 U.S. 139,141-142, 88 S.Ct. 754, 755-756, 19 L.Ed.2d 966 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70-71, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963).
“In this case, of course, the film was not subjected to any form of ‘final restraint,’ in the sense of being enjoined from exhibition or threatened with destruction. A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition.
“Petitioner’s reliance on the Court’s decisions in Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), and Marcus v. Search Warrants of Property at 104 East 10th St., Kansas City, Mo., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), is misplaced. Those cases concerned the seizure of large quantities of books for the sole purpose of their destruction, and this Court held that, in those circumstances, a prior judicial determination of obscenity in an adversary proceeding was required to avoid ‘danger of abridgment of the right of the public in a free society to unobstructed circulation of nonobscene books.’ A Quantity of Copies of Books v. Kansas, supra, 378 U.S., at 213, 84 S.Ct., at 1727 (1964). We do not disturb this holding. Courts will scrutinize any large-scale seizure of books, films, or other materials presumptively protected under the First Amendment to be certain that the requirements of A Quantity of Books and Marcus are fully met. ‘ “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” ’ New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971), quoting Bantam Books, Inc. v. Sullivan, 372 U.S., at 70, 83 S.Ct. at 639; Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971); Carroll v. President and Comm’rs of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968). See Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).
“But seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film. If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible. In addition, on a showing to the trial court that other copies of the film are not available to the exhibitor, the court should permit the seized film to be copied so that showing can be continued pending a judicial determination of the obscenity issue in an adversary proceeding. Otherwise, the film must be returned.
“With such safeguards, we do not perceive that an adversary hearing prior to a seizure by lawful warrant would materially increase First Amendment protection. Cf. Carroll v. President and Comm’rs of Princess Anne, supra, 393 U.S., at 183-184, 89 S.Ct. at 352-353. The necessity for a prior judicial determination of probable cause will protect against gross abuses, while the availability of a prompt judicial determination in an adversary proceeding following the seizure assures that difficult marginal cases will be fully considered in light of First Amendment guarantees, with only a minimal interference with public circulation pending litigation. . . . ” 413 U.S. 483, 488, 489-90, 491-93, 93 S.Ct. 2789, 2792, 2793, 2794-95, 37 L.Ed.2d 745, 751, 752-55.

Thus, our highest court has held that an adversary hearing is required before any final restraint may be placed upon the distribution of allegedly obscene materials.

In Gulf States Theatres of Louisiana, Inc. v. Richardson, supra, we noted, in discussing injunctions issued under our statutory scheme, that “[t]his suppression is equally as effective as, and perhaps more onerous than, a seizure under search warrant. Moreover, the order for injunction acts as a mass suppression such as was condemned in Marcus." 287 So.2d at 487. We concluded, therefore, after analyzing the applicable jurisprudence, that the “very minimum constitutional standard required before there can be a suppression of an expression alleged to be obscene is an independent judicial finding of probable cause that the expression is obscene and therefore not constitutionally protected speech.” 287 So.2d at 486. Since the injunction issued in this case acts as a form of final censorship by suppressing distribution of materials presumptively protected under our federal and state constitutions and not yet judicially determined to be obscene, it is over broad. Accordingly, insofar as it attempts to restrain distribution of materials other than those already judicially determined to be obscene after an adversary hearing, it is void.

For the foregoing reasons, the ruling on the motion to suppress is reversed and the injunction is dissolved. The case is remanded for further proceedings not inconsistent with this .opinion.

SANDERS, C. J., and SUMMERS, J., dissent with written reasons.

MARCUS, J., dissents.

SANDERS, Chief Justice

(dissenting).

As I construe the majority holding, it extends the exclusionary rule to all civil proceedings. I am unwilling to go so far.

The federal decisions relied upon in the majority opinion involved forfeiture proceedings, which have been assimilated to criminal proceedings. See, e. g., One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 1249, 14 L.Ed.2d 170 (1965), in which the court stated: “[Tjhough they may be civil in form, are in their nature criminal.” The decision in Camero v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), did not deal with the exclusionary rule. It merely barred the criminal prosecution of a citizen for rejecting a warrantless administrative search of his premises.

The present suit is a civil action for an injunction. The United States Supreme Court has not applied the exclusionary rule to this type of action, and I would not do so based on the authorities cited.

For the reasons assigned, I respectfully dissent.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by the Chief Justice.

      . The Court of Appeal amended the injunction as follows:
      “Accordingly it is ordered that there be judgment in favor of the Parish of Jefferson and against the defendant Bayou Landing Limited, Inc., doing business as Airline Highway Adult Books and Movies, enjoining and restraining it, its agents, servants, employees, lessees, or any other person acting under its authority from selling, distributing, exhibiting or displaying for commercial gain obscene materials depicting the following activities defined by R.S. 14:106 as hard core sexual conduct:
      “ ‘(a) Ultimate sexual acts, normal or perverted, actual, simulated or animated, whether between human beings, animals or an animal and a human being; or
      “ ‘(b) Masturbation, excretory functions or lewd exhibition, actual, simulated or animated, of the genitals, pubic hair, anus, vulva or female breast nipples; or
      “ ‘(c) Sadomasochistic abuse, meaning actual, simulated or animated, flagellation or torture by or upon a person who is nude or clad in undergarments or in a costume which reveals the pubic hair, anus, vulva, genitals or female breast nipples, or the condition of being fettered, bound or otherwise physically restrained, on the part of one so clothed; or
      “ ‘(d) Actual, simulated or animated, touching, caressing or fondling of, or other similar physical contact with, a pubic area, anus, female breast nipple, covered or exposed, whether alone or between humans, animals or a human and an animal, of the same or opposite sex, in an act of apparent sexual stimulation or gratification; or
      “ ‘(e) Actual, simulated or animated stimulation of a human genital organ by any device whether or not the device is designed, manufactured and marketed for such purpose.’ ” 341 So.2d at 28.

      . In Connick v. Lucky Pierre’s, 331 So.2d 431 (1976), we held R.S. 13:4713 void for vagueness because the statute did not give adequate notice of what action a tenant must take to stop prostitution by others. We did not hold the statute unconstitutional with respect to prohibited activity by the tenant, who was a defendant in the action to abate. See State v. Guillory, 339 So.2d 970 (La.App.1976), writs den. 341 So.2d 407 (La.1977).

      . In brief and on oral argument the plaintiff presented the following additional contention: these materials were seized by the Jefferson Parish Sheriffs Office in connection with a criminal investigation and were not seized by the plaintiff, Parish of Jefferson. After the seizures, the materials were in the possession of the Clerk of Court and were subpoenaed by the parish for use in this suit for injunctive relief. Therefore, the argument concludes, since the parish did not direct nor make the seizures and obtained the materials lawfully by way of subpoena, they should not be suppressed in this suit.
      The argument is a variation of the “silver platter” doctrine (Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949)), and is without merit. The seizure by the sheriff’s office was constitutionally defective. To permit the introduction of this evidence would allow police to disregard the United States and Louisiana Constitutions and turn over the illegally seized materials to other authorities to be used in another proceeding.
      In Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), the Supreme Court held that evidence illegally seized was inadmissible in federal court even when the seizures were made by state agents. The court reasoned that the rule excluding in federal criminal prosecutions evidence obtained by federal agents in violation of a defendant’s Fourth Amendment rights is not only logically required, but is also deterrent in nature, designed to compel respect for constitutional guarantees by removing any incentive to disregard them. Therefore evidence sought to be introduced in federal court, unconstitutionally seized by state agents, must be suppressed.
      There is no place for the “silver platter” doctrine in Louisiana, either under federal law or the State Constitution.

      . For example, except for two classes of materials which the statute attempts to explicitly describe, there cannot even be an arrest or prosecution for exhibition or dissemination of obscene material until after a judicial determination in an adversary hearing with notice to the accused that the material is obscene. R.S. 14:106F(1) provides:
      “Except for those motion pictures, printed materials and photographic materials showing actual ultimate sexual acts or simulated or animated ultimate sexual acts when there is an explicit, close-up depiction of human genital organs so as to give the appearance of the consummation of ultimate sexual acts, no person, firm or corporation shall be arrested, charged or indicted for any violation of a provision of this section until such time as the material involved has first been the subject of an adversary hearing under the provisions of this section, wherein such person, firm or corporation is made a defendant and, after such material is declared by the court to be obscene, such person, firm or corporation continues to engage in the conduct prohibited by this section. The sole issue at the hearing shall be whether the material is obscene.”

      . It should be noted that the injunction as amended by the Court of Appeal only incorporates the definition of hard core sexual conduct as provided in R.S. 14:106. Since the injunction fails to mention the other two elements necessary to a finding of obscenity (the materials appeal to prurient interests and the material as a whole lacks serious literary, artistic, political or scientific value), the injunction may be void for this reason alone.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Rufus COBBS.
    No. 59364.
    Supreme Court of Louisiana.
    Sept. 19, 1977.

      Tilden Greenbaum, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert L. Simmons, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant Rufus Cobbs was charged with the crime of simple burglary, a violation of R.S. 14:62. Defendant waived trial by jury and the trial judge found him guilty as charged. The State then charged him as a multiple offender pursuant to R.S. 15:529.1 and he was adjudged to be a fourth offender. The trial judgé sentenced him to twenty years imprisonment. Defendant assigns nine errors for reversal of his conviction and sentence.

Assignments of Error Nos. 5 and 7 were neither briefed nor argued and are deemed to be abandoned. State v. Matthews, 292 So.2d 226 (La.1974); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

The facts surrounding the commission of the crime follow. On June 28, 1976 a commercial laundry on Toulouse Street in New Orleans was burglarized. Stolen in the course of the burglary were a check writing machine and approximately two hundred fifty business checks. On the morning of June 30, 1976 an individual attempted to cash one of the stolen checks at a food store in New Orleans. The clerk at the store notified the police and they arrested the individual, charging him with forgery and possession of a stolen check. This person told the police that he had received the check from the defendant, Rufus Cobbs. He also informed the police that the check writing machine and numerous blank checks taken in the burglary were contained in a dresser drawer in the upper rear apartment facing North Galvez Street at 2112 St. Louis Street in New Orleans. That apartment was defendant’s residence.

The officers obtained a search warrant which they executed at the defendant’s apartment, seizing the stolen check writing machine and some of the stolen checks. Rufus Cobbs was also arrested at that time.

Assignments of Error Nos. 1 and 6

Prior to trial the defendant filed a motion to suppress the physical evidence seized during the search of his apartment. After a hearing the motion to suppress was denied. At trial the defendant again ob-jeeted to the introduction of the check writing machine and the checks. The objections were overruled and the evidence was admitted. The defendant assigns as error the denial of the motion to suppress and the introduction of the evidence at trial. The thrust of defendant’s argument is that the property was illegally seized because the premises to be searched were not described with sufficient particularity in the warrant.

Both the United States and Louisiana Constitutions provide that no warrant shall issue unless based on probable cause, supported by oath or affirmation “and particularly describing the place to be searched . ” United States Constitution Amendment IV; Louisiana Constitution Article 1 § 5. See also, C.Cr.P. 162.

The object of the description in a search warrant is to prevent the search of the wrong premises. If the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable certainty and with the reasonable probability that the police will not search the wrong premises, the description is sufficient. United States v. Prout, 526 F.2d 380 (5th Cir. 1976); United States v. Darensbourg, 520 F.2d 985 (5th Cir. 1975); United States v. Melancon, 462 F.2d 82 (5th Cir. 1972). See also Wharton’s Criminal Procedure, § 166 at 343-346 (12th Ed. 1974).

The description of the premises to be searched found in both the application for the warrant and the warrant itself was as follows: “2112 St. Louis Street Upper Rear Apartment facing N. Galvez Street.” The application for the warrant also stated that 2112 St. Louis Street was a two story wood frame building with single room apartments and that the apartment to be searched did not have a number on it.

Following the arrest of the individual who attempted to cash one of the stolen checks, the officers drove by the apartment building and that individual pointed out the defendant’s apartment and, in addition, drew a diagram indicating the location of the apartment. After dropping that person at Central Lockup, one of the arresting officers, Duane Johnson, returned to the apartment building to attempt to ascertain the correct municipal number of the building and the correct number of the apartment occupied by Rufus Cobbs. At the hearing on the motion to suppress, Officer Johnson testified that he proceeded to the top of the steps in the apartment building but couldn’t see any number on the defendant’s apartment door. He indicated that he came within approximately fifty feet of the apartment but did not want to approach any closer because he did not yet have a warrant and was afraid that the stolen property might disappear before he returned with the warrant. After this trip to the apartment building, the officers sought and obtained a search warrant. The defendant contends that the manner in which the warrant was executed demonstrates that the description of the premises to be searched was inadequate in that there was a reasonable probability that another premises might be searched.

The defendant testified as follows: when the officers came to 2112 St. Louis Street to execute the warrant, they first approached two men sitting outside of another apartment on the second floor, asked them for identification and then showed them a picture of the defendant. After leaving these men they requested the defendant to come to the door of his apartment and asked who he was. He gave them an alias. The police left and went to a number of other apartments on the second floor and searched at least two of them. Only after investigating these other apartments did the officers return to the defendant’s apartment, arrest him and seize the stolen property. The defendant alleges that there are five apartments that could fit the description in the search warrant.

The defense also called Mr. W. E. Watts as a witness on the motion to suppress. He resided in an apartment at 2112 St. Louis Street and testified that the police entered several apartments on the second floor at the time that the warrant was executed. However, it is not clear from this witness’ testimony whether he saw the officers enter the other apartments before or after they executed the warrant and arrested the defendant in his apartment.

Officer Johnson testified that when he and his partner went to execute the warrant they went directly to the defendant’s apartment. His testimony was as follows: at approximately 1:10 p. m. on June 30 the warrant was executed at the apartment of Rufus Cobbs at 2112 St. Louis Street. The doorway was open to the apartment, which was visible through the screen door. As they approached the apartment Officer Johnson observed Rufus Cobbs (whom he recognized from a photograph in his possession) lying on a bed near the doorway. He called to Rufus Cobbs, who opened the door and was arrested. The apartment was then searched.

When asked if they went to any other apartments after arresting the defendant and seizing the stolen property, Officer Johnson replied that they had. He testified that the person arrested for attempting to cash the stolen check told the police the names of two other suspects in the burglary and the police had information that these two suspects also lived at 2112 St. Louis Street. Officer Johnson further testified that while there were a number of apartments on the second floor of the building, only the defendant’s was the upper rear apartment facing North Galvez Street. Finally, both Mr. Watts and the defendant answered affirmatively when asked if the defendant’s apartment was at “2112 St. Louis Street, upper rear apartment, facing North Galvez.”

In denying the motion to suppress, the trial judge gave the following reasons:

“Of course, there was hearsay evidence which is admissible. The informant, informer, told the officers where the checks were, the checkwriter was, where the defendant was. Based on that information they got a search warrant, and when he executed the search warrant, he went and found the man. He identified him and sure enough the checks and check-writer were in the identical place that had been disclosed to the officers. So, I don’t know how many apartments he went into. The officer’s testimony is he went right there and arrested this man. I think there was testimony of Mr. Watts that he said he went somewhere else after. I think that’s his testimony. But anyway I’m inclined to believe this officer’s testimony. He’s entitled to credibility, and for that reason the Motion to Suppress the property is denied.”

When there is conflicting testimony as to a factual matter, the question of the credibility of the witnesses is within the sound discretion of the trier of fact. His factual determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence. E. g., State v. McSpaddin, 341 So.2d 868 (La.1977); State v. White, 329 So.2d 738 (1976); State v. Alexander, 328 So.2d 144 (La.1976). Here, the trial judge found the testimony of Officer Johnson to be credible. Coupled with the facts that the apartment had been pointed out to the officers previously, their possession of a diagram pointing out the apartment and the testimony of both the defendant' and Mr. Watts that the defendant’s apartment was the upper rear apartment at 2112 St. Louis Street facing North Galvez Street, we find that the search warrant did describe with sufficient particularity the place to be searched.

These assignments lack merit.

Assignments of Error Nos. 2, 3 and 4

In these assignments the defendant objects to the refusal of the trial judge to suppress the confession he gave to the police. His contention is that the confession should not have been admitted because it was not freely and voluntarily given and because it was the product of an unconstitutional search and seizure. Because we have found that the search and seizure were valid (see discussion of Assignments of Error Nos. 1 and 6 above), the second contention lacks merit.

Prior to trial, the defendant filed a motion to suppress the confession, and a contradictory hearing was held. The State offered the testimony of Officers Johnson and Ducos who had executed the warrant and were present when the defendant gave his statement. Both officers testified to the following facts. At the time of the arrest the defendant was orally informed of his rights and indicated that he understood them. The defendant was then taken to an interview room at Central Lockup and was again read his rights from a “rights of arrestee” form. The defendant signed the form and Officer Johnson checked boxes marked “Yes” next to the following questions after reading them to the defendant: “Do you understand what I have just read to you?” and “Do you wish to waive your rights?” The defendant answered both of these questions affirmatively. The defendant then gave a statement in response to questions asked by Officer Johnson. The statement was given to the defendant to read after it was typed. The defendant then signed the statement. The officers testified that the defendant was not promised anything for signing nor was he beaten, coerced or abused in any way to make him sign the statement. The defendant was then booked, and the officers testified that at the time of the booking the defendant had no injuries or abrasions.

The defendant’s testimony is in conflict with that of the police officers. He testified that the officers gave him his rights at Central Lockup and that he signed the “rights of arrestee” form. However, he claims that he was never asked any of the questions appearing on the statement nor did he give the police any information. The defendant testified that the officers typed up the questions and answers on their own and when he initially refused to sign the statement the officers began punching him and beating him in the stomach with a flashlight. He stated that the only reason he signed the statement was because he was being beaten. However, after he signed the statement and prior to being booked, the defendant was asked by the police whether he was injured in any way. The defendant admitted that he replied that he was not.

Before a written confession can be admitted into evidence, the State has the burden of proving that the statement was freely and voluntarily given and was not made as a result of fear, duress, intimidation or promises. R.S. 15:451; C.Cr.P. 703(C). The admissibility of a confession is a question for the trial judge, and his conclusions as to the credibility of witnesses testifying as to voluntariness will not be disturbed unless unsupported by the evidence. E. g., State v. Schamburge, 344 So.2d 997 (La.1977); State v. Ross, 343 So.2d 722 (La.1977); State v. Hollingsworth, 337 So.2d 461 (La.1976).

The trial judge found the confession to have been freely and voluntarily given after the defendant heard and understood his rights. The record supports the trial judge’s conclusion, except for the defendant’s uncorroborated assertion that he was beaten into signing the confession. The trial judge resolved the conflicting testimony in favor of the police officers and there is no reason for this court to disturb that credibility determination.

These assignments lack merit.

Assignment of Error No. 8

After conviction, the State filed a bill of information charging the defendant as a multiple offender pursuant to R.S. 15:529.1. The defendant filed a motion to quash the bill urging that R.S. 15:529.1 is unconstitutional in that one charged as a multiple offender is subject to cruel, unusual and excessive punishment in violation of Article 1 § 20 of the Louisiana Constitution. The motion to quash was denied, the defendant was adjudged to be a fourth offender and was sentenced to a term of twenty years. The defendant assigns as error the refusal of the trial judge to quash the multiple bill.

This court has repeatedly held that an enhanced penalty imposed pursuant to R.S. 15:529.1 does not constitute cruel and unusual punishment. State v. Linkletter, 345 So.2d 452 (La.1977); State v. Williams, 326 So.2d 815 (La.1976).

This assignment lacks merit.

Assignment of Error No. 9

In this assignment the defendant contends that the trial judge erred in finding the defendant guilty in that the only evidence of the crime of burglary was that the defendant was in possession of recently stolen property. The defendant relies on the case of State v. Searle, 339 So.2d 1194 (La.1976), which rejected the proposition that a defendant found in possession of property recently stolen in a burglary is presumed to have committed the burglary. The defendant’s allegation appears to be that the State failed to offer evidence of every essential element of the crime of simple burglary.

During trial the defendant did not move for a judgment of acquittal, C.Cr.P. 778, nor did he file a motion for a new trial after conviction, C.Cr.P. 851. Only when the defendant has moved for a judgment of acquittal or for a new trial based on the argument that there is no evidence at all of some essential element of the crime charged is a question of law presented for this court to review. State v. Jamerson, 341 So.2d 1118 (La.1977); State v. Alexander, 339 So.2d 818 (La.1976). Therefore, this assignment is not properly before us for review.

In any event, in addition to the defendant’s possession of the stolen property, the defendant’s confession to the burglary was admitted into evidence. The State therefore did offer some evidence of every essential element of the crime. State v. Searle, supra, is inapposite.

This assignment lacks merit.

Accordingly, the conviction and sentence of the defendant are affirmed.


author: SUMMERS, Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. David DORSEY.
    No. 59392.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    George M. Strickler, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

The grand jurors of Ouachita Parish charged David Dorsey with the June 27, 1976 second degree murder of Claiborne Gant. La.Rev.Stat. 14:30.1. Because of his indigency, an attorney was appointed to represent the accused. After trial the jury returned a verdict of guilty and Dorsey was sentenced to imprisonment at hard labor for life without benefit of parole, probation or suspension of sentence for a period of forty years.

One assignment of error on this appeal complains that the trial judge erred in refusing to grant defendant a new trial or to relieve his court-appointed' counsel from further representation in this matter.

The assignment of error is based upon the contention that when defendant was sentenced, he moved for a new trial on the ground that his court-appointed counsel was incompetent and ineffective. This incompetent and ineffective representation, it is asserted, was due to the fact that court-appointed defense counsel recommended against defendant entering a guilty plea to a reduced charge of manslaughter offered by the State as a plea bargain. As a consequence defendant was thereafter convicted of the more onerous crime of second degree murder and sentenced accordingly. In addition, defendant moved to have his court-appointed counsel removed on the ground that defense counsel could not properly argue his own incompetence.

In his well-prepared per curiam to this assignment of error the trial judge pointed out that in opening statement defense counsel told the jury that there was no dispute about the fact that defendant shot and killed the victim. The issue, he said, was intent. He suggested defendant was guilty of negligent homicide rather than murder or manslaughter.

Two witnesses observed the shooting. Although the evidence showed that defendant and the victim were frequent companions and had spent most of the afternoon together without incident, as decedent was leaving the premises, defendant stood at the door, called the victim, pointed the gun at him and when the victim made a remark, pulled the trigger.

At the close of the State’s case, defense counsel moved for a directed verdict of negligent homicide, a motion not sanctioned by the law in this case. La.Code Grim.Pro. art. 778.

In a hearing on the motion to be relieved, defense counsel stated that when the State offered to accept a plea of guilty of manslaughter he conveyed the offer to defendant the day prior to trial and recommended against accepting the offer. On this advice defendant declined to plead to the lesser charge. On the other hand the defendant testified that he had written to counsel to accept such a plea. However, defense counsel neither acknowledged such a letter nor produced it in evidence. The record points to defense counsel’s version of the matter as the most reliable. Thus, the decision to not accept the plea bargain was concurred in by the defendant.

Both the trial judge and the State’s attorney stated in the record that defense counsel was an experienced and able trial lawyer who conducted a vigorous and competent defense on behalf of his client. While in retrospect it may appear that the better choice was to accept the plea, the decision not to do so was deliberate and cannot be repudiated after trial and verdict.

Defense counsel’s motion to substitute other representation to argue the contention that he was incompetent is also without merit. As the trial judge observed, counsel’s incompetency is a matter that can be determined from the record itself.

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

CALOGERO, J., concurs with reasons.

CALOGERO, Justice

(concurring).

I concur in the affirmance of defendant’s conviction. I do not agree however, that appellant’s contention of incompetent counsel is a matter that can be determined from the record itself nor that such contention should be reviewed on this appeal. Allegations of ineffective assistance of counsel are more properly raised by a writ of habeas corpus. State v. Ross, 343 So.2d 722 (La.1977); State v. Mouton, 327 So.2d 413 (La.1976).


text:
    STATE of Louisiana v. Warren WALKER.
    No. 59448.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Frank J. Gremillion, Hynes & Gremillion, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Michael McDonald, Marilyn C. Castle, Asst. Dist. Attys., Baton Rouge, for plaintiff-respondent.
   DIXON, Justice.

Warren Walker was charged with possession of marijuana, aggravated assault and receiving stolen things. The defendant was tried before a judge on February 8, 1977. He was acquitted on the marijuana and assault charges but the court found the defendant guilty of receiving stolen things. Defendant was sentenced to pay a $100 fine plus costs of court and was also sentenced to sixty days in the parish jail, which sentence was suspended and defendant was placed on one year unsupervised probation.

At the close of the State’s case-in-chief the defendant moved for a directed verdict (motion for acquittal) on all three counts. The judge granted the motion on the marijuana and assault counts but denied the motion on the receiving stolen things charge. Upon the defendant’s application we granted writs on March 25, 1977. 343 So.2d 204 (La.1977).

The'facts as adduced at trial are: a .38 caliber pistol was stolen from a house used by a lawyer, James Dendy, and his associates. Defendant was not shown to be connected with the burglary in any manner and, in fact, Dendy testified that the aperture of the window through which the burglar gained entry was too small to admit the defendant. Sometime after the commission of the burglary, Officer Daniel R. Altazan responded to an unrelated complaint by Mr. and Mrs. Alton James. The officer went to the James residence and ultimately arrested defendant for possession of marijuana (found in defendant’s car), aggravated assault and receiving stolen things. This latter charge was based on the fact that when the officer questioned defendant about the whereabouts of the gun used in the assault, defendant responded “it [is] under the mattress in the back bedroom.” Mrs. James took the officer to the bedroom to show him where the bed was. The officer ran a serial number check on the gun and determined that it was the gun taken in the Dendy burglary. The only other evidence related to the receiving stolen things charge was a statement made by Mrs. James in the presence of the defendant and testified to by Officer Altazan to the effect that defendant owned the gun. (The admissibility of this statement was the basis for Assignment of Error No. 1). Apparently the trial judge admitted this statement only for the fact of its utterance and not for its truthfulness.

R.S. 14:69 provides in pertinent part: “Receiving stolen things is the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.”

Thus, the crime consists of four elements, each of which the State has the burden of proving:

(1) the intentional procuring, receiving, or concealing
(2) of anything of value
(3) which has been the subject of any robbery or theft
(4) under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.

Defendant argues that there was no evidence to support any elements of the offense other than element (3). Accordingly, he contends that his motion for acquittal should have been granted. We find merit to this assignment because the record provides no evidence that defendant knew or had good reason to believe that the gun was the subject of a theft.

In support of its argument that there is at least some evidence of element (1), the State contends that the defendant’s statement to the effect that the gun was under a mattress in the James’ bedroom constitutes some evidence of “concealing.” Be that as it may, the State then argues that the defendant’s action in concealing the gun indicates that he had good reason to believe that the gun was stolen. Even assuming that there is some evidence that defendant concealed the gun under the mattress, this fact alone does not constitute some evidence that defendant had good reason to believe the gun was stolen. The mere act of concealing property is subject to many competing inferences. In fact, since defendant was the subject of a complaint and arrest for aggravated assault, the most plausible reason for hiding the gun was to avoid a charge of carrying concealed weapons when the police arrived. It appears, however, that the State is contending that proof of receipt or concealment alone is some evidence that the offender had good reason to believe the property was stolen. This is made clear by the State’s argument at trial that once it was proved that defendant had the stolen gun in his possession, it should be presumed that he had good reason to believe the gun was stolen. However, in State v. Rock, 162 La. 299, 110 So. 482 (1926), this court noted that mere possession of stolen property should not create a presumption that the person in possession of the property received it with knowledge that it was stolen by someone else. In addition, in State v. Henderson, 296 So.2d 805 (La.1974), we held that R.S. 14:69 does not create any presumptions and the State “must prove that the accused actually knew or had good reason to believe that the property was stolen before a conviction under R.S. 14:69 can be obtained.” 296 So.2d at 807.

In this case the State merely proved that the defendant knew where the gun was located (under a mattress in the James ’ residence). The State did not show when it was hidden there, under what circumstances, nor, arguably, by whom. The State has the burden of proving each element of the offense and the fourth element, (good reason to believe that the gun was stolen), is separate and distinct from the first element, (receipt procurement, or concealment). Had the legislature intended for proof of possession, receipt or concealment alone to constitute the offense, they would not have required scienter. Thus, mere proof that defendant knew where the gun was, even if this is some evidence that he concealed the gun, does not constitute some evidence that defendant knew or had good reason to believe the gun was stolen. To hold to the contrary would eliminate the fourth element of the crime from the statute.

For the foregoing reasons, the judge’s ruling on the motion for acquittal is reversed and the motion is granted.


author: PER CURIAM.

text:
    STATE of Louisiana v. Arthur BAILEY, Sr.
    No. 59652.
    Supreme Court of Louisiana.
    Sept. 20, 1977.
    Barry F. Viosca, New Orleans, Orleans Indigent Defender Program, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.