author: GULOTTA, Justice Ad Hoc.

text:
    STATE of Louisiana v. Ronald TAUZIER, and Glen Tauzier.
    No. 80-KA-2250.
    Supreme Court of Louisiana.
    April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., William R. Alford, Walter R. Reed, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    John A. Cvejanovich, Anderson, Toledano & Courtney, Covington, for defendants-appellants.
   GULOTTA, Justice Ad Hoc.

Defendants, two brothers, appeal from their convictions on three counts of attempted first degree murder arising out of the shooting of three law enforcement officers. Each defendant was sentenced to serve fifty years imprisonment at hard labor on each count, sentences to run concurrently.

While in the course of checking a shopping center at approximately 11:00 p.m. on September 6, 1979, a Slidell police officer became suspicious when he observed two persons hooking a boat and trailer to a carry-all van. As the officer confronted these individuals, the driver fired a gun at him and struck him in the right hand. The assailants then drove away, pulling the boat and trailer behind the van.

In response to the wounded officer’s radioed request for assistance, two St. Tammany Parish deputy sheriffs shortly thereafter saw the van, boat and trailer and gave pursuit. In the course of the chase the officers attempted to apprehend the driver and passenger of the van, but were fired upon from the van with a “shotgun”. Shots were exchanged, and the officers sustained injury when the police car’s windows shattered.

In response to the deputies’ call for assistance, a large number of police vehicles converged on the scene. The two occupants of the van were seen to leave the truck and enter the woods nearby. The area was cordoned off and after a systematic search Glen and Ronald Tauzier were found at approximately 7:00 a.m. the following morning in heavy underbrush. A shotgun inscribed with Ronald Tauzier’s name and a pair of bolt cutters were recovered in the area. Several firearms were found in the truck. One of the deputy sheriffs identified Glen Tauzier as one of the persons wielding the gun, but the other deputy sheriff identified Ronald as the person who had a shotgun. The Slidell police officer who had been wounded in the parking lot identified Glen as the passenger and Ronald as the man who had fired the gun.

In seeking reversal, the Tauziers make several assignments of error, which we consider in the order presented. The State argues that only assignments of error two and five (the denial by the trial judge by defendants’ request to substitute counsel and the improper introduction of a-pair of bolt cutters) should be considered because no timely objections were raised in the trial court. According to the State, defendants cannot raise on appeal for the first time an issue not raised below. The State argues also that the errors complained of are not such as are patent from the record and cannot be ascertained without the necessity of considering the evidence as set forth in LSA-C.Cr.P. art. 920. Nonetheless, we deem it preferable to consider all assignments raised in this case.

REQUEST FOR PRIVATE COUNSEL

(Assignment of Error No. 2)

In the first assignment defendants complain the trial judge erred in refusing to grant their request, made at a recess during jury selection, for counsel of their own choosing. In connection with this assignment of error, defendants claim the court appointed attorney failed to subpoena necessary witnesses and there existed irreconcilable differences between the attorney and the defendants. We find no error.

An attorney for the public defender’s office was appointed to represent these defendants. Thereafter, they informed the court that they could afford private counsel and counsel of their own choosing, Dale Wilks, was substituted for the attorney furnished by the public defender’s office. Midway through jury selection, the trial court called a recess to allow the sheriff time to gather additional talesman for the jury pool. At that time Glen Tauzier informed the court that he was dissatisfied with his attorney and requested time to secure other counsel. In denying defendants’ request the judge noted that he did not wish to disrupt the trial for such a purpose.

In State v. Leggett, 363 So.2d 434, 436 (La.1978) this Court noted:

“Both the federal and state constitutions provide that the accused has the right to counsel of his own choosing to defend him on a criminal charge. However, this right does not permit arbitrary action which obstructs orderly procedures in the courts. State v. Dickerson, 353 So.2d 262 (La.1977) State v. Mackie, 352 So.2d 1297 (La.1977). Rather the right to choose one’s attorney is a right to be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system. There is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases. Once the trial day has arrived, the question of withdrawal of counsel rests largely within the discretion of the trial judge. State v. Cousin, 307 So.2d 326 (La.1975); State v. St. Amand, 274 So.2d 179 (La.1973). This court has frequently upheld the trial court’s denial of motions for continuances or withdrawal of counsel made on the day of trial when defendant is dissatisfied with his present attorney but had ample opportunity to retain private counsel. State v. Anthony, 347 So.2d 483 (La.1977); State v. Hegwood, 345 So.2d 1179 (La.1977); State v. Wiggins, 337 So.2d 1172 (La.1976); State v. Alexander, 334 So.2d 388 (La.1976); State v. Austin, 258 La. 273, 246 So.2d 12 (1971).”

Wilks was retained as defendants’ joint counsel in January, 1980. On the day of trial some three months later, however, defendant Glen Tauzier moved for new and separate counsel. Under the circumstances, it does not appear that the trial court abused its discretion in denying defendants’ request. Glen had ample time prior to trial to secure individual counsel. Moreover, the record demonstrates Wilks’ adequate ability and diligence in preparation of the defense. Furthermore, the timing of the request would have had a dilatory effect upon an ongoing trial.

This assignment is without merit.

SUPPLEMENTING VENIRE WITH BYSTANDERS

(Assignment of Error No. 3)

In the next assignment of error, defendant contends the trial judge erred in allowing the sheriff to supplement the petit jury venire by gathering people from courthouse bystanders. Employing this method, six jurors and an alternate were impaneled, completing jury selection.

Defendants complain that selection of jurors from courthouse bystanders is unauthorized and results in an unrepresentative jury venire. The procedure utilized below, however, is specifically provided for by LSA-C.Cr.P. art. 785(D) which provides:

“D. In parishes other than Orleans, the judge may order the summoning of tales jurors from among the bystanders or persons in or about the courthouse, in place of the drawing of tales jurors.”

Furthermore, in State v. Drew, 360 So.2d 500 (La.1978), this Court found that this method of selection is not per se violative of the accused’s right to trial by a jury representing a fair cross-section of the community. See also, State v. Monk, 315 So.2d 727 (La.1975).

This assignment is without merit.

QUALIFICATIONS OF JURORS

(Assignment of Error No. 4)

Defendants also complain that the trial court erred in not ascertaining that the six members of the jury, chosen from among the courthouse bystanders, met the qualification requirements of LSA-C.Cr.P. art. 401 which provides:

“In order to qualify to serve as a juror, a person must:
(1) Be a citizen of the United States and of this state who has resided within the parish in which he is to serve as a juror [in the instant case, St. Tammany] for at least one year immediately preceding his jury service;
(2) Be at least eighteen years of age;
(3) Be able to read, writ and speak the English language;
(4) Not be under interdiction, or incapable of serving as a juror because of mental or physical infirmity; and
(5) Not be under indictment for a felony, nor have been convicted of a felony for which he has not been pardoned.”

In State v. Baxter, 357 So.2d 271, 274 (La.1978) this Court stated:

“The rule which has long been recognized by this Court is that in order for a defendant to avail himself of the lack of qualification of a juror, it must be made to appear that the disqualification of the juror was not known to defendant, or his counsel, when the juror was accepted by him and could not then have been ascertained by due diligence; and it must be made to appear that such diligence was exercised by an examination of the juror, on his voir dire, touching his qualifications, and that he answered falsely. State v. Hall, 255 La. 854, 233 So.2d 541 (1970); State v. Lewis, 161 La. 696, 109 So. 391 (1926); State v. Holbrook, 153 La. 1025, 97 So. 27 (1923); State v. Nash, 45 La.Ann. 1137, 13 So. 732 (1893).”

Furthermore, we held in State v. Collins, 359 So.2d 174 (La.1978) that an allegation concerning the competency of a juror is tardy when first raised after the verdict. Although it appears that defendants waived their arguments by their failure to make a timely objection under LSA-C.Cr.P. Art. 841, or by their failure to show that any particular juror was unqualified and whose disqualification was not discovered, nevertheless, we deem it advisable to consider the transcript of voir dire of the “courthouse bystander” jurors. We find no indication that these jurors did not meet the qualifications established by LSA-C.Cr.P. Art. 401.

Although all of the prospective jurors were not questioned specifically on all of the requirements of Article 401, the record discloses specific information relating to the jurors. Galatas indicated that she was 35 years old, a resident of Slidell in St. Tammany Parish, and did not remember reading about the case, indicating that she might be capable of reading English. Davis stated that she was 25 years old, a resident of Covington in St. Tammany, and a librarian, indicating an ability to read English. Clark stated that she was 49, a resident of Mande-ville in St. Tammany, and employed as a “C — 1, P.A.T.,” an apparently technical-related position, at a hospital, indicating an ability to read English. Rivers stated that she was 28 years old, a resident of Sun in St. Tammany, and a beauty school student, perhaps indicating an ability to read. Parker revealed that she was 23 years old, a resident of Bush in St. Tammany, and employed by an oral surgeon, indicating English literacy. Stanford stated that she was 49, lived six miles south of Covington in St. Tammany, and “usually reads the paper.” Alternate Porter revealed only that she was 57 years old. No juror revealed a mental or physical infirmity rendering her incapable of jury service. Nor was there any indication that these jurors were under indictment or were convicted felons.

In the absence of a specific showing that a particular juror did not meet the requirements set forth in the Code, we find no merit to defendants’ broad contention that the jurors did not meet the qualifications. We find no merit to this assignment or error.

EVIDENCE OF OTHER OFFENSES

(Assignments of Error Nos. 8 and 9)

Next, defendants contend that reversible error was committed when evidence was admitted of other offenses charged without providing defendants with written notices. Defendants complain of testimony by a State’s witness that the certificate of registration on the carry-all van had been switched and apparently had been obtained fraudulently. According to defendants, other crimes were referred to despite the fact that the State’s answer to defendants discovery motion allegedly disavowed the intended use of such evidence.

The specific comments were made by the prosecutor and a state witness, Slidell police detective Jimmy Pendón, in the following testimony:

“Q. Did you find any registration papers for this Carry All?
A. We found several items of registration. One was from Louisiana. The Certificate of Registration from the State of Louisiana, the VIN number does not correspond with this VIN plate.
Q. What does that indicate to you, sir?
A. Either this plate has been switched or the papers have been obtained fraudulently.
Q. I see. And who is — to whom is the vehicle registered, or was? According to those certificates, to whom was it registered?
A. Glenn Tauzier.
Q. Glenn Tauzier?
A. Yes, Glenn Tauzier, 3516 Laplace Street, Chalmette, Louisiana.
Q. Okay.
A. And also they have the registration form with this. Certificate of Title under the name of Glenn Tauzier, a Texas registration for the same type of vehicle. Even the Texas registration, it’s on a ’69 International van. According to this, this does not jive with this plate either.
Q. Okay. So this would indicate to you that either the VIN plate on the Carry All had been switched or that the papers had been fraudulently obtained?
A. Right.
Q. Now, I’m going to show you what for purposes of identification I’ve marked as S-46 and S — 47 and ask you if you recognize that?
A. This was also found in the vehicle. It’s a syringe used for injecting some type of medication or drugs into the arms.
MR. WILKS:
Your Honor, I’m going to object to this.
It’s totally irrelevant.
MR. ALFORD:
It’s a syringe—
MR. WILKS:
I don’t see the purpose of any of this.
THE COURT:
Gentlemen, approach the bench.
(At this time a discussion was held at the bench.)”

Generally, evidence of extraneous offenses is inadmissible because of the prejudicial effect upon the accused’s constitutional presumption of innocence. State v. Vernon, 385 So.2d 200 (La.1980); State v. Prieur, 277 So.2d 126 (La.1973); Pugh, Louisiana Evidence Law 30 (1974). Such evidence is excluded to ensure that a defendant will not be presumed guilty because of past offenses. State v. Vernon, supra.

LSA-C.Cr.P. Art. 770 provides inter alia

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to: (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible; ..."
LSA-C.Cr.P. Art. 771 provides:
“In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury;
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

By their terms, Articles 770 and 771 both require that the aggrieved accused request a mistrial or admonishment before either remedy is warranted. Indeed, in State v. Baylis, 388 So.2d 713, 721 (La.1980) this Court dismissed a contention of “other crimes” prejudice noting:

“It is well settled that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence, and the party objecting made known to the court the action which he desired the court to take, or his objection to the action of the court, and the grounds therefor. C.Cr.P. 841. A new basis for an objection may not be raised for the first time on appeal. State v. Kelly, 375 So.2d 1344 (La.1979); State v. Quincy, 363 So.2d 647 (La.1978); State v. Williams, 343 So.2d 1026 (La.1977). Therefore, this contention must be deemed to have been waived by the defendant’s failure to object to the absence of Prieur notice.”

Accordingly, it appears that defendants waived the issue raised by these assignments by not stating the proper grounds for their objection, LSA-C.Cr.P. Art. 841, and by not requesting admonishment or a mistrial. LSA-C.Cr.P. Arts. 770 and 771.

In any event, the prejudice caused by the complained of comments was not so great as to warrant the “drastic remedy” of mistrial. See State v. Overton, 337 So.2d 1058 (La.1976). The prejudice caused was diminished by the fact that as part of their defense, defendants admitted, through the testimony of Ronald, that on the night of the offense they were attempting to arrange a purchase of marijuana for re-sale. (Defendants claimed that in the course of this transaction their truck was lost to two strangers who, supposedly, were the real assailants of the police.) Additionally, Ronald admitted that he formerly pled guilty to simple burglary and that he was convicted of obscenity. Furthermore, Ronald observed that Glen “liked to smoke [marijuana] a little bit” and that they “started smoking [marijuana that evening].” Under the circumstances, references to the altered or stolen vehicle registration papers and a syringe do not appear to have so prejudiced defendants as to warrant mistrial.

These assignments are without merit.

DEPUTY SHERIFF’S REPORTS

(Assignment of Error No. 7)

In the next assignment of error, defendants complain that the trial court erred in not ordering the state to present them with copies of all reports prepared by state witness Steven Waldron, a deputy of the St. Tammany Parish Sheriff’s Office. Defendants claim that they requested these documents but were presented with a copy of only one of the several such reports. The record reflects no specific request for copies of reports prepared by Waldron; a copy of at least one such report was delivered to the defense, however.

In State v. Franks, 363 So.2d 518, 520 (La.1978) this Court stated:

“Police reports are considered confidential and generally the state may not be compelled to produce them for inspection. State v. Banks, 341 So.2d 394 (La.1976); State v. Square, 257 La. 743, 244 So.2d 200 (La.1971). However, when an officer’s testimony at trial is from his report rather than from his memory, that is, if the testimony is the product of past recollection recorded rather than present memory refreshed, the trial judge should require production of the report for defense inspection. State v. Tharp, 284 So.2d 536 (La.1973); State v. Foret, 315 So.2d 278 (La.1975). The same ruling should follow where it is shown that a witness has referred to his report or notes, with him on the stand, even though presumably only to refresh his memory while testifying. State v. Perkins, 310 So.2d 591 (La.1975).”

There is no showing that Waldron testified from any report or statement other than the one already in defense counsel’s possession. Waldron did not read from any other statements nor refer to any while on the stand. Consequently, defendants were not entitled to the production of any statement save the one already in their possession.

This assignment is without merit.

DEMONSTRATIVE EVIDENCE

(Assignment of Error No. 5)

Defendants contend in the next assignment of error that the trial judge erred in admitting into evidence a pair of bolt cutters retrieved from their vehicle without first requiring that the State lay foundation for the evidence’s introduction by showing that the pair of cutters matched the cut chain that presumably locked the boat.

The boat and trailer attached to defendants’ vehicle was identified by Randy Davis as his property. He testified that on the night of the offense, he left this property chained to a pole in the Gibson’s Discount Center parking lot. He also testified that he gave no one permission to move the boat on that night. A detective testified that the bolt cutters were found in the defendant’s vehicle. The bolt cutters were thus relevant to an explanation of how the defendants came to have the boat and trailer in their possession.

The connexity of the bolt cutters to the case was adequately established. For demonstrative evidence to be admissible at trial, the State has the burden of establishing that it is more probable than not that the evidence is connected with the offense. State v. Boyd, 359 So.2d 931 (La.1978). This probability may be established by visual identification of a witness or by showing a chain of custody. Ultimately, the connexity of physical evidence is a factual matter for determination by the jury. State v. Henderson, 337 So.2d 204 (La.1976).

This assignment is without merit.

INADEQUACIES IN DISCOVERY

(Assignment of Error No. 1)

In this assignment of error, defendants claim the State inadequately answered their discovery motion requesting copies of their criminal records in the custody of the State and the F.B.I., copies of fingerprint cards and photographs used in the investigation of the charged offenses, access to all physical evidence whether exculpatory or inculpatory and whether to be used at trial or not, and copies of all reports of scientific tests made in connection with the investigation of the case. Defendants contend that the State’s answer to their motion does not set forth the items in its possession and that the State’s discovery production should be made part of the record.

In answer to the discovery motion, the-State responded that it was not in possession of copies of any confessions by the defendants, any results or reports of physical and mental examinations or scientific tests or experiments, any statements of conspirators or codefendants, or any evidence or information of an exculpatory nature concerning either defendant. The State answered that it was not in possession of rap sheets or fingerprints concerning the defendants but would obtain them and furnish them to the defense, that it would allow the defense to inspect all tangible evidence at a time convenient to the defense prior to trial and that the remaining discovery requests were not applicable.

A minute entry for January 28, 1980 shows that at that time the State informed the defense that information requested would be delivered to the defendants as the information became available.

No showing has been made that physical evidence requested was not available for inspection by the defense or that inculpato-ry or exculpatory evidence was found but not introduced by the State. Although there are indications in the record that defendants had criminal records and that some ballistics tests were run on their weapons, any failure to provide defense counsel with rap sheets and copies of the scientific tests as requested is not prejudicial. In light of the overwhelming circumstantial and direct evidence, including eyewitness identification of the defendants as the assailants, any procedural inadequacy regarding discovery, even if shown, was harmless and did not violate defendants’ due process rights.

This assignment is without merit.

SEQUESTRATION OF WITNESSES

(Assignment of Error No. 6)

Defendants complain by this assignment that the trial court erred in not ordering sequestration of the witnesses until after the State’s opening statement. Additionally, they claim that the sequestration instruction was defective because the judge did not inform the witnesses not to discuss their testimony.

LSA-C.Cr.P. Art. 764 provides that upon its own motion the trial court may, and upon the request of the State or defendant, the court shall, order sequestration of the witnesses. Defense counsel did not request sequestration until after the State’s opening statement; hence, the trial court’s action was entirely proper.

The defendants are correct, however, in noting that the trial court’s initial sequestration order was defective; the judge merely ordered the witnesses to wait in the hall, the state witnesses to one side, defense to the other. Although such procedure does not comply with the requirements of LSA-C.Cr.P. Art. 764, there is no showing that any testimony was changed due to witness tampering or collusion. Nor does the record contain any defense objection to the sequestration instruction, despite the requirements of LSA-C.Cr.P. Art. 841.

This assignment is without merit.

ILLNESS OF JUROR

(Assignment of Error No. 10)

Defendants further contend that the trial court erred in dismissing for illness juror Beachner, after she was sworn but before jury selection was concluded.

If a person is suffering from a physical infirmity rendering him incapable of serving as a juror, that person is not truly qualified to serve. See, LSA-C.Cr.P. Art. 401; State v. Carmouche, 141 La. 325, 75 So. 68 (1917).

LSA-C.Cr.P. Art. 796 provides:

“If it is discovered after a juror has been accepted and sworn, that he is incompetent to serve, the court may, at any time before the first witness is sworn, order the juror removed and the panel completed in the ordinary course.”

In the instant case, after juror Beachner was accepted and sworn to the jury panel, the trial court was informed that she suffered from a disease rendering her incompetent to serve. She stated that on doctor’s orders she was required to elevate her feet for two to three hours every day. The trial judge noted that it would be impossible to accommodate this requirement, given the seating arrangement in court. Consequently, the trial judge excused the juror from service. The trial court’s action does not appear to have been such an abuse of discretion as to warrant reversal by this Court.

This assignment of error is without merit.

NUMBER OF JURORS

(Assignment of Error No. 11)

Defendants contend by this assignment that they were convicted by a jury composed of more jurors than the law allows. Specifically, the Tauziers complain that after the trial judge excused the juror thirteen jurors were selected plus an alternate. Because LSA-C.Cr.P. Art. 782 requires twelve jurors, selection of thirteen by the trial judge, according to defendants, constitutes reversible error.

Defendants herein were charged with attempted first degree murder. LSA-R.S. 14:27 and LSA-R.S. 14:30. First degree murder is a capital offense; however, the punishment for attempted first degree murder is imprisonment at hard labor for not more than fifty years. See, LSA-R.S. 14:30 and LSA-R.S. 14:27(D)(1). Offenses necessarily punishable by hard labor must be tried before a jury composed of twelve jurors, ten of whom must concur to render verdict. LSA-C.Cr.P. Art. 782. Accordingly, defendants were entitled to a twelve member jury with the requirement that ten must agree to convict or acquit.

The record in this case shows that thirteen persons were sworn as jurors; one alternate was also sworn. One of the thirteen, Beachner, was excused for valid medical reasons. This left twelve jurors and one alternate. The record shows that after rebuttal argument by the State, the trial judge charged the jury, released the alternate, and thus retired twelve to deliberate. A polling of the jury revealed a ten to two margin for conviction on each count as to each defendant.

This assignment is without merit.

PRO SE ASSIGNMENTS OF ERROR

In a brief filed pro se, the Tauziers raise several additional arguments, which we now consider.

In the first assignment of error, defendants contend that their rights were violated when they were not presented before a judge or magistrate until forty days after their arrest. Even though the prosecution and trial were not barred by the applicable prescriptive periods, defendants contend that the delay between arrest and presentment to a judge violated their rights under LSA-C.Cr.P. Art. 230.1, which provides that the sheriff must bring an arrestee before a judge within seventy-two hours of arrest for the purpose of appointment of counsel.

Defendants were arrested on the morning of September 7, 1979. The first indication of a judicial appearance was their arraignment forty-two days later on October 18, 1979. Nevertheless, even though the record does not indicate compliance with LSA-C.Cr.P. Art. 230.1, we have held this issue moot where the defendant has been convicted and sentenced. See State v. Durio, 371 So.2d 1158 (La.1979). Moreover, there is no indication of any prejudice attributable to this delay. We therefore reject this assignment of error.

In a second assignment of error, defendants argue that they were denied their right to fair trial due to the ineffectiveness of their retained counsel. Specifically, they complain that their counsel’s incompetency is revealed by his failure to file a motion to suppress, his failure to subpoena witnesses and evidence, his failure to make objections at trial, and his “undue haste.”

We find no merit to this contention. We have stated in State v. Williamson, 389 So.2d 1328 (La.1980); State v. Malveaux, 371 So.2d 820 (La.1979); and, State v. Daniels, 346 So.2d 672 (La.1977) that this question is more properly raised by application for a writ of habeas corpus.

Defendants did file an application for writ of habeas corpus in which they assert that they were beaten by police officers, that proper counsel was not appointed to represent them, that they were denied a right to speedy trial, and generally that their incarceration is in violation of the United States Constitution. None of these complaints requires further discussion with the exception of their complaint of their denial of their right to speedy trial.

Concerning the right to speedy trial, this court has adopted the four-factor test articulated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See State v. Perkins, 374 So.2d 1234 (La.1979). These factors include the length of the delay, the reasons for it, the assertion of the right to speedy trial, and prejudice to the defendants. State v. Nowell, 363 So.2d 523 (La.1978); State v. Bodley, 394 So.2d 584 (La.1981).

The alleged offenses were committed on September 6, 1979, and defendants were arrested the next day. They asserted their speedy trial rights in December, 1979. Trial was held in April, 1980. Under these circumstances, a delay of seven months from arrest to trial does not appear undue for the prosecution of six joint counts of first-degree murder. Furthermore, defendants have failed to articulate any prejudice resulting from this delay. We therefore find no merit to this assignment of error.

Defendants further argue that they were denied the right to a fair trial by the clerk of court’s alleged failure to subpoena material and witnesses on their behalf. Defendants filed a pro se subpoena duces te-cum on December 18, 1979 in which they requested copies of St. Tammany police abuse reports, photographs in the custody of the F.B.I., medical records from two hospitals, a bill of particulars, copies of any statements or reports made by the police and any witnesses, access to any real evidence, and copies of all news items and photographs pertaining to the defendants in the custody of certain St. Tammany Parish newspapers. In April, 1980 defense counsel requested various medical records, and it appears that the subpoenas requested by the attorney were issued. There is no evidence, however, that the pro se subpoena requests were honored.

LSA-C.Cr.P. Art. 731 provides that the court “shall” issue subpoenas upon the request of the defendant or the State. The court, however, may modify or vacate the subpoena if it is unreasonable or oppressive. LSA-C.Cr.P. Art. 732. The pro se subpoena request concerned material to which the defendants were not entitled: F.B.I. files, information already provided pursuant to discovery, or information related solely to defendants’ civil rights claims against the police and the State. Under these circumstances, the trial court was within its rights to vacate the pro se requests. We reject, therefore, this assignment of error.

In a fifth pro se assignment of error, defendants complain that a member of the district attorney’s secretarial staff, Susan Gill, was a member of the jury that convicted them. They claim that her occupation was only discovered after trial on a tip from a fellow inmate. They further complain that one of the prosecuting attorneys spoke with a witness for the State during the course of the trial.

A review of the record reveals no juror named “Susan Gill.” Under these circumstances, there is no showing of prejudice. Concerning the prosecuting attorney’s speaking to witnesses in the hall, we find no impropriety or ground for reversal. See State v. Harris, 367 So.2d 322 (La.1979). Moreover, defendants again have failed to prove any resulting prejudice.

In a sixth pro se assignment of error, defendants claim the guilty verdict was contrary to the law and the evidence since the State did not present evidence upon which a reasonable trier of fact could have found every element of the charged defenses proved beyond a reasonable doubt. Defendants were convicted on three counts each of attempted first-degree murder.

The evidence adduced shows that Glen and Ronald Tauzier acted singly and in concert in such a manner as to indicate a specific intent to kill or inflict great harm upon three peace officers engaged in their lawful duties. Although there is some confusion as to which brother fired the weapon, they were principals to each other’s attacks. See State v. Holmes, 388 So.2d 722 (La.1980). On this evidence, any rational trier of fact could find the essential elements of the crimes charged beyond a reasonable doubt. We therefore, find this assignment to be without merit.

Defendants finally complain that the prosecuting attorney knowingly suppressed evidence and thereby denied their rights to a fair trial.

A prosecutor is obliged to make available to the accused evidence in his possession that is clearly supportive of the accused’s innocence, even in the absence of a request for it. United States v. Agars, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Reed, 378 So.2d 923 (La.1979). Defendants have failed, however, to articulate the basis for their belief that the prosecutor suppressed evidence favorable to their case. Under these circumstances, this assignment is also without merit.

As we have previously stated, although some of the assignments of error on appeal may have been waived because of failure of objection, we nevertheless have treated them in this opinion and have disposed of all of the assignments of error complained of, whether or not raised in the trial below.

Finding no merit in any of the assignments of error raised, we affirm the jury verdict.

AFFIRMED

DENNIS, J., concurs.

       Judges James C. Gulotta, John C. Boutall and Patrick M. Schott of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Pascal F. Calogero, Jr., James L. Dennis and Jack Crozier Watson.

      . LSA-C.Cr.P. Art. 841 reads as follows:
      “Art. 841. Bill of exceptions unnecessary; objections required.
      An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is suffi-dent that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court and the grounds therefor. The requirement of an objection shall not apply to the court’s ruling on any written motion.”

      . LSA-C.Cr.P. Arts. 716-722 provide for discovery, by the defense from the State, of the defendant’s statements, documents and tangible objects, reports of examinations and tests, evidence of other crimes, hearsay statements of co-conspirators, and confessions and inculpato-ry statements.

      . Subsequently, however, the trial court correctly instructed the witnesses not to discuss their testimony during several trial recesses.


source: Caselaw Access Project

author:
GARRISON, Justice ad hoc.
     LEMMON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. David Jon LINER.
    No. 80-KA-2109.
    Supreme Court of Louisiana.
    April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst.. Atty. Gen., William B. Faust, III, James F. McKay, Asst. Attys. Gen., for plaintiff-appellee.
    Arthur A. Lemann, III, New Orleans, Allen A. McElroy, Jr., Berwick, for defendant-appellant.
   GARRISON, Justice ad hoc.

The defendant, David Jon Liner, was indicted in September, 1978, by the St. Mary Parish Grand Jury for the 1st degree murder of Roxanne Barrilleaux, in violation of La.R.S. 14:30. Inasmuch as the murder victim was a former secretary of the St. Mary Parish District Attorney’s Office, that office was recused from prosecution of the case and the Attorney General’s Office appointed to prosecute. Following trial of the defendant by a twelve-person jury from October 29, to November 1, 1979, the defendant unanimously was found guilty as charged. At the conclusion of the sentencing portion of the bifurcated trial the jury recommended a sentence of life imprisonment. The defendant’s motion for a new trial was denied by the trial judge and a life sentence in accordance with the jury’s recommendation was imposed.

In retrospect, the facts of this case are relatively simple. However, this hardly was apparent to the investigators at the outset.

In the early morning hours of May 20, 1978, in the kitchen of her trailer home, Roxanne Barrilleaux was repeatedly stabbed with forks and butter knives until she bled to death. Her body was discovered later that morning after a neighbor observed her eighteen-month-old child at the trailer window covered with his mother’s blood. At the time of the occurrence of her murder the victim’s husband had been working off-shore and she had been alone with her child that night.

In a nearby house the defendant, David Jon Liner, lived with his wife and parents. He had spent the earlier part of that evening with the victim’s brother, whom he had known for a number of years. Following this, the defendant went home where he became involved with a fight with his wife.

After the fight, the defendant departed from his home and, upon seeing Roxanne’s trailer, he went over and knocked. She answered the door in her night clothes and invited him inside. She apparently rejected sexual advances made by him and, as subsequently indicated by the evidence developed, he grabbed a knife from a kitchen drawer and stabbed her repeatedly until the knife broke. After that he grabbed other kitchen instruments and continued to stab her. On the handle of the oven door the defendant’s fingerprint was subsequently found and in the blood on the floor were found sneaker prints which subsequently were identified as his.

During the days which followed, the defendant and many other people were interviewed. Approximately three weeks after the murder, on June 11,1978, the defendant was again interviewed and fingerprinted. Eventually, David Jon Liner confessed in full detail to the murder. The fact that the defendant was not a major suspect at the outset and the fact that the development of the case was a gradually accumulating process, during which other individuals in the area were questioned, is a significant part of the back drop of this case.

I.

THE ISSUE OF THE DEFENDANT’S SANITY

The evidence of the State presented at the trial consisted entirely of the taped recordings made during the course of the police interviews with the defendant. These particular tapes were made over a four-day period from June 11,1978, to June 14, 1978. In each succeeding tape the defendant related more and more honestly the details of his involvement in the murder, correcting earlier tapes and lies and adding new details and admissions.

The defense counsel’s presentation of evidence of the defendant’s insanity consisted of the testimony of: defendant’s wife, his maternal grandfather, his father, his mother, his brother and his sister. Each of these members of his family testified that the defendant was not having an affair with Roxanna Barrilleaux. It is important to point out, however, that on cross-examination the defendant’s brother and sister testified firmly that they had never thought that their brother was insane.

In addition to the foregoing, the principal witnesses presented in behalf of the defendant were Dr. Nathan Lubin, a psychologist, and Dr. Kenneth Ritter, a psychiatrist. By stipulation with the State each doctor was qualified as an expert — Dr. Lubin as an expert psychologist and Dr. Ritter as an expert in the field of psychiatry. Each of the two doctors affirmatively stated that he had concluded that the defendant was psychotic, a schizophrenic and paranoid type, and that he had been so for at least ten years. Dr. Lubin refused to define the defendant’s mental illness in terms of the ability to discern right from wrong but he did testify that the defendant was unable to function “in the right fashion” and could not control his actions. Dr. Ritter, on the other hand, specifically found that the defendant did not know the difference between right and wrong on the night of the homicide and that he was “legally insane”.

The State presented no rebuttal testimony on the sanity question after the defense rested. The defense took the position that this amounted to a failure to present any evidence to refute the contention that the defendant was insane at the time he committed the crime, as required by State v. Poree, 386 So.2d 1331 (La.1980). (On rehearing).

However, although in Poree the State did present certain rebuttal witnesses on the sanity issue, the Poree court did not find that the jury’s finding of sanity necessarily had to be restricted to evidence presented on the State’s rebuttal nor even restricted to evidence presented by the State. The Poree court merely held that the record must contain some evidence of sanity, capability of distinguishing right from wrong. Poree, supra, at 1339. Accordingly, it cannot herein be concluded — simply because evidence tending to indicate sanity did not surface during rebuttal — that such evidence cannot be weighed. And furthermore, this court specifically has held that all the evidence, including both expert and lay testimony and conduct and action of the defendant, should be considered by the jury in determining sanity. State v. Daigle, 344 So.2d 1380 (La.1977).

However, it must be observed that there has been some refinement of the standard of review with regard to the Poree concept of “some evidence”. More precisely, the concept has been implicitly qualified by State v. Roy, 395 So.2d 665 (La.1981), in which this court applied Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to the affirmative insanity defense. The Jackson case held that due process requires the jury verdict of sanity be overturned if “viewing the evidence in the light most favorable to the prosecution . . . the defendant established the affirmative defense of insanity by a preponderance of the evidence, and that no rational fact finder could have found him sane on the record evidence.”

In Roy, supra (in Per Curiam denying Rehearing), this qualification subsequently was clarified by this court: “. . . When we said that Roy had proved his insanity by a preponderance of the evidence, we meant simply that, applying Jackson v. Virginia ... we determined, under the facts and circumstances of the case, that a rational fact finder, viewing the evidence in the light most favorable to the prosecution, could not have concluded that defendant had failed to prove by a preponderance of the evidence that he was insane at the time of the offense. See also: State v. Hathorn, 395 So.2d 783 (La.1981); State v. Claibon, 395 So.2d 770 (La.1981), both decided this day.”

An examination of the record evidence in the present case indicates that the strongest evidence of the defendant’s sanity comes from his own mouth. The jury listened to approximately 100 transcript pages of the various taped interviews of the defendant talking and confessing to the police. Although Dr. Ritter testified that these tapes were not inconsistent with someone’s suffering from paranoid schizophrenia, to a lay person the defendant’s thought processes do not appear at all inconsistent with sanity. Following, for example, are excerpts indicating some of the defendant’s own reflections upon his acts:

A “No. Just once I did it — stabbed her one time. I don’t know what happened. I just couldn’t stop.”
Q Now don’t cry. It’s over.
A (Unintelligible).
Q Pardon me?
A Everything thats happened to me, its not really happening to me. Its happened. Its going to take a toll on everybody else.
Q A lot of people are going to suffer, that’s true. All of your friends and your wife, your family are going to suffer from this. That’s very true.
A There ain’t no way to get rid of me?
Q No, we can’t do that. We cannot . . .
A Didn’t they say they was bringing the death penalty back?

(And later:)

Q Okay. David let’s go back into your reason for this, can you tell me the exact reason why you did this?
(long pause)
Can you or you don’t want to?
A I don’t know.
Q You don’t know the reason?
A Not really.”

The defendant’s own incomprehension of his actions was something to which the jury undoubtedly related all too well because those actions would have been equally incomprehensible to the jury, a jury which we fairly may be able to presume to have been sane. Undoubtedly, with regard to such statements on the defendant’s part, to the jury’s consideration was added the testimony of some of the defendant’s family to the effect that they did not think that he was insane.

Furthermore, it is only reasonable to assume the jury’s recognition of the series of rational moves implicit in defendant’s admission to the police that after the murder he went home, put his bloody clothes in a bag, took a shower, went to bed and laundered the clothes the next day. All of this certainly constitutes some evidence of sanity-

The application in State v. Roy, supra of the Jackson v. Virginia, standard of review to the affirmative defense of insanity had the result of substituting this court’s finding of insanity for the jury’s finding of insanity in virtually every case involving a person who is dangerously insane. Nevertheless, in the present case it is possible to say that the defendant’s extensive dialogues with the police not only describe possibly sane actions surrounding the attack by him on the victim but also reveal something of his mental state for the jury’s benefit. When this evidence is combined with the lay testimony to the effect that the defendant appeared sane, it may have been sufficient to overcome the evidence presented by the expert testimony of insanity, even under the State v. Roy, supra, standard of review.

Consequently, it must be concluded that there was presented sufficient evidence of sanity with regard to the defendant’s state of mind. Accordingly, there is no evidence on this issue of any denial of due process with regard to the defendant. This claim of error is without merit.

II.

ADMISSION INTO EVIDENCE OF THE RECORDED CONFESSIONS

Defense counsel contends that the trial judge committed error in failing to suppress the tape recorded confessions obtained by the police, allegedly as a direct exploitation of an illegal arrest. This argument is based upon the claimed deprivation of defendant’s rights under the Fourth Amendment rather than under the Fifth Amendment — which is to say that the claim is focused upon the alleged illegal seizure of evidence rather than upon the concept of self-incrimination. More specifically, it is argued, statements made during custodial interrogation, even though preceded by Miranda warnings, nonetheless must be excluded if the detention was not supported by probable cause and if the statements were obtained by exploitation of such illegal detention.

We are required, therefore, to view the defendant’s inculpatory statements, presented to the jury, against the backdrop of events leading up to his making them. The defendant was first interviewed by police on May 22, 1978, two days after the murder. Many other people were also interviewed at the Fireman’s Hall, as well as the defendant, and no notes nor recordings were made of any of these interviews. In the course of scouring the scene of the murder, police recovered a fingerprint and on the morning of June 11, 1978, the defendant was called down to the Sheriff’s Office to be fingerprinted.

Afterwards, Officer Froreich was assigned to the task of interviewing the defendant in order to determine whether the defendant’s fingerprint could have been left in the victim’s trailer innocently prior to the murder. With this objective in mind, according to his testimony, he and Officer Rogers went to the defendant’s, where he lived with his parents and his wife, at approximately 6:00 p. m. — still on the 11th. The defendant agreed to talk with the officers and informed them that he had been a friend of the victim’s husband and had played cards in the victim’s trailer possibly as recently as three weeks prior to the murder.

This conversation was recorded by the police at the defendant’s home. Later that evening, the officers again sought to question the defendant and found him driving around in his car with his wife.

This time they requested that he meet them at the courthouse. When he arrived there he signed a standard pre-printed waiver of rights form. Again the defendant was questioned by Officer Froreich and on that occasion informed the police that he had been at the victim’s trailer the evening before she was killed. The defendant then agreed to take a voice analyzer stress-test and to allow his car to be checked by the State Crime Lab for blood. Thereafter, he returned home.

On June 12, 1978, the defendant wrote out and signed a statement to this effect, once more stating that he had been in the victim’s trailer briefly on the Thursday afternoon before her murder on Friday night.

On June 13, 1978 — which is to become the crucial day with regard to the defendant’s confessions — three police officers went to his residence and requested that he accompany them to the courthouse for further questioning. He agreed and this time was transported in the police vehicle.

The defendant again signed a waiver of rights form at the courthouse at 6:20 p. m. and the officers began interrogating him concerning the written statement, which he had made the day before. Officer Froreich accused the defendant of lying about the Thursday visit to the victim’s trailer, pointing out that the victim had not been home at that time. Then the defendant broke down, crying and admitted that he had been at the trailer on Friday night, but he claimed he had arrived after the murderer and that he had found the victim already dead.

At this point the officer asked the defendant why his fingerprints were on all the murder weapons although the only print actually left by the defendant was found on the handle to the oven door.' The defendant’s reply was that he was so angry about what had been done to “Roxie”, the victim, that he went crazy and touched everything.

It is important to observe that this first conversation of June 13th appears to be the first clearly inculpatory statement made by the defendant during the course of the investigation. Unfortunately, there is no tape recording of this statement. According to Officer Froreich, he merely took notes on this particular occasion.

By that time, as he testified at the motion to suppress hearing, the defendant had become a “target suspect”. The only concrete evidence then connecting the defendant to the crime was the single fingerprint. Officer Froreich testified that the defendant still had not been placed under arrest and would have been allowed to leave if he had requested to do so.

It was later that evening at 8:25 p. m. that agent Gros arrived at the courthouse and conducted a tape recorded interview with the defendant. It was in this session that the defendant finally admitted the murder and explained in detail how it had occurred. It was at the conclusion of this interview that the defendant was placed under arrest.

Later that evening and early the next morning the defendant gave three more tape recorded statements, in which he amended and refined with additional detail his earlier confession. Counsel for the defense sought to suppress all five taped statements on the ground that they were the direct product of illegal detention of the defendant.

III.

DEFENDANT’S ARGUMENT AS TO ILLEGAL DETENTION

It is admitted in the defendant’s argument' that his inculpatory statements of June 13, 1978, were preceded by proper Miranda warnings and waivers with regard to Fifth Amendment purposes. However, defendant contends that, even if statements made during custodial interrogation were preceded by Miranda warnings, nevertheless they may be excluded if the detention was unsupported by probable cause and the statements were obtained by exploitation of the illegal detention. In his brief the defendant relies upon State v. Menne, 380 So.2d 14 (La.1980) and State v. Scott, 355 So.2d 231, (La.1978) to support his attack upon the admission of the confessions.

The response of the State contends that the tape-recorded confessions were not obtained through the exploitation of an illegal detention unsupported by probable cause but, to the contrary, are well within the guidelines set forth by the United States Supreme Court in Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 714, 50 L.Ed.2d 214 (1977):

“ ... police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody’. It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.”

It is the position of the State here, and this court agrees, that to the extent that one may be “in custody” under Mathiason this court has enunciated an objective standard of the “reasonable interrogee” under the totality of the circumstances as articulated by the court in State v. Menne, supra. When the objective standards of Menne are applied to the totality of the events surrounding the instant case it is clear that prior to the defendant’s changing his statements from exculpatory to inculpatory statements a “reasonable interrogee” would not have a reason to feel he had been “deprived of his freedom of action in a significant way” such as to believe he was “in custody”.

Roxanne Barrilleaux’s body was found in the early morning hours of May 20, 1978. The Parish authorities immediately began an intensive and extensive investigation which ultimately led to the formal arrest of the defendant-appellant on the evening of June 13, 1978. During this investigation period a number of individuals, including the defendant, were interviewed by St. Mary Parish investigators.

Prior to his interrogation on June 13, 1978, by Agent Gros the defendant had been questioned both at the police station and at the residence of his parents. Each time the defendant was not prevented from walking away from those interviews. In fact, the defendant appears to have willingly cooperated in the efforts by St. Mary Parish authorities to investigate the death of the victim. The defendant relies heavily upon particular arguments in an attempt to change this general investigatory interview situation to an “in custody” interrogation under the Mathiason and Menne standards.

Defendant relies, for example, upon the fact that at trial several members of the St. Mary Parish Sheriff’s Office had made statements which indicated that the defendant was a “target suspect”. However, the Mathiason and Menne standard is not the state of mind of the interviewer but the state of mind of the “reasonable interviewee.” Menne, supra. The fact that the interviewer made a false statement to the interviewee created an “in custody interrogation.” Mathiason, supra; State v. Johnson, 363 So.2d 684 (La.1978).

The defendant also relies upon the fact that two St. Mary Parish officers affirmed under oath in preparation for a search warrant that the defendant-appellant “was picked up in connection with ...” the Bar-rilleaux homicide. This, however, does not go to the issue of whether the “reasonable interviewee” felt he was “in custody” at the time. It is merely a common expression used by police to indicate how an individual was transported and in connection with what matter.

The fact that defendant signed an official form stating that he was being “detained and questioned” does not in and of itself create in the interviewee’s mind a sense of “in custody interrogation”. The defendant signed such a form on two different occasions. On the first occasion, he was allowed by the authorities to leave. Nor is there any evidence in the record that the defendant was detained from leaving at any time following his signing of the second form prior to his being turned over to Agent Gros. Nothing in the record indicates that prior to being turned over to Agent Gros at 8:00 p. m. on the evening of June 13, 1978, any “in custody interrogation” of the defendant had occurred.

Under Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed. 824 (1979), an “in custody interrogation” must have occurred prior to the giving of Miranda warnings. Once an illegal detention has occurred, followed by a post-Miranda confession, the standards provided in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), must be, considered to determine if the confession has been so tainted that the Fourth Amendment rights of the confession has been violated. Duna-way, supra. This court similarly held in State v. Scott, 355 So.2d 231 (La.1978). The Scott case, however, is based upon the fact that the authorities illegally detained the individual without probable cause to arrest prior to giving the confessor his Miranda warnings. In the instant case no such illegal detainment occurred.

The defendant also relies upon the cases of State v. Zielman, 384 So.2d 359 (La.1980); and State v. Giovanni, 375 So.2d 1360 (La.1979) as precedent for excluding the confession in the instant case. These cases pertain to statements made by defendants preceding Miranda warnings. In the instant case the State made no attempt to introduce at trial statements made by the defendant prior to the Miranda warning. The tape-recorded confession was made after he was given his Miranda warning by the St. Mary Parish authorities.

A holding in the instant case that the defendant’s Fourth Amendment rights had been violated would create a situation under which police would be unable to conduct face-to-face interviews during their investigation of a crime for fear that an interviewee at a later date might become a defendant. In the case at hand it is apparent that the defendant’s rights were not violated under the Fifth Amendment nor was the confession tainted by prior “in custody interrogation” under the Fourth Amendment.

This assignment of error lacks merit.

IV.

ADMISSION INTO EVIDENCE OF DEFENDANT’S TENNIS SHOES

The defendant argues that the trial court erred in failing to suppress the introduction of the defendant’s tennis shoes. The shoes were seized pursuant to a search warrant issued on June 13th, on the basis of an affidavit which defendant alleges was defective. In particular, it is claimed that the affidavit failed to set forth information from which it could be determined that the proffered probable cause was contemporaneous with the application.

It is well established that information contained in an affidavit must be sufficiently recent so as to justify a finding of probable cause at the time of the issuance of the search warrant. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed.2d 260 (1932); State v. Humble, 309 So.2d 138 (La.1975).

In State v. Boudreaux, 304 So.2d 343 (La.1974) this Court recognized that an affidavit is adequate if a common-sense construction of the face of the affidavit tends to establish that the information contained therein is correct. See also State v. Turner, 337 So.2d 1090 (La.1976).

In the present case the affidavit provided in pertinent part: Defendant points out that all of the foregoing facts are spelled out in the past tense and that the only date given is May 19, 1978, the date of the homicide. This affidavit was presented to the issuing magistrate on June 13, 1978; therefore it is apparent from the face of the affidavit that the information contained therein must have been received during the preceding twenty-five days after the crime was committed.

“The probable cause is based on the following: After interrogating one DAVID LINER, white male subject who was picked up in the connection with the ROXANNA BARRILLEAUX, homicide we were advised by LINER that the shoes which had left blood marks within the trailer of the victim and also on the front steps belonged to him (LINER) and that they were presently located in the storage closet at his residence in Baldwin. Subject further advised that he was at the residence around midnight of the homicide, (Friday, May 19, 1978) Liner was picked up after investigation showed that the fingerprints found in the trailer near the body of the deceased belonged to him (DAVID LINER) Liner had also given officers an alibi as to his whereabouts on the night of the murder which when checked out by officers, found to be false. PERMISSION IS GRANTED TO CONDUCT THIS SEARCH IN THE DAYTIME, NIGHT TIME SUNDAYS AND HOLIDAYS. Additional info: David Liner further advised that the shoes are hidden in a suitcase, which was placed on the rack of the storage closet (closet located near his mothers bedroom).”

This affidavit is distinguishable from the contested affidavits in 'most other cases, because in this case the defendant himself was the source of the information concerning the location, in his own closet, of the tennis shoes. This is not a case, then, in which the information is received from third parties, and often involves rapidly consumable contraband, outside the control of the informant, and therefore unlikely to remain in a designated location for any extended period of time. See, State v. Huff, 392 So.2d 1046 (La.1980); State v. Ogden and Geraghty, 391 So.2d 434 (La.1980).

On these facts it was reasonable for the magistrate to have believed that the evidence had not been disposed of but rather remained at the place to be searched at the time of the proposed search. See, State v. Lewis, 385 So.2d 226 (La.1980).

This assignment of error lacks merit.

V.

MOTION TO QUASH ON GROUND OF ILLEGAL SELECTION OF PETIT JURY VENIRE

Defense counsel’s claim of error arises from the trial court’s refusal to quash the petit jury venire selected for the trial of this case.

At the hearing, Mr. Robert Marrero was presented as a witness for the defendant. He testified that he had been present in the clerk’s office on October 4,1979, at 11:00 a. m. when the jury commissioners met to select the petit jury venire from the general venire list. According to this witness, jury commissioner Smardan, referring to the upcoming trial, spoke of the present defendant to the following effect: “If they don’t hang that boy, they ought to shut down the courthouse.”

The jury commissioners also, according to defense counsel, proceeded to select jury names in a manner which was not “indiscriminate” as required by La.C.Cr.P. Art. 416 which reads in pertinent part:

“Art. 416. Drawing petit jury venire in parishes other than Orleans; term of service.
A. Upon order of court the jury commission in parishes other than Orleans shall draw a petit jury venire. The commission shall draw indiscriminately and by lot thirty name slips from the general venire box, unless directed by the court order to draw a larger number. The persons whose names are so drawn shall be subject to serve as petit jurors for the first week of the next criminal session of. court.”

The defendant also called a jury commissioner of ten years, Joseph Cefalu, who described the procedure which has been consistently used to select jury venires whenever the five commissioners meet once or twice a month. The following excerpt from that testimony serves to illustrate that procedure:

Q “Then how would you then select the 20 names that you needed?
A Well, I would try to pick the percentage of the colored females, a percentage of the colored males, a percentage of the white females, and I usually pick about 30 percent of the colored, because that’s about proportionate of the colored people in our parish. I try to pick on the basis of proportions of the people that live in the parish in my area.
... I can usually tell by the names if it was female, male or colored or white usually by the name. Not that a lot of them I know personally; these that I didn’t know I just had to go by the names, knowing the family names. I might not know the person, but the background, where they come from ... But based upon the old family names, I can tell by the native names just about what families they are and whether they are male or female, but I usually could work out pretty, pretty close.
Q ... If you had to pick 7 coloreds and there’s 20 of those there, you would just pick the 7 that you wanted and the other 13 were just not picked?
A Not the ones that I wanted, no. Particularly I would try to pick the ones that I thought would make good jurors, too.
Q You say that one of your criteria for a petit juror is the educational background of the individual?
A Well, I think that would have something to do with it, if I had to make a decision. Not necessarily. That’s not necessarily always true. I know a lot ' of people with no education would make real good jurors. It depends on the person. I think that’s the whole criteria, trying to get a fair representation.”

One hundred and fifty names were thus selected from the general venire of St. Mary Parish. The State concedes that the procedure used was not in exact accordance with the indiscriminate method prescribed by La.C.Cr.P. Art. 419 which reads, in pertinent part:

“A general venire, grand jury venire, or petit jury venire shall not be set aside for any reason unless fraud has been practiced or some great wrong committed that would work irreparable injury to the defendant.”

The jurisprudence allocates to the defendant the burden of establishing fraud or that some irreparable injury was caused by the selection process. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Larue, 324 So.2d 384 (La.1975).

The good faith of the testifying Jury Commissioner, Cefalu, is apparent from the record. However, the defendant argues that the comment allegedly made by Commissioner Smardon “If they don’t hang that boy, they ought to shut down the courthouse,” is sufficient to demonstrate a clear prejudice on the part of at least one of the other four commissioners and upon the presentation of this evidence the burden originally should have shifted to the State to rebut the charge that a “hanging jury” venire had been selected by that commissioner.

However, on its cross-examination of Commissioner Cefalu, the State made sufficient progress in discrediting this defense allegation. Cefalu testified that he did not hear Smardon make such- a remark, although he was seated next to him. He further testified that the commission is never informed of what case or cases the selected venire Anil be trying.

It does not, therefore, appear that the trial court abused its discretion by ruling that the defendant had failed to carry the burden of proof required under La.C.Cr.P. Art. 419.

This assignment of error, consequently, lacks merit.

VI.

DEFENDANT’S CONTENTION OF BREACH OF SEQUESTRATION

The defendant argues that the trial court erred in denying his motion for a mistrial on the ground that the sequestration of the jurors had been breached in violation of La.C.Cr.P. Art. 791. That article reads in pertinent part as follows:

“A jury is sequestered by being kept together in charge of an officer of the court so as to be secluded from outside communication. In capital cases, after each jur- or is sworn he shall be sequestered.”

During the voir dire portion of the trial, the court took a fifteen minute recess. In the course of that fifteen minutes the six already-sworn jurors commingled in the jury’s deliberation room with five potential jurors who had been sitting in the jury box in the process of being examined.

When the jurors and potential jurors were returned to the jury box, the defense attorney then moved for a mistrial. The judge denied the motion finding that there had been no showing of prejudice to the defendant caused by this technical violation of the codal article.

The defendant argues that in State v. Parker, 372 So.2d 1037 (La.1979) this Court held that, in capital cases especially, a presumption of the misconduct arises and reversible error will be presumed for the separation of a juror after he is sworn. In Parker, supra, at 1038, the Court, however, went on to hold:

“This jurisprudential rule is, however, limited by those cases holding that where circumstances are such as to reasonably overcome the presumption of prejudice and where it affirmatively appears that no prejudice to the accused could have resulted, the presumption may be rebutted, so that the mere separation of a juror briefly may be held to be insufficient ground to set aside a verdict. State v. Quincy, 363 So.2d 647 (La.1978); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Smith, supra.”

In the present case, the circumstances of the separation indicate that no prejudice to the accused could have resulted. The purpose of La.C.Cr.P. Art. 791 is to insulate the jurors from outside influences. This brief contact with four prospective jurors can not be considered an “outside communication” within the meaning of that phrase under this article.

This assignment of error lacks merit.

Finding no reversible error in this case, we affirm the conviction and sentence.

AFFIRMED.

CALOGERO, J., concurs and assigns reasons.

MARCUS and BLANCHE, JJ„ concur.

' LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

Defendant showed no signs of erratic behavior or gave any other indication that he could not distinguish right from wrong, either before the crime or during the period of more than three weeks between the crime and his arrest. Moreover, defendant’s own statements make it evident he knew at the time of the crime that what he was doing was wrong.

       Judges Garrison, Chehardy, and Barry of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Marcus, Blanche, and Lemmon.

      . It is unclear from the record why the defendant, specifically, was fingerprinted. Apparently, the defendant consented to the fingerprinting because no objection is raised in defendant’s brief concerning this. Cf., Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

      . Officer Froreich testified that this statement was also recorded. However, no transcript appears in the record before this court. (Vol. VI, p. 28).


author: CALOGERO, J.,

text:
    STATE of Louisiana ex rel. Dalton PREJEAN v. Frank BLACKBURN.
    No. 81-K-0961.
    Supreme Court of Louisiana.
    April 11, 1981.
   In re: Dalton Prejean applying for Supervisory Writs and Stay Order, Parish of Ouachita.

The application for stay is denied and the writ application is denied.

DIXON, C. J., and CALOGERO and DENNIS, JJ., concur in the denial.

Although each of us voted for a rehearing when this case was before us on appeal, on the question of appellate review of the proportionality of sentence, that issue was presented to the United States Supreme Court in a writ application by the defendant, and the application was denied. The only other substantial issue now raised, on which we have not ruled before, is the constitutionality of the death penalty imposed on a defendant under the age of eighteen. We are told by applicant that the United States Supreme Court granted writs on April 6, 1981, in Eddings v. Oklahoma, - U.S. -, 101 S.Ct. 1756, 68 L.Ed.2d 237, and that the issue is now before the United States Supreme Court. That allegation, however, is not supported in the application before us.

CALOGERO, J.,

further concurs in the denial, noting that the application before us does not complain of the systematic exclusion of blacks from the jury, an issue noted in his concurring opinion when the case was before us on appeal.


author: PER CURIAM.

text:
    STATE of Louisiana v. David V. HART.
    No. 80-KA-2398.
    Supreme Court of Louisiana.
    April 15, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Dale G. Cox, Asst. Dist. Atty., for plaintiff-appellee.
    John A. Files, Shreveport, for defendant-appellant.
   PER CURIAM.

Defendant was charged by bill of information with armed robbery, La.R.S. 14:64, and attempted first-degree murder, in violation of La.R.S. 14:27; 14:30. Following his plea at arraignment of not guilty and not guilty by reason of insanity, the trial court convened a sanity commission in September of 1977. Acting on its recommendation, the court ordered defendant committed to the East Louisiana State Hospital in Jackson. Two years later, at counsel’s request, the trial court appointed a second sanity commission and ultimately found defendant competent to stand trial. Accordingly, the state brought defendant before a jury on March 24, 1980, and convicted him as charged on both counts. The trial court sentenced defendant to seventy-five (75) years’ imprisonment on the armed robbery count, and fifty (50) years’ imprisonment on the charge of attempted murder, the sentences to run consecutively, at least in part.

Defendant has now appealed his convictions to this Court, urging that the sentences are excessive and shock the conscience when imposed upon a person diagnosed as schizophrenic by members of the sanity commission. We have reviewed the trial court’s statement of reasons under La.C.Cr.P. Art. 894.1 and find that they adequately support the sentences imposed. Cf., State v. MacDonald, 390 So.2d 1276 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1975). To this extent, we disagree with counsel that the trial court manifestly abused its broad sentencing discretion.

Nevertheless, we note an error patent on the face' of the record that will require resentencing. In imposing sentence on the attempted murder charge, the trial court specified that “... at least 25 of that 50 years must be consecutive to [the] sentence for the armed robbery.” [emphasis the court’s]. La.C.Cr.P. Art. 879, however, requires that a trial court impose “a determinate sentence.” As the Official Revision Comment notes, the article was intended to replace the indeterminate sentencing provisions of the 1298 Code which had led to “confusion and inequities.”

In this case, the trial court failed to fix the maximum amount of time defendant might spend in jail on his consecutive sentences. Accordingly, we vacate the sentence on the attempted murder charge and remand for resentencing on that count alone. We note here that following this appeal, any increase in the number of consecutive years imposed will require a special justification from the trial court. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

CONVICTIONS AND SENTENCE FOR ARMED ROBBERY AFFIRMED: SENTENCE OF ATTEMPTED FIRST-DEGREE MURDER VACATED AND CASE REMANDED FOR RESENTENCING.


text:
    STATE of Louisiana ex rel., Derwin W. BOURGEOIS v. Judge Rudolph BECKER, III, Orleans Criminal District Court.
    No. 80-KH-2768.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Derwin W. Bourgeois, applying for writ of certiorari, prohibition, mandamus and habeas corpus. Parish of Orleans. No. 263-653.

Granted. The attempted simple burglary and theft convictions are reversed and the sentences vacated. Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979); Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d 159 (1980). The case is remanded to the district court for further proceedings.


text:
    STATE of Louisiana ex rel. Willie O. JARVIS, Jr. v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2826.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Willie O. Jarvis, Jr., applying for writs of certiorari, review, and stay order. Parish of Orleans. No. 262-969.

Granted. The trial court is reversed and the case is remanded for reconsideration in light of State ex rel., Davis v. Criminal District Court, 368 So.2d 1092 (La.1979) and State ex rel., Moore v. Warden, 308 So.2d 749 (La.1975).


text:
    STATE of Louisiana v. Joe Edward WILLIAMS.
    No. 81-K-0272.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Joe Edward Williams, applying for writ of review and prohibition, and stay order. Parish of Ouachita. No. 38241.

Writ granted. Full evidentiary hearing ordered, including doctor’s testimony. See, State v. Bennett, La., 345 So.2d 1129.


author: JASPER E. JONES, Judge.

text:
    Talmadge KINNEBREW, Plaintiff-Appellant, v. NELSON ELECTRIC COMPANY, Defendant-Appellee.
    No. 14470.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    Writ Denied May 6,1981.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    James R. Hatch, Homer, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Plaintiff, Talmadge Kinnebrew, a cattle raiser, appeals a judgment rejecting his-demands for damages from defendant, Nelson Electric Co., allegedly caused by defendant poisoning plaintiff’s cattle. We affirm.

Defendant is engaged in the manufacturing of marine electrical parts in Claiborne Parish. It uses in the manufacturing process toxic chemicals containing acid and copper. Defendant uses approximately 600 gallons of water per hour in the manufacturing process. The water and non-toxic materials are disposed of through a drain in the manufacturing plant which exits the building through a drain pipe which discharges the waste water into a ditch which enters plaintiff’s pasture approximately 300 ft. north of the manufacturing plant. The toxic chemicals in the manufacturing process, including the acid and copper, were normally placed in large barrels and trucked from the manufacturing location to a distant site by a firm engaged in the business of disposing of toxic waste.

In August 1978 defendant obtained a permit from the Louisiana Stream Control Commission authorizing it to discharge the waste water in the manner described provided that the lead and copper content of the waste water remained at prescribed non-toxic levels.

Plaintiff had 24 mature cows, 1 bull, and 8 calves pastured in a 147 acre pasture located immediately north of defendant’s manufacturing plant, across which the drainage ditch passed containing the waste water from defendant’s plant. This drainage ditch emptied into D’Arbonne Creek. D’Arbonne Creek was dry at the time of the cattle deaths except for the water that drained into it from defendant’s plant. In addition to the water in the ditch, the cows were also provided water in a 150 gallon tank which plaintiff filled daily.

On October 13, 1978, one of plaintiff’s cows was found dead in his pasture, and during the following 17 days, five more of plaintiff’s cows were found dead in the pasture. On October 30 plaintiff was advised by an employee of the Louisiana Stream Control Commission that the water in the drainage ditch contained toxic acid and he removed the remainder of his herd to another location several miles away.

On one occasion in October, defendant poured a few gallons of liquid containing prohibitive levels of acid and copper .into the drain leading to the ditch. This was done because all the barrels used to ship the toxic waste to the disposal site were full. On October 30 an officer of the Louisiana Stream Control Commission tested the waste water being released in the ditch at defendant’s plant and found it to contain acid and copper above the levels permitted by the Louisiana Stream Control Commission.

An independent research organization employed by defendant tested weekly the waste water being discharged by defendant’s plant, and the defendant tested the water daily. Except for the tests run October 30 these tests showed the acid level of the water as being low enough, within the guidelines set by the Louisiana Stream Control Commission, for disposal into the ditch. Some of the weekly tests showed a copper level in excess of the permissible limits.

The trial judge found: that plaintiff had 7 cows die in October; that the water coming into plaintiff’s pasture from defendant’s plant was toxic; that defendant was negligent in placing the poisonous water into plaintiff’s pasture; and that this water could have killed the cows. The trial judge after having made these factual determinations, rejected plaintiff’s demands because plaintiff failed to prove by a preponderance of evidence that the deaths of the cattle were caused by the toxic water placed by defendant into plaintiff’s pasture. The reasons of the trial court on the absence of causation are:

“The Court is not convinced by plaintiff’s evidence that the discharge from defendant’s plant caused the death of the cattle, it being just as feasible that the cows could have died of anaplasmosis. The defendant’s expert, Dr. Davis, was quite convincing in his contention that had the cows died of an acidic condition their bodies would not have bloated, the calves would have died first, and that cows aren’t likely to drink acidic water if there is another source. It was his opinion that the cows died of anaplasmosis because this disease affects about thirty per cent of a herd and does not affect the calves.
It is the conclusion of the Court that the plaintiff did not prove that the defendant’s negligence was the cause of the death of his cattle, and in fact, the defendant proved to the Court by a preponderance of evidence that a more probable cause of their death was anaplasmosis.”

Plaintiff or his employees inspected his cattle every day. The testimony of these witnesses established that the cows never evidenced any signs or symptoms of being ill. The principal thrust of plaintiff’s case was directed towards a contention that the high acid content in the water killed plaintiff’s cows. However, plaintiff also contended that a high copper content in the waste water was also responsible for the death of the cows. Defendant’s expert, Dr. Davis, a veterinarian, testified that cattle drinking water with a PH 3 acid (this was the acid content of defendant’s waste water being placed into the drainage ditch on October 30 at the time it was tested by the Louisiana Stream Control Commission) content over an extended period of time could become sick and die from acid poisoning. He explained that the stomach of a cow contained some acid necessary to normal digestive processes, and that when water containing a PH 3 acid content was drunk by the cow, that at the outset the PH of the ingested water would be elevated by the digestive process of the stomach and the volume of other material contained in the cow’s stomach, and for this reason for a period of 48 to 72 hours the cow would appear to have no harmful effects from the acid. After the elapse of 72 hours the defensive mechanisms contained in the cow’s body would be broken down and cease to function by virtue of the effect of the acid. The cow would then stop eating, become emaciated, and dehydrated. She would have colic and abdominal pains. There would be a bloody mucous discharge from her rectum. Dr. Davis testified that after two days of these symptoms the cow would die.

Dr. Davis testified that many authorities do not consider copper toxic to cows, but he believed copper could be fatal to a cow if she consumed it over a long period of time. Dr. Davis stated that copper ingested into the cow’s body was stored in the liver, and when the liver was unable to store it any more, the copper would spill over into the bloodstream and the cow would begin to exhibit signs of illness. He stated that a cow suffering from copper poisoning would stop eating, have diarrhea, dehydrate, and after these symptoms were exhibited for some two days, she would die.

All plaintiff’s cows which died were mature animals and pictures of several of them contained in the record reflected that they bloated following death. Dr. Davis pointed out that a cow suffering from acid poisoning would not bloat. The activity in her stomach which would normally cause her to bloat on death has been terminated by the poison which she has ingested. Plaintiff’s cows which died weighed 800 lbs. Dr. Davis testified that calves which weigh less than mature cows would become sick and die from the copper or acid poisoning before the heavier cows. Plaintiff had no calves to die, nor did any become ill. Dr. Davis concluded that because none of plaintiff’s cattle had any symptoms of illness before they died; because none of the calves became sick; and because the evidence established the cows bloated upon death that plaintiff’s cows did not die from the acid or copper poisoning.

Dr. Brantley, a veterinarian, plaintiff’s expert witness, never took an autopsy upon the cows, though he was called to the pasture after the second one died. Dr. Brant-ley recognized that a cow suffering from acid poisoning would have apparent symptoms of illness before death. He further acknowledged that calves ingesting acid and copper would become sick and die before the heavier cows that consumed acid or copper from the same source. Plaintiff offered no evidence which refuted the testimony of Dr. Davis as to the effect of acid and copper poisoning upon cattle, the delay required for the effect of the poison to become apparent, and the period of time that the cow would display these symptoms before her demise.

Dr. Davis believed the cattle died from anaplasmosis which is a disease transmitted by blood-sucking insects and is found in this area of the state and is more likely to kill cattle in the fall of the year than any other time. Normally this disease will kill no more of the adult cattle than % of the herd before it runs its course. Plaintiff lost 7 adult cows which was approximately Vs of his adult herd. Anaplasmosis does not affect calves and the fact that plaintiff lost only adult cows was probably the strongest reason for Dr. Davis’ conclusion that the cattle probably died from anaplasmosis.

In order for plaintiff to recover from defendant he must prove by a preponderance of evidence that the negligence of defendant in permitting acid and copper to get into the drinking water supply of the cattle brought about the death of some of them. Condet v. Cohen, 9 So.2d 257 (La.App.2d Cir. 1942); Buatt v. Petty, 15 So.2d 825 (La.App.2d Cir. 1943); Desselle v. Avery, 73 So.2d 326 (La.App.2d Cir. 1954); Watson v. Mid-Continent Aerial Sprayers, Inc., 170 So.2d 149 (La.App.2d Cir. 1964).

In our recent decision of Gaar v. State, Through Dept. Hwys., 389 So.2d 426 (La.App.2d Cir. 1980), we denied plaintiff’s claim for the damage to his cattle based on arsenic poisoning because he failed to prove their sickness was caused by negligence of defendant. We there reiterated the rule as follows:

“Proof by a preponderance of the evidence simply means that, taking the evidence as a whole, such proof shows that the fact or cause sought to be proved is more probable than not.” Id. at 428.

There is substantial evidence in the record to support the trial judge’s conclusion that plaintiff failed to prove his case by a preponderance of evidence and the trial judge was not clearly wrong, nor did he commit manifest error. Moreover, we are impressed with Dr. Davis’ testimony and conclude that if plaintiff’s cattle had suffered acid or copper poisoning plaintiff and his employees during their daily inspection of the herd would have observed some of them not eating and displaying other systems described by Dr. Davis. We are in full agreement with the trial judge’s factual finding that plaintiff failed to prove causation.

The defendant answered the appeal complaining that the expert witnesses’ fees fixed by the trial judge for its experts were inadequate. The trial judge awarded expert witness fees as follows:

Dr. Edward Davis (a veterinarian) .$100.00
Dr. Robert Flournoy (a toxicologist) .... 75.00
Dr. Ray Germany (an expert in the field of fishery science). 50.00

The trial judge has much discretion in fixing the fees of expert witnesses because he sees and hears them testify and can best evaluate their value to the resolution of the litigation. We acknowledge that the fees set are on the low side, but conclude that these determinations do not reflect that the trial judge abused his discretion in awarding these expert witnesses’ fees.

Judgment AFFIRMED at appellant’s cost.

      .Plaintiff removed all his cows from the pasture into which the waste water drained on October 30, 1978, and there is no evidence establishing that on any earlier date this waste water contained any excessive amount of acid which would have been harmful to cattle.

      . The toxic effect of acid increases as the PH factor decreases. Tests reflecting acid content of PH 5 or above are considered as reflecting acid content of no toxic effect upon cattle.

      . This was the testimony of Dr. Robert Flour-noy, a toxicologist, who was one of defendant’s expert witnesses.