author: DIXON, Chief Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. John WILLIAMS a/k/a Kwablah Mthawabu a/k/a Edward Johnson.
    No. 66630.
    Supreme Court of Louisiana.
    June 23, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James D. Caldwell, Dist. Atty., John D. Crigler, Asst. Dist. Atty., for plaintiff-appellee.
    Raymond L. Cannon, Tallulah, for defendant-appellant.
   DIXON, Chief Justice.

This case arises from an incident in which four armed men wearing stocking masks entered the Earl Lessley residence just outside of Waterproof, Louisiana. The men tied up the Lessley children who were alone in the house and began to search for valuables. When the children’s parents returned from a shopping trip, Earl Lessley was shot by one of the intruders with a 16 gauge shotgun. Mrs. Lessley was tied up and prevented from aiding her wounded husband. The men left the house in Lessley’s car, taking with them Earl Lessley’s wallet, several guns and an old coin collection. Earl Lessley died from his wounds that same night.

Lee Andrew Carroll, Cornelius Washington and Darnell Washington were arrested in connection with the crime. Based on information they gave the police the defendant was also arrested and subsequently prosecuted for armed robbery. At the defendant’s trial, Cornelius Washington testified that he, Willie Washington, Lee Andrew Carroll and Rowan Williams (the defendant’s son) were the ones who had entered the Lessley home that night, but that the defendant had participated in the planning of the crime and had supplied the weapons used. He also was said to have received some of the money that was stolen. Willie Washington and Darnell Washington gave similar testimony. Ten of the twelve jurors found the defendant to be guilty of armed robbery, and he was sentenced to serve fifty years at hard labor without benefit of parole, probation or suspension of sentence.

The defendant has argued five of his seven assignments of error to this court.

ASSIGNMENT OF ERROR NO. 1

Prior to trial, the defendant filed a motion to change venue, based on alleged prejudice in the public mind against him, arising from journalistic accounts of the crime and his arrest. The defendant assigns the trial court denial of that motion as error.

C.Cr.P. 622 provides:

“A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.”

In order to obtain a change of venue a defendant must prove more than a mere knowledge by the public of the facts surrounding the offense. The burden of proof is on the defendant to show that such prejudice exists in the collective mind of the community that a fair trial cannot be obtained. State v. Felde, 382 So.2d 1384 (La.1980); State v. Simmons, 381 So.2d 803 (La.1980); State v. Sonnier, 379 So.2d 1336 (La.1980).

In State v. Bell, 315 So.2d 307, 313 (La.1975), this court noted that:

“. . . The defendants were entitled to a change of venue if they could show, even though it would be possible to select a jury whose members were not subject to a challenge for cause, that there were influences in the community which would affect the answers of jurors on the voir dire, or the testimony of witnesses at the trial, or that, for any other reason, a fair and impartial trial could not be obtained in the parish. Defendants had a right to the opportunity to adduce evidence to show that racial and religious passions in the community (demonstrated in the ‘dry run’ voir dire before us) would prevent a fair and impartial trial.”

In the instant case, the record amply supports the trial court’s conclusion that it was possible to empanel an impartial jury in Tensas Parish. Although of the twelve persons questioned in a “dry run” voir dire, five indicated in some way that they thought that the defendant was guilty, only one prospective juror testified that she thought that she would have to find the defendant guilty no matter what the evidence. The other prospective jurors expressing an opinion indicated that they would be impartial and decide the case on the evidence.

All of the prospective jurors questioned in the “dry run” voir dire indicated that they had some knowledge of the crime, obtained for the most part from the newspapers and television. The press coverage might therefore be considered extensive within the limited geographical area involved. The press coverage does not appear from the record, however, to have been of such a nature as to render it impossible for the defendant to get a fair trial. All but one of the newspaper articles introduced by the defendant at the hearing on the motion were purely factual accounts, either of the crime, the ensuing investigation, or the defendant’s arrest and subsequent indictment. The involvement of the police or the prosecutor in the pretrial publicity was limited to the release of the facts of the crime and the investigation, and the appearance of police officers in newspaper photographs and a television news segment on the crime. No one representing the state expressed an opinion as to the defendant’s guilt or innocence. All but one of the articles introduced appeared within two weeks of the defendant’s arrest (from June 13, 1979 to June 27, 1979). The remaining article, which reported simply that the defendant had been indicted, appeared on July 25, 1979. The trial did not begin until some two more months had passed, on September 26, 1979.

In light of the noninflammatory nature of the pretrial publicity, and the fact that most of the publicity appeared some three months before trial, the pretrial publicity was not so extensive or prejudicial that the trial court erred in denying the defendant’s motion.

That conclusion is supported by the defendant’s failure to introduce at the hearing any direct evidence of any widespread prejudice against the defendant by examination of the prospective jurors. None of the persons questioned testified that they felt any public pressure to modify or hide their feelings about the defendant on voir dire examination. Several of them stated that the defendant should and could get a fair trial in Tensas Parish. There was no evidence of any events in the community at large that would indicate that the community or the individuals in it were prejudiced against the defendant.

The defendant having failed to show that he could not get a fair trial in Tensas Parish, either by showing prejudicial pretrial publicity or evidence of prejudice on the part of prospective jurors, the trial court did not abuse its discretion in denying the motion to change venue.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 6

By this assignment the defendant contends that the trial court erred in denying his challenge for cause of juror Michael Grover. Grover had approached the trial judge and stated that he was a friend of a man who had been the victim of a theft in which the defendant had been implicated. When questioned in court, however, Grover indicated that he had been seeking to be excused from jury duty so that he could see to his crops. He stated affirmatively that he could give the defendant the benefit of every reasonable doubt, and that he could set aside whatever personal feelings he had about the ease.

Before the denial of a challenge for cause will be considered reversible error on appeal, the defendant must show that the denial was error and that he exhausted all of his peremptory challenges. State v. McIntyre, 381 So.2d 408 (La.1980); State v. Allen, 380 So.2d 28 (La.1980). A trial court is vested with broad discretion in ruling on challenges for cause, and its ruling will not be disturbed on appeal absent a showing of abuse. State v. McIntyre, supra; State v. Allen, supra.

In the instant case, the trial court did not abuse its discretion. Grover stated that he would follow the instructions of the court to give the defendant the benefit of every reasonable doubt, and to put aside his personal feelings. In addition, he stated that he did not feel that he would have difficulty with his friends if, after listening to the evidence, he voted not guilty. The defendant was unable to impeach his statements that he originally approached the judge and told him of his friendship with the theft victim in order to escape jury duty to take care of his crops. The record does not support the defendant’s argument that the state coached Grover as to his answers. It was not an abuse of the trial court’s discretion to deny the defendant’s challenge for cause.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

The defendant assigns as error the trial court’s denial of a motion to suppress evidence seized in a search of the defendant’s house. The fruits of that search included the shotgun that was used to kill Lessley and other incriminating evidence. The search was conducted pursuant to a search warrant issued on the basis of an affidavit by a police officer which recounted statements made by Lee Andrew Carroll and Darnell Washington. The affidavit indicated that the two men had admitted their involvement in the Lessley case. Carroll was said to have told the affiant that he had taken the shotgun to the defendant’s house after the killing and left it there. Washington was said to have admitted placing the shotgun and other weapons in the cesspool on the Williams property.

In challenging the search the defendant argues that the statements made by Carroll and Washington to the police were involuntary and illegal, and that a search warrant obtained on the strength of involuntary statements is invalid.

In State v. Bouffanie, 364 So.2d 971 (La.1978), this court considered the question of whether one against whom evidence was acquired by the use of involuntary statements of a third person has standing under our Constitution to challenge the admission of the evidence on the ground of the violation of the third person’s rights. We did not reach an answer to that question, however, because we concluded that the defendant in that case had not made the showing necessary for suppression if he did have standing. We noted that under C.Cr.P. 703 a defendant bears the burden of proving the grounds of a motion to suppress. An exception to that rule is that the state must prove that confessions are free and voluntary beyond a reasonable doubt before they can be admitted into evidence at the trial on the merits, but we noted that that exception does not apply if the statement is not to be admitted. We therefore concluded that if a defendant did have standing to challenge the voluntariness of statements of a third person, because evidence obtained as a result of those statements was to be used against the defendant, the defendant would bear the burden of proving that the statements were involuntary. We further indicated that in such cases the same procedure and burden of proof would apply as govern challenges to the truthfulness of factual statements in an affidavit. Under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), in such cases the defendant must show by a preponderance of the evidence that the statements should not be considered, and, that, with the objectionable material removed, the affidavit’s remaining content is insufficient to establish probable cause.

In the instant case, the defendant did not prove by a preponderance of the evidence that the statements made by Carroll and Washington were not free and voluntary. Carroll testified at the motion to suppress that the statements were voluntary and that they were not made under pressure or threats. The officers who questioned him testified in the same vein. Although Carroll did give some testimony that would indicate that the statements were not voluntary, he could not say for certain that those factors affected the voluntariness of the statements, and then stated that the statements were in fact voluntary. The trial court did not err in concluding that Carroll’s statements were voluntary.

In addition, the search warrant was supported by the statements of Darnell Washington, even if Carroll’s statements are excised. The record contains no evidence indicating that Washington’s statements were not voluntary. Since the search warrant was supported by the voluntary statements of Washington, the trial court was not in error in denying the defendant’s motion to suppress.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

After he was indicted the defendant filed a motion for a preliminary examination, which was denied. The defendant claimed that the examination was necessary for the perpetuation of testimony and the reduction of bail. C.Cr.P. 292 provides that the court shall order a preliminary examination at the defendant’s request in felony cases unless the defendant has been indicted by a grand jury, and, in addition, that the court may order such an examination in felony cases whether or not an indictment has been returned. That provision therefore vests discretion for the granting of postindictment preliminary examination in the trial court. C.Cr.P. 296 provides that a preliminary examination held after indictment shall be limited to the perpetuation of testimony and the fixing of bail.

According to the defendant, he was prejudiced by the denial of the preliminary ex-animation because he was thereby prevented from eliciting testimony from the men who claimed to have been involved in the crime with him for purposes of cross-examining them at trial. The defendant was therefore not seeking to perpetuate testimony (that is, to preserve it in case a witness became unavailable or unable to testify) but was instead seeking to use the examination as a means of discovering information that would help his case. The defendant also claims that to deny him a preliminary examination denies him equal protection of the law, because those charged by means other than an indictment have a right to such an examination.

In State v. Qaulls, 377 So.2d 293, 296 (La.1979), this court noted that the right to a preliminary examination is primarily designed to determine if probable cause exists to hold an accused in custody or under bail pending trial. We rejected the use of the preliminary examination as a means of discovery beyond the discovery statute, C.Cr.P. 716-723. We stated:

“Thus, the role of the grand jury in the context of this case was to determine probable cause to hold defendant, a procedure involving twelve citizens chosen from a cross section of the community charged with the responsibility and authority delegated by the law to grand jurors. Such a procedure is well-designed to protect the accused from an overbearing government prosecutor or false accusations. Before an indictment is returned this body must be satisfied that probable cause exists that the accused committed the crime and should be held for trial to defend himself. Therefore, the insistence oh a preliminary hearing is ordinarily not justified after indictment, for it can only serve then as a discovery device beyond the permissible limits prescribed by the Discovery and Inspection statute. There is, therefore, no constitutional right to a preliminary hearing where an indictment has been rendered. Harris v. Estelle, 487 F.2d 1293 (5th Cir. 1974); United States v. Anderson, 481 F.2d 685 (4th Cir. 1973); United States v. LePera, 443 F.2d 810 (9th Cir. 1971); United States v. Coley, 441 F.2d 1299 (5th Cir. 1971); United States v. Conway, 415 F.2d 158 (3rd Cir. 1969); State v. Singleton, 253 La. 18, 215 So.2d 838 (1968), and cases cited therein.

It was therefore not error for the trial court to deny the defendant’s motion for a preliminary examination for the purpose of discovering the state’s evidence and gathering material to be used to impeach the state’s witness.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4

During the defendant’s trial, Cornelius Washington was questioned as to the defendant’s participation in the crime. The witness described a meeting at the defendant’s house at which plans were made for gaining entry into the Lessley home and robbing its occupants. The defendant provided the participants with guns from a cache of weapons hidden under his bathtub. A defense objection to the questioning was overruled, and the defendant assigns the admission of the testimony as error.

The basis for the defendant’s objection to the testimony is not altogether clear. When the objection was made, defense counsel contended that the testimony was hearsay and that the proper foundation had not been made for admission of declarations of a coconspirator against the defendant. The so-called coconspirator exception to the rule of exclusion of hearsay testimony is provided for in R.S. 15:455. The effect of that statute is to allow the introduction of statements made out of court by a cocon-spirator of the defendant, if the statements were made in furtherance of the conspiracy, provided that first a prima facie case of conspiracy is established. See, e. g., State v. Matthews, 354 So.2d 552 (La.1978); State v. Bell, 346 So.2d 1090 (La.1977). See also, Comment, The Coconspirator Exception to the Hearsay Rule: The Limits of Its Logic, 37 La.L.Rev. 1101 (1977). Statements admitted under the exception are used to prove the guilt of the defendant.

In the instant case, there was no attempt made to introduce testimony of out of court statements by the coconspirator to show the guilt of the defendant. Instead, the defendant’s accomplice was himself called to the stand and testified as to what he had seen and heard. Because there was no attempt by the state to admit evidence under the coconspirator exception of R.S. 15:455 to the hearsay rule, it was not error for the trial court to admit the evidence objected to without the requisites of the statute being met.

It is possible that the defendant’s objection was directed to the fact that in recounting the events leading up to the intrusion into the Lessley home, the witness repeated the defendant’s instructions to the participants to use force, if necessary. Even if the defendant’s objection can be construed to have been addressed to the possible hearsay nature of such testimony, the objection would be unfounded, because the defendant’s statement was part of the res gestae of the crime for which he was being prosecuted.

The defendant was charged with being a principal to the armed robbery of Earl Less-ley. R.S. 14:24 defines principals as:

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

Therefore, the defendant’s acts in participating in the planning of the crime, of providing weapons and a staging area, and of counseling the others to use force are the very acts for which he was being prosecuted. Res gestae is defined by R.S. 15:447, which provides:

“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.”

In addition, R.S. 15:448 provides:

“To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

In the instant case, the words of the defendant which were repeated by the witness, to the effect that force was to be used if necessary, were necessary incidents to the criminal acts for which the defendant was charged, of having aided and counseled the other men in committing the acts constituting the offense of armed robbery. Such spontaneous acts and words of the accused were admissible as part of the res gestae.

This assignment of error is without merit.

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

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

Defendant’s assignment of error No. 1 has merit. In my view the trial court committed reversible error by not granting defendant’s motion for a change of venue.

The black defendant, a leader of the “Republic of New Africa,” was charged and convicted of the armed robbery which resulted in the death of Earl Lessley, Jr., a white male, in the same small rural parish where the victim lived and was murdered. The local media ran almost weekly stories about the crime in the three months between defendant’s arrest and trial in which defendant’s leadership role in the Republic of New Africa organization received prominent coverage. A local newspaper ran a front page story on June 21,1979, headlined “Waterproof hopes ‘Reign of Terror’ Over” in which it was reported that defendant was widely feared in the community and that many local residents felt that recent burglaries had been for the purpose of obtaining arms for a small army commanded by defendant.

Shortly before trial there was renewed publicity about the crime. On September 12,1979, twelve days before trial, the denial of defendant’s change of venue motion was front page news in a local newspaper. Nine days before trial it was reported that his co-defendant pleaded guilty of the second-degree murder of the armed robbery victim, Earl Lessley. Two days later another local paper carried a story that his co-defendant had received a life sentence for the murder of Earl Lessley.

At the “dry-run” voir dire held at the motion to change venue five of the twelve persons called stated that they believed defendant was guilty and one woman testified that she did not believe that defendant could receive a fair trial. Later at the voir dire prior to trial seven persons testified that their minds were made up that defendant was guilty.

The foregoing indicates that the prejudice in the community against defendant created by the extensive pre-trial publicity about the crime and defendant prejudiced defendant’s right to a fair trial. C.Cr.P. art. 622. Therefore, I respectfully dissent.

      . The exception is an article that appeared in the June 21 edition of the Concordia Sentinel, a newspaper published in Concordia Parish with a limited circulation (estimated to be around 500) in Tensas Parish. The article reported that many persons in Waterproof were relieved that the defendant and other persons had been arrested for a number of crimes in the area, which many believed were attributable to the defendant. At his motion for a new trial the defendant filed additional articles which were similarly factual accounts of developments in the case.

      . “Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.” R.S. 15:455.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Carol BAIZE.
    No. 63488.
    Supreme Court of Louisiana.
    June 23, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Levenson & Bonin, Paul A. Bonin, New Orleans, for defendant-appellant.
   CALOGERO, Justice.

Defendant Carol Baize was charged by bill of information with obtaining motel accommodations without paying for them, with intent to defraud, in violation of R.S. 21:21. Following trial the six member jury found Ms. Baize guilty as charged. Defendant was sentenced to serve one year at hard labor and pay a fine of $500.00. On appeal to this Court defendant argues five assignments of error.

The evidence as adduced at trial by the prosecution, or as was undisputed, is as follows. Defendant obtained a room for one at the Holiday Inn East in New Orleans on December 21, 1977, and paid in cash for the first night. Another woman, Pat Clark, was helping defendant with her bags when she checked into the motel.

The desk clerk who registered defendant testified that he told her that cash customers had to pay daily and that on the 27th of December room rates would increase for the Sugar Bowl. He stated that there were signs on the front desk and on the front door announcing the increase. He remembered that at one point in defendant’s stay her payments were not current, i. e. paid daily, but she had come to the desk and paid the charges due.

Ms. Jean Marange, the front desk manager, testified that she changed defendant into another room after Ms. Baize complained about her assigned room. Ms. Baize stayed several days in the new room without paying the bill, but then came down to the front desk and paid her bill. After Ms. Baize paid these charges, her bill mounted to $60.00 by December 28th at which point Ms. Marange called defendant’s room and spoke to someone about paying the bill. When that individual said she wanted to pay by check Ms. Marange informed her that the hotel would not accept a check in payment unless the individual had either an American Express Card or two other major credit cards.

Over the next several days hotel personnel unsuccessfully attempted to contact defendant in her room. On December 29, 1977, Gary Froeba, the Innkeeper, back-locked defendant’s room so that she couldn’t get in. Defendant and Ms, Clark called the Innkeeper that night to complain about being locked out, not receiving a commercial rate (which Holiday Inn does not have) and not being allowed into her room to feed her dog. Mr. Froeba testified that the call developed into a hostile discussion and that one woman said that they didn’t have any money. The Innkeeper admitted that someone had come to the desk that day and offered to pay approximately $66.00 to settle the bill, (the amount that would have been due if Sugar Bowl rates had not been in effect) but he stated that the offer was not acceptable.

On December 30, 1977, Ms. Baize called Bill Ridgeway, the district manager for Holiday Inn and complained about being locked out of her room, not being given a commercial rate, not being allowed access to her dog, and the rudeness of the Innkeeper.

Between December 30th and January 6th defendant made several calls to the Innkeeper and reiterated her complaints. He told her that she could not have the dog until she paid her bill and that if she didn’t come to get it he would have to take the dog to the S.P.C.A. Ms. Baize also apparently called Memphis, Tennessee several times on Holiday Inn’s Customer Complaint Line. She told them that she was then staying at a Howard Johnson’s where, on the night of January 6, 1978, she was later arrested.

Ms. Baize and her business associate, Ms. Clark testified that defendant had not been informed of the Sugar Bowl rates by the desk clerk, nor had either of them seen any signs announcing the increase. Defendant denied that Ms. Marange had called her on December 28th requesting payment for the room, and testified that Mr. Ridgeway had agreed to accept $60.00 to settle the bill. Defendant stated that she had asked the innkeeper several times for the dog, but he had refused to give her the dog. Ms. Clark’s testimony was largely similar to Ms. Baize’s.

Defendant argues five assignments of error. Because we find reversible error in assignment of error No. 1 we need not discuss the other assignments.

Defendant contends in assignment of error No. 1 that there was insufficient evidence to support a conviction for willfully and unlawfully obtaining hotel accommodations without paying therefor, and with intent to defraud.

Whether we apply the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) that “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” or our traditional standard that there was some evidence of the essential elements of the crime for which defendant was convicted; the evidence presented at trial was insufficient to prove that defendant “obtained” the accommodations with intent to defraud.

Whatever civil obligation defendant breached by continuing to stay in the hotel without paying the demanded charges, defendant did not obtain the accommodations with intent to defraud because she in fact paid cash at the outset of her stay at the motel. In order to convict a person of fraudulently obtaining board or lodging, the proof must show an intent to defraud at the time the board or other accommodation was obtained; a mere failure, refusal or inability to pay does not constitute the offense. 40 Am.Jur.2d 954 (1968). See Robinson v. State, 135 Miss. 774, 100 So. 377, People v. Nicholson, 25 Misc. 266, 55 N.Y.S. 447.

Despite the hotel’s announced policy that cash customers were required to pay daily, that policy was not applied to Ms. Baize. On at least one occasion after the inception of her occupancy she was allowed to remain without prepayment and to pay an accumulated arrearage. Furthermore, after the hotel requested payment there were two offers to pay the bill by check. That belies an intent on part of defendant then or earlier to obtain accommodations without paying for them with intent to defraud. (No evidence was presented suggesting that this check might be bad.)

Decree

For the foregoing reasons the conviction and sentence of defendant Carol Baize is reversed and set aside and defendant ordered discharged.

REVERSED.

       R.S. 21:21 provides in pertinent part:
      “No person shall:
      (1) Obtain accommodations at any hotel, inn, boarding house or restaurant or procure food without paying therefor, with intent to defraud, except when credit is given by express agreement;. . . . ”


author: CALOGERO, Justice. WATSON, Justice,

text:
    STATE of Louisiana v. Donnie Ray KING.
    No. 66315.
    Supreme Court of Louisiana.
    June 23, 1980.

      Merwin M. Brandon, Jr., Bastrop, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Kenneth A. Rains, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant was charged by bill of information with aggravated burglary. A jury of twelve found defendant guilty of simple burglary. The trial court sentenced defendant to five years at hard labor, with credit for time served. Defendant now appeals on the basis of four assignments of error in two arguments.

The state adduced the following evidence at trial. On October 23, 1978, at approximately 8:30 p. m. Cathy Moran was standing by her kitchen sink when the screen door to her kitchen flew open. Defendant Donnie Ray King was standing in the doorway with a broken broom handle in his hand. When Mrs. Moran tried to push him out by closing the door, her hand got caught in the door and defendant hit her on the hand with the broom handle. She asked him what he was doing and he replied, “What do you think I’m doing.” Defendant then ran away. Mrs. Moran chased him, but could not catch him.

Captain Wyatt Smith of the Bastrop Police arrived at her home to investigate the crime. While they were discussing the case, they noticed the broom handle lying on the ground. She later identified this stick as the weapon which defendant used.

Less than two hours after the incident Officer Gary Carver arrested defendant at 10:20 p. m. The next morning Cathy Moran viewed two line-ups and picked the defendant as the man who entered her home.

Defendant’s primary contention is that there was insufficient evidence presented (he was convicted of simple burglary) to prove that defendant upon entry had the intent to commit theft, aggravated battery (a felony), or any other crime therein except assault or aggravated assault, both misdemeanors and insufficient to satisfy R.S. 14:60’s requirement that the entry be “with intent to commit a felony or any theft therein.”

Defendant’s argument essentially is that the jury’s acquittal on the aggravated burglary charge (by finding him guilty of simple burglary) was a conclusive jury determination that when he entered the house he was not armed with a dangerous weapon (and therefore could not have been intent on committing an aggravated battery which requires striking with a dangerous weapon). Therefore, absent evidence of intent to commit any felony or theft and having determined that he was not armed with a dangerous weapon, he could not have been guilty in the jury’s mind of aggravated battery. It would be incongruous to let stand a conviction for simple burglary when the jury has determined that an essential element of the crime, intent to commit aggravated battery (pertinent to this case) was not proved.

This argument is without merit. The jury could well have simply opted to acquit on the more serious aggravated burglary charge notwithstanding the evidence that he committed that offense. The generally applicable principle is that if there is evidence to convict defendant of a greater offense, it is permissible to convict him of a lesser included offense. State v. Qualls, 353 So.2d 978 (La.1977); State v. Peterson, 290 So.2d 307 (La.1974); State v. Cooley, 260 La. 768, 257 So.2d 400 (La.1972). In fact it is permissible for a jury presented with evidence to support all elements of a major offense to find, sometimes incongruously, that defendant was not guilty of the major offense, but was guilty of the lesser offense. Our bottom line is, therefore, that defendant’s acquittal on the aggravated burglary charge is not necessarily a finding that defendant was not armed with a dangerous weapon.

The fact is that defendant was armed with a dangerous weapon and the jury could well have concluded that defendant entered with intent to commit an aggravated battery by use of that weapon, a broken broomstick handle. Mrs. Moran testified that she saw defendant standing in her doorway with a broken broom handle drawn “back like he was going to strike me.”

There was sufficient evidence presented to support a conviction of simple burglary whether we apply the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 560 (1979) that “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” or our traditional standard that there was some evidence of an essential element of the crime for which defendant was convicted. See State v. Winzer, 354 So.2d 533 (La.1978). Assignment of Error No. 4 is without merit.

Defendant’s second contention is that the trial court erred in denying his motion to suppress photographs of two line-ups at which defendant was identified by Mrs. Moran. Defendant advances two arguments in support of this contention:

(1) Defendant was not represented by counsel at the pre-indictment line-up, and

the photographs of the two line-ups admitted into evidence at trial did not represent the actual line-up viewed by Mrs. Moran.

Defendant does not have a constitutional right to counsel at a pre-indictment line-up and this defendant had not retained counsel at the time of the line-up nor had he requested that he be allowed access to appointed counsel. State v. Vaughn, 378 So.2d 905 (La.1979); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). This argument is without merit.

Defendant’s argument that the photographs of the line-ups were inadmissible because they did not represent the actual line-ups viewed by Mrs. Moran is also without merit. On direct examination Officer Carver, who conducted the line-ups, testified that the photographs admitted into evidence were photographs of the line-ups at which Mrs. Moran identified defendant. On cross-examination Officer Carver admitted that the photographs did not represent the actual line-ups seen by Mrs. Moran. Officer Carver explained that the line-up room was too small for his camera to get all subjects in the picture so he brought the men in the line-ups outside into a hall where he could get all of them in the same picture. The men in the photographs were the same men that were in the line-ups seen by Mrs. Moran. They were standing in the same order, holding the same numbers, and were wearing the same clothes that they were wearing at the line-ups at which defendant was identified. The trial court did not abuse its discretion in admitting the photograph. State v. Sawyer, 350 So.2d 611 (La.1977). Assignments of Errors Nos. 1 and 2 are without merit.

Decree

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

AFFIRMED.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

In my opinion there is no evidence of the element of intent to commit a felony which is required under both simple burglary, R.S. 14:62 and aggravated burglary, R.S. 14:60. The fact that defendant appeared in the doorway with a piece of a broomstick in his hand does not prove intent to commit a felony. Therefore, the defendant’s fourth assignment of error has merit.

      . R.S. 14:60 provides:
      “Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
      (1) Is armed with a dangerous weapon; or
      (2) After entering arms himself with a dangerous weapon; or

        (3) Commits a battery upon any person while in such place, or in entering or leaving such place.
      Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years.”

      . R.S. 14:34 provides:
      “Aggravated battery is a battery committed with a dangerous weapon.
      “Whoever commits an aggravated battery shall be imprisoned, with or without hard labor, for not more than ten years.”

      . For example juries often return verdicts of simple robbery instead of armed robbery after being presented with evidence that the robber had a gun even when defendant concedes that someone robbed the victim with a gun. In such instances this Court will not look to the evidence to question the jury’s finding of lesser culpability. See State v. Peterson, 290 So.2d at 311.

      .Although this Court in State v. Matthews, 375 So.2d 1165 (La.1979), and State v. Abercrombie, 375 So.2d 1170 (La.1979) suggested in dicta that it would follow Jackson, following those cases the Court has been less than explicit about which standard applies to this Court’s review on direct appeal. It remains for future cases for this Court squarely to confront the question of whether it will follow Jackson or persist in the “no evidence” standard of review.

      . Defendant concedes that Assignment of Error No. 3 involves the same matter treated in the other three assignments.


author: CALOGERO, Justice. BLANCHE, Justice LEMMON, Justice,

text:
    STATE of Louisiana v. Patrick W. LEWIS and David E. Wilson. STATE of Louisiana v. Frank WILSON.
    Nos. 66720, 66977.
    Supreme Court of Louisiana.
    June 23, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., David Miller, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee-re-spondent.
    Lewis 0. Unglesby, Frank J. Gremillion, Baton Rouge, for defendant-appellant-relator.
   CALOGERO, Justice.

Defendants Patrick Lewis, David Wilson, and Frank Wilson were charged with five counts of possession of controlled dangerous substances in violation of R.S. 40:967(A) and 40:969(A). After a motion to suppress the evidence was denied, defendants Patrick Lewis and David Wilson pled guilty to possession of L.S.D. and possession of meth-aqualone. Defendant Frank Wilson pled guilty of possession of marijuana. Each defendant entered his guilty plea reserving his right under State v. Crosby, 338 So.2d 584 (La.1976) to seek review of the trial court’s denial of the motion to suppress. Patrick Lewis and David Wilson were sentenced to five years at hard labor, sentences suspended, and were placed on five years’ probation on the condition that they serve six months in the parish jail and pay fines of $2500. Frank Wilson received a six month sentence, suspended, was placed on two years’ probation and was fined $250. The only issue presented here is whether the trial court erred in denying defendants’ motion to suppress.

On December 9, 1977, J. P. Thompson, an East Baton Rouge deputy sheriff, applied for a warrant to search the apartment of David Wilson located at 1819 No. Marque Ann in Baton Rouge. In support of his application for the warrant, the officer submitted an affidavit, which in pertinent part, provided:

“Affiant informs the court that on December 9,1977 affiant was contacted by a confidential and reliable informant who has been working under the direct supervision of affiant for the past six (6) months and who has provided affiant with information which has led to the arrest of at least seven (7) persons on narcotic violations of East Baton Rouge Parish and the seizure of large quantities of contraband which after being tested was found to be controlled under Louisiana law.
“Affiant, further informs the court that on or about December 7, 1977, he being said confidential and reliable informant had occasion to be in apt. # 133 of the Centurian Arms Apartments, located at 1819 N. Marque Ann and had occasion to see a quantity of green vegetable like substance, which was offered by David Wilson, occupant of the apartment, to above confidential informant as marijuana to smoke which he did and experienced a feeling of euphoria.
“Affiant further informs the court that a check with telephone security verified that telephone service in apartment # 133 of the Centurian Arms Apartments, located at 1819 N. Marque Ann was listed with Bell Telephone Company in the name of David Wilson.”

On the basis of the affidavit, the search warrant was issued December 9th and was executed on the evening of December 12, 1977. In executing the warrant the officers seized a quantity of L.S.D., marijuana, and other controlled dangerous substances. All three defendants who were present in the apartment at the time of the seizure were arrested.

At the hearing on the motion to suppress defendants argued that the affidavit in support of the warrant failed to establish probable cause that the marijuana observed by the informant “on or about December 7, 1977” would be present in the defendant’s apartment at the time that the warrant was executed, December 12, 1977. Defendants rely on State v. Boneventure, 374 So.2d 1238 (La.1979) to argue that the affidavit for this reason failed to establish probable cause.

In Boneventure a search warrant was issued on an affidavit which stated that a confidential informant had . observed a quantity of green vegetable material identified and offered for consumption as being marijuana . . .” This Court found that the affidavit failed to establish probable cause to believe that the evidence or contraband observed by the informant at the defendant’s residence was not disposed of but remained at the place to be searched. The Court reasoned that the amount of marijuana observed by the informant was a small amount which might have been consumed by the person to whom or by whom it was offered. Furthermore the Court found that there was no probable cause to believe that marijuana other than that offered for consumption was present in the defendant’s residence.

In the present case the affidavit states that a confidential informant had occasion to be in defendant Wilson’s apartment “on or about December 7, 1977” and “had occasion to see a quantity of green vegetable like substance, which was offered by David Wilson, occupant of the apartment, to the above confidential informant as marijuana to smoke which he did and experienced a feeling of euphoria.” The affidavit contains no allegations that drugs other than the marijuana which was offered to the informant were present in the apartment.

At the hearing on the motion to suppress Deputy J. Thompson, the affiant, testified that at the time the warrant was issued he did not know whether any marijuana observed by the informant was still in the apartment:

Defense Counsel:
“So as far as you know, at the time you got this warrant, it was all smoked up. Is that right?”
Deputy Thompson:
“No, I didn’t know it was all smoked up.”
Defense Counsel:
“Well, you didn’t know that it wasn’t either, did you?”
Deputy Thompson:
“No, sir.”

Deputy Thompson also testified that as much as a week might have passed between the time that the informant observed, was offered, and smoked the marijuana in defendant’s apartment and December 9, the date that the informant contacted the officer and the warrant was issued.

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by affidavit of a credible person, reciting facts establishing the cause for the issuance of the warrant. La. C.Cr.P. art. 162. Probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Boksham, 370 So.2d 491 (La.1979). Thus, included in the general concept of probable cause is the necessary element of a reasonable belief that the contraband or evidence will not have been disposed of but will remain at the place to be searched at the time of the proposed search. State v. Thompson, 354 So.2d 513 (La.1978).

Under the reasoning in Boneventure the affidavit in the instant case clearly fails to establish the necessary element of probable cause that the contraband or evidence to be seized will not have been disposed of, but will likely remain at the place to be searched at the time of the proposed search. The affidavit states that the confidential informant observed a “quantity” of marijuana, that marijuana was offered to him, and that he did smoke marijuana. When the warrant in this case was executed, three days after the informant told the officer of his observation and possibly as much as ten days after he actually observed and smoked the marijuana at defendant’s apartment, there could be no reasonable belief that the marijuana offered to and consumed by the informant remained in defendant’s apartment. Furthermore there is nothing in the affidavit to establish probable cause that drugs other than the marijuana offered to and consumed by the informant were in the apartment.

Because the affidavit failed to establish probable cause that the marijuana likely remained in defendant’s apartment, we find that the trial court erred in denying defendants’ motion to suppress the evidence seized. Accordingly, the ruling of the district court denying defendants’ motion to suppress is vacated and the motion is granted.

Decree

For the foregoing reasons the judgment of the district court is vacated and the motion to suppress is granted.

REVERSED.

MARCUS, J., dissents.

BLANCHE and LEMMON, JJ., dissents and assigns reasons.

BLANCHE, Justice

(dissenting).

I respectfully dissent. In my view, a person in possession of marijuana and offering it to others will more probably than not have it around five days later. At any rate, it suffices for probable cause, though I admit it is stretched to the outer limits.

LEMMON, Justice,

dissenting.

A reviewing court should be extremely reluctant to suppress evidence seized pursuant to a search warrant sought and issued in good faith. Since the exclusionary rule is totally unrelated to the guilt or innocence of the accused and is intended primarily to deter misconduct by law enforcement officers, courts should encourage good faith efforts of policemen and issuing magistrates. Reviewing courts, furthermore, should emphatically express a preference for warrants by construing probable cause in a manner which is not harsh or unduly technical. The ultimate quest of the criminal justice system is the truthful and accurate resolution of charges of law violations, and evidence undoubtedly establishing guilt should be suppressed only when absolutely necessary to effectively regulate improper law enforcement behavior.

In the present case a reliable informant told police on December 9, 1977 that two days earlier he had seen and been given marijuana in defendant Wilson’s apartment. In my opinion the information in the warrant (issued the same day) gave police probable cause to believe that marijuana would be found in the apartment three days later when the warrant was executed. The fact that marijuana was freely used there on December 7 raised the logical inference that marijuana would be there December 12. Law Enforcement officers and issuing magistrates must deal in the sort of probabilities upon which reasonable men operate. Reviewing courts should test the validity of search warrant affidavits on the basis of probable cause and not on the basis of proof beyond a reasonable doubt.

The judge who issued the search warrant believed, and the judge who denied the motion to suppress agreed, that the intrusion into the privacy of an area where criminal activity had recently taken place was justified under the information contained in the affidavit. Appellate courts should accord appropriate deference to the reasoned judgment of the trial court regarding probable cause. Since I believe that suppression of this guilt-establishing evidence of criminal conduct is totally unnecessary to deter the police state tactics which gave rise to the exclusionary rule, I dissent.

       Because Frank Wilson’s sentence did not exceed six months, he had no right of appeal under La. C.Cr.P. art. 912 and sought review of his conviction through application for writs. We granted his application and consolidated the case with his co-defendants’ appeal without regard to the merits because the cases presented an identical suppression issue.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Charles Gene HEADS.
    No. 63311.
    Supreme Court of Louisiana.
    June 23, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouehe, Dist. Atty., Abbott J. Reeves, B. Woodrow Nesbitt, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Wellborn Jack, Jr., Jack & Jack, Shreveport, for defendant-appellant.
   MARCUS, Justice.

Charles Gene Heads was indicted by the grand jury for the first degree murder of Roy Kenneth Lejay, Sr. in violation of La. R.S. 14:30. After trial by jury, defendant was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt. The jury unanimously recommended that a sentence of life imprisonment without benefit of probation, parole or suspension of sentence be imposed on defendant. The trial judge sentenced defendant in accordance with the recommendation of the jury. The conviction and sentence were affirmed by this court on appeal. State v. Heads, 370 So.2d 564 (La.1979).

The United States Supreme Court granted a writ of certiorari on January 7, 1980, 444 U.S. 1008, 100 S.Ct. 654, 62 L.Ed.2d 637 (1980), vacating the judgment and remanding the case to this court for further consideration in light of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In Sandstrom, the Court reversed a conviction of “deliberate homicide” where the trial judge’s instruction to the jury, virtually identical to that given in Heads’ trial, read: “The law presumes that a person intends the ordinary consequences of his voluntary acts.” In Sandstrom, as in the instant case, the instruction was given over defendant’s objection that' such instruction had the effect of shifting the burden of proof of purpose or knowledge of the offense to the defense. The Supreme Court found that this instruction violated Sand-strom’s right to due process of law under the fourteenth amendment requirement that the state prove every element of a criminal offense beyond a reasonable doubt.

Because Sandstrom’s jury may have interpreted the judge’s instruction as either shifting the burden of proving intent to defendant or creating a conclusive presumption of intent against defendant, the Supreme Court concluded that under either of the possible interpretations of the instruction, constitutional error would result. The state argued that, even if the jury did rely upon the unconstitutional instruction, it was harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Defendant replied that an unconstitutional jury instruction on an element of the crime could never be harmless error. The Supreme Court held that, since this issue had not been considered by the Supreme Court of Montana, it would decline to do so as an initial matter and accordingly remanded the ease to the Montana Supreme Court for further proceedings.

In view of our mandate from the Supreme Court to further consider this case in light of Sandstrom, we must determine whether the jury instruction complained of in the instant case was harmless error.

Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. Chapman v. California, supra.

Defendant was charged with the crime of first degree murder in violation of La.R.S. 14:30 which provided at that time: “First degree murder is the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm.” The facts developed at the trial of this matter are generally as follows:

Defendant, a resident of Houston, Texas, traveled to Shreveport in search of his wife and three children who had left the family home in Houston. After unsuccessfully deriving his wife’s location from his wife’s mother, defendant called the Shreveport home of his wife’s sister. The sister’s denial of knowledge of his wife’s whereabouts arose his suspicion and defendant drove to her home though it was nearing midnight. No answers were made to his repeated knocks on the doors and windows. Defendant then kicked in a door leading from the carport, entered and found his sister-in-law’s husband at the end of the bedroom hall, armed with a pistol.

Though the evidence is not clear as to the precise moment when the shooting began, both the victim’s wife and defendant’s wife testified that defendant began firing his pistol shortly after breaking into the house. The sister-in-law’s husband pleaded with defendant to stop shooting and leave their home. The sister-in-law’s husband informed defendant that he, too, was armed and did not want to be forced to shoot him. Defendant continued firing his pistol down the bedroom hallway until he had emptied the pistol of bullets. Defendant then ran to his car, retrieved a rifle from the trunk, and returned, firing several blasts, one of which struck the sister-in-law’s husband in the eye, killing him.

The state attempted to prove that defendant specifically intended to kill the victim. Defendant, while contending he was not guilty by reason of insanity, attempted to demonstrate that the killing was one done in the heat of passion and he should not be found guilty of a charge greater than manslaughter.

As in Sandstrom, the jury could have interpreted the instruction as either shifting the burden of proving intent to defendant or creating a conclusive presumption of intent against defendant. Since intent, an essential element of the crime charged, was the main issue in the case and was also the subject of the erroneous instruction, we are unable to say that the error was harmless beyond a reasonable doubt. Hence, we must remand the case to the district court for a new trial consistent with the views expressed by the United States Supreme Court in Sandstrom v. Montana, supra.

DECREE

For the reasons assigned, the case is remanded to the district court for further proceedings consistent with the views herein expressed.

WATSON, J., dissents.

      . In the instant case, the trial judge instructed the jury that: “A man is presumed to intend the natural and probable consequences of his acts.”


text:
    Robert I. SONFIELD v. Anita DELUCA, wife of Robert I. Sonfield.
    No. 66610.
    Supreme Court of Louisiana.
    June 23, 1980.

      Gibson Tucker, Jr., Tucker & Schonekas, New Orleans, for defendant-applicant.
    Philip R. Riegel, Jr., Parlongue & Riegel, New Orleans, for plaintiff-respondent.
   MARCUS, Justice.

On November 22,1977, Robert I. Sonfield filed a rule against his former wife, Anita Deluca Sonfield, to show cause why alimony in the amount of $225.00 per week previously awarded in a judgment of divorce dated June 30, 1971, should not be terminated. In his rule, he alleged three changes in circumstances: (1) he has remarried and is the father of two minor children in his second marriage; (2) he is no longer gainfully employed and has suffered a substantial reduction in income; and (3) his ex-wife is no longer in necessitous circumstances because she owns a home appraised at $133,200 subject to a $41,000 mortgage.

After a hearing on the rule, the trial judge refused to terminate alimony and ordered plaintiff to continue paying his ex-wife $225.00 per week in alimony. The court of appeal reversed, holding that plaintiff’s ex-wife’s equity of approximately $92,000 in her home was “sufficient means” for her support and she was therefore not entitled to alimony; however, because of the non-liquidity of the home, the court gave defendant seven months in which to sell her home at which time alimony would cease whether or not the house was sold. On defendant’s application, we granted cer-tiorari to review the correctness of this decision.

La.Civ.Code art. 160 provides:

When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:
1. The wife obtains a divorce;
This alimony shall be revoked if it becomes unnecessary, and terminates if the wife remarries.

Article 160 has been construed to allow the wife to collect a sum sufficient for her “maintenance,” which includes expenses for food, clothing and shelter as well as reasonable and necessary transportation or automobile expenses, utilities, household expenses and income tax liability generated by the alimony payments made to the former wife. To prevail, it is incumbent upon plaintiff to prove a change in defendant’s circumstances, or his own, from the time of the divorce decree to the time of the rule which justifies termination of his ex-wife’s alimony. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).

We agree with the finding of the trial court that placed little emphasis on the expenses of plaintiff’s second marriage. While these expenses, like other circumstances, should be taken into account in determining the amount of alimony plaintiff must pay, we are unable to see how these expenses could completely negate his obligation to support his ex-wife under art. 160. See Marcus v. Burnett, 282 So.2d 122 (La.1973).

We also agree with the trial court’s finding that plaintiff’s financial situation does not warrant termination of alimony. Plaintiff held the position of president of a large department store at a salary of $70,-000 per year at the time alimony was fixed in 1971. He no longer held this position at the time of trial, and his income had been reduced to $1,450 per month. However, plaintiff testified that he was in the process of organizing his own specialized furniture business which he expected to be quite successful. The record indicated plaintiff was able to secure a $300,000 loan in order to begin operations. The trial court considered all of plaintiff’s assets (including a large uptown home valued at $325,000) and reached the conclusion that his ability to pay the $225.00 per week alimony had not changed sufficiently to warrant the termination of alimony. We find no manifest error in this finding.

The primary issue of our concern is whether the court of appeal was correct in finding that defendant’s equity in her home was so substantial that she was no longer entitled to alimony from plaintiff. Defendant purchased the home in the New Orleans Garden District in 1971 after her divorce from plaintiff. The house consists of three living units: a main living unit with two bedrooms where defendant resides, a rear one-bedroom apartment and a basement apartment. Defendant testified that the apartments net less than $50.00 per month after an allocation of utilities and mortgage payments is made. Because of the high desirability of the neighborhood and the increased value of real estate, defendant’s home was appraised at $133,200. The mortgage had been reduced to approximately $41,000.

In Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950), this court found that an ex-wife’s ownership of $20,000 in assets, composed of United States Government War Bonds and other interest bearing notes was sufficient to enable her to support herself without alimony. In Frederic v. Frederic, 302 So.2d 903 (La.1974), we found that $94,450 in assets, $20,700 of which was cash, belonging to the ex-wife was sufficient means for her support and alimony was not allowed. In Loyacano v. Loyacano, 358 So.2d 304 (La.1978), on rehearing, 358 So.2d 314 (La.1978), we held that the factors to be considered in making the proper determination of the amount of alimony include: the income, means and assets of each spouse; their respective financial obligations; their earning capacities; the liquidity of their assets; health and age of each spouse; time necessary to acquire education or training; restraints due to child custody; and any other relevant consideration.

In this case, defendant has no such liquid assets. Her one asset is her home. It provides reasonable, not lavish, shelter for her and one minor daughter (age seventeen) of their marriage; the other child (age nineteen) suffered brain damage at birth and lives in a special school, but occasionally occupies the home on visits. The court of appeal found that defendant’s $92,000 equity in the house was much greater than the cost of an average home and that plaintiff was not obligated to furnish her with anything beyond that which was “reasonable and necessary.” The court of appeal’s decision would force defendant to sell her home and exhaust the equity for her support until such time as she again needed to be totally dependent upon plaintiff. We do not agree.

We note that defendant has not received an increase in alimony since 1971 during which time the cost of living has increased drastically. Rather than rent a house or apartment and then make demand for increased alimony to offset increases in rent, defendant purchased a home that proved to be a very wise investment. As owner, she is not subject to rent increases and the house contains two apartments that provide a modest income to defendant that also enables her to support herself without demanding an increase in alimony. The arrangement thus works to plaintiff’s benefit.

Defendant received, in addition to the small amount of rental income, about $800.00 in 1977 in her career as a real estate agent; however, her continued illness prevented her from working full time. While defendant’s home ownership relieves plaintiff of the burden of furnishing her with shelter, the trial court found that she was still in need of alimony for other necessities; therefore, the trial court refused to terminate alimony as prayed for and continued the alimony at $225.00 per week to cover those expenses. Under the circumstances, we are unable to say that the trial court abused its discretion in reaching this result. The court of appeal erred in holding otherwise.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and set aside, and the judgment of the district court is reinstated.

LEMMON, J., recused.

      . The 1971 divorce judgment also required Mr. Sonfield to pay $40.00 per week plus other benefits as child support to Mrs. Sonfield who was awarded custody of the two children. Mr. Sonfield stated that he computed this amount to be approximately $10,300 per year. No request to reduce child support was made.

      . 377 So.2d 380 (La.App. 4th Cir. 1979).

      . 380 So.2d 93 (La.1980).

      . Since the time of trial of plaintiffs rule, La. Civ.Code art. 160 was amended by Acts 1979, No. 72, § 1, effective June 29, 1979.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Joe A. CATANESE.
    No. 66379.
    Supreme Court of Louisiana.
    June 23, 1980.

      Daniel LaGrone, Smith & LaGrone, Well-born Jack, Jr., Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., B. Woodrow Nesbitt, Ronald R. Inderbitzin, Asst. Dist. Attys., for plaintiff-appellee.
   DENNIS, Justice.

In this criminal case we are called upon to decide whether a defendant who knowingly and intelligently waived his right to a jury trial may thereafter have his right reinstated. We hold that reinstatement of a defendant’s right to a jury trial is within the court’s discretion, but where a defendant moves to reinstate his right sufficiently in advance of trial that reinstatement will not interfere with the orderly administration of the business of the court, result in undue delay or inconvenience to witnesses, or prejudice the legitimate interests of the prosecution, the trial court should exercise its discretion to afford the defendant a trial by jury. Accordingly, under the circumstances of this case, in which defendant moved to reinstate his right to a jury trial before the case had been set for trial, trial was not commenced for approximately one and one-half months after his motion was denied, and no prejudice to the state would have resulted from reinstatement, the trial court abused its discretion in denying defendant’s motion.

The defendant, Joe Catanese, was charged by bill of information with the crime of armed robbery, in violation of La. R.S. 14:64. After trial before a judge, Cat-anese was convicted of the crime charged and was sentenced to twenty-five years imprisonment at hard labor. On appeal the defendant relies upon eleven assignments of error, which comprise four arguments, for reversal of his conviction. Finding reversible error in assignments of error one through four we do not consider the defendant’s other assignments of error.

Assignments of error one through four involve defendant’s contention that the trial court erred in failing to reinstate the defendant’s right to a trial by jury. After being charged with armed robbery, Cata-nese, on June 27, 1977, waived his right to a jury trial, electing a trial before a judge alone. On August 9, 1977 the defendant moved unsuccessfully for reinstatement of his right to a jury trial. On August 19, 1977 this Court denied, for lack of a sufficient showing of abuse of judicial discretion, the defendant’s application for a writ to review the trial judge’s refusal to reinstate his right to a jury trial. On August 19, 1977 Catanese filed a motion to fix a hearing to determine the admissibility of evidence, in an attempt to introduce the results of a polygraph test. After defendant’s polygraph motion was granted by the trial court, this Court granted the state’s application for writs and ultimately reversed the trial judge’s ruling. State v. Catanese, 368 So.2d 975 (La.1979). Subsequently, the defendant filed another motion for reinstatement of his right to a jury trial. This motion, which was filed June 22, 1979, was also denied by the trial court.

The question presented to this Court is whether the defendant, who knowingly and intelligently waived a jury trial, may have his constitutional right reinstated. The right of an accused to have a trial by jury is guaranteed by Article 1, § 17 of the Louisiana Constitution, and by the Sixth Amendment, which was made applicable to the state by the Fourteenth Amendment. Except in a capital case, a defendant may knowingly and intelligently waive a trial by jury and elect to be tried by the court. La.Const. art. 1, § 17; La.C.Cr.P. art. 780. Our code of criminal procedure is silent on the subject of a defendant’s revocation of his jury trial waiver. The Official Revision Comment notes, however, that such matters are handled under the general authority of courts to regulate their business. See La.C. Cr.P. art. 780, Official Revision Comment (d). Accordingly, we conclude that an accused may have his right to a trial by jury reinstated within the sound discretion of the trial court.

In exercising his discretion to grant or deny reinstatement of a defendant’s right to a jury trial, the trial judge should balance the legitimate interests of the prosecutor and the court against the defendant’s fundamental interest in the safeguard of a trial by jury. The opinion in People v. Melton, 125 Cal.App.2d 901, 271 P.2d 962, 46 A.L.R. 914 (1954) succinctly stated the main considerations to be weighed in determining a defendant’s right to have a trial by jury reinstated:

“ * * * [Wjhere the request to withdraw the waiver of a jury trial is made sufficiently in advance of trial so as not to interfere with the orderly administration of the business of the court or to result in unnecessary delay or inconvenience to witnesses or to the prejudice of the other party to the action, the court should exercise its discretion to allow the moving party the jury trial he seeks. Certainly, when dealing with a right so fundamental as to be characterized by our Constitution as one which should ‘remain inviolate’, the court should only deny the privilege thus accorded a defendant charged with crime to a trial by his peers where some adverse consequence will flow from his change of mind.” 271 P.2d at 963-64.

See also Thomas v. Commonwealth, 218 Va. 553, 238 S.E.2d 834 (Va.1977); Staten v. State, 13 Md.App. 425, 283 A.2d 644 (1971). The court in Melton also noted that the cost to the public of a jury trial is not a factor to be considered by the trial court in exercising its discretion to deny a motion for withdrawal of a waiver of jury, “for the constitutional guarantee of a jury trial is in no way conditional upon the fact that the State must bear the cost of supplying the jury in criminal cases.” 271 P.2d at 964.

We conclude that, under the circumstances of this case, the trial court abused its discretion in denying the defendant’s motion for reinstatement of a jury trial. The defendant filed his motion for reinstatement on June 22, 1979, approximately three months prior to the commencement of the trial on September 17, 1979 and at a time when the date for the trial had not been set. There has been no showing that the granting of the defendant’s motion for reinstatement would have interfered with the administration of the business of the court, would have resulted in unnecessary delay or inconvenience to witnesses or would have prejudiced the interest of the prosecution.

For the reasons assigned the defendant’s conviction and sentence are set aside and the case is remanded for a new trial.

REVERSED AND REMANDED.

       This Court has only rarely dealt with the issue of whether a voluntary waiver of a jury trial may be revoked. In State v. Touchet, 33 La. Ann. 1154 (1881), this Court held that a defendant who waived trial by jury and was convicted of larceny had the right, upon being granted a new trial, to elect a trial by jury. Other cases considering the withdrawal issue have involved the timeliness of the attempted withdrawal of the waiver or the voluntariness of the waiver. State v. Kavanaugh, 203 La. 1, 13 So.2d 366 (1943); State v. Williams, 202 La. 374, 11 So.2d 701 (1942); State v. Robinson, 43 La.Ann. 383, 8 So. 937 (1891).


author:
DENNIS, Justice.
     MARCUS, Justice

text:
    Marjorie FONTENOT v. HANOVER INSURANCE COMPANY.
    No. 66425.
    Supreme Court of Louisiana.
    June 23, 1980.
    Christopher B. Fruge, Fruge & Vidrine, Ville Platte, for plaintiff-applicant.

      Keith M. Borne, Allen, Gooch & Bourgeois, Lafayette, for defendant-respondent.
   DENNIS, Justice.

The issue presented by this case is whether an employer or his insurer is entitled to reimbursement for medical expenses paid under the workers’ compensation statute out of his employee’s judgment against a third party tortfeasor for damages for her pain and suffering. We conclude that the court of appeal erred in requiring such a reimbursement and reverse its judgment. The underlying policy of the workers’ compensation statute provisions for apportionment of damages between employer and employee in suits against third persons merely prevents an employee’s double recovery for his injuries; it does not require an employee to reimburse out of his award for pain and suffering medical expenses which he failed to recover from a third party tortfeasor.

Plaintiff, Marjorie Fontenot, received an injury to her right hand during her employment when she tripped on an elevated portion of a sidewalk maintained by the Evangeline Parish Police Jury. She sued the jury’s liability insurer, Hanover Insurance Company, in tort. Fireman’s Fund Insurance Company, workers’ compensation insurer for Mrs. Fontenot’s employer, intervened seeking reimbursement of compensation and medical expenses paid as a result of the accident.

The trial court awarded Mrs. Fontenot judgment against Hanover, the police jury’s insurer, as follows: $30,000.00 for pain and suffering, $4,000.00 for loss of future earnings, and $5,638.17 for loss of wages. The intervenor-workers’ compensation insurer was awarded judgment against Hanover of $6,733.18 as reimbursement for payment of Mrs. Fontenot’s compensation benefits and medical expenses. All parties appealed. The court of appeal refused to alter the judgment awarded Mrs. Fontenot against Hanover, but it amended the trial court judgment to provide that the intervenor-compensation insurer shall be reimbursed in preference and priority from the judgment for all benefits and medical expenses paid to Mrs. Fontenot or in her behalf prior to the time the judgment is actually satisfied. 378 So.2d 461 (La.App. 3d Cir. 1979).

We granted Mrs. Fontenot’s application for writs to determine whether the court of appeal correctly required reimbursement of the compensation insurer for medical expenses from plaintiff’s award, which did not include recovery for that item. We also granted the writ to review the adequacy of the trial court award for loss of future earnings which was affirmed by the appeals court. After examining the record and hearing the arguments, we have decided that the court of appeal correctly disposed of the latter issue for the reasons assigned in its opinion.

The workers’ compensation statute seeks to facilitate employee and employer suits against third persons by providing essentially: (1) the payment of compensation does not affect an employee’s claim against a third person, La.R.S. 23:1101; (2) an employer may sue third persons to recover amounts paid as compensation, id.; (3) the employer or employee is obliged to give notice to the other of filing of such a suit, La.R.S. 23:1102; (4) in such a suit the claim of the employer for compensation actually paid shall be preferred. La.R.S. 23:1103.

The underlying policy of the apportionment scheme in providing that an employer’s claim for reimbursement of compensation actually paid shall take precedence is merely that the employee should not be compensated doubly for the same element of his damages. Roberson v. Fontenot Petroleum Co., Inc., 322 So.2d 287 (La. App. 1st Cir. 1975) writ refused 325 So.2d 277 (La.1976). It does not appear that the legislature intended for the employer to be reimbursed from the employee’s award for items which the employee has not recovered from the third person. See, e. g., Simmons v. Travelers Ins. Co., 295 So.2d 550 (La.App. 3d Cir. 1974) writ denied 299 So.2d 795, 796 (La.1974); Carlisle v. Employer’s Mutual of Wausau, 220 So.2d 152 (La.App. 4th Cir. 1969); Collins v. Toye Bros. Yellow Cab Co., 183 So.2d 396 (La.App. 4th Cir. 1966); Malone & Johnson, Louisiana Civil Law Treatise, Workers’ Compensation, §§ 369, 183 (1980).

Applying this statutory construction in the present case, we conclude that the court of appeal erroneously awarded reimbursement to the employer’s compensation insurer for medical expenses to be paid out of Mrs. Fontenot’s damage award for pain and suffering. Since Mrs. Fontenot was not awarded any amount for medical expenses, the compensation insurer was not entitled to enforce his right to preferential payment of this particular claim by deducting it from her recovery. Instead, the compensation insurer was entitled to judgment directly against the third person for any medical expenses not included in the award to plaintiff-employee.

Fireman’s Fund is due to be paid in preference for weekly compensation benefits already paid from the award of damages made to Mrs. Fontenot. Under La. 23:1103 the excess in damages awarded over the amount paid to Fireman’s Fund in preference is awarded to the plaintiff. When that amount is paid to her, the liability of Fireman’s Fund for compensation ceases for an equal portion of compensation due and is satisfied by that payment. While the trial judge made an award to Fireman’s Fund for reimbursement of medical expenses and weekly compensation payments already made he did not mention the credit due Fireman’s Fund for future compensation obligations as set out in La. R.S. 23:1103. Rather, the trial judge awarded Fireman’s Fund judgment against Hanover Insurance for $6,733.18 as reimbursement for payments already made of $2,913.84 for weekly compensation benefits and $3,819.34 for medical expenses. The court of appeal modified the trial court judgment and awarded Fireman’s Fund a credit for future worker’s compensation obligations against the excess of Mrs. Fonten-ot’s judgment over the amounts already paid by Fireman’s Fund in worker’s compensation obligations. In making this apportionment, however, the court of appeal assumed that the trial court award of $6,733.18 to Fireman’s Fund was to be paid from Mrs. Fontenot’s award and not in addition to it.

A determination of the total amount required to fully repair the damages caused to the plaintiff must be made before the apportionment of this amount between the employer and the plaintiff as required by La.R.S. 23:1103. However, we are unable to make a clear determination of the total amount of damages suffered by plaintiff as found by the trial judge. The record does not clearly support the court of appeal’s conclusion that the trial court found that $39,638.17 was the total amount required to fully repair Mrs. Fontenot’s damages. The record is also susceptible of the view that the trial judge found the total damages to be $46,371.35, in which case the court of appeal would have been incorrect in deducting anything from Mrs. Fontenot’s net award of $39,638.17. Accordingly, we will remand the case to the trial judge to recast the judgment in accordance with his determination of the total amount required to repair the damages caused to Mrs. Fon-tenot.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

WATSON, J., recused.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

La.R.S. 23:1103 provides that “damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent.” (Emphasis added.) In the instant case, the trial judge determined that Fireman’s Fund Insurance Company, the workmen’s compensation insurer, actually paid $6,733.18 as compensation for plaintiff’s injury. Therefore, Fireman’s Fund Insurance Company should be entitled to the first $6,733.18 recovered by plaintiff. Accordingly, I respectfully dissent.

      The Honorable Frederick Stephen Ellis participated in this decision as an Associate Justice pro tempore.

      . “Before an appellate Court can disturb a damage award, the record must clearly reveal that the trial court abused its ‘very great discretion’. Reck v. Stevens, 373 So.2d 498 (La.1979). With respect to plaintiffs earning capacity, the evidence presented clearly shows that it has been diminished to some extent. She is no longer the proficient typist that she was before her injury. Furthermore, her ability to lift and manipulate objects such as large books or ledgers is restricted. However, despite the disability in her hand and the psychological problems associated with that handicap, she is not totally disabled. She can still perform most if not all common secretarial duties. Under these circumstances, we cannot say that the trial court’s award of $4,000 for this loss is clearly an abuse of its discretion.” 378 So.2d at 464. See Wilson v. Magee, 367 So.2d 314 (La.1979); Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1977).

      . This figure of $39,638.17 is the sum of awards of $30,000 for pain and suffering and $9,638.17 for loss of past and future wages. According to the court of appeal the award by the trial court of $6,733.18 to Fireman’s Fund is included in the award of $39,638.17.

      . This is the sum of awards of $39,638.17 and $6,733.18.


author: WATSON, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Tyronne ARMSTEAD.
    No. 66041.
    Supreme Court of Louisiana.
    June 23, 1980.

      Wilfret McKee, Harris, Stampley, McKee, Bernard & Broussard, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., J. Kevin McNary, Asst. Dist. Atty., for plaintiff-appellee.
   WATSON, Justice.

Defendant, Tyronne Armstead, pled guilty to violation of LSA — R.S. 40:967 (possession of cocaine); LSA — R.S. 40:969 (possession of diazepam); and LSA — R.S. 14:95.1 (possession of a firearm by a convicted felon). On the firearm charge, Arm-stead was sentenced to 10 years, suspended, and active probation for five years. As a multiple drug offender, he was ordered to serve five years, suspended, and inactive probation for five years. As a special condition of probation, Armstead was given one year in parish prison. Defendant Arm-stead reserved the right of appeal from an adverse ruling on his motion to suppress evidence. The only issue is whether the trial court erred in denying defendant’s motion to suppress the evidence seized at a police search of his residence on December 7, 1977.

A warrant for the search of “Tyrone’s” residence at 1645 Tita Street in Algiers was issued on November 4, 1977, based on an affidavit by Officer David Peralta of the New Orleans Police Department. That warrant was never executed. The information in the November 4 affidavit and some additional facts were incorporated into another affidavit on December 7. A warrant was issued on December 7, which was executed the same day. Defendant contends that the use of the November information to obtain the December warrant was a circumvention of LSA — C.Cr.P. art. 163, which forbids execution of a warrant 10 days after it is issued, and that the information used to obtain the December 7 warrant was stale. It is also argued that the facts in the affidavit do not establish probable cause to believe that any illegal activity or contraband was present on the Armstead premises.

Since the December 7 warrant was executed on the same day there was no violation of the letter of LSA — C.Cr.P. art. 163. The purpose of the 10 day limitation is “. . .to prevent the information supporting probable cause from becoming stale.” State v. White, 368 So.2d 1000 at 1002 (La., 1979). Redating a warrant does not extend the factual basis upon which it rests. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932). Thus, a second warrant, issued after a ten day period voids the first, cannot rely solely on an affidavit pertinent to an earlier time frame. Sgro, supra, 287 U.S. 211, 53 S.Ct. 140. However, when later observation updates and confirms the initial information, the two can be considered together as a basis for a warrant. Sgro, supra, 287 U.S. 211, 53 S.Ct. 140; State v. Chaffin, 324 So.2d 369 (La., 1976), cert. denied 426 U.S. 907, 96 S.Ct. 2228, 48 L.Ed.2d 832 (1976). The criterion is not the number of days that have passed but the existence of probable cause when the warrant is issued. State v. Flood, 301 So.2d 637 (La., 1974), cert. denied 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975); Art. 1, § 5, Louisiana Constitution 1974.

The initial affidavit of November 4, identical to the first page of the December affidavit, recites that Narcotics Officer David Peralta met with a reliable, confidential informant whose information had previously led to the arrest and convictions of persons engaged in the illegal distribution of narcotics. Peralta was advised by the informant that one “Tyrone” had a quantity of white powder which he represented to be cocaine in his residence at 1645 Tita Street and a large amount of marijuana in a shed in the back yard. The informant observed several purchases of the marijuana and the white powder from Tyronne. Peralta later surveyed the residence and observed what appeared to be a sale at approximately 3:26 P.M. and also what appeared to be a sale at approximately 3:40 P.M. The police computer then confirmed that 1645 Tita Street was occupied by Tyr-onne Armstead and that Armstead was on probation for distribution of cocaine.

Additional material dated December 7 was later added to the affidavit. It recited that Officer Peralta was contacted by the same informant on December 6. Tyronne was said to be expecting a shipment at his home that night and Peralta asked Officers O’Neal and Beaudoin to set up a surveillance of the residence. One commenced at 6:30 P.M. that evening. A man inside periodically peeked through the blinds and appeared to be expecting a visitor. The two officers observed a brown paper bag handed to the occupant at 8:05 P.M. by a man in a white Chevrolet. The two remained in the house until 8:11 when the visitor left. Then, at 8:15, a taxi brought another man to the house who made what appeared to be a transaction with the occupant and left. The driver of the white Chevrolet returned at 8:25 P.M. and entered the house where he and the occupant were observed in a lighted room. When a second party arrived in a taxi, the Chevrolet driver left the room and the other man was admitted to the house. The two officers departed at 8:45 P.M.

The affiants, Officers Peralta, O’Neal and Beaudoin, attested that they believed marijuana and cocaine were being kept at the residence at 1645 Tita Street. Based on this affidavit, of December 7, a magistrate found probable cause to issue a warrant for the search of the residence for controlled dangerous substances, particularly marijuana and cocaine. While the activity reported on December 6 is, in and of itself, consistent with noncriminal behavior, it must be considered in the context of the prior drug sales. The surveillance on December 6 gave reasonable ground to believe that the drug activity previously reported was continuing. The entirety of the information established probable cause to expect illegal drugs to be found at Tyronne Arm-stead s residence, and the trial court correctly denied the motion to suppress the evidence.

The conviction and sentence of defendant are affirmed.

AFFIRMED.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The question raised by this case is whether the information taken from the initial November 4th affidavit combined with the informant’s tip and police observations of December 6th provided probable cause for a search warrant. In my opinion they did not.

As we have previously stated, “included within the general concept of probable cause is the necessary element of a reasonable belief that the contraband or evidence will not be disposed of but will remain at the place to be searched at the time of the proposed search.” State v. Boneventure, 374 So.2d 1238 (La.1979); State v. Thompson, 354 So.2d 513 (La.1978); State v. Brawley, 347 So.2d 238 (La.1977). Accordingly, it could not, on December 7th, be reasonably concluded that the unspecified amounts of cocaine and marijuana allegedly at the defendant’s home on November 4th were still there in December. Furthermore, the magistrate was not informed of any underlying circumstances from which the informant concluded that Tyronne was expecting a shipment of narcotics at his home on December 6th. Nor is there sufficient specific independent corroboration of the accuracy of the informant’s report in the affidavit. The mere fact that the officers observed on December 7th persons entering and leaving the defendant’s residence, as we have said numerous times, was as consistent with innocence as with guilt. State v. Nelson, 381 So.2d 477 (La.1979); State v. Kinnemann, 337 So.2d 441 (La.1978).


author: WATSON, Justice.

text:
    STATE of Louisiana v. Victor MARCELLO.
    No. 66732.
    Supreme Court of Louisiana.
    June 23, 1980.
    L. Howard McCurdy, Robert F. Barnard, 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., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   WATSON, Justice.

Defendant, Victor Marcello, was charged by bill of information with simple burglary of the New Orleans Public Service, Inc. (NOPSI) building at 921 Union Street. Defendant waived trial by jury and was convicted by the trial judge. The court minutes and a notation on the bill of information reflect that the conviction was for attempted simple burglary. The transcript shows that the defendant was advised by the court both at verdict and sentencing that he had been convicted of simple burglary. The problem this conflict would otherwise present is obviated by the fact that there is no evidence of the specific intent necessary for a valid conviction of either crime. LSA-R.S. 14:62; LSA-R.S. 14:27.

A verdict of guilt is justified only when the record shows that at least some evidence was before the trier of fact for each essential element of the offense. See State v. Main Motors, Inc., 383 So.2d 327 (La., 1979) and State v. Mouton, 366 So.2d 1336 (La., 1978).

The simple burglary statute states, in pertinent part, that:

“Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, . . . ” LSA-R.S. 14:62.

The defendant must have had the specific intent to commit either a felony or a theft at the time of his unauthorized entry. State v. Anderson, 343 So.2d 135 (La., 1977). The requirement of specific intent also applies to attempted simple burglary. State v. Walker, 328 So.2d 87 (La., 1976).

“Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired and prescribed criminal consequences to follow his act or his failure to act.” LSA-R.S. 14:10.

The State had to introduce at least some evidence that defendant had the active desire to commit a felony or theft in the NOPSI building.

Marcello testified that he had entered the building to clean up before looking for employment that evening. He had been sleeping in an air conditioning unit on the roof and had climbed down a ladder to enter the third floor ladies’ restroom. Mar-cello washed with soap and water in the lavatory. Then, wiping his face with a wet paper towel, he entered the hallway from the restroom. He was immediately spotted by porter Kevin Smith who had heard the sound of running water. Marcello ran back into the restroom, climbed out the window, and jumped four feet across into an adjacent parking garage. Police found, chased and arrested him in the garage. Porter Smith, who had cleaned the restroom earlier in the evening, found “a lot of dirt” left there (Tr.7).

None of the direct or circumstantial evidence shows that defendant had a specific intent to commit theft or any other felony. His entry into the third floor hallway from the restroom is consistent with his statement that he was looking for an easier exit. No property was reported missing. Marcel-lo took nothing from NOPSI except some soap and a paper towel. Compare State v. Anderson, supra, where Anderson was apprehended with stolen property. Marcello had no burglary tools. His flight does not necessarily show guilty intent to commit theft or a felony under these circumstances. Marcello may have run merely because he was not authorized to be on the NOPSI premises and had past convictions for “sleeping in public places” (Tr.17). His activity in the building negates any implication that he intended the offense charged.

Because the State failed to present any evidence of an essential element of the offense, the evidence is not sufficient to support the conviction. Double jeopardy has attached, and Marcello must be acquitted. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Thompson, 366 So.2d 1291 (La., 1978).

The defendant’s conviction and sentence are reversed.

REVERSED.