author:
MARVIN, Justice Ad Hoc.
     LEMMON, Justice. DIXON, Chief Justice CALOGERO, Justice,

text:
    STATE of Louisiana v. James Louis HUMPHREY.
    No. 80-KA-2414.
    Supreme Court of Louisiana.
    July 2, 1981.
    On Rehearing March 12, 1982.
    Rehearing Denied April 30, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., L. K. Knapp, Jr., Dist. Atty., Robert R. Bryant, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Richard P. Ieyoub, of Baggett, McCall, Singleton, Ranier & Ieyoub, Thomas L. Lor-enzi, Lake Charles, for defendant-appellant.
   MARVIN, Justice Ad Hoc.

Defendant was convicted on circumstantial evidence of two counts of manslaughter (La.R.S. 14:31(2)(a)) and appeals his conviction and his sentences of 15 years at hard labor consecutively on each count. We affirm the conviction but vacate the sentence and remand to allow the trial judge to recite the factual basis for sentence in accord with CCrP 894.1. State v. Fields, 394 So.2d 597 (La.1981). Defendant makes 9 arguments on 15 assignments of error.

THE FACTS

Viewed in the light most favorable to the prosecution and from the viewpoint of a rational trier of fact applying the reasonable doubt standard, the evidence shows that the defendant lived in Lake Charles in a common law relationship with Mona Brouchet, the mother of his two children, who were the homicide victims. One child, Janice, was 22 months old, and the other, Latasha, was 9 months old, at the time of their deaths.

The mother fed the children and left them at the family home with the defendant father about 6:00 p. m. on Friday, April 28, 1978. A seven-year-old neighbor, Joseph Breaux, saw the 22-month-old child alive shortly after the mother left to visit relatives of the defendant where she remained until about 11:00 p. m. Defendant’s sister, Della Lane, did not enter the house but came to the front door about 9:00 p. m. and saw the defendant, apparently sleeping on the bed with the children and lying partially on Latasha. The defendant left the home for several minutes sometime after 10:00 p. m. and told a male friend (Howard) in a park about two blocks away that Mona had done “something bad, bad, bad” to the children and that defendant was “afraid” that he might be going to jail for it. The defendant and his friend returned to defendant’s home shortly before Mona returned around 11:00 p. m. These three adults played cards without anyone mentioning the welfare of the children. Mona, however, did check on the children, who appeared to be just sleeping, to see if they were wet or had fever. Defendant’s friend departed after midnight and defendant and Mona then went to sleep.

Defendant and Mona awakened about 8:00 a. m. Defendant told Mona that he would go to the store for her and that she should stay at home and “clean up” the children. Mona then discovered the lifelessness of the children and, at defendant’s instruction, summoned assistance.

Other evidence showed that defendant had previous convictions for such things as drunkenness and aggravated battery and that in Mona’s presence during the early morning hours of April 25 the defendant slapped Janice about her head, waked up Latasha and began beating Latasha about her face. Mona attempted to stop defendant and then went to a neighbor’s home to report this conduct to the police. Mona and another neighbor, Irene Brooks, thereafter saw bruises about Latasha’s face and eyes.

Defendant’s version of the events of April 28-29 was that he came home about 8:00 p. m. on April 28 to find the children in bed and Mona watching television. According to defendant, Mona left the house shortly after he arrived and he then took a nap on the bed with the children until about 11:00 p. m. Defendant said when he awoke and noticed that the children were lying still and not breathing, he then got scared and went to the nearby park where he met Howard, whose testimony is summarized above.

The deputy coroner, accepted as an expert pathologist, testified that he had performed an autopsy on each of the victims to determine the cause and the time of the deaths. Because of the conditions of their bodies, the contents of their stomachs, and his observation and tests, the deputy coroner’s professional opinion was that each child had died about the same time from the injuries received and that death could have occurred as early as 3:00 p. m. on April 28 or as late as 3:00 a. m. on April 29 and within one to two hours after the children received their respective injuries. Latasha died of bruises and swelling to the head and brain. Janice died of a broken neck. The injuries to both were inflicted by the use of force upon their bodies. The deputy coroner’s examination revealed other bruises to each body, and a crushing injury and resulting fractures of Latasha’s ribs. The deputy coroner also testified that his examination revealed that Latasha’s femur had been fractured at an earlier time, longer than one month before her death.

ASSIGNMENT OF ERROR NO. 3

On motion of the State, the trial court allowed the District Attorney to amend before trial, the Grand Jury indictment from 2d degree murder to manslaughter. Even if defendant had objected to the amendment, the court’s allowing the amendment was not error as defendant contends. CCrP 487, State v. Sheppard, 350 So.2d 615, 627, fn. 1 (La.1977). See also CCrP 841.

ASSIGNMENT OF ERROR NO. 4

Defendant objected to the admissibility of the mother’s testimony in chief of the defendant’s battery upon the children on April 25, 1978. The State gave defendant notice of its intent to use this evidence to prove that the April 28, 1978, battery was intentional. This court’s decision on defendant’s writ application, State v. Humphrey, 381 So.2d 813 (La.1980), does not preclude further review on appeal of the merits of defendant’s argument of inadmissibility under State v. Hatcher, 372 So.2d 1024 (La.1979).

The deputy coroner’s testimony does not show that any injuries earlier than about 2:00 p. m. on April 28, 1978, contributed to the respective cause of death of the children. The deputy coroner’s testimony does show, however, that the respective injuries that caused death were inflicted by the use of force upon the children by another person.

In the notice to defendant to use evidence of the battery of April 25,1978, on the children, as required by Prieur [277 So.2d 126 (La.1973)] and its progeny, the State said its purpose in offering that evidence was to show that defendant’s alleged battery of April 28, 1978, on the children was intentional. Defendant argues that a CCr 31(2)(a) manslaughter does not contain the element of intent, that “proof of the act of battery is proof of both the crime and the general criminal intent required”, that intent was not a contested issue at the trial, and that evidence of the alleged April 25, 1978, batteries was too prejudicial to have been admitted under any justification.

Intent, if an element of the crime charged, is always a contested issue at a trial because the plea of not guilty requires the State to prove beyond a reasonable doubt that defendant committed every element of the crime. Art. 1, § 16, La. Constn., LRS 15:271.

Criminal intent relates not to the conduct, usually an act which must be committed voluntarily under Art. 8, but to the consequences of that conduct under Art. 9. See and compare CCr Arts. 8-11, and Comments thereunder.

The words act and intent have acquired generally accepted meanings in tort as well as in criminal law.

“The meaning of ‘intent’ is that the person who acts either (1) consciously desires the physical result of his act [‘actively desires’ is the language of La.Cr.C. Art. 10(1)] ... or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. [‘Reasonably certain to result’ is the language of La. Cr.C. Art. 10(2).] Thus, intent has reference to the consequences of an act rather than to the act itself. Restatement (Second) of Torts .. . LaFave and Scott, Criminal Law ... see also, Prosser . ..
“Our criminal and civil codes manifest legislative acceptance of these received meanings of ‘act’ and ‘intent.’ As the criminal code articles and reporter’s comments make clear, ‘act’ refers to an external manifestation of will which must be voluntary, and ‘intent’ is present whenever the offender either [actively] desires the consequences of his act or when he knew that the consequences were reasonably certain to result from his act. La. R.S. 14:8, 10 and Reporter’s Comments.” Bazley v. Tortorich, 397 So.2d 475, 481 (La.1981) Emphasis supplied. Bracketed material supplied.

Intent, as an element of crimes relating to the consequences of an act, may be general or specific. CCr 10. In absence of qualifying provisions, the term intentional in the criminal code has reference to only general criminal intent.

“The definitions of some crimes require a specific criminal intent, while in others no intent is required. Some crimes consist merely of criminal negligence that produces criminal consequences. However, in the absence of qualifying provisions, the terms ‘intent’ and ‘intentional’ have reference to ‘general criminal intent.’ ” CCr Art. 11

A homicide that is committed under circumstances which indicate that the offender actively desired his conduct to result in the consequences of either death or great bodily harm is either a Murder I (Art. 30), a Murder II (Art. 30.1), or an Art. 31(1) Manslaughter, all of which crimes contain the element of specific intent because of the qualifying provisions of these articles relating to intent. Art. 11, Art. 10(2).

A 31(2) manslaughter expressly does not require the element of specific intent to kill or inflict great bodily harm.

“Manslaughter is:
* * * * * *
“(2) A homicide committed, without any intent to cause death or great bodily harm [:]
“(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemean- or directly affecting the person ...” CCr 31(2)(a) Emphasis supplied.

While the term intentional misdemeanor directly affecting the person is not defined in the Criminal Code, it is obvious that the Code requires that a 31(2)(a) manslaughter occur during the perpetration of an intentional misdemeanor, the consequences of which directly affect the person of another (the general intent of Art. 10(2)).

Battery is defined in the code:

“Battery is the intentional use of force or violence upon the person of another; or the intentional administration of. a poison or other noxious liquid or substance to another.” CCr Art. 33
“Simple battery is a battery committed without the consent of the victim ...” CCr 35

It is axiomatic that within the manslaughter context and within the fair import of the term intentional misdemeanor directly affecting the person, battery is one of intentional misdemeanors out of which a homicide (the consequences of force or violence upon another) might arise.

General criminal intent is a state of mind element and exists

“... whenever there is specific intent, and also when the circumstances indicate ..., in the ordinary course of human experience, ... the prescribed criminal consequences [were] reasonably certain to result from [the offender’s] act ...” Art. 10(2). See Bazley v. Tortorich, supra.

Under Art. 9, criminal consequences are those consequences prescribed in the code as necessary to constitute the particular crime defined. Here the particular crime is a 31(2)(a) manslaughter, a homicide committed when the offender is engaged in the perpetration of a simple battery, an intentional misdemeanor directly affecting the person. The crime of simple battery contains the element of general intent. Art. 10(2), Arts. 33, 35. In this respect the State is required to prove the act (that the defendant used force or violence upon the person of another) and the consequences of that act (that in the ordinary course of human experience, the result of that act, a direct affect upon the person of another, was reasonably certain under the circumstances). Even though the offender did not actively desire these consequences (the specific intent of Art. 10(1)), the jury, as instructed and in order to convict, must find that the circumstances indicate that these consequences, in the ordinary course of human experience, were reasonably certain to result from the offender’s conduct (the general intent of Art. 10(2)). To use the Bazley v. Tortorich language, which tracks CCr Arts. 10 and 11,

“... [general] intent is present whenever the offender either [actively] desires the consequences of his act or when he knew [or in the ordinary course of human experience, should have known] that the consequences were reasonably certain to result from his act.” Bazley, supra, at p. 481. Bracketed material supplied.

In this respect, the term intentional misdemeanor directly affecting the person in Art. 31(2)(a) contains the element of general criminal intent. State v. Brumfield, 329 So.2d 181 (La.1976) is not inapposite because this court’s perhaps overbroad observation there that some felony and misdemeanor manslaughters are committed upon proof that the accused voluntarily did the act, was made in response to the prosecutor’s somewhat incorrect argument to the jury of the law applicable to verdicts responsive to a charge of 2d degree murder. This court noted that some crimes which may reduce 2d degree murder to manslaughter do not require specific intent. The issue, squarely presented here and decided affirmatively, is that general criminal intent is an element of a manslaughter which is committed when the offender is engaged in the perpetration of an intentional misdemeanor directly affecting the person.

The issue presented under this assignment is whether the extraneous crime evidence of April 25 is admissible as tending to prove the element of general criminal intent, that the consequences having a direct affect upon the person of each victim were reasonably certain to result from the defendant’s use of force upon each victim on April 28, 1978.

State v. Hatcher, supra, at p. 1033, citations of authority omitted, set forth the circumstances under which extraneous crimes evidence may be admitted:

“This Court has held to be admissible, for limited purposes, proof of other crimes exhibiting almost the identical mo-dus operandi or system, committed in close proximity in time and place . ..
“In order to be admissible the extraneous offense evidence must meet several tests: (1) there must be clear and convincing evidence of the commission of the other crimes and the defendant’s connection therewith; ... (2) the modus operan-di employed by the defendant in both the charged and the uncharged offenses must be so peculiarly distinctive that one must logically say they are the work of the same person; ... (3) the other crimes evidence must be substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character ... (4) the other crimes evidence must tend to prove a material fact genuinely at issue; ... (5) the probative value of the extraneous crimes evidence must outweigh its prejudicial effect ...”

While the testimony of the policeman (Sweeney) who was called to the defendant’s home on April 25, did not corroborate the mother’s testimony that defendant had hit and bruised the children on April 25, her testimony was supported by the witness, Irene Brooks, who stated that she saw bruises on the children the next day. Essentially, the policeman (Sweeney) testified that Mona, the mother, told him after he arrived that the children were all right and he observed that the children in the bedroom of defendant’s home appeared normal. Mona’s testimony was also supported in part by the testimony of a neighbor (Ethel Geyen) whose telephone Mona used to call the police. Additionally, the jury heard testimony of witnesses about visibility in the home provided by only two electric lights and a television screen. While the testimony of the extraneous crime evidence might not have met the test of reasonable doubt, we cannot say that the trial court erred in finding that evidence clear and convincing, the first of the several tests of Hatcher.

The second test of Hatcher is also met because in the alleged incident of April 25, according to Mona, the defendant hit and bruised the children and it is shown here that Latasha died of the bruises and resulting swelling to her head that were inflicted on April 28. Because the evidence of the April 28 manslaughters is circumstantial, the corollary question under Hatcher of whether it is “logical” to say that the two crimes are the work of the same person is answered under defendant’s assignment of error No. 13 that the circumstantial evidence presented did not exclude every reasonable hypothesis of innocence. LRS 15:438.

The third and fourth tests of Hatcher are met because the element of general criminal intent is genuinely at issue in this circumstantial evidence case. Upholding admissibility of extraneous crimes evidence of a design or system to show intent, Hatcher observed:

“It may be argued that proof of a design, plan, system or scheme is completely foreclosed except where continuity of the offense, knowledge or intent is a material issue in the case. La.R.S. 15:446 provides that ‘where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.’ However, it appears more likely that the legislature intended to prohibit the introduction of evidence of a design or scheme in cases in which the evidence has no substantial relevance other than to demonstrate criminal propensity. Since the occurrence of a crime is not genuinely at issue in most prosecutions, evidence of design, plan, system or scheme usually will be inadmissible except to show knowledge and intent. But in the few cases in which the actual occurrence of crime is genuinely at issue, the design evidence has relevance independent of the defendant’s propensity and should be admitted if it meets all of the other tests. In accord with general authority, Louisiana courts have admitted other crimes evidence for purposes other than those listed in the statutes. See, State v. Sutfield, 354 So.2d 1334 (La.1978).” 372 So.2d at p. 1035. Emphasis supplied where underlined.

In some crimes intent is not a real and genuine issue. See State v. Herman, 358 So.2d 1282 (La.1978), where other crimes evidence was held not admissible to prove intent or guilty knowledge in an armed robbery prosecution because proof of the robbery itself was found to be proof of intent and knowledge needed to commit the robbery. The element of force or intimidation in a robbery (Arts. 64, 65) is not qualified by the word intentional as that word qualifies either the misdemeanor directly affecting the person in Art. 31 or the force or violence in Arts. 33, 35. The statutory language is generally in accord with the pronouncements of the cases considering the issue.

“When ... intent forms an essential part of the inquiry, testimony may be offered of [the accused’s] ... acts ... as tend to establish such ... intent ...” LRS 15:446, in part. Emphasis supplied.

This court has consistently recognized that while unrelated criminal activity of a defendant may not be used to show his present guilt, the commission of similar offenses may be admissible under Prieur guidelines for the purpose of showing intent where intent is an element of the crime charged. See Hatcher, supra, and authorities cited therein; State v. Harris, 383 So.2d 1 (La.1980); LRS 15:445, 446.

We have determined that the element of general criminal intent (that the homicide occurred during the perpetration of an intentional misdemeanor directly affecting the person of each child) is present in the circumstances of this charge. Under Art. 1, § 16, La.Constn. and LRS 15:271, the State must prove this element beyond a reasonable doubt. The trial court did not err in determining that defendant’s intentional use of force upon these children on April 25 was sufficiently probative as tending to establish the material fact that defendant’s use of force upon these same children on April 28 was intentional and as outweighing the prejudicial effect of admitting the April 25 incident under proper instructions. See Harris, supra, at p. 8.

ASSIGNMENTS OF ERROR NOS. 5 AND 8

Defendant complains that the admissibility of eight color photographs was error because their probative value did not outweigh their alleged prejudicial effect. Other photographs in black and white show the position of the bodies of the children in the home. The color photographs essentially show, in different poses, the head and shoulders of each child. A close examination of these photographs also reveals the apparent bruises. The photographs do not show distorted facial features, blood, or lacerations, and we find them not gruesome or inflammatory and not likely to have overwhelmed the reason of the jury toward a conviction without sufficient evidence. Under these circumstances we find no error. State v. Gilmore, 332 So.2d 789 (La.1976); State v. Vernon, 385 So.2d 200 (La.1980).

ASSIGNMENT OF ERROR NO. 9

The trial court did not err, as defendant contends, in allowing, over his objection of irrelevancy, the deputy coroner to testify that the autopsy revealed that Latasha had a femur broken more than a month before her death. The broken femur was a condition of the body when the doctor made his examination. The doctor did not attempt to show how the fracture occurred, but testified only to .its existence and the fact that it did not contribute to the cause of death and occurred before the battery of April 25 or April 28. Much discretion is afforded the trial court in determining issues of relevancy. Error in determining the issue is not fatal unless defendant demonstrates prejudice. State v. Johnson, 343 So.2d 155 (La.1977).

ASSIGNMENT OF ERROR NO. 10

It was not error, as defendant contends, for the court to find the child witness, Joseph Breaux, competent to testify. Understanding, and not age, is the test of competency. LRS 15:469. Joseph was seven years old when the crime occurred and nine years old when he testified. The trial court questioned and observed the child at length to test the sufficiency of his understanding of the oath, the trial, and of his ability to recall the events about which he testified. A child’s sometimes hesitant answers do not necessarily indicate incompetency. The determination of the trial judge that a child witness is competent is based not only upon the child’s answers to questions testing his understanding, but is also based on the child’s overall demeanor on the witness stand, and is entitled to great weight. State v. Thompson, 364 So.2d 908 (La.1978).

ASSIGNMENT OF ERROR NO. 11

In this assignment, the defense witness Franklin “Frankie” Jenkins testified that he knew the parents, the children, and the State’s witness, Della Lane, and that “about three years ago”, before the birth of Latasha, he saw Della Lane “beat” the older child, Janice. Frankie Jenkins’ testimony thereafter was excluded as irrelevant by the trial court, but is in the record by proffer. The excluded testimony is to this effect: that Della Lane slapped the baby (Janice) and Janice fell off her feet and cried, and that Della disliked children and had pinched other young children. Defendant contends that the trial court erred in excluding the proffered evidence.

It is the trial judge’s responsibility to determine admissibility related to issues of relevancy, to issues of collateral impeachment, and to issues of remote circumstances that may tend to shed light upon the ultimate issue (reasonable hypothesis of innocence) in a circumstantial evidence case. See LRS 15:441, 492, 494; State v. Martin, 310 So.2d 544 (La.1975); State v. Cappo, 345 So.2d 443 (La.1977); State v. Jackson, 153 La. 517, 96 So. 53 (1923). The trial judge necessarily has some discretion in these areas and if error is committed and this court finds, beyond a reasonable doubt, that the error was harmless error in the light of the total circumstances, the defendant’s conviction will not be overturned. See State v. Gibson, 391 So.2d 421 (La.1980); State v. Spell, 399 So.2d 551 (La.1981).

Conceding error arguendo, in that the proffered evidence should have been admitted, we find that because Frankie Jenkins was allowed to testify to the crucial fact that Della Lane beat the child some three years earlier, the assumed error, we find beyond a reasonable doubt, was essentially harmless. State v. Gibson, supra. The testimony that was admitted (that Della Lane beat the child) is stronger than the testimony proffered (that Della Lane slapped the child off her feet). A beating more often implies the use of the fist or of a paddle or stick, while a slapping always implies the use of an open hand. Even though Della Lane went to the front door of the defendant’s home about 9:00 p. m. on April 28, the defendant was present at that time, Della Lane did not enter the home, it is incredible to deduce that Della Lane could have beaten the children to death on the same bed as defendant was sleeping without him knowing it. Defendant’s version to Howard on the night in question, blamed Mona, the mother, and not Della Lane. In any event, the jury heard the testimony that Della Lane beat the child, Janice, some three years earlier, and the exclusion of any further elaboration upon that testimony, if error, we find was harmless beyond a reasonable doubt.

ASSIGNMENTS OF ERROR NOS. 12 and 14

In State v. Catanese, 368 So.2d 975 (La.1979), this court held that polygraph evidence may be admitted in post conviction proceedings, within the discretion and guidelines of the trial judge wherever the evidence is reliable and will aid in the decision. In the light of this holding, defendant contends the trial court erred in denying his motion that he be administered a polygraph examination and in denying defendant’s later proffer of the evidence of his polygraph examination made at his own expense.

The trial judge denied the first motion, reasoning that Catanese afforded him discretion and did not sanction the removal of a convicted felon from the place of incarceration to an “appropriate testing place.” The trial judge concluded his reasoning by commenting that the defendant was not precluded from having a polygraph examination performed later at his own expense and “If that [a polygraph] comes about in the future, then, of course, the court would entertain another motion at that time.” The trial judge then denied defendant’s motion for a new trial and sentenced defendant, without defendant requesting a delay or continuance. CCrP 853 provides that

“A motion for a new trial must be filed and disposed of before sentence. The court, on motion of the defendant and for good cause shown, may postpone the imposition of sentence for a specified period in order to give the defendant additional time to prepare and file a mótion for a new trial.
“When the motion for a new trial is based on ground (3) of Article 851, the motion may be filed within one year after verdict or judgment of the trial court, although a sentence has been imposed or a motion for a new trial has been previously filed; but if an appeal is pending the court may hear the motion only on remand of the case.”

Defendant’s motion with respect to the polygraph examination presents nothing in the way of “new and material evidence [which] ... if ... introduced ... would probably have changed the verdict ...” as provided in CCrP 851(3). When the trial judge was not available on the last day for filing of the appeal, defendant requested another district judge to hear and pass on his motion proffering the polygraph examination. Defendant sought to have the proffered examination admitted as a supplement to the record for review by this court of the trial court’s denial of the motion for a new trial. The district judge hearing the proffer motion denied the proffer. Defendant could have sought a delay or continuance of the sentence (additional time in which to file his motion for a new trial). See CCrP 853; State v. Williams, 370 So.2d 516 (La.1979); State v. O’Quinn, 342 So.2d 202 (La.1977). A second motion for a new trial, after sentence, in these circumstances, however, would have been procedurally improper. CCrP 853. Assignments 12 and 14 of themselves do not present reversible error.

However, since we are remanding for sentencing under defendant’s Assignment No. 15, in the interest of justice and because defense counsel may have been somewhat misled by the trial judge’s statement that he would “... entertain another motion at that time [the time the results of the polygraph became available] ... ”, we shall direct on remand that the trial judge consider the proffered evidence in light of defendant’s prior motion for a new trial and again pass upon defendant’s motion for a new trial before resentencing. See State v. Hillard, 398 So.2d 1057 (La.1981).

ASSIGNMENT OF ERROR NO. 13

Defendant argues that the trial court erred in denying his motion for a new trial on the grounds that the evidence did not exclude every reasonable hypothesis of innocence. This court has most recently summarized the circumstantial evidence rule:

“Regarding circumstantial evidence, R.S. 15:438 sets forth the rule that, in order to convict, the evidence must exclude every reasonable hypothesis of innocence. Under Jackson [v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)] the evidence is viewed in the light most favorable to the prosecution and from the viewpoint of a rational trier of fact. Therefore, when we review a conviction based upon circumstantial evidence we must determine that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded.” State v. Austin, 399 So.2d 158 (La.1981).

Defendant’s principal thrust in this assignment is that the hypothesis is reasonable that the mother, Mona, killed the children and that the child, Joseph Breaux, could be mistaken as to when he saw the children alive after Mona left the home. Under the circumstantial evidence rule, above quoted, we must view all of the circumstances in the light most favorable to the prosecution and as a rational trier of fact and determine beyond a reasonable doubt whether a rational trier of fact could conclude that every reasonable hypothesis of innocence has been excluded.

The testimony of Joseph Breaux corroborates Mona’s testimony that the children were alive when Mona left the children at home about 6:00 p. m. with the defendant. Joseph Breaux’s testimony also corroborates Della Lane’s testimony that she went only to the front door of the home about 9:00 p. m. that night. Defendant noticed that the children were not breathing before Mona was transported to her home by defendant’s relatives. If either Mona or Della Lane killed the children, it occurred at a time when defendant was present.

If the jury believed the State’s witnesses, as they had every right to do, as to the facts about which they testified, the reasonable inference that defendant killed these children logically follows, a rational trier of fact could conclude that every other reasonable hypothesis had been excluded. The evidence need not exclude every other possible theory. Austin, supra. It is possible that someone other than defendant could have killed these children while defendant was sleeping or while he was away from the house with Howard. This possible hypothesis was and is argued, but the jury rejected that hypothesis as not being a reasonable hypothesis, as we do, because it strains at credulity and defies logic and reason to accept that the children could be killed in a small, almost one-room house without defendant’s knowing of the killing or that during defendant’s absence, someone (not Mona, who was with defendant’s relatives) entered the home to commit the crime. This hypothesis is also illogical in the light of defendant’s version to his friend, Howard, and his declaration the next morning to Mona.

We conclude that a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded by the evidence presented. Austin, supra.

ASSIGNMENT OF ERROR NO. 15

We find merit in defendant’s contention that the trial court erred in the sentencing procedure. Art. 1, § 20, La. Constn.; CCrP 894.1. The trial court, in sentencing defendant to serve 15 years consecutively at hard labor on each count of manslaughter, stated:

“In sentencing you, the Court has considered the guidelines set forth in Article 894.1 of the Louisiana Code of Criminal Procedure, and having heard the evidence in this case, it is felt that you need custodial care at this time; and to give you a lesser sentence would deprecate the seriousness of the crime in this instance.”

The mere recitation of one or more factors set forth in the statute, without a statement of the particular considerations made and the factual bases for imposing sentence, does not satisfy Art. 894.1. State v. Fields, 394 So.2d 597 (La.1981). See also State v. Underwood, 353 So.2d 1013 (La.1977).

CONCLUSION

Defendant’s conviction is conditionally affirmed pending disposition on remand of the trial court’s consideration of the proffered evidence of the polygraph examination and ruling on the motion for a new trial, which shall be accomplished before resentencing. The sentence is vacated and the case is remanded for further disposition and resentencing in a manner not inconsistent with this opinion.

REMANDED.

LEMMON, J., concurs.

DENNIS, J., dissents, believing that the other crimes evidence was improperly admitted.

ON REHEARING

LEMMON, Justice.

We granted a rehearing to reconsider the reasoning and the validity of our initial determination regarding the admissibility of evidence of defendant’s prior beating of the two manslaughter victims.

I.

The evidence, viewed in the light most favorable to the prosecution, established that defendant’s “common law wife” left her two children in defendant’s care at 6:00 p. m. on April 28, 1978 and returned home around 11:00 p. m., at which time she observed the children in bed, but did not attempt to wake them until the following morning, when she discovered that they were dead.

The coroner’s autopsy revealed that both children had died as a result of a vicious beating administered during the afternoon or evening hours of April 28 or the early morning hours of April 29. The circumstances clearly indicated that the children were brutally beaten and died during the same evening they were left in defendant’s care.

Prior to trial, the prosecutor filed a Pri-eur notice advising defendant of his intention to introduce evidence that defendant assaulted both victims in the presence of their mother on April 25, less than four days before the attack which resulted in their deaths. See State v. Prieur, 277 So.2d 126 (La.1973). The prosecutor also sought to introduce evidence of a June, 1977 incident involving defendant and the same two victims. The prosecutor asserted the evidence was admissible “to show that the defendant possessed the requisite intent to perpetrate an intentional misdemeanor directly affecting the person [simple battery] at the time of the offense charged....”

Defendant objected to the sufficiency of the notice and to the admissibility of the evidence of the two prior incidents. The trial court overruled the objection and clearly signalled an intent to permit the state to offer evidence of both incidents. This court granted defendant’s application for a pretrial determination of the admissibility of the prior crimes evidence and held that evidence of the April 25, 1978 incident was admissible, but ordered evidence of the June, 1977 incident excluded as “too remote”. State v. Humphrey, 381 So.2d at 813, 815 (La.1980). At trial the judge accordingly admitted evidence of the April 25 incident, and defendant was convicted of manslaughter.

II.

Generally, evidence of other crimes is inadmissible when the only purpose is to prove disposition to commit crime. The evidence is excluded when offered to show such a disposition, not because the defendant’s disposition is irrelevant, but because the great prejudicial effect outweighs the slight probative value as to the defendant’s guilt of the charged crime. However, when the evidence is offered to prove some other issue which has more than marginal relevance, the rule of exclusion is simply inapplicable, and the test of admissibility is then one of weighing probative value against prejudicial effect. The underlying policy is not to prevent prejudice (since evidence of other crimes is always prejudicial), but to protect against unfair prejudice when the evidence is only marginally relevant to the determination of guilt of the charged crime. See generally C. McCormick, Evidence § 190 (Cleary ed. 1972).

In Louisiana, R.S. 15:481’s prohibition against the use of evidence of defendant’s bad character effectively excludes the use of evidence of other crimes except as proof of some independently relevant and material issue other than defendant’s criminal propensity. R.S. 15:445 authorizes the use of similar independent acts to prove intent as to the charged offense. R.S. 15:446 authorizes the use of such acts, conduct or declarations as tend to establish knowledge or intent as an essential part of the inquiry, as well as the use of similar offenses to prove the continuity of the offense which is one of a system or to show guilty knowledge and intent, but not to prove the offense charged. R.S. 15:447 and 448 further provide that whatever is any part of the res gestae is always admissible, thus permitting evidence of other crimes which are necessary incidents or immediate concomitants of the charged crime or are part of a continuous transaction.

Judicial decisions have recognized additional purposes for which evidence of other crimes may be introduced. Such evidence has been admitted to prove motive, when that factor is a relevant and material issue. State v. Brown, 398 So.2d 1381 (La.1981). Evidence of other crimes has also been admitted to prove the identity of the perpetrator in the charged crime, when the other crimes are so-called “signature crimes” or are so nearly identical in method as to weigh substantially on the proof of identity in the charged crime. See State v. Prieur, above; State v. Moore, 278 So.2d 781 (La.1972); State v. Hatcher, 372 So.2d 1024 (La.1979); and State v. Davis, 389 So.2d 71 (La.1980).

Because of the highly prejudicial nature of evidence of other crimes, this court has consistently excluded such evidence when there is only marginal relevance to the matter on trial, concluding that the prejudicial effect outweighs the probative value. However, in those situations in which the evidence of other crimes is highly relevant to the determination of a particular issue bearing on guilt or innocence of the defendant as to the crime on trial, such evidence is allowed because its independent relevancy to a material issue (other than defendant’s bad character) is of such a high degree that its probative value outweighs the prejudicial effect. See State v. Hatcher, above, and the cases discussed therein.

Thus, the standard for determining admissibility involves a balancing test, and the standard is therefore difficult to define narrowly or precisely, because it is essentially explainable only in traditional terms of balancing probative value against prejudice. See State v. Moore, above. Clearly, such a determination of admissibility must, as noted in Moore, be made in accordance with general principles of relevancy, keeping in mind the highly prejudicial nature of such evidence. See footnote 2 in State v. Goza, 408 So.2d 1349 (La.1982).

III.

Our initial pretrial decision was based on the theories that the prior instance of child abuse (1) was “distinctively similar” and therefore admissible to show a system of beatings and (2) was “part of the res gestae showing the cause of death”. However, on original hearing in this appeal after the conviction, the court decided that evidence of the prior incident was admissible to prove that defendant acted with general criminal intent, an element of misdemeanor manslaughter (a battery resulting in an unintended homicide).

The evidence of other crimes in the present case did not form part of the res gestae of the charged crime. See, for example, State v. Brown, 340 So.2d 1306 (La.1976). The incident occurred four days before the crime and was not an immediate concomitant of it. Neither can the prior incident reasonably be characterized as part of the same transaction, as no one suggests that the beating four days prior to the deaths was at all causally related as the medical cause of the death of the victims.

Furthermore, the disputed evidence is not admissible under R.S. 15:446 for the purpose of proving the continuity of the offense where the crime is one of a system. This case does not involve a continuing scheme or plan which encompasses two or more related crimes. There is no suggestion that the infliction on healthy children of a beating that resulted in bruises, four days before a second beating that resulted in death, was part of a larger plan or a conspiracy of any kind.

Finally, the evidence of the earlier beating was not admissible for the purpose of proving intent, within the contemplation of R.S. 15:446. In the present case, there was no real issue of whether defendant acted with general criminal intent, since there is no suggestion that the person who committed the battery resulting in the homicide did not clearly intend to use force or violence upon the person of the children. See R.S. 14:33. Manslaughter, as charged here, is an unintended killing resulting from a battery. The truly crucial issue in this case was the identity of the person who beat the children to death, and the entire defense was oriented toward the contention that this defendant did not commit the crime. There is no contention that although his beating killed them, his use of force against the children either was accidental or was the reasonable, privileged use of force to discipline minors. See R.S. 14:18(4).

We nevertheless conclude, for reasons different from those previously expressed, that the evidence of other crimes was admissible in this case because (1) the evidence was highly relevant to the material issue of identity and (2) the probative value outweighed the prejudicial effect, under the particular facts and circumstances of this case.

IV.

The crucial issue in this case, as stated earlier, was the identity of the person who committed the homicide. Prior decisions have allowed the admission of evidence of an earlier crime when both crimes are so-called “signature crimes” or are so unique or distinctively similar in method as to justify the conclusion that both crimes were committed by the same person. These decisions have justified the admission for the purpose of proving the identity of the perpetrator of the charged crime. Conceding that the purpose of proving who committed the charged crime is the “bottom line” purpose for offering virtually all of the evidence in a criminal trial, we nevertheless hold that the evidence was admissible to prove identity under the particular facts and circumstances of this case.

The determination of distinctive similarity or uniqueness is not dispositive of admissibility in a mechanical sense. More appropriately, such matters should ultimately be considered more as factors in the process of determining the probative value of the evidence, to be eventually weighed against prejudicial effect, than for the purpose of fitting the evidence into one of the pigeonholes of admissibility fashioned by prior jurisprudence. Easy categorization is not always available, and admissibility should not be determined solely on the basis of pigeonholing or categorizing, but rather on the basis of weighing the degree of relevance of the evidence under the particular circumstances (and the corresponding probative value) against the prejudicial effect.

This case represents a situation in which categorization is difficult. However, the prior beating of the victims, while not so distinctively similar as to constitute a “signature crime”, had a substantial probative tendency to prove that the defendant was their assailant under the particular facts of this case.

In the usual unwitnessed crime, the offender could be anyone in the world, and evidence that the defendant committed a similar crime previously has little independent relevance or probative value. The circumstances of this crime, however, exclude the reasonable probability that the offender was someone other than defendant or the children’s mother. They were the only two people who had unobserved access to the children during the period fixed by the coroner as the possible range for time of death. Each in fact attempted to blame the other for the crime. Under these circumstances the fact of defendant’s infliction of the beatings on the same victims four days earlier assumes substantial probative bearing on the probability that he committed the crimes, rather than the mother or other persons who were known to be in the house that evening and night. As between defendant and any other likely suspect, the behavior in having abused these children previously was unique to defendant and was sufficiently similar to the conduct involved in the homicide to increase its relevancy to a degree justifying admissibility. This high degree of relevance and probative value rendered the fact of the earlier beating more than mere character evidence and justified the trial court’s decision on admissibility, despite its unquestionably prejudicial impact. Therefore, the trial court did not abuse its discretion in admitting the challenged evidence.

V.

When this court considers questions of admissibility of evidence in advance of trial by granting a pretrial application for supervisory writs (rather than deferring judgment until an appeal in the event of conviction), the determination of admissibility does not absolutely preclude a different decision on appeal, at which time the issues may have been more clearly framed by the evidence adduced at trial. Nevertheless, judicial efficiency demands that this court accord great deference to its pretrial decisions on admissibility, unless it is apparent, in light of the subsequent trial record, that the determination was patently erroneous and produced an unjust result. For the reasons stated, this is not the case here.

Accordingly, the opinion of this court on original hearing is reinstated.

DIXON, C. J., and CALOGERO and DENNIS, JJ., dissent with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

The “highly relevant” nature of the prior beating of these children by defendant was that it tended to prove defendant was mean enough and cruel enough to beat them to death — prohibited bad character evidence, convincing that defendant should be imprisoned, if not for the killing, then for the prior beating. The evidence was unduly prejudicial; guilty or not, the defendant didn’t have a chance.

Furthermore, the introduction of this evidence of a prior beating was unnecessary. The defendant was the only person (whose actions were not accounted for by the evidence) who had an opportunity to commit the crime.

I know it is difficult to explain the reversal of a conviction when the evidence of defendant’s guilt is so clear, but this is the only effective way in the Anglo-American judicial system to assure that the law is followed in the trial court. As we have said before, child abuse cases are often difficult of proof, but this one is not. We cannot here resort to a doctrine of “necessity” to abandon established objective standards for fair trials.

CALOGERO, Justice,

dissenting.

I do not believe that evidence of defendant’s prior beatings of the victims are admissible under State v. Prieur and its progeny. “Bad man” evidence is not admissible even if it might be broadly relevant.

       Judges Pike Hall, Jr., Charles A. Marvin, and Jasper E. Jones, of the Court of Appeal, Second Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, Jr., and Harry T. Lemmon.

      . See State v. Austin, 399 So.2d 158 (La.1981); Art. 1, § 16, La.Constn., LRS 15:271.

      . There this court said that the incident of April 25, because of its similarity and proximity, would be admissible at the trial. 381 So.2d at p. 815.

      . The Criminal Code states that some crimes do not have the element of intent. See CCr 8(2) and Comment, and LRS 15:444. In such crimes the State is nonetheless required to prove beyond a reasonable doubt that defendant’s conduct or act was done voluntarily.

      . La.Cr.C. Art. 3 sets forth the rule of interpretation:
      “The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.”

      . Defendant was originally indicted for second degree murder. R.S. 14:30.1. The prosecution later amended the charges to manslaughter, alleging that defendant killed the children while engaged in the perpetration of an intentional misdemeanor directly affecting the person (simple battery). R.S. 14:31(2)(b).

      . Fed.R.Evid. 404(b) expresses the basic principle by stating that while evidence of other crimes is not admissible in order to prove the defendant’s bad character (and hence as circumstantial evidence that defendant acted in conformity with his bad character), such evidence may be admissible “for other purposes”. The rule then goes on to give an illustrative listing of the so-called exceptions under which other crimes evidence may be admitted, naming “proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident”. However, the broadness of the rule, as well as the advisory committee note, emphasize that “[n]o mechanical solution is offered” and that “[t]he determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other appropriate factors for making decisions of this kind . . .. ”

      . The res gestae are defined as:
      “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.” R.S. 15:447.
      “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.” R.S. 15:448.

      . As Justice Dixon wrote in State v. Moore, above, the determination of the admissibility of other crimes evidence is essentially a relevancy determination. If the evidence meets the test of relevancy, then the probative value of the evidence (its tendency to prove a fact at issue) must be balanced against its undeniably prejudicial effect of showing a criminal disposition (or bad character). Various factors (as outlined in cases such as State v. Hatcher, above) must be weighed by trial courts in balancing probative value against prejudicial effect. Nevertheless, as in all matters involving relevancy questions, the factual circumstances presented to the trial court, in the particular case are critical to the determination.

      . Certainly, other crimes which meet such tests will generally be found admissible to establish identity, because the probative value of such highly relevant evidence will most often outweigh the prejudicial effect.

      . On original hearing this matter was remanded with instructions to resentence defendant in compliance with C.Cr.P. Art. 894.1 and to consider the proffered evidence of a polygraph examination in ruling on the motion for a new trial. That remand was not affected by our reconsideration of the admissibility of the “other crimes” evidence.


source: Caselaw Access Project

author: DENNIS, Justice. MARCUS, Justice

license: Public Domain

text:
    LOUISIANA STATE BAR ASSOCIATION v. Frank C. O’HALLORAN, Jr.
    No. 80-B-1973.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
    Rehearing Denied April 16, 1982.

      Thomas 0. Collins, Jr., New Orleans, Sam J. D’Amico, Baton Rouge, Wood Brown, III, New Orleans, Carrick R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Phillippi P. St. Pee, Metairie, Robert J. Boudreau, Lake Charles, Alfred S. Landry, New Iberia, Ronald J. Achee, Shreveport, Gerald F. Thomas, Natchitoches, for plaintiff-relator.
    Constant G. Marquer, Jr., New Orleans, for defendant-respondent.
   DISCIPLINARY PROCEEDING

DENNIS, Justice.

Respondent was convicted under 26 U.S. C.A. § 7201 of two counts of willful attempt to evade or defeat income tax and under 26 U.S.C.A. § 7206(1) of one count of willfully making and subscribing false personal income tax returns. It was charged in the indictment that the respondent received taxable income of some $141,070 in 1973 on which he owed some $67,450 in income tax and self-employment tax, but paid only $13,810; that in 1974 the respondent received taxable income of some $130,-448, on which he owed some $64,018 but paid only $12,732; and that for the calendar year 1975 respondent willfully and knowingly made and subscribed an income tax return which he did not believe to be true and correct in that it reported interest income in the amount of $38,369, whereas, he knew he had received interest income in the amount of some $48,698.

The respondent entered a plea of nolo contendere to each count. The district court sentenced him to imprisonment for a period of nine (9) months, and to pay a fine of $5,000 in $150 monthly installments, on the first count of income tax evasion. The district court suspended imposition of sentence on the second count of income tax evasion and the single count of willful false declaration of income and placed respondent on probation for a period of three years.

The elements of attempt to evade income tax, 26 U.S.C.A. § 7201, commonly known as “income tax evasion,” are a substantial income tax deficiency, willfulness, and some affirmative act constituting an attempt to evade or defeat the tax. United States v. Afflerbach, 547 F.2d 522 (10th Cir. 1977). Willful making and subscribing a false income tax return, 26 U.S.C.A. § 7206(1) is a fraud statute. Unlike section 7201, it requires the prosecution to prove neither intent to evade payment of taxes nor the existence of any taxable income. As it relates to this case, it requires simply that the government prove that defendant willfully made and subscribed a return, that it contained a written declaration that it was made under penalty of perjury, and that defendant did not believe the return to be true and correct as to every material matter. United States v. Taylor, 574 F.2d 232 (5th Cir. 1978).

A plea of nolo contendere is tantamount to an admission of guilt and, for purposes of disciplinary proceedings, equivalent to a plea of guilty. LSBA v. Edwards, 322 So.2d 123 (La.1975); LSBA v. Connolly, 201 La. 342, 9 So.2d 582 (1942).

The willful attempt to evade or defeat income tax, 26 U.S.C.A. § 7201, commonly referred to as “income tax evasion,” is a felony punishable by a fine of $10,000 and imprisonment for five years. The willful making and subscribing of a false personal income tax return is also a felony punishable by a fine of $5,000 and imprisonment for three years. Both of these felonies involve moral turpitude. See LSBA v. Ponder, 340 So.2d 134, 148 (La.1976).

In Louisiana any person who willfully fails to collect or truthfully account for or pay over any income tax, penalty or interest, shall in addition to all other penalties, be fined not more than ten thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both. La. R.S. 47:1641 (Acts 1972 No. 366). Willful failure to file a tax return or willful filing of a false return with the intent to defraud the state or evade the payment of tax shall result in a fine of not more than one thousand dollars or imprisonment for not more than one year or both. La.R.S. 47:1642. The intentional failure to file a return is punishable by a fine of not more than five hundred dollars or by imprisonment for not more than six months. La.R.S. 47:107.

A lawyer owes a professional duty to refrain from illegal conduct involving moral turpitude, conduct involving dishonesty, fraud, deceit, misrepresentation or conduct that is prejudicial to the administration of justice. Disciplinary Rule 1-102(A)(3)-(5). Any serious breach of law which demonstrates that a lawyer is unable or likely to be unable to discharge his professional duties warrants discipline. LSBA v. Levy, 400 So.2d 1355 (La.1981); LSBA v. Bensabat, 378 So.2d 380 (La.1979); LSBA v. Phillips, 363 So.2d 667 (La.1978). The purpose of lawyer discipline proceedings is to maintain appropriate standards of professional conduct in order to protect the public and the administration of justice from lawyers who have demonstrated those shortcomings. LSBA v. Levy, supra; LSBA v. Bensabat, supra; LSBA v. Quaid, 368 So.2d 1043 (La.1979). The discipline to be imposed in a particular case depends upon the seriousness of the offense, fashioned in light of the purpose of lawyer discipline, taking into account aggravating and mitigating circumstances. LSBA v. Levy, supra; LSBA v. Bensabat, supra; see ABA Joint Committee on Professional Discipline, Standards for Lawyer Disciplinary and Disability Proceedings § 7.1, p. 113 (1979).

The record does not afford great detail as to aggravating or mitigating circumstances from which we may fashion the discipline. The Committee bears the burden of proving any aggravating circumstances, and the respondent has the responsibility of proving mitigating circumstances in his favor. In cases arising from guilty pleas, when evidence of aggravation or mitigation is sparse or absent, we have adopted the practice of basing our decision upon the statutory crime definition, the facts stated in the indictment and any other evidence, admission, or stipulation in the record. Unless it appears that a miscarriage of justice will result, we will not burden the parties by -emanding the case for further evidence but will resolve the case on the record presented.

The respondent has been convicted of two counts of willfully evading the payment of federal income taxes. He intentionally evaded payment of a total of some $105,000 in taxes in the calendar years 1973 and 1974. He was also convicted of one count of knowingly making and signing an income tax return for the 1975 calendar year which reported interest income in the amount of some $38,369 when he knew he had received $48,698 in this type income. He has not paid any of the taxes he evaded or falsely underreported.

The respondent, now 60 years old, practiced law approximately 16 years in New Orleans without a blemish against his record. He is a former assistant city attorney and served as a judge ad hoc in the municipal and traffic courts. According to facts of which the commissioner took cognizance, he enjoys the respect of his fellow members of the bar. He claims that he voluntarily suspended his professional activities when he learned of the tax fraud investigation over two years ago. He has not appeared in court or rendered any legal advice for a fee. He concedes, however, that he has continued to receive income from cases he turned over to his law partner and that he has handled some correspondence as an attorney. He paid the $5000 fine and served five months and twenty-two days of his sentence at Elgin Air Force Base before being released on probation. His crimes did not involve his clients’ funds or otherwise jeopardize their interests.

The respondent maintains that he in truth is innocent of the charges against him. However, a respondent cannot seek to try again the issue of guilt after he has been convicted. Our rule provides that the certificate of conviction is conclusive evidence of the guilt of the crime for which he was convicted. Articles of Incorporation of the Louisiana State Bar Association, Art. 15 § 8(7)(c). Moreover, the facts alleged in respondent’s post argument brief, instead of exculpating him, tend to confirm that he knowingly and falsely characterized a credit sale of real estate as a cash sale and interest income as return of principal on his income tax return.

In LSBA v. Ponder, 340 So.2d 143 (La.1976), the attorney, who was convicted of two counts of willfully making and subscribing false income tax returns, 26 U.S. C.A. § 7206(1), was suspended from the practice of law for six months. This court held that the crime certainly evidences moral turpitude but, because it is less serious than income tax evasion, 26 U.S.C.A. § 7201, and the respondent had a good reputation, the harshest penalty was not appropriate. Id. at 148.

As we indicated in LSBA v. Ponder, supra, income tax evasion also evidences moral turpitude and is a much more serious crime than willfully making and subscribing a false income tax return. It is a form of dishonesty by which the government is fraudulently deprived of taxes lawfully due it for purposes of the national defense and the public good. The respondent has been convicted of evading tax in two successive years and of willfully filing a false return in a third year. Because of an attorney’s position in society his commission of these three separate felonies tends to lessen public confidence in the legal profession and to encourage disrespect for the law. The repetitive serious nature of the criminal activity itself, in the absence of extensive mitigating circumstances not here shown, demonstrates such a grave lack of fidelity to the lawyer’s duty to uphold and respect the laws as to require disbarment or other serious discipline in order to protect the public and the administration of justice.

The Commissioner who conducted the evi-dentiary hearing in this case recommended merely that the respondent should be reprimanded for his disciplinary infractions. The Committee on Professional Responsibility of the Louisiana State Bar Association concurred in this recommendation. These recommendations are flawed to some extent by the Commissioner’s erroneous findings that the crimes do not involve moral turpitude and that the respondent was innocent of the crimes. As we noted earlier, under our rule respondent cannot retry the issue of guilt and the crimes clearly involve moral turpitude.

Considering the recommendation of the Commissioner, although its weight is diminished for the reasons expressed, the mitigating and aggravating circumstances, and the precepts applicable to this case, we conclude that, while disbarment is not appropriate in this ease, a substantial period of suspension from practice must be imposed.

Decree

It is ordered, adjudged and decreed that Frank C. O’Halloran, Jr., respondent, shall have his license to practice law in the state of Louisiana suspended for a period of three years, and that all costs of these proceedings be paid by respondent.

SUSPENSION ORDERED.

LEMMON, J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

In view of respondent’s two-year voluntary withdrawal from the practice of law, his unblemished record as a practicing attorney for sixteen years, and the Commissioner’s recommendation for a public reprimand which was concurred in by the Committee on Professional Responsibility of the Louisiana State Bar Association, I believe suspending respondent from the practice of law for one year would be an adequate disciplinary measure under the circumstances. Accordingly, I respectfully dissent.

      . 26 U.S.C.A. § 7201 provides:
      Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.
      26 U.S.C.A. § 7206(1) provides:
      Any person who—
      (1) Declaration under penalties of perjury.— Wilfully makes and subscribes any return, statement, or other document, which contains or is verified’ by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter; or * * *.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. James MOSLEY.
    No. 81-K-2025.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 30, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Nancy Sharpe, Asst. Dist. Attys., for plaintiff-relator.
    Charles L. Elloie, New Orleans, for defendant-respondent.
   DENNIS, Justice.

We granted certiorari to review the trial court’s suppression of evidence obtained by police officers during the search of a residence pursuant to a search warrant. On April 15, 1981 a police officer, under oath, made the following showing of probable cause before a magistrate in applying for the search warrant:

“The reasons and facts for the request of this search warrant are: Officers Ned Gonzales, Paul Mattio, Sal Zanco, Norman McCord, and Michael Marshall assigned to the Fifth District MCI Unit received information that narcotics transactions were taking place at Leola’s Disco Hot Tómale Stand, located 2320V2 St. Bernard Ave. The aforementioned Officers maintained a surveillance at the Hot Tó-male stand for a period of several hours on both Tuesday, April 14, 1981 and Wednesday, April 15, 1981, and observed what appeared to be many such transactions. That is, the Officers observed money being exchanged for small brown envelopes. At approximately 11:45 AM on April 15, 1981, Officer Gustave Demise, dressed in civilian clothes, went to the service window of the tamale stand and attempted to buy a dime bag ($10.00) of marijuana, and was told by an unidentified black male, dressed in a blue shirt and blue pants, about 25 years of age, that he did not have any, but was expecting some soon. At this time, the Officers employed the same Confidential Informant who supplied the original information about the Hot tamale stand, and who has supplied information in the past which has led to the arrest and conviction of narcotics dealers. This Confidential Informant went to the window of Leola’s Hot Tamale Stand and inquired if he could buy a dime bag. At this time the black male previously described informed the Informant that they were out of stock, but that Carlos was on his way to acquire more. The aforementioned Officers had reason to believe that the Carlos mentioned at the tamale stand was one Carlos Dartez, NM, dob 5-06-58, residing 1321 Elysian Fields Ave. At approximately 1:35 PM Officers Gonzales, Zanco, McCord, and Mattio observed Carlos Dar-tez, in the company of a black female, later identified as Vivian Whitaker, dob 10-05-60, residing 1321 Elysian Fields Ave., in a vehicle, a 1977 Pontiac 2-door, maroon, La. license # 680B163, parked near the Super City Pharmacy, at the intersection of No. Broad and St. Bernard Ave. The Officers observed the black female exit the vehicle with a large brown paper bag, which she handed to the male, whom the Officers recognized as the aforementioned Carlos Dartez. The Officers observed Carlos Dartez look around the area, cautiously, then place the bag in the trunk of the vehicle. Carlos Dartez and the female went inside the drugstore then returned, then drove away in the vehicle. The aforementioned Officers followed the vehicle to Leola’s Hot Tamale Stand, where the black male and female parked on the side of the stand on No. Rocheblave St. It should be noted her [sic] that Officers Sal Zanco, Michael Marshall, and Ned Gonzales had occasion to arrest Carlos Dartez on 7-18-80, for possession of marijuana, with intent to distribute, at the same location, Leola’s Hot Tamale Stand. This case is currently pending, charges having been accepted by the Office of the Honorable District Attorney. The aforementioned Officers then observed Carlos Dartez and Vivian Whitaker drive away hastily. The Officers at this time believed that they had been observed and recognized by Carlos Dartez and decided to stop the suspects and vehicle, succeeding in doing so at the intersection of No. Broad and Esplanade Ave. The Officers confronted Carlos Dartez and his female companion and informed him that he was under investigation of possession of narcotics. At that time Carlos Dartez stated that he had a bag of marijuana in the trunk of his vehicle. The Officers then reminded Carlos Dartez and Vivian Whitaker of their Constitutional Rights, and Carlos Dartez agreed to sign a voluntary permission to search form for the aforementioned vehicle. The Officers, after obtaining signed permission to search the vehicle, opened the trunk and seized a brown bag containing approximately one (1) pound of marijuana, contained in various size individual bags. Carlos Dartez then informed the Officers that he wished to cooperate and would agree to sign a permission to search form for his residence, 1321 Elysian Fields Ave. Carlos Dartez related that he had approximately one (1) more pound of marijuana in his residence. The Officers then recovered another pound of marijuan [sic] from the residence at 1321 Elysian Fields. After Carlos Dartez agreed to the search of his vehicle, and the first pound of marijuana was found, the Officers placed Carlos Dartez under arrest and again informed him and Vivian Whitaker of their Constitutional Rights once more and completed Rights of Arrestee Forms # 104955 and 104956, which were signed by both suspects, waiving their Constitutional Rights. At this time Carlos Dartez advised the Officers that he was willing to cooperate even further, to give a statement, and to name his contact, whom he buys his marijuana from. The aforementioned Officers, Carlos Dartez, and Vivian Whitaker then relocated to the Fifth District Station, where Carlos Dartez gave a voluntary taped statement. In his taped statement, Carlos Dartez related that he had bought one (1) pound of marijuana and k gram of cocaine from a subject known as “Candy”, who resides at 1608 Music St. Carlos Dartez continued that “Candy” is a black male, about 50-54 years of age, 6'6" dark complected, grey hair, well dressed, who walks with a slight limp. Dartez related that “Candy” drives a white Fleet Cab, number unknown. Carlos Dartez also related that when he made the above described buy, on Monday, April 13, 1981, he observed approximately five (5) pounds of marijuana in the residence, and approximately xh once [sic] of Cocaine. The Investigating Officers then drove by 1608 Music St. and observed a residence just as that described by Carlos Dartez.
“Due to the aforementioned described circumstances and facts, it is respectfully requested that this petition for a warrant to search the premises at 1608 Music St. be granted.”

A search warrant was issued on April 15, 1981 authorizing a search of defendant’s residence at 1608 Music Street for “narcotics to wit marijuana and cocaine.” Pursuant to these warrants police officers searched defendant’s residence on April 15, 1981 and seized marijuana, cocaine and other items.

Defendant moved successfully to suppress the evidence in the trial court. We granted the state’s application for review.

At the motion to suppress hearing, the informant, Carlos Dartez, testified that he went to the defendant’s house as related in the search warrant application but that, contrary to the information he gave to the police officers, he did not buy any drugs or see any drugs on that occasion. To protect the right of privacy (not for the defendant whose privacy has already been invaded, but for law-abiding citizens in this state) is and should be of primary importance to the courts. To this end, untrue allegations of the affiant must be subject to judicial examination. State v. Melson, 284 So.2d 873 (La.1973); State v. George, 273 So.2d 34 (La.1973). Accordingly, the issue at a suppression hearing is whether the affiant was truthful, not whether the informant was truthful, because if the informant lied, but the officer reasonably believed him, it cannot be said that the officer acted without probable cause. State v. Paster, 373 So.2d 170 (La.1979); State v. Barrett, 350 So.2d 664 (La.1977). Since the evidence educed at the suppression hearing in this case does not contest the veracity of the affiant or his belief in his informant, none of the material in the warrant affidavit need be set aside in deciding whether the warrant was issued with probable cause. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

Defendant contends that the search warrant affidavit cannot pass the second prong of the Aguilar two-prong test, viz., the veracity test. Under the “veracity” prong of Aguilar, facts must be brought before the judicial officer so that he may determine either (1) the inherent credibility of the informant or (2) the reliability of his information on this particular occasion. That is, the second or “veracity” prong of Aguilar may be said to have a “credibility spur” and a “reliability spur.” See State v. Jeffcoat, 403 So.2d 1227 (La.1981); Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741, 755 (1974); 1, W. LaFave, Search and Seizure, A Treatise on the Fourth Amendment, § 3.3, p. 501 (1978).

The affidavit does not provide any basis for a belief in the inherent credibility of the informant under the “credibility spur.” Dartez was apparently a first-time informer and therefore had no track record from which the magistrate could conclude he was a credible informant. The disclosure of an informant’s identity can serve as an underlying circumstance which tends to establish that he is entitled as an ordinary law abiding citizen to the presumption of inherent credibility. See United States v. Rollins, 522 F.2d 160 (2d Cir. 1975); Cundiff v. United States, 501 F.2d 188 (8th Cir. 1974); People v. Hicks, 38 N.Y.2d 90, 378 N.Y.S. 660, 341 N.E.2d 227 (1975); State v. Haron, 220 N.W.2d 829 (S.D., 1974); Woods v. State, 533 S.W.2d 16 (Tex.Cr.1976); LaFave, supra, § 3.4 n. 41. There is no possibility of that in this case, however, for the affidavit shows that Dartez is a criminal without any inherent credibility.

If the affidavit is to pass the “veracity test,” it must do so under the “reliability spur” by providing a reason to believe that Dartez’ information was reliable on this particular occasion despite his lack of inherent credibility. The state argues that the magistrate was justified in finding Dartez’ information reliable because it was a declaration against his penal interest.

Although admissions of crime do not always lend credibility to contemporaneous or later accusations of another, they may sometimes be relied upon as a means of showing that an informer’s information is reliable. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); State v. Mena, 344 So.2d 357 (La.1976); Moylan, supra, at 762. The admission-against-penal-interest concept should not be used in a casual or blunderbuss fashion. Established Fourth Amendment doctrine would be turned on its head if criminals are thereby deemed more credible than disinterested “citizen informers.” The significance of each admission in the context of the particular case must be assessed carefully and preferably upon a full disclosure by the police of all relevant circumstances. LaFave, supra, at 525; See United States v. Martin, 615 F.2d 318 (5th Cir. 1980).

Strictly speaking, because the informer, Dartez, was caught redhanded and revealed his illicit drugs to the police before naming his supplier, Dartez’ tip was not a statement against his penal interest but an obvious attempt to curry favor with the police. Compare United States v. Martin, supra. The circumstances here are different from a case in which the police did not have an air-tight case against the informant before he provided the information at issue. See People v. Wolzer, 41 A.D.2d 679, 340 N.Y.S.2d 953 (1973); LaFave, supra, at 529. Dartez told the police he had a bag of marijuana in the trunk of his car immediately upon being stopped and informed he was under narcotics investigation. After removal of the bag from his car, Dartez further told the officers he had more marijuana in his residence and consented to its search. Dartez eliminated any possibility that his possession of the drugs was innocent before informing on the defendant; his tip, which might have provided crucial evidence of his guilty knowledge under different circumstances, added little to the evidence against him.

Nevertheless, Dartez’ statements to the police that he had marijuana in his car and residence were self-incriminating and in the context of this particular case and its relevant circumstances lend credibility to his immediately subsequent tip involving the defendant. We reach this conclusion on the basis of several factors, considered collectively. First, Dartez’ tip was almost contemporaneous with his own admissions, which themselves were given immediately, without interrogation and perhaps spontaneously. See Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); United States v. Rosselli, 506 F.2d 627 (7th Cir. 1974). There was little time or opportunity for Dartez to fabricate a story. Second, Dartez’ tip focussed on a specific individual and included his address, personal characteristics and a description of his taxicab. LaFave, supra, p. 529. If Dartez had given the police several names or vague descriptions it would have been more likely that he was relying on rumor and concealing his actual source. Third, an incentive for Dar-tez to produce accurately was his probable realization that any discrepancies in his story might go hard with him. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (Clark, J., et al., dissenting); Commonwealth v. Norris, 6 Mass.App. 761, 383 N.E.2d 534 (1978); State v. Wielgus, 278 N.W.2d 805 (S.D.1979); LaFave, supra, at 3.3 n. 124. We are inclined to discount this factor, however, because to Dartez the risks incurred in fabricating the basis of his information may have seemed small, difficult to distinguish from a genuine effort to cooperate and worth the chance of having the charges against him dropped. Fourth, “the residual risk and opprobrium of having admitted criminal conduct” see United States v. Harris, supra, 403 U.S. at 584, 91 S.Ct. at 2082, is correspondingly greater where the informant is identified by name and address as in this case. State v. Welsh, 371 So.2d 1314 (La.1979); Merrick v. State, 283 Md. 1, 389 A.2d 328 (1978).

Considering all of the relevant circumstances, we conclude that the issuing magistrate had a reasonable basis for finding the informant’s information reliable on this particular occasion, for finding an adequate basis to assure that the informant obtained his information by personal observation, and ultimately for determining that there was probable cause to issue the search warrant. Accordingly, the trial court’s ruling suppressing the evidence is reversed and the case is remanded for further proceedings.

SUPPRESSION OF EVIDENCE REVERSED; CASE REMANDED FOR FURTHER PROCEEDINGS.

MARCUS, J., concurs in the result.

LEMMON, J., concurs.

      . The affidavit clearly passes the first prong of the Aguilar test, the “basis of knowledge” test. The magistrate was informed of the underlying circumstances from which the informant concluded that illicit drugs were located in defendant’s residence at 1608 Music Street. He claimed to have seen five pounds of marijuana and one-quarter ounce of cocaine in the residence when he bought drugs from the defendant there on April 13, 1981. This provided an adequate basis to assure that the informant, if he is inherently credible or there is reason to believe in his information on this occasion, obtained the information by personal observation and not through mere rumor. See State v. Jeffcoat, supra.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Jesse COLEMAN, Patrick R. Colomb and Larry K. Lawrence.
    No. 81-KA-2041.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 30, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Patrick C. Leitz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Anderson Council, Kenner, Paul H. Co-lomb, Lafayette, William M. Dauphin, Jr., Baton Rouge, for defendants-appellants.
   CALOGERO, Justice.

In these Crosby appeals, following guilty pleas by two of the defendants to attempted possession of marijuana with intent to distribute and a guilty plea by the third to possession of marijuana with intent to distribute, defendants contend that the marijuana found in their suitcases at the New Orleans International Airport should have been suppressed because the seizure was the result of an unconstitutional search.

For the reasons expressed hereinafter we find no merit to their contention and affirm their convictions and sentences.

On April 27, 1978, in Miami, Florida, Detective John Facchiano, assigned to the airport, was doing routine investigative work when he observed defendants. The detective testified that his attention was drawn to defendants when Coleman purchased tickets for the trio with a large amount of money he held in his hand. Detective Fac-chiano noticed that Colomb kept looking around to see if they were being watched. When he saw the policeman watching the group, Colomb left the ticket line and positioned himself near a display case and continued his observation of the area. The ticket agent asked Coleman about luggage and he indicated three suitcases, two brown and one blue. The agent asked the other two about luggage and they indicated the same three suitcases. The agent then stapled all three luggage claim checks to one of the tickets.

Detective ^Facchiano stated that he went to the baggage area where the suitcases of the three men were on a baggage cart. Detective Facchiano said that he smelled the seams of each bag and detected the odor of marijuana coming from the seams of the two brown bags but not from the blue one. Detective Facchiano specifically denied that he opened the bags. He removed the suitcases from the cart and contacted his partner who also smelled marijuana at the seams of the brown suitcases. Detective Facchiano testified that he and his partner had authority from the airline carrier to be in the baggage handling area.

Detective Facchiano’s partner placed the suitcases back upon the baggage cart, whereupon a cloud of white powder came from the two brown suitcases. . No such emission of white powder was observed from the blue suitcase. Detective Facchi-ano informed the judge that talcum powder is often used to disguise the odor of marijuana.

After placing the suitcases back onto the baggage cart, the two policemen boarded the airplane for which the tickets had been purchased and saw Coleman and Colomb sitting in the first class section. The officers did not see Lawrence, however, and decided against making an arrest of only the two. Instead, Detective Facchiano contacted Sergeant Schwabe of the Jefferson Parish Sheriff’s Office, described the three men and informed him of the observations in Miami and the fact that the three would be arriving at the New Orleans airport soon on National Airlines Flight 29.

Armed with defendants’ flight number and their description, Sergeant Schwabe conducted a surveillance of the flight as it arrived in New Orleans. He saw the men and noticed that they appeared to be nervous. The three entered the airport lobby and, without getting their luggage, exited the terminal. Sergeant Schwabe approached the men and asked them for identification and for their airline tickets. Coleman handed Sergeant Schwabe the tickets for all three with the claim checks still stapled to one of the tickets. Sergeant Schwabe said that at this point he asked the men to accompany him to the narcotics office at the airport and he advised them of their rights. In the office Sergeant Schwabe asked the men whether they had any luggage. They denied having any. When asked about the baggage claim checks, Coleman stated that one suitcase for which there was a claim check belonged to him.

Sergeant Schwabe had another agent get the luggage from the baggage claim department and bring it to the office. Coleman identified the blue suitcase as his, but denied ownership of the two brown ones from which the odor of marijuana and the white powder had come. The other two defendants disclaimed the brown suitcases also. Sergeant Schwabe said that he asked for permission to look inside the suitcases and “They stated they didn’t care if I looked or not; since it was not theirs, I had permission to look.” Sergeant Schwabe opened the brown suitcases and in each found a green garbage bag containing loose marijuana. These suitcases also had white talcum powder sprinkled in the bottoms and tops of the cases and over the garbage bags. After seeing the marijuana, Sergeant Schwabe informed the three that they were under arrest. Coleman then voluntarily opened the blue suitcase and inside Sergeant Schwabe observed a pack of garbage bags similar to those containing the marijuana in the two brown suitcases.

Farrell Whitehead, narcotics officer for the Jefferson Parish Sheriff’s Office, confirmed that he brought the suitcases from the baggage area of the New Orleans airport to the narcotics office. He said that defendants thereupon, in his presence, disclaimed ownership as well as knowledge of any of the three bags. Officer Whitehead testified that the three “stated they didn’t mind the suitcases being opened because they didn’t belong to them.”

The trial judge first took the motion to suppress under advisement and later ruled, denying the motion. This Court then denied defendants’ pre-trial application for writs of review. 377 So.2d 1236 (La.1979). Following our refusal to grant writs, defendants entered their guilty pleas, reserving their right to appeal the denial of the motion to suppress.

We shall consider defendants’ three assignments of error together because they are interrelated.

Defendants’ principle contention is that the actions of the police in Miami constituted an unconstitutional search and seizure and therefore tainted the subsequent arrests and seizure of the marijuana. Defendants argue that the marijuana must be suppressed under the “fruit of the poisonous tree” doctrine. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The Fourth Amendment to the United States Constitution and Article 1, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. It is well settled that a search without a warrant is per se unreasonable unless it falls within a few well delineated exceptions to the warrant requirement. Therefore our first consideration is whether there was a legally impermissible search at the Miami airport.

Defendants had placed their luggage in the custody of the airline. Once the luggage was so placed, defendants could have had no reasonable expectation that the bags would not be handled by personnel of the airline or police officers given the airline’s permission to be in the baggage area. Nor could they reasonably expect that the exterior of the bags would not be inspected. Detective Facchiano expressly denied opening the suitcases; he said that he merely sniffed at the seams.

When the suitcases were placed back upon the cart, white powder escaped from them. That the handling was done by a policeman does not alter the situation. The bags were in the custody of the airline and the airline had given permission to the police to be in the baggage handling area.

It is true that a short-term detention of the baggage did occur when Detective Facchiano removed the suitcases from the baggage cart. However, the United States Supreme Court has expressly permitted detention for a limited time of items placed in the custody of a third party to allow law enforcement authorities the opportunity to investigate their initial suspicions that the items contain contraband. United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). The suitcases were detained only a few minutes while Detective Facchiano summoned his partner to smell the seams of the bags and confirm that the odor was marijuana. There was no unauthorized seizure of the bags, nor was there a search of their contents. Whatever intrusion took place by the handling, sniffing at the seams and observation of the white powder was not such as could have been contrary to any reasonable expectation of privacy by the bags’ owners.

That the Miami police did not immediately arrest defendants may be probative, but not dispositive, on the issue of whether they had probable cause to arrest. In fact, the reason for not arresting defendants in Miami was that, upon a cursory check of the plane just before take-off, the officers observed only two of the three defendants. Furthermore, police are not required to arrest an individual at the point at which probable cause for arrest arises. Cf. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); State v. Coleman, 406 So.2d 563 (La.1981); State v. Tant, 287 So.2d 458 (La.1973). Detective Facchiano and his partner did not see Lawrence when they checked defendants’ flight and it is understandable that they might want to delay the arrest until the three defendants, with their baggage, could be apprehended simultaneously.

Detective Facchiano relayed all of this information to Sergeant Schwabe. Sergeant Schwabe, after receiving the information from the Miami policeman, then had probable cause to arrest defendants when they reached New Orleans. State v. Bourgeois, 388 So.2d 359 (La.1981). Although Sergeant Schwabe did not inform defendants that they were under arrest until after he opened the brown suitcases and exposed the marijuana, the facts indicate that the arrest actually occurred before that point in time.

It is not the recitation of the words “You are under arrest” which determine when an arrest takes place. An arrest occurs when a person’s liberty is curtailed in a significant manner. State v. Bourgeois, supra. In this case, defendants were in fact under arrest (their liberty was clearly restrained) from the time that Sergeant Schwabe stopped them outside the airport terminal, secured from them their identification and their airline tickets, and escorted them to the office for further questioning.

Sergeant Schwabe sent Officer Whitehead to claim the suitcases which defendants had checked from Miami to New Orleans. Officer Whitehead brought the suitcases to the office where Sergeant Schwabe had taken defendants. Sergeant Schwabe again asked about ownership of the suitcases and again defendants disclaimed ownership of the brown ones from which Detective Facchiano had smelled marijuana. Admittedly the ensuing search of the suitcases was without a warrant and must fall within one of the exceptions to the warrant requirement for the search to be constitutional.

One of the exceptions to the necessity of obtaining a warrant prior to a search is consent to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Coleman, supra. Defendants said that they did not care if the suitcases were searched. Although defendants had disclaimed ownership of the suitcases, the suitcases had been checked with the airlines by these men and they had indicated to the ticket agent in Miami that the luggage was theirs. Sergeant Schwabe had strong reason to believe that the suitcases belonged to the three men who were telling him that they had no objection to his opening them. We construe this as permission to search, notwithstanding that the “permission” was accompanied by a. disclaimer of ownership.

Having determined that there was probable cause for the arrest of defendants and that the warrantless search of the suitcases thereafter was not constitutionally impermissible, we hold that the trial judge did not err in denying defendants’ motion to suppress the marijuana.

Decree

For the foregoing reasons, defendants’ convictions and sentences are affirmed.

AFFIRMED.

       Judges Melvin A. Shortess, Burrell J. Carter and Felix H. Savoie, Jr. of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr., Pascal F. Calogero, Jr., Walter F. Marcus, Jr., and James L. Dennis.

      . A plea of guilty generally waives all non-jurisdictional defects in the pre-plea proceedings. However, by virtue of this Court’s decision in State v. Crosby, 338 So.2d 584 (La.1976), a defendant may condition his plea upon the reservation for appellate review of specified pre-plea errors. In the present case defendant properly reserved his right to obtain appellate review of the trial court’s denial of his motion to suppress. See also: State v. Aguillard, 357 So.2d 535 (La.1978).

      . The trial judge imposed the following sentences:
      Larry Lawrence for possession of marijuana with intent to distribute, in violation of La.R.S. 40:967 — five years at hard labor, suspended and defendant placed on active probation for five years with the special condition that defendant serve one year in the parish correctional center.
      Patrick R. Colomb for attempted possession of marijuana with intent to distribute, in violation of La.R.S. 40:967 and La.R.S. 14:27 — five years at hard labor, suspended and defendant placed on active probation for five years with the special condition that defendant serve six months in the parish correctional center.
      Jesse Coleman for attempted possession of marijuana with intent to distribute — eighteen months at hard labor.

      . Defendants’ assignments of error are that “the trial judge erred in failing to find that the officers did not have probable cause to seize the defendants and their baggage,” that “the trial judge erred in failing to suppress the evidence because the officers did not obtain a valid arrest warrant or a valid search and seizure warrant” and that “the trial judge erred in failing to find that there was no consent, voluntary or otherwise, to the search or that any consent, by the defendants was tainted by the illegal arrest and seizure of the defendants and the bags.”

      . Whether the policeman did or did not open the suitcases and the credibility of his story about sniffing the seams of the suitcases are factual questions. The determination of the trial judge who heard the witnesses and judged their credibility is entitled to great weight on appeal. State v. Bourgeois, 388 So.2d 359 (La. 1980). Regarding the detection of the odor of marijuana by means of smelling at the seams of the suitcases, federal courts have held that the sniffing of luggage by a dog does not constitute a search. United States v. Klein, 626 F.2d 22 (7th Cir. 1980), and cases cited therein.

      . Probable cause to arrest exists when the facts and circumstances within the officer’s knowledge are sufficient to justify a man of average caution, and particularly a policeman of average caution, in the belief that defendants had committed an offense. State v. Fauria, 393 So.2d 688 (La.1981); State v. Bourgeois, 388 So.2d 359 (La.1980).