author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Garry Lee SIMS v. STATE.
    7 Div. 748.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.

      George N. Sims, Jr., Talladega, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is a consolidated appeal of six cases that were consolidated for trial at the request of the defendant. All bear a partial designation of CC-80, signifying that they were filed in the circuit court in 1980; they are individually and differentially designated as 252, 253, 254, 255, 256, and 258.

The indictment in each case charges defendant with receiving, retaining, or disposing of stolen property, knowing that it was stolen or having reasonable grounds to believe it had been stolen and not having intent to restore it to its owner, “in violation of Section 13A-8-18 of the Code of Alabama.”

There was undisputed testimony by the owner, or an agent of the owner of the property described in each indictment, that said property had been stolen. As to the property described in some of the indictments, the testimony was that the property was stolen in the latter part of 1979, as to the property described in other indictments, the evidence was that it had been stolen in 1980. Although no question is raised as to the point, it should be noted that defendant could not have been properly charged with a “violation of Section 13A-8-18, of the Code of Alabama” unless the alleged crime occurred in 1980, for the reason that Section 13A-8-18 is a section of Title 13A, which consists of the Criminal Code of the State of Alabama, enacted by Acts 1977, No. 607, but which did not ultimately become effective until 12:01 A.M. on January 1, 1980. Acts 1979, No. 79-125, p. 230. Each of the indictments was returned on March 7, 1980, and the undisputed evidence shows that appellant did not receive, retain, or dispose of any of the property described in any of the indictments prior to the effective date of the Alabama Criminal Code. Therefore, the statutory law set forth in the Alabama Criminal Code is applicable.

The situs of all the property described in the indictments in cases numbered 252, 253, 254, 255, and 256, at the time of defendant’s arrest, was in a room of a warehouse, referred to in the evidence as “Room 101” of the “Mini-Warehouse” in Calhoun County. The property described in the indictment in 80-258 was at an entirely different location at the time of defendant’s arrest. For reasons that will be obvious upon our future consideration herein of 80-258, we will limit our present consideration to questions pertinent to the other cases.

CASES CC-80, 252, 253, 254, 255 AND 256

According to testimony of witnesses for the State, law enforcement authorities had obtained information prior to February 22, 1980, concerning stolen merchandise at the “Mini-Warehouse.” About three or four o’clock on the afternoon of February 22, law enforcement personnel went to the warehouse and returned therefrom after looking over the premises about thirty minutes or an hour. Some of them accompanied by another, or other officers, went again to the warehouse between eight and nine o’clock on the night of February 22 to determine what room of the warehouse was rented by Larry McPherson. In checking the register they found that Larry McPherson rented Room 101. They continued to look around the premises until about two or three that night when they returned to their base. Between nine and ten o’clock on the morning of February 23, some of them returned to the warehouse and maintained surveillance of Room 101 until about 12:30, at which time, according to the testimony of Investigator Winfrey, who accompanied the officers, the following occurred:

“A. Approximately 12:30 p.m. a pick-up truck pulled up in front of Room 101.
“Q. Did you have a description on this pick-up truck as to whose it was and that type thing?
“A. Yes, sir.
“Q. Whose was that?
“A. Larry McPherson’s
“Q. What occurred after you saw the blue pick-up truck pull up?
“A. I noticed the front of the pick-up truck at the warehouse.
“Q. What room was it at now?
“A. At 101.
“Q. Okay, go ahead.
“A. I pulled my car up in front of the pick-up truck. I had called Reese and Alexander on the radio and I got out of my car and I saw a subject behind the pick-up truck.
“Q. All right, who was that?
“A. Mr. Sims.
“Q. What was Mr. Sims doing?
“A. He was standing at the rear of the pick-up truck with a paper sack or grocery bag in his arms.
“Q. At this time, was the door open or closed?
“A. It was open.
“Q. To 101?
“A. Yes, sir.
“Q. Could you see inside the building from where you were?
“A. I could see partially inside the building, yes, sir.
“Q. Did you have a description of any of this stolen merchandise that you were looking for?
“A. Yes, sir.
“Q. And you saw those from your same position there, at that time, from outside? “A. Yes, sir.
“Q. What did you do at that time?
“A. I advised Mr. Sims to come around to where I was at and identify himself and he came around the truck.
“Q. Did you see anybody else out there at that time?
“A. Not at that time, no, sir.
“Q. Any time out there that time?
“A. Yes, sir.
“Q. Who was that?
“A. Larry McPherson.
“Q. When did you see Mr. McPherson?
“A. I had placed Mr. Sims up against the building and was there with him, and McPherson came out of the warehouse.
“Q. What did you do — Let me just ask you this. Did Deputy Reese have occasion to come back down there to that area?
“A. Yes, sir. In a few minutes he arrived back there.
“Q. What, if anything, did you do regarding these two subjects that were out there?
“A. I think Deputy Reese searched them and we placed them in the back of my car.
“Q. And then you placed them under arrest; is that correct?
“A. Yes, sir.”

The witness further testified that they thereafter obtained a search warrant, that pursuant to the search warrant they searched Room 101 and there they found the property described in the indictments in cases 252, 253, 254, 255, and 256.

One of appellant’s three assertions of prejudicial error is that “the trial Court erred in refusing to grant Appellant’s motion to exclude the evidence for that the State had failed to make a prima facie case.” The motion to exclude was made when the State rested its case. After the motion was overruled, Larry McPherson and appellant testified extensively; Larry McPherson testified positively that he alone, in particular exclusion of appellant, was guilty of receiving, etc., the stolen property knowing that it had been stolen. Sims denied positively any knowledge of the fact that the property had been stolen. He said that he had borrowed the truck of McPherson to take some personal belongings to the warehouse and store them in Room 101 with the permission of McPherson. He had been there only one time before February 23, about a week or two before he was arrested, at which time he also used Room 101 to store some of his personal possessions, which storage was necessitated by reason of a recent fire at his home. He denied any transaction whatever with the person who Larry McPherson testified had stolen the property, but he admitted knowing him.

There is no insistence by appellant that the evidence was not sufficient to present a jury issue as to defendant’s guilt. There was no request for an affirmative charge in favor of defendant, no motion for a directed verdict or the like.

We think that at the time the State rested there was sufficient evidence to present a prima facie case against defendant. In addition to the evidence already summarized, there was testimony that a padlock was on the ground near the door of Room 101 and that the padlock could be unlocked by a key that was on the key ring of appellant, as well as by a key on the key ring of Larry McPherson, at the time of their arrest.

The overruling of a motion by defendant to exclude the evidence of the lock and the key on appellant’s key ring is made the basis of another insistence on error by appellant. Defendant’s counsel said at the time the lock was offered in evidence, that defendant had no objection. At each time, it appears that a witness had said that the lock “came off of number 101 at the Mini-Warehouse,” but upon being further questioned, the witness said that it was not “hanging in the hasp” but he believed it was on the ground at the time.

We agree with appellant’s contention that if the lock had been in place in the staple or like of the locking device it would have constituted stronger evidence against the defendant than it did in the circumstance of its lying on the ground, but we do not agree with the contention that the evidence showed no more than a “possibility” that the particular lock “could be used to lock the warehouse.” Its proximity to the door, while defendant and McPherson were there, its obvious usability to lock the door, and the presence on the person of both appellant and McPherson of a key that would unlock the particular padlock furnished a basis for a reasonable inference that defendant was not a stranger to the general use of Room 101 as a room for storing stolen property. The court was not in error in overruling defendant’s motion to exclude the particular evidence or in overruling defendant’s motion to exclude the State’s evidence when it rested in captioned cases.

CASE CC-80, 258

At the time of appellant’s apprehension and arrest, the stolen property in this case was located in a small house, referred to vaguely in the evidence as a garage, in the curtilage of a dwelling that had been rented to defendant-appellant, but which had never been used by him as a residence. According to his testimony and the testimony of the rental agent of the owner of the premises, they had not been rented as a place to live but as a place for a storage of some insulation material to be used in connection with a construction or commercial venture in which defendant was purportedly engaged. On or about February 26, or 27, 1980, the law enforcement officers went to the house and asked the rental agent for permission to search the premises. The rental agent gave them permission. They searched the house and garage without a search warrant and seized a major part, if not all, of the property described in the indictment in case numbered 258.

Evidence as to the fruits of the search of the house and “garage” was admitted over repeated objections by counsel for defendant. The trial judge made known his reasons for overruling his repeated objections and motion to exclude the evidence as to the fruits of such search stating:

“The objection seems to be to the search of the house and the garage that’s been talked about. The Court’s ruling on the testimony to this point, that there has been an abandonment of the premises by the Defendant. The one who then had control of the premises was Mr. Dishman and as such, it would be Mr. Dishman who had the control of the premises, and granting permission to anyone to come on the premises and allowing them to search or not. From all of the testimony that is before the Court at this point, that the defendant had abandoned that particular property in question by his failure to make payments thereon which came due at the first of the preceding month, and by his other actions and statements which also indicated the fact that he was not leasing those premises any further and therefore has no standard objection to any search thereof.”

Defendant’s motion to exclude the evidence as being insufficient “to make a pri-ma facie case” against him presents additional and distinct problems from those presented in the other cases. We do not find, and we are unable to give, a fully satisfactory answer to the following sentence in appellant’s brief:

“The State of Alabama is put in an awkward position by relying on the theory that the Defendant has no possessory interest in the dwelling and on the other hand arguing that he in fact possessed this contraband.”

The evidence shows without dispute that all of the property described in the indictment and found in the house or garage was the property of Mr. Sam Sprayberry, doing business as Sprayberry’s Clothing Planet in Anniston and that it was stolen therefrom on November 24, 1979. The evidence further shows by testimony of the rental agent that the last time he saw defendant prior to the search of the premises was on January 25, 1980. The agent further testified:

“Q. Did he come to pay the rent or something?
“A. No.
“Q. Was he in the house or in the garage?
“A. No, he didn’t go in the house that day. We started to go in the house, but he didn’t have his keys with him.
“Q. So, he just came out there to visit you, didn’t he?
“A. He came out to look around the place, not to see me.
“Q. What was the last time you saw him go into the house or the garage?
“A. I never saw him in the garage.
“Q. What about the house?
“A. Maybe six months ago.
“Q. Did you have any of your belongings stored over there?
“A. Yes, I do.
“Q. Are they still there?
“A. Yes, they are.
“Q. Were they at this time?
“A. Yes, they were.
“Q. Do you go in there from time to time to check them?
“A. Occasionally every day.
“Q. Because you’ve had trouble with break-ins?
“A. Not with me, no.
“Q. The house—
“A. Next Door, in the houses, yes.
“Q. And it’s about six months since you’ve seen Garry in the house?
“A. Yes.
“Q. Never has been in the garage?
“A. Never saw him in the garage.
“Q. That garage, isn’t it open?
“A. Wide open.
“Q. There’s not a door or anything, is there?
“A. No, sir.
“Q. It’s more of a shed, you might say?
“A. That’s right.
“Q. And I want to ask you one more— Back either time that the investigators went in either the garage or the house, are you saying at this time that it’s your opinion that Garry had given up the house?
“A. I’d say at the time they went in it, he had given up the house. Yes, I think I made that statement to them, that he said that he was going to give up the house.
“Q. But he didn’t give the key back?
“A. No.
“Q. And hadn’t removed any of the insulation stuff; was it still there?
“A. I don’t think he had any at the time.”

It was the further testimony of Mr. Dish-man that he had rented the premises to defendant and another person, not Larry McPherson, approximately fourteen months before the search, that the rent was $120.00 per month, that defendant had paid it each month for all the months except the last one, though he did not always pay on time. He said that defendant owed him twenty days rent, that he attempted to contact defendant but was not able to do so until three days before, at which time he told defendant that the house had been rented to another person and the defendant said, “Ill come over and give him the key so he can go in and clean it out.” There are many pages of additional testimony as to the legal status of defendant as to the house and garage at the time of the search, but it is not materially different from that which has been stated above. All in all, it leaves considerable doubt as to whether defendant’s interest in the premises had been so abandoned by him as to cause him to lose standing to object to the evidence of the fruits of the search.

Whatever question there may be as to the validity of the search and whatever question there may be as to the sufficiency of the evidence to show scienter and conduct of defendant as to the stolen property on the premises after 12:01 A.M. January 1, 1980, we are persuaded that an unfavorable decision to appellant of either question would result in a decision favorable to him of the other. The result and the counter-result are somewhat comparable to the see-sawiness of the evidence relative to each question. As one goes up in strength, the other goes down, and vice versa.

We appreciate the careful study by the trial judge of the two major questions in case numbered 258. Even though it can be said with reason that his ruling as to the admission of evidence of the fruits of the search was correct and with equal reason that his denial of defendant’s motion to exclude the evidence as to this particular case was correct, a conclusion that both rulings were correct is without logical support. The result is that the judgment in CC--79, 258 should be reversed. In view of all the apparent circumstances, particularly the apparent lack of sufficient evidence against defendant, separate and apart from the evidence of the fruits of the search, in any case to be tried separate and apart from the other cases, we see no occasion for another trial of this case and hereby relieve the trial judge and the prosecution from any further responsibility by hereby reversing the judgment and rendering a judgment discharging the defendant in this particular case.

At first we did not understand the action of defendant and his counsel in requesting the consolidation for trial of the six cases. Now we do. The result in this particular case accentuates the acumen of each quail in a covey that there is safety in numbers when besieged by competent adversaries with adequate arms and plenty of ammunition.

CONCLUSION

The judgments in cases other than in number 258 should be affirmed. The judgment in the case numbered 258 should be reversed and a judgment here rendered discharging the defendant in such case.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED IN FIVE OF SIX CONSOLIDATED CASES; REVERSED AND RENDERED IN ONE OF THE CASES.

All the Judges concur.

      . Larry McPherson has been convicted on indictments charging the same crimes as those in most of the instant cases, and the judgments against him have been affirmed. McPherson v. State, Ala.Cr.App., 7 Div. 743, affirmed without opinion October 7, 1980.


source: Caselaw Access Project

author: WATSON, Justice. LEMMON, Justice, DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Thomas Nathan TUFTS.
    No. 67205.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 10, 1980.
    Dissenting Opinion Dec. 16, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Tommy Adkins, Dist. Atty., Dan J. Grady, III, Asst. Dist. Atty., for plaintiff-appellee.
    James A. Hobbs, Blackwell, Chambliss, Hobbs & Henry, West Monroe, for defendant-appellant.
   WATSON, Justice.

Defendant, Thomas Nathan Tufts, was charged by bill of information with two counts of obtaining Demerol, a Schedule II drug, “knowingly and intentionally ... by misrepresentation, fraud, forgery, deception or subterfuge,” in violation of LSA-R.S. 40:971(B)(l)(b). After trial by jury, Tufts was found guilty on both counts. The sentence was two years in parish prison on each count, to run concurrently, and a fine of five hundred dollars for each offense.

Defendant appeals his conviction and sentence, contending that there was insufficient evidence to prove fraud, misrepresentation, forgery, deception or subterfuge, and the trial court erred in denying a new trial.

FACTS

On July 6, 1979, Tufts walked into the pharmacy owned by Phil Waltz in Ruston, Louisiana. Waltz filled two prescriptions, one Demerol and one Keflex, an antibiotic. Both prescriptions were issued on pads from the Woman’s Hospital Pharmacy in Baton Rouge, made out to a Jessica Williams and signed by a Dr. Jack Ruli. Waltz testified that: “He told me that he was up here with his wife-to-be, they were gonna look for a place to live. * * * She had just had surgery, * * * It’s very commonplace for a physician to prescribe an antibiotic after surgery to prevent infection from setting in . . .”. (Tr. 39) The tablets of Demerol were apparently for post-surgical pain and the dosage units for both drugs appeared legitimate.

On July 22, Tufts went into a pharmacy across the street with prescriptions for Demerol, Keflex, and Norinyl, a birth control pill. The blanks were from the same hospital and signed by the same doctor, but the patient’s name this time was Robin Hebert. Since the owner-pharmacist, Albert Brazzel, was unable to supply the Demerol tablets, he called Waltz. Waltz brought them over, recognized Tufts and saw the similar prescriptions. Brazzel agreed with Waltz that the dosage units appeared legitimate. The history given Brazzel was similar to that given Waltz: Tufts and his prospective wife, who had had surgery, had just come to town.

Thomas R. Hightower, the administrator of Woman’s Hospital in Baton Rouge, testified that the hospital pharmacy ordinarily sells drugs only to patients in the hospital or being discharged. Hightower was familiar with the doctors operating at his hospital and had never heard of Dr. Jack Ruli of New Orleans. He admitted the possibility of an outside doctor having a prescription pad from the hospital pharmacy.

The issue is whether the State carried its burden of proving beyond a reasonable doubt that Tufts obtained the Demerol by misrepresentation, fraud, forgery, deception, or subterfuge.

Tufts unquestionably obtained possession of a controlled dangerous substance from the two druggists. However, he did not represent himself to be the person named in the two prescriptions. While it is unlikely that he was engaged during the period of one month to two separate women, both of whom had had surgery, it is not impossible. A reasonable doubt remains. Criminal guilt cannot be inferred merely from two concatenate situations. The State failed to prove that Dr. Jack Ruli did not exist; that he did not write the prescriptions for the two women; or that the prescriptions were not legitimate. The terms misrepresentation, fraud, forgery, deception and subterfuge all imply an element of trickery. Essentially, the two pharmacists were not deceived. They filled what appeared to be legitimate prescriptions. The State did not prove that this was not the case. A rational trier of fact could not conclude beyond a reasonable doubt that Tufts obtained Demerol by fraud, forgery, deception, or subterfuge. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Pilon v. Bordenkircher, 444 U.S. 1, 100 S.Ct. 7, 62 L.Ed.2d 1 (1979).

Defendant’s conviction and sentence must be set aside, and a judgment of acquittal entered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Liggett, 363 So.2d 1184 (La., 1978); State v. Thompson, 366 So.2d 1291 (La., 1978).

For the foregoing reasons, the conviction and sentence of defendant, Thomas Nathan Tufts, are reversed and vacated. A judgment of acquittal is entered.

REVERSED.

LEMMON, J., dissents and assigns reasons.

DENNIS, J., dissents with reasons.

LEMMON, Justice,

dissenting.

A rational trier of fact could have found guilt beyond a reasonable doubt from the circumstantial evidence in this case. There simply is no reasonable doubt that defendant obtained the controlled substances fraudulently when it is shown that defendant presented prescriptions on two different druggists, 16 days apart, claiming that the person’s name on the prescription was his fianceé who had recently undergone surgery; that the two names on the prescriptions were different; and that the prescriptions were written on forms supplied by a hospital to the doctors who practiced there, but signed with the name of a doctor who did not practice there. Presentation of evidence that Dr. Ruli had not written the prescriptions or that no Dr. Ruli was licensed to practice in Louisiana would have placed “icing on the cake”, but was not necessary to eliminate doubt that the substances were obtained by fraud.

DENNIS, Justice,

dissenting.

I would affirm the conviction. The majority finds the evidence insufficient to support proof beyond a reasonable doubt of the crime, because it is not impossible that the defendant could have been engaged to two women within one month. However, that is only one aspect of the circumstantial evidence adduced at trial. Defendant claimed not only to have been engaged to two different women, but to have arrived in town with women both of whom were receiving identical post-operative medication prescribed by the same physician. This is circumstantial evidence supporting a finding that defendant obtained the drugs by misrepresenting to the pharmacists his relationship with the women named on the prescription forms. Whether the pharmacists filled, as the majority maintains, what appeared to be legitimate prescriptions is irrelevant to that finding. Viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could conclude that all the elements of the offense had been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . LSA-R.S. 40:971(B)(l)(b) provides that “It shall be unlawful for any person knowingly or intentionally ... To acquire or obtain possession of a controlled dangerous substance by misrepresentation, fraud, forgery, deception, or subterfuge . . . ”,


author: DIXON, Chief Justice. MARCUS, Justice DENNIS, Justice,

text:
    STATE of Louisiana v. Raymond DUPLESSIS.
    No. 65903.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 10, 1980.
    Dissenting Opinion Dec. 16, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Sheila C. Myers, Victor Ortiz, James Kevin McNary, Asst. Dist. Attys., for plaintiff-appellee.
    Orleans Indigent Defender Program, Paul Katz, Clyde Merritt, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

Early in the morning of May 18, 1979, New Orleans city police received an anonymous telephone call stating that a tall black male wearing cream colored pants and holding a brown leather case was carrying a concealed weapon. The suspect was said to be in the vicinity of the 1400 block of North Claiborne Avenue. This information was broadcast on the police radio. Two officers of the city police proceeded to the designated location and observed the defendant, who matched the given description. They approached the defendant, told him of the report they had received, and advised him that he was under investigation. They then asked the defendant what he had in the leather pouch clutched under his arm. According to the officers’ uncontradicted testimony, the defendant handed over the bag, stating that he had just found it. An officer took the bag, felt the outline of a gun through the soft leather, and handed the bag to his partner, who opened it. The defendant was then arrested.

The defendant was charged with violating R.S. 14:95.1, possession of a concealed weapon by a convicted felon. Following the trial court’s denial of a motion to suppress the introduction of the gun into evidence, the defendant pleaded guilty to the offense, reserving this appeal on the denial of the motion to suppress. On appeal, the defendant argues that an anonymous tip cannot justify a police-created “street encounter,” and that evidence seized as a result of an illegal investigatory stop should be excluded from evidence.

Although one officer conducted a frisk of the defendant, the record indicates that the frisk was made after the defendant relinquished the bag. It is clear that the gun was not seized as a result of a “stop and frisk.” See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, the defendant contends that the police were without legal justification in creating the initial encounter, and that the evidence could not have been discovered in the absence of such an encounter. In short, the defendant claims that the police violated his “right to be let alone.” State v. Saia, 302 So.2d 869 (La.1974).

The Fourth Amendment of the United States Constitution and Article 1 § 5 of the Louisiana Constitution protect citizens from unreasonable searches and seizures. Implicit within this protection is a legal restraint upon the police from approaching citizens “under circumstances that make it seem that some form of detention is imminent unless they have probable cause to arrest the individual or reasonable grounds to detain the individual.” State v. Saia, supra, at 873. However, the police do have the right to engage anyone in conversation, even without reasonable grounds to believe that they have committed a crime. State v. Neyrey, 383 So.2d 1222 (La.1979); State v. Shy, 373 So.2d 145 (La.1979); State v. Brown, 370 So.2d 547 (La.1979) (Dixon, J. concurring). Restraints are imposed upon police conduct only when the police attempt to encounter or detain a citizen against his will. As the court stated in Terry v. Ohio, supra:

“ . .. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person. ...” 392 U.S. at 16, 88 S.Ct. at 1877. 20 L.Ed.2d at 903. (Emphasis added).

The mere incident of a police officer encountering an individual in a public place does not, in and of itself, restrain that individual’s “freedom to walk away.” The police in this case parked their car ten feet away from where the defendant was standing and approached him on foot. They had done little more than explain their purpose when the defendant gave them the bag. These circumstances, as distinguished from the method used by the police in State v. Chopin, 372 So.2d 1222 (La.1979), do not indicate that “some form of official detention was imminent.”

Even if the officers in the present case did not have reasonable grounds to accost the defendant in an initial encounter, it is essential to inquire whether the officers’ actions “infringed upon the defendant’s right to be left alone.” State v. Ryan, 358 So.2d 1274, 1275 (La.1978). If the defendant voluntarily gave up the bag before the police intruded upon his right to be free from unjustified governmental interference, the gun can properly be admitted into evidence. This is similar to the case in which a person abandons property prior to any unlawful intrusion by the police. See State v. Chopin, supra; State v. Ryan, supra. In the instant case, the defendant was told that “if he’d done nothing wrong, then he could just go about his business.” When asked what he had in the bag he was holding, the defendant voluntarily handed it over. Had the defendant chosen to keep possession of the bag, or to remain silent, the issues in this case would be entirely different. If the police had seized the bag from the defendant without his consent, the question to be addressed would be whether such a search and seizure was based on probable cause or other reasonable grounds. C.Cr.P. 215.1; State v. Davis, 383 So.2d 1005 (La.1980); State v. Bolden, 380 So.2d 40 (La.1980); State v. Jernigan, 377 So.2d 1222 (La.1979). The defendant foreclosed any evaluation of these issues by voluntarily cooperating with the police. The record does not indicate that the defendant was coerced into doing so. The record does indicate that the defendant chose to relinquish the bag, apparently in an attempt to create the appearance of innocence, since he simultaneously made an exculpatory remark. It was this misguided ploy that resulted in the discovery of the evidence, rather than any forcible intrusion by the police.

We reiterate that no one is required to stop or to answer questions posed by police under circumstances in which the Fourth Amendment protections are operative. However, when one who is suspected of a crime voluntarily complies with a police request, to his own detriment, he cannot reclaim the rights which he has waived.

The conviction and sentence are affirmed.

MARCUS, J., concurs and assigns reasons.

DENNIS, J., dissents with reasons,

MARCUS, Justice

(concurring).

The information provided by the unidentified caller, combined with independent police corroboration, provided reasonable cause for the officers to investigate the report of a concealed weapon by approaching the defendant. Hence, the initial detention of defendant was justified. State v. Davis, 383 So.2d 1005 (La.1980); State v. Bolden, 380 So.2d 40 (La.1980); State v. Jernigan, 377 So.2d 1222 (La.1979). I agree with the majority’s finding that defendant voluntarily complied with the officers’ request to hand over the bag containing the gun. Accordingly, I respectfully concur.

DENNIS, Justice,

dissenting.

When the police officers approached and stopped Duplessis, a seizure for Fourth Amendment purposes occurred because a reasonable person in defendant’s position would have believed that he was not free to leave. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Justice Stewart) and 100 S.Ct. at 1880 n.l (opinion of Justice Powell). Further, the officers did not have enough trustworthy information to warrant such a stop. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). I continue to adhere to the view I expressed in my dissent in State v. Jernigan, 377 So.2d 1222 (La.1979), that an anonymous tip alone cannot supply reasonable cause to justify an intrusion on a person’s liberty.

Therefore, I respectfully dissent.


author: PER CURIAM.

text:
    STATE of Louisiana v. Jesse C. POWELL.
    No. 67401.
    Supreme Court of Louisiana.
    Oct. 15, 1980.
    Rehearing Denied Nov. 10, 1980.

    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, III, Dist. Atty., Edward E. Roberts, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    James S. Gravel, Alexandria, for defendant-appellant.

       Dennis, J., would grant a rehearing.

   PER CURIAM.

Affirmed.

DENNIS, J., dissents and assigns reasons.


author: PER CURIAM. LEMMON, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Johnny W. ROBBINS.
    No. 67487.
    Supreme Court of Louisiana.
    Oct. 15, 1980.
    Rehearing Denied Dec. 16, 1980.
    Curtis W. Cary, Jack, Jack, Cary & Cary, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Woodrow B. Nesbitt, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

LEMMON, J., concurs and assigns reasons.

DENNIS, J., dissents and assigns reasons and would grant a rehearing.

LEMMON, Justice,

concurring.

When the defense requests specific evidence which may be exculpatory and there is a substantial basis for claiming materiality, the prosecution must respond either by furnishing the information or submitting the evidence to the trial court for in camera inspection. United States v. Agurs, 427 U.S. 97, 106, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976).

Here, since the defense did not ask for an in camera inspection of the victim’s statement after her testimony and did not apply for a new trial to establish that the statement had any exculpatory value, there is no showing of prejudice.

DENNIS, Justice,

dissenting.

I would find merit in Assignment of Error Number Five. The remarks made by the state during rebuttal argument were improper and an invitation for the jurors to disregard their sworn oaths.


text:
    STATE of Louisiana v. Gregory DANIELS.
    No. 80-K-2401.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In Re Gregory Daniels applying for Writs of Certiorari, Mandamus, Prohibition and Stay Order, Parish of Orleans, No. 275-425.

Granted. Trial judge ordered to permit relator to designate the entire record for appeal.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Jessie McMAHON.
    No. 67531.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Rehearing Denied Dec. 15, 1980.

      John B. Knight, Jr., Winnsboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Lowen B. Lof-tin, Dist. Atty., E. Rudolph McIntyre, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Chief Justice.

The defendant was charged with second degree murder in connection with the fatal shooting of her husband. The jury returned a verdict of guilty of manslaughter, and the trial judge sentenced defendant to fifteen years at hard labor. Ten specifications of error are urged on this appeal.

On the afternoon of August 26, 1978 the defendant and two of her friends, Peggy Spears and Rosemary McMahon, attended a birthday party for a six year old child. The group returned to the defendant’s home that evening, and retired to a bedroom to watch television and prepare themselves to go out again later that night. Shortly thereafter Robert McMahon, the defendant’s husband, returned home in the company of Verdastine Harris, his niece, and her husband Earl Harris. When the defendant’s husband learned of her plans for that evening, he told her that he did not want her to leave the house. The testimony indicates that the defendant retorted “she was going out somewhere if she had to go out and sit on the front steps.” Robert McMahon then left the bedroom. Rosemary McMahon and Verdastine Harris, who remained in the bedroom, testified that they saw the defendant transfer a gun to her purse at this time. Verdastine Harris and Peggy Spears then left the bedroom as well. Moments later Robert McMahon returned to the bedroom with a telephone, and Rosemary McMahon began to speak to the caller. When her conversation was completed she walked out of the room, leaving the defendant and her husband alone together. A single shot was heard, and the four witnesses rushed into the bedroom in time to see the victim, Robert McMahon, slumping across the bed. The defendant was standing at the foot of the bed with a gun in her hand. Earl Harris approached the defendant and asked her for the gun. She is said to have replied, “Stand back or I’ll shoot you too.” Nevertheless, Harris continued to approach the defendant and eventually recovered the weapon after wrestling her to the bed. A passing motorist was flagged down and the victim was taken to a hospital emergency room where he died thirty to forty-five minutes later.

Assignments of Error Nos. 1, 6, 7, 9 and 10

The first set of errors assigned by defendant involves the application and constitutionality of the second degree murder statute in effect at the time the homicide occurred. The pertinent part of R.S. 14:30.1 essentially provided that second degree murder was the killing of a human being with specific intent but without the aggravating circumstances listed in C.Cr.P. 905.4. The argument is made that several of the enumerated aggravating circumstances are so vague and indefinite as to render the entire statute unconstitutional. As a general rule a party who has not been adversely affected by a law has no standing to challenge its constitutionality. State v. Brown, 389 So.2d 48 (La.1980). Although the defendant in this case was convicted of manslaughter rather than second degree murder, the two offenses are interrelated, since manslaughter is defined in part as a homicide “which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder) ...” R.S.14:31. If the second degree murder statute is constitutionally defective, defendant conceivably could claim to have been aggrieved by it, despite her conviction for manslaughter.

In State v. Payton, 361 So.2d 866 (La.1978), this court held certain provisions of C.Cr.P. 905.4 to be unconstitutional in connection with the first degree murder statute; however, the validity of the remaining provisions was left intact. No constitutional infirmity was found with the second degree murder statute, under which the aggravating circumstances must be absent. In State v. Ford, 375 So.2d 641 (La.1979), the defendant was charged with first degree murder but was convicted of second degree murder. The court found that the defendant had not been prejudiced by any constitutional defect in the first degree murder statute, since the jury’s verdict necessarily rejected the presence of any aggravating circumstances. In the present case, the constitutional merit of the first degree murder statute is not at issue; and, because the second degree murder statute required the absence rather than the presence of aggravating elements, it is unnecessary to discuss any possible vagueness in those elements.

Defendant also complains that the trial judge committed error by failing to instruct the jury as to all the elements of second degree murder. Defendant’s contention is that the jury should have been informed of the aggravating circumstances listed in C.Cr.P. 905.4, presumably so the jury could determine that these circumstances were in fact absent. This contention is without merit. No conceivable prejudice to the defendant could have resulted through the failure to charge the jury to ascertain whether the homicide was not aggravated. In any event, defendant cannot claim to be aggrieved by the omission, since she was convicted of the lesser offense of manslaughter rather than second degree murder.

These assignments of-error are without merit.

Assignments of Error Nos. 2 and 10

The defendant’s trial had originally been scheduled for April 2, 1979. Due to a backlog, the state was unable to try the case by the time the petit jury venire was dismissed on April 6. The state did not move for a continuance, but was later granted an order scheduling defendant’s trial for July 23, 1979.

The defendant was not in custody during the three and one-half month interim and never asserted her right to a speedy trial during that time. La.Const. Art. 1 § 16; C.Cr.P. 701. No complaint was made of the state’s delay until the date of trial. Under these circumstances there was no abridgement of the right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Reaves, 376 So.2d 136 (La.1979); State v. Alfred, 337 So.2d 1049 (La.1976). To the contrary, it would appear that the defendant acquiesced in the delay. State v. Overton, 337 So.2d 1058 (La.1976).

These assignments lack merit.

Assignments of Error Nos. 4 and 10

During trial, Willie Earl McMahon (the son of the victim and the husband of Rosemary McMahon) was called to testify by the state. He recounted an incident which occurred in the home of the victim and the defendant on August 25, 1978. Defendant and the victim were arguing, and defendant told the victim, Robert McMahon, “that she was gonna kill Robert about Elaine.” The following exchange then took place:

“Q Did you see Jessie after Robert left? A Yeah, she stayed there for a while and then she took her pistol and put it in her purse and left out and the next morning Peggy told me that she went looking for him to kill him.” (Emphasis added).

Defense counsel immediately objected to the inadmissible hearsay nature of this testimony. R.S. 15:434. Pursuant to the objection, the trial judge admonished the jury to “disregard the last comment that he made.” C.Cr.P. 771. Defense counsel complained that the admonishment could not cure the prejudice caused by the allegation that defendant had intended to kill her husband on a prior occasion, and requested a mistrial. C.Cr.P. 775. While it is admitted that the remark was entirely gratuitous, and not solicited or expected by the prosecution, it is nevertheless necessary to determine whether this inadmissible testimony might have prejudiced the defendant’s right to a fair trial. State v. Foss, 310 So.2d 573 (La.1975).

Willie McMahon’s testimony that Peggy [Spears?] told him that defendant went looking for Robert McMahon to kill him was inadmissible hearsay and highly prejudicial. The testimony indicating that defendant had intended to kill her husband on a prior occasion supported the state’s contention that the homicide was intended; the strongest argument of the defense was that the shooting was accidental. The hearsay statement, if believed, tended to negate that defense. By returning a manslaughter verdict, the jury obviously rejected the defense that the shooting was accidental. On its face, the argument that the testimony incurably prejudiced the defendant’s case is sound.

The admission of hearsay testimony may infringe upon the right of an accused under the Sixth Amendment “to confront the witnesses against him.” See also La. Const. Art. 1 § 16 (1974). In this case, however, Peggy Spears actually testified for the defendant, and denied both making the statement and hearing defendant threaten the victim. Under these circumstances the hearsay issue does not take on constitutional proportions, since the right of confrontation was not abridged.

Instead, the question here is whether the inadmissible testimony made it “impossible for the defendant to obtain a fair trial” in spite of the admonition, C.Cr.P. 771, 775, and whether the trial judge’s refusal to order a mistrial “probably resulted in a miscarriage of justice ...” C.Cr.P. 921; State v. Herman, 304 So.2d 322 (La.1974); State v. Michelli, 301 So.2d 577 (La.1974).

The record as a whole minimizes the damaging nature of the witness’ statement. Immediately before the hearsay testimony was given, Willie McMahon testified that he had overheard the defendant telling her husband that she was going to kill him “over Elaine,” with whom she suspected he was romantically involved. This threat, which was properly before the jury, constituted evidence of defendant’s prior intent to kill her husband. The hearsay testimony merely corroborated the evidence of this prior threat. Immediately after the hearsay statement was made, the trial judge admonished the jury to disregard it. When the conduct constituting error, as here, does not fit within the mandatory mistrial provisions of C.Cr.P. 770, the trial judge is given some discretion to determine whether the defendant was so prejudiced that a fair trial is impossible, or whether the admonition is sufficient to assure a fair trial. C.Cr.P. 771; State v. Domangue, 350 So.2d 599 (La.1977). The court was obviously satisfied that the admonition was adequate. In addition, the alleged declarant, Peggy Spears, who was later called by the defendant to testify, completely denied the truth of Willie McMahon’s statement. The defendant herself testified in detail as to the allegedly accidental nature of the shooting, to which there were no eyewitnesses. Under these circumstances we cannot find that the unsolicited hearsay testimony, followed by a prompt admonition from the trial judge, made it impossible for the defendant to receive a fair trial. The remedy of mistrial is not justified when an admonition is sufficient to preserve a defendant’s due process rights. State v. Williams, 375 So.2d 364 (La.1979); State v. Wesley, 347 So.2d 217 (La.1977).

These assignments of error are without merit.

Assignments of Error Nos. 8 and 10

When the jurors retired for deliberations, they had not been instructed as to the number required to reach a verdict. Because second degree murder and manslaughter are necessarily punished by imprisonment at hard labor, ten of twelve jurors are required to concur on the verdict. La.Const. Art. 1 § 17 (1974); C.Cr.P. 782.

The record indicates that the jury was retired at 4:35 p. m. At approximately 7:15 p. m. the jury was recalled to the courtroom to be given the omitted instruction. Defense counsel then moved for a mistrial. The defendant claims to have been prejudiced by the initial omission of the instruction because of the possibility that ten of the twelve jurors may have voted for acquittal but were under the mistaken impression that the verdict had to be unanimous. It is of course impossible to know what transpired during the jury’s deliberations.

On the date of trial, defense counsel filed a motion requesting the court to reduce its jury charge to writing and to deliver it to counsel prior to instructing the jury. C.Cr.P. 801. This was done, and counsel raised no objections. When the jury is called back to the courtroom to receive further charges after it has initially retired to deliberate, an objection made at the time the corrective charges are given is timely. State v. Knight, 323 So.2d 765 (La.1975). Defendant’s objection was directed to the initial failure of the trial judge to give the essential instruction, not to the corrective charge. No prejudice has been shown in the delay. Moreover, it is clear that it would have been proper to give the charge at the jury’s request. C.Cr.P. 808. We find that the trial judge’s inadvertent error in omitting the instruction which was later given did not constitute prejudicial error.

These assignments of error are without merit.

Assignment of Error No. 11

The defendant was sentenced to fifteen years at hard labor. The maximum sentence under the statute is twenty-one years. R.S. 14:31. Defendant contends that this sentence violates her constitutional right to humane treatment in that the sentence is excessive. La.Const. Art. 1 § 20 (1974).

The legislature has provided statutory guidelines to assist the court in determining the proper sentence to be imposed. C.Cr.P. 894.1. The record must reflect that these criteria were adequately considered in imposing sentence. State v. Jones, 386 So.2d 85 (La.1980); State v. Bonanno, 384 So.2d 355 (La.1980); State v. Roussel, 381 So.2d 796 (La.1980); State v. Cox, 369 So.2d 118 (La.1979). At the sentencing hearing, the defendant called three witnesses to testify on her behalf. A presentence investigation report was also filed. C.Cr.P. 875. Of the defendant’s three witnesses, two had employed her both before and after the homicide to work in their home. The third, formerly a secretary of the district attorney, hired the defendant after the homicide to work in her home one day a week. All of these witnesses uniformly reported their complete trust of the defendant; all of them testified that they had no reason to believe that defendant had a violent temper or in any way presented a danger to them. The trial judge, who was acquainted with all three of these witnesses, noted that he did not think that they would misrepresent the truth.

However, the trial judge also noted that he had been acquainted with the victim for some twenty-five or twenty-six years:

“. . . and never knew him to be a violent individual. Not one prone to abusing the female sex. The record shows . .. that Robert and Jessie McMahon were left alone and a shot was heard. I think the record shows that no one heard any arguing and that when the first witness arrived, I believe, Jessie McMahon was standing there with a gun in her hand. Life is precious. Death is permanent. Even though Jessie McMahon has a clean record prior to that time, so did a host of other people who are at the present time serving time in correctional institutions and I am sure that they have not been convicted of anything or had encounters with the law since that time. As the Court stated, death is rather permanent and Mrs. McMahon, you take life rather lightly. And, I know that Robert McMahon was very fond of life. The Court will not contest or even suggest in the future you would be guilty of any similar crimes, but even at that, the Court will take leniency. ... ”

The trial judge, in opposing a fifteen year sentence, apparently believed that a lesser sentence would deprecate the seriousness of the crime. C.Cr.P. 894.-1(A)(3). Several mitigating circumstances were properly considered, such as the defendant’s lack of a criminal history and the improbability that defendant would commit another crime. C.Cr.P. 894.1(B)(7 and 9). However, the trial judge also negated the presence of one mitigating circumstance (that the defendant may have acted under strong provocation) in spite of the fact that the verdict of manslaughter represents the jury’s conclusion that the homicide was committed “in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection.” R.S. 14:31. Nevertheless, we find that the judge adequately considered the legislative criteria in imposing a less than maximum sentence.

Moreover, we conclude that the sentence itself is not excessive. In determining what is excessive punishment under the Eighth Amendment’s prohibition against cruel and unusual punishment, the United States Supreme Court has ruled that a sentence is excessive when it is grossly out of proportion to the severity of the crime. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). This standard has been adopted by this court in addressing claims of excessive punishment. State v. Hartman, 388 So.2d 688 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980). The defendant was convicted of deliberately killing a human being. Because she was found to have acted under provocation, her conviction for manslaughter, which carries a less severe punishment than murder. The sentence itself was less than the statutory maximum. Under these circumstances we do not find that the fifteen year sentence was excessive.

This assignment is without merit.

The defendant’s conviction and sentence are therefore affirmed.

WATSON, J., concurs.

      . R.S. 14:30.1, as amended by Acts 1977, No. 121, is applicable to this case. The statute was again amended in 1978 by Act 796, but the amended version did not become effective until after the August 26 homicide. La.Const. Art. 3 § 19 (1974).


author: CALOGERO, Justice.

text:
    Olezime CHERAMIE et al. v. Alidore CHERAMIE et al.
    Nos. 67120, 67126.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      Greenberg & Dallam, Nathan Greenberg, Gretna, for defendant-applicant in 67120 and for defendant-respondent in 67126.
    Edward T. Diaz, Diaz & Cheramie, Golden Meadow, for plaintiff-applicant in 67126 and for respondent in 67120.
    Carlton J. Cheramie, Diaz & Cheramie, Golden Meadow, David Landry, Deramee & Deramee, Thibodaux, Charles A. O’Niell, Jr., New Orleans, Maurice J. Serpas, Galli-ano, George J. Ledet, Jr., Laplante & Ledet, Cut Off, C. Ellis Henican, Henican, James & Cleveland, New Orleans, for respondents in both cases.
   CALOGERO, Justice.

In this petitory action plaintiffs assert ownership of a tract of land possessed by defendants. The district court rendered judgment in favor of defendants, holding that plaintiffs failed to prove valid record title, good against the world. The trial court also sustained defendants’ pleas of five year liberative and thirty year acquisitive prescription. The Court of Appeal, 380 So.2d 166, affirmed the holding of the trial court in all respects.

Two considerations prompted our grant of this writ: (1) the lower courts’ assessment of plaintiffs’ title appeared incorrect and (2) if plaintiffs did have good title, the possession of the alleged usufructuary would seem to have accrued to the benefit of plain tiff s/naked owners rather than to defendants/possessors.

Our study of the record leads us to conclude that the Court of Appeal was correct on the issue of acquisitive prescription. The supposed usufructuary did not participate in the notarial act creating the usu-fruct nor did she later corporeally possess the land was subject to the usufruct. Defendants openly possessed the contested tract of land for more than thirty years, free of any usufructuary interest on the land which might have interfered with their possession as owners. We therefore find it unnecessary to examine the Court of Appeal holding that plaintiffs are not the record owners of the land.

This suit began as a claim of ownership by Olezime Cheramie to a tract of land claimed and possessed by his brothers Ali-dore and Ozeme. Plaintiffs claimed all the land possessed by Alidore and presumably a small, northernmost, portion of that possessed by Ozeme. Olezime bases his claim to the property on a partition executed in 1907 by all eight children of Olucien Chera-mie, including the said Olezime. Plaintiffs’ petition describes the contested property as:

“A CERTAIN TRACT OF LAND, situated in the Parish of Lafourche, Louisiana, on the left descending bank of Bayou Lafourche, about 55 miles below the Town of Thibodaux, near the Town of Golden Meadow, Louisiana, measuring a front of two hundred, ninety-three and 44/ioo (293.44 ft.) feet on the left descending bank of said bayou by a depth of forty arpents between parallel lines, comprised within and being the Northernmost one quarter of Section 23, Township 19 South, Range 22 East, Southeastern Land District of Louisiana, West of the Mississippi River; said tract of land being bounded in the front or on the West by said Bayou Lafourche, above, or on the North by the Northern boundary line of said Section 23, in the rear, or on the East by the Eastern boundary line of said Section 23, and bounded below, or on the South, for a distance of 1000 feet by property of Eugene Cheramie, and for the remainder of its depth by property of Alidore Cheramie; together with all buildings and improvements thereon and all rights, ways, privileges and servitudes thereunto belonging, or in any wise appertaining.” (Emphasis provided.)

Olucien Cheramie, father of Olezime, Ali-dore, Ozeme and five other children, acquired the contested tract of land as part of a larger tract purchased from Martial Or-geron in 1866, at which time Olucien was unmarried. The act of sale for that purchase, presumably 158.75 acres lying fully within Section 23, Township 19 South, Range 22 East, contains the following property description:

“A certain tract of land situated in the Parish of Lafourche, on the left descending bank of Bayou Lafourche bounded above by a tract of land belonging to Gratien Thibodaux, and below by a tract of land belonging to Charles Orgeron— with all the buildings and improvements thereon.
“Said land has been acquired by the vendor from the State of Louisiana and is described as being Lot Number Twenty-three (23) in Township Number Nineteen South of Range Number Twenty-two East, containing one hundred and fifty-eight acres and Seventy-five hundredths of an acre.”

Later, after his marriage to Aglae Hebert in 1869, Olucien purchased a second tract of land along Bayou Lafourche. This property is located in section 22, below the first tract, and is not directly involved in this litigation.

Olucien and Aglae had eight children: Olezime, Alidore, Ozeme, Theodore, Joseph Ovide, Julien, Olucien, Jr., and Adolphine. Olucien died intestate in 1882 or 1883, survived by Aglae and their eight children.

On July 24,1907, the Cheramies executed three notarial acts before Chas. S. Larkin, notary public: (1) Aglae sold to her eight children a stated one-half interest in the two tracts of land; (2) the eight children partitioned the two tracts among themselves with Joseph Ovide, Julien, Olucien, Jr., and Adolphine each receiving one of four parcels created from the lower tract, and Olezime, Alidore, Ozeme and Theodore each being allotted one of the four parcels created from the upper tract; (3) each of the eight children, with respect to the parcel he/she respectively received in the partition, granted Aglae a usufruct over that parcel (Aglae was not a party to this notarial act, nor to any later notarial act, accepting the usufruct).

The subject of this suit is the upper tract, more particularly the parcels allotted to Olezime, Alidore and Ozeme. The partition divided the upper tract into four essentially rectangular parcels, each approximately one acre front on Bayou Lafourche by a depth of 40 acres. The upper parcel, described in the partition as bounded above by land formerly belonging to the estate of Gratien Thibodaux and below by the parcel of Ali-dore, was allotted to Olezime. The second parcel, described as bounded above by the parcel of Olezime and below by that of Ozeme, was allotted to Alidore. The third parcel, described as bounded above by the parcel of Alidore and below by the parcel of Theodore, was allotted to Ozeme. Theodore received the fourth parcel, described as bounded above by the parcel of Ozeme and below by land belonging formerly to Francois Doucet and now owned by Francois Deramee. The partition describes the entirety of the upper tract in the following manner:

“A certain tract of land situated in the Parish of Lafourche, State of Louisiana, on the left bank of Bayou Lafourche at about Fifty five miles below the Town of Thibodeaux, measuring Four acres more or less front on Said Bayou Lafourche by Forty Acres in depth, Bounded above by land formerly belonging to Estate of Gra-tien Thibodeaux and now owned by Francois Deramee and below by other land of Francois Deramee and formerly to Francois Doucet together with the buildings and improvements thereon.”

At the time of the partition, Olezime was already living on the parcel of land thought to be allotted to him. Also at the time of the partition, Alidore and Ozeme, with whom their mother Aglae made her home, lived in section 22 on land which the partition allotted to Olucien, Jr. Several years after the partition, Alidore, Ozeme and Ag-lae moved onto the portion of land which they believed had been allotted to Ozeme, but south of the land which plaintiffs claim. By the time of this trial, Aglae and Ozeme had died, but Alidore continued to live there. The land on which Olezime lived and continued to live was later determined to be in section 24 rather than in section 23.

In 1934, Nolan Tomplain, whose ancestor in title was Gratien Thibodaux, brought suit against Olezime asking the court to fix the boundary between their tracts of land. In that suit it was determined that the tract Olezime possessed was fully within section 24, with the record title in Gratien Thibodaux and his assigns. Olezime testified that the northern boundary of his property, which he claimed to be the southern boundary of Thibodaux’s, was marked by a canal and a fence. Olezime stated that he and his father before him had occupied the land for more than 50 years. The judgment in that suit, rendered in 1936, found that Olezime had prescriptive title to the land, having possessed all but the rear portion of the tract within section 24 for more than thirty years.

Thus, based upon thirty year acquisitive prescription, Olezime was successful in retaining the property he had occupied both before and after the 1907 partition. Although he was alerted by the Tomplain litigation that he might lay claim to the Alidore tract, Olezime did not bring the instant suit until 1951, seventeen years after the commencement of the Tomplain suit. Spurred by the discovery of oil on the property in the late 1940’s, Olezime claimed that the partition of 1907 made him the owner of the upper quarter of section 23, the northernmost of the property to which his father, Olucien, apparently had title.

As indicated at the beginning of this opinion, our resolution of the instant litigation turns upon a determination that defendants acquired the disputed property by thirty year acquisitive prescription, that is, by open, unequivocal continuous possession as owner of the contested tract of land.

Trial testimony established that fences were erected to separate the individual parcels of land thought to have been allotted to Olezime, Alidore, Ozeme and Theodore. These boundaries were also marked by drainage canals. Farming occurred on the portion of the land which would support crops. Olezime and Theodore were already farming their parcels before the partition and Alidore and Ozeme began farming on their tracts by 1911. Alidore hired people to farm his land, while Ozeme worked much of his by himself. Witnesses who had worked for Alidore and Ozeme testified that they had planted crops and helped keep drainage canals clean. These witnesses said that, although they saw Olezime working in his fields, he never suggested that they were working the wrong land. Both Ali-dore and Ozeme sold lots off their tracts for homesites. The buyers testified that Olez-ime did not protest when they built homes on these lands.

Plaintiffs strongly protest that defendants’ possession of the unplanted portion of the tract, located to the rear of the cultivated area, was insufficient to sustain a plea of thirty year prescription. In this regard, plaintiffs specifically note the lack of fences surrounding that area. Although fences or walls were an early jurisprudential requirement to show possession, in Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952), we recognized that the necessity of a fence or wall is not justified or supported by the Civil Code. We further observed that corporeal possession necessary to support prescription is governed by the nature of the land and the use to which the land is put.

Witnesses at trial described this rear acreage as swamp, frequently covered by two or more feet of water. Alidore and, with his permission, other family members grazed cattle on this land. Alidore built, or had built, a fence to keep the cattle from straying into the cultivated portion of his land and destroying his crops. All the witnesses at trial, except Olezime, testified that the family discussed the location of the various portions of land and that Alidore was known to be possessing the tract which plaintiffs now claim. Even Olezime’s son testified to family discussions regarding the land of the brothers. Drainage canals marked the northern and southern extent of the front portion for more than 30 of the 40 arpents, dividing each brother’s land from the next and keeping the land dry enough for cultivation. Alidore testified that the canal separating his land from Olezime’s ran back 38 arpents from the bayou. The rear portion, directly in line with that marked by the fences and canals, was recognized to be possessed by the brother possessing the land fronting on the bayou. Those allowing cattle to graze behind Alidore’s front acreage did so with his permission and only those who had permission grazed cattle in that location. Olezime did not keep cows on this land.

Since 1911 Olezime was well aware that Alidore was possessing the land which he now seeks to claim as his. Moreover, the family and neighbors also knew that Ali-dore was in possession of this land. Plaintiffs are all members of the Cheramie family and all lived in the vicinity of the land they are claiming. Thus, the only adverse claimants to defendants’ acquisitive prescription had notice that the land had been or was being occupied for forty years, but chose to do nothing about it during this long period of time. Even after they knew or suspected, by virtue of the Tomplain suit, that they were in the wrong location, they still did not bring a petitory action for many years.

Plaintiffs further contend that, regardless of the nature of possession by defendants, the time for acquisitive prescription could not begin to run until Aglae died in 1935 because her possession of the property as usufructuary accrued to the benefit of the true naked owners, namely plaintiffs. For the reasons stated below, we determine that the tract claimed by plaintiffs was not burdened by a usufruct. Aglae did not accept the usufruct in the notarial act in 1907 by which the children attempted to grant one to her, nor did she accept the usufruct in a later notarial act. Louisiana Civil Code article 1540 provides:

“A donation inter vivos shall be binding on the donor, and shall produce effect only from the day of its being accepted in precise terms.
“The acceptance may be made during the lifetime of the donor by a posterior and authentic act, but in that case the donation shall have effect, with regard to the donor, only from the day of his being notified of the act establishing that acceptance.”

Further Aglae did not accept the usufruct by corporeal possession.

It is clear that the land in question, in fact all of the northern tract from which the four parcels were carved, was the separate property of Olucien Cheramie, having been purchased approximately three years before his marriage to Aglae Hebert. Consequently, Aglae could not “sell” her interest in this property because she had no such interest, not even the usufruct of a surviving widow in community. Therefore, the first of the three notarial acts executed on July 24, 1907, did not effect a transfer of ownership with respect to the land sought by plaintiffs in the instant action. There could be no sale because Aglae had nothing to sell.

The second of the notarial acts of July 24, 1907, partitioned the land among the eight Cheramie children. Each child received a particular parcel of land as his or her own. The act begins with a declaration that the parties no longer wish to be owners in indi-visión. One son testified at trial that, with the exception of Alidore and Ozeme, each person was already living on or using the land received by that individual in the partition.

The grant of the usufruct to Aglae was by the children as owners in a divided state. Aglae could not, therefore, hold a single usufruct over all the land for all the children as plaintiffs contend. Rather, Aglae was granted eight separate usufructs over eight separate parcels of land by the final act passed on July 24, 1907. As stated previously, Aglae was not a party to this act and did not later formally accept the donation as required by La.Civ.Code art. 1540.

We must therefore examine the evidence to determine whether Algae accepted the donation of the usufruct by corporeal possession, the alternative method of acceptance provided by La.Civ.Code art. 1541. At the time of the sale, partition and donation of the usufruct, Aglae was living with Alidore and Ozeme on the lower tract of land which is not involved in this suit. Their house was on land which was allotted to Olucien, Jr., in the partition. They continued to live in that location until approximately 1925 at which time the brothers built a house on the parcel allotted to Oz-eme and the three moved into it. Aglae lived with these two sons because neither of them was married. She cooked and kept house for them when she was well enough to do so. In Aglae’s later years, these sons hired a woman to help with the housework and to do the cooking when Aglae could not.

Olezime alone testified that the children were to give their mother “$10.00 a year for her share.” Although insisting that his mother had a usufruct over the land, Olez-ime admitted that he never paid his mother the $10.00 agreed upon to “hold her rights.” He further testified that he was not aware that any of the other children paid Aglae any money. Rather, he said that she was supported by the ones “she did the work for.” Theodore, another brother, testified that he gave his mother “what she happened to need because I knew that it was my mother.” He confirmed that Olezime did not give anything to Aglae. He also stated that the other children did not contribute to her support.

Olezime contended that Alidore served as his mother’s agent when working the land, hiring workers and buying merchandise. However, witnesses at the trial testified that they had worked for Alidore, not for his mother. The people who helped with planting the crops dealt only with Alidore. Merchants testified that Alidore did the purchasing and paid the bills in his own name.

Aglae did not personally work in the fields. She did not raise chickens in the area adjacent to the house. She did not even have a kitchen garden. Any of these acts might have been consistent with corporeal possession of the property, but Aglae did none of them.

Finally, we note that on March 6, 1934, Alidore sold to Remis Cheramie a piece of the land which Olezime claims. Aglae was not a party to this sale. The act of sale contains no reference to a usufruct in favor of Aglae. Such activity is inconsistent with the existence of a usufruct.

A usufructuary is entitled to all the profits, natural and civil fruits, as well as the other advantages of use of a corporeal object. Natural and civil fruits belong to the usufructuary. Aglae did not reap these. In this case, we find no evidence that Aglae received the profits from the farming, cattle raising and trapping which were done on the contested land. The fact that she was housed, clothed and fed by the sons, particularly where the house was not upon the land in contest, is insufficient to fulfill the enjoyment and use elements of usufruct.

The instant case is clearly distinguishable from Cotton v. Washburn, 228 La. 832, 84 So.2d 208 (1955), in which we found that there had been acceptance of the donation of an immovable by corporeal possession. In Cotton, the husband, just prior to his marriage, purchased property in his name and that of his wife-to-be. Following the marriage, the couple moved into the house and resided there throughout the duration of the marriage. When the couple divorced, the wife sought to have the house included in the partition inventory. The husband objected that it was purchased with his separate funds and that, if it be considered a donation, the wife had never formally accepted. We held that a donation had taken place and the wife’s moving into the house and residing there constituted an act of corporeal possession. Aglae never moved onto the land which Alidore thought he had received in the partition. She and her sons moved onto the tract thought to have been allotted to Ozeme, but not until almost twenty years after the notarial acts of July 24, 1907. Then Aglae merely followed the sons with whom she made her home when they moved onto a portion of Ozeme’s tract not at issue here.

The record is barren of evidence supporting acceptance of the usufruct by Aglae. Consequently, we hold that the contested property was not burdened by a usufruct. Further, we find that defendants possessed the land for more than 30 years. La.Civ. Code arts. 3475, 3499. They possessed in the character of owners and were known as owners throughout the community. La.Civ. Code art. 3500. Finally, they possessed the full extent of the land as described in the partition of 1907. La.Civ.Code art. 3503.

Decree

For the foregoing reasons, the judgments of the district court and that of the Court of Appeal are affirmed. Costs of this appeal to be paid by plaintiffs/relators.

AFFIRMED.

      . This suit was filed in 1951 by nine plaintiffs against forty-five defendants. Trial was held in 1956 and 1957 with the trial judge taking the matter under advisement at the conclusion of testimony. That judge left office many years later without rendering an opinion. Through the years the number of litigants has increased, with substitution of parties prompted by the death of and transfers by the original parties. In 1979 the district court rendered the judgment outlined above.

      . In a partition, the coheirs warrant to each other the property falling to each against disturbance and eviction from a cause arising before the partition. La.Civ.Code art. 1384. This action of warranty prescribes in five years and the time commences to run from the day of the eviction. La.Civ.Code art. 1396. Actions for the rescission of a partition and the guarantee of the portion prescribe in five years. La.Civ. Code art. 3542.

      . A possessor may acquire title to immovable property by thirty years possession which is public, continuous and in the character of an owner. La.Civ.Code arts. 3475, 3499, 3500.

      . La.Civ.Code art. 1541 provides that a donation not accepted by an authentic act is nevertheless valid if the donee has been put by the donor into corporeal possession of the effects given.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Roy McCloud FRANKS.
    Nos. 67371, 67372.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Lowen B. Lof-tin, Dist. Atty., William R. Coenen, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Richard V. Burnes, Dee D. Drell, Gravel, Roy & Burnes, Alexandria, for defendant-appellant.
   MARCUS, Justice.

Roy McCloud Franks was originally indicted for aggravated rape, aggravated kidnapping and armed robbery (La.R.S. 14:42, 14:44 and 14:64). Pursuant to a plea bargain, defendant withdrew his former pleas of not guilty and entered pleas of guilty to attempted aggravated rape and armed robbery. The charge of aggravated kidnapping was dismissed. The trial judge accepted the guilty pleas after determining that they were made voluntarily with understanding of the nature of the charges. A presentence investigation was ordered by the court. Subsequently, defendant was sentenced to serve eighteen years at hard labor for the attempted aggravated rape and thirty years at hard labor without benefit of parole, probation or suspension of sentence for the armed robbery. The court expressly directed that the sentences be served consecutively.

On appeal, defendant’s convictions were affirmed but, finding that the trial judge had failed to state for the record the conclusions taken into account and the factual basis therefor for imposing sentence as required by La.Code Crim.P. art. 894.1 and to particularize the justification for the imposition of consecutive rather than concurrent sentences for crimes arising from a single course of conduct, we vacated the sentences and remanded the case to the trial court for resentencing. State v. Franks, 373 So.2d 1307 (La.1979).

On remand and prior to resentencing, defendant filed a motion to appoint a sanity commission and a motion to withdraw his guilty pleas. After a hearing, the trial judge denied the motions. Subsequently, defendant was sentenced to serve ten years at hard labor for the attempted aggravated rape and forty years at hard labor without benefit of parole, probation or suspension of sentence for the armed robbery. The court expressly directed that the sentences be served concurrently. On appeal, defendant relies on five assignments of error for reversal of his convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to appoint a sanity commission. He argues that he presently lacks the mental capacity to understand the proceedings against him or to assist in his defense.

At the hearing on the motion, Mrs. Lois Franks, defendant’s mother, testified that defendant had attended a school for slow learners for two or three years prior to quitting school at the age of sixteen. She also stated that defendant had been under medication since his incarceration on these charges and that he had undergone some form of psychiatric evaluation while incarcerated in the penitentiary at Parchman in Mississippi on a charge of grand larceny. Dr. J. C. Ellington testified that based on his memory, he had observed no signs of retardation in defendant and had no opinion concerning defendant’s present ability to understand. In denying the motion, the trial judge stated that he found nothing in the evidence presented at the hearing which raised a reasonable doubt that defendant was unable to understand the proceedings against him and to assist his counsel.

Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. La. Code Crim.P. art. 641. The issue of present insanity or mental incapacity to proceed may be raised at any stage of the proceedings, even after conviction. State v. Henson, 351 So.2d 1169 (La.1977); State v. Luquette, 275 So.2d 396 (La.1973). When the issue is raised, the trial court is required to order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed. La.Code Crim.P. art. 643; State v. Henson, supra; State v. Keys, 346 So.2d 169 (La.1977). The appointment of a sanity commission to inquire into the mental condition of the accused is addressed to the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Henson, supra; State v. Nix, 327 So.2d 301 (La.1975).

In the instant case, defendant failed to produce any evidence which indicated that he lacked the capacity to understand the proceedings against him or to assist in his defense. Neither the testimony of his mother nor that of Dr. Ellington created a reasonable ground to doubt defendant’s mental capacity to proceed. The trial judge based his ruling on his prior interrogation of defendant before accepting his guilty pleas and the lack of any evidence indicating a change in defendant’s mental capacity to proceed since that time. Hence, we are unable to say that the trial judge abused his discretion in denying the motion to appoint a sanity commission.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in denying his motion to withdraw his original pleas of guilty grounded on the claim that the pleas were not made voluntarily with understanding of the nature of the charges.

In defendant’s previous appeal to this court, he asserted four assignments of error in which he argued that the Boykin examination had been inadequate, that the trial judge failed to inform him of the elements of each offense charged, that defendant failed to understand the charges or the constitutional rights waived, and that there was no indication of the factual basis for the entry of the guilty pleas. We noted at that time that we were unable to consider the merit of these contentions based on the record before us. We suggested that the same arguments might be raised in an application for a writ of habeas corpus. Acting on two other assigned errors relative to the imposition of sentence, we affirmed defendant’s convictions, vacated the sentences, and remanded the case to the trial court for resentencing.

On remand prior to resentencing, defendant filed a motion to withdraw his original guilty pleas based on the identical grounds previously urged on appeal. At a hearing on the motion, defendant testified that he .had only entered the guilty pleas on the advice of his then court-appointed counsel and that he failed to understand any of the questions or instructions of the court. Mrs. Lois Franks, defendant’s mother, testified that she had no knowledge that her son changed his pleas from not guilty to guilty as she was in the hospital at the time. Finding that the evidence showed no cause to permit the withdrawal of the guilty pleas, the trial judge denied the motion.

La.Code Crim.P. art. 559 provides that the court may permit a plea of guilty to be withdrawn at any time before sentence. Discretion to permit a guilty plea to be withdrawn is vested in the trial judge. That discretion, however, cannot be exercised arbitrarily and abuse of discretion can be corrected on appeal. State v. Compton, 367 So.2d 844 (La.1979); State v. Andrasi, 343 So.2d 175 (La.1977).

In the instant case, the record reflects that the trial judge extensively interrogated defendant prior to accepting his pleas of guilty. Defendant was clearly informed of the charges against him and he stated that he understood those charges. Defendant was also informed of the various constitutional rights he would forego by pleading guilty. Defendant had ample assistance of counsel in making his decision to plead guilty. Based on our review of the record, we find that the original guilty pleas were made voluntarily with understanding of the nature of the charges. Hence, the trial judge did not abuse his discretion in refusing to permit defendant to withdraw his guilty pleas.

Assignment of Error No. 2 is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

Defendant contends the trial judge erred in failing to follow the sentence guidelines set forth in La.Code Crim.P. art. 894.1 and in imposing excessive sentences.

Following acceptance of defendant’s pleas of guilty to attempted aggravated rape and armed robbery, the trial judge ordered a presentence investigation. The minutes indicate that the report stated that defendant abducted a sixteen-year-old female at knifepoint in Delhi and forced the victim to drive to a secluded area near Delhi. There, defendant unsuccessfully attempted to rape the victim at knifepoint and took $70 in cash from her purse. Considering the facts set forth in the report, the trial judge sentenced defendant to serve eighteen years at hard labor for the attempted aggravated rape and thirty years at hard labor without benefit of parole, probation or suspension of sentence for the armed robbery. The trial judge expressly directed that the sentences be served consecutively.

On appeal, this court affirmed the convictions but vacated the sentences and remanded the case to the trial court for resen-tencing because of the failure of the trial judge to state for the record the circumstances taken into account and the factual basis therefor for imposing sentence as required by La.Code Crim.P. art. 894.1 and to particularize the justification for the imposition of consecutive rather than concurrent sentences for crimes arising from a single course of conduct.

On resentencing, the trial judge sentenced defendant to serve ten years at hard labor for attempted aggravated rape and forty years at hard labor without benefit of parole, probation or suspension of sentence for the armed robbery. The court expressly directed that the sentences were to be served concurrently. The trial judge stated for the record that defendant was in need of correctional treatment and a custodial environment that could be provided most effectively by his commitment to an institution; that he had considered the content of the presentence report, the seriousness of the crimes to which defendant had admitted, the extreme jeopardy in which the young victim had been placed; that the presentence report reflected that defendant had a juvenile record for burglary and an adult conviction for auto theft in Mississippi for which he had been sentenced to two years imprisonment; and that the court had considered the provisions of La.Code Crim.P. art. 894.1(B) and found no grounds which would cause him to suspend sentence or place defendant on probation. The judge also noted that the maximum sentence that could be imposed for these offenses was one hundred and forty-nine years, whereas the sentences actually imposed were considerably less than the maximum.

La.Const. art. 1, § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this court on appellate review. The trial judge’s reasons in imposing sentence, as required by La.Code Crim.P. art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Gist, 369 So.2d 1339 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979). Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Spencer, supra; State v. Sepulvado, supra.

In the instant case, we conclude that the trial judge adequately stated for the record the considerations taken into account and the factual basis therefor for imposing sentence as required by La.Code Crim.P. art. 894.1. Additionally, after reviewing the trial judge’s reasons for imposing the sentences, we are unable to say that the sentences are excessive. Clearly, the trial judge did not abuse his discretion.

Assignments of Error Nos. 3 and 4 are without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the sentences imposed on resentencing are more severe than originally imposed in that the period of time which he must serve without parole eligibility has been increased. Indeed, under the former sentence, defendant would have been eligible for parole after serving a minimum of thirty-six years. Under the new sentence, defendant must serve forty years without parole eligibility. Defendant argues that the new sentence violates his due process rights under the United States Supreme Court decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

In Pearce, the Supreme Court held with respect to resentencing following a successful appeal:

Whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

In State v. Rutledge, 259 La. 544, 250 So.2d 734 (1971), this court followed Pearce in holding that, where a defendant’s guilty plea and sentence of one year imprisonment were vacated and defendant was subsequently tried before a jury, convicted and sentenced to two and one-half years imprisonment and the reasons for the disparity between the sentences did not appear in the record, the second more severe sentence was constitutionally objectionable under Pearce. It has also been held that, where a defendant was resentenced under a statute which extended the period which defendant would have to serve without parole eligibility, the new sentence was more severe under Pearce. United States v. Hawthorne, 532 F.2d 318 (3rd Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976).

In the instant case, it is clear that the extended period of time which defendant would be required to serve under the new sentences without eligibility for parole constitutes a more severe penalty than that originally imposed. Because the reasons for imposing a more severe sentence do not appear in the record, the sentences must be vacated and the case remanded to the trial court for resentencing consistent with this opinion.

DECREE

For the reasons assigned, defendant’s convictions are affirmed. The sentences are vacated, and the case is remanded to the district court for resentencing in accordance with the views herein expressed.

CALOGERO, J., concurs.

      . Under the original sentence, defendant would have been eligible for parole after serving the thirty-year term for armed robbery without parole, plus, under the provisions of La.R.S. 15:574.4, one-third of the eighteen-year sentence imposed for attempted aggravated rape, or six years.


author: WATSON, Justice.

text:
    STATE of Louisiana v. Ray Gerard PONTHIER.
    No. 67399.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appellee.
    James Farrier, Baton Rouge, Nolan J. Edwards, Stefanski & Barousse, Crowley, for defendant-appellant.
   WATSON, Justice.

Defendant, Ray Gerard Ponthier, was convicted by a jury of six counts of public bribery, in violation of LSA-R.S. 14:118. A sentence of five years with the Department of Corrections on count one was suspended. Defendant was placed on five years active probation, conditioned on payment of a $1,000 fine and six months in jail. One identical concurrent sentence was imposed for the other five counts. Ponthier has appealed his convictions and sentences, assigning five errors in the trial court.

FACTS

Ponthier approached State Trooper William Biossat in East Baton Rouge’s Clown Room Lounge just after midnight on January 17, 1978. Biossat and his companion, State Trooper Jack Jackson, were in plain clothes. Ponthier knew Biossat and offered him $500 to get a DWI charge dropped (Count I) and an additional $200 for a simple battery charge scheduled to be tried later that morning (Count II). Biossat had the trial of the battery continued and Pon-thier paid him $100 that evening (Count III). Further payments of $100 each were made on January 19, February 16, and March 23, 1978 (Counts IV, V and VI).

ASSIGNMENTS OF ERROR NUMBER ONE, FOUR AND FIVE

Defendant contends that the trial court erred in denying a motion to quash, motion for a new trial and motion in arrest of judgment on the ground that the bill of information was defective in charging him with six counts of bribery rather than two. It is argued that Counts I, IV, V and VI, relating to the DWI charge, constitute one offense, and Counts II and III, relating to the battery charge, constitute a second offense. Defendant contends that charging the two crimes as six was highly prejudicial and requires reversal of the convictions and sentences. Also, defendant maintains that there was no violation of LSA-R.S. 14:118 because Biossat had no authority to dismiss the pending charges. Thus, Ponthier could not influence Biossat’s performance of his official duties.

LSA-R.S. 14:118 provides:

“Public bribery is the giving or offering to give, directly or indirectly, anything of apparent present or prospective value to any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty: “(1) Public officer or public employee; or
******
“The acceptance of, or the offer to accept, directly or indirectly, anything of apparent present or prospective value, under such circumstances, by any of the above named persons, shall also constitute public bribery.
“Whoever commits the crime of public bribery shall be fined not more than one thousand dollars, or imprisoned, with or without hard labor, for not more than five years, or both.”

All that the statute requires is the “intent to influence”. The inability of the public employee to return value for the bribe is immaterial. See State v. Williams, 213 La. 924, 35 So.2d 856 at 858 (1948):

“... it is not essential . . . that the State prove that such employee had the legal right to issue or refuse to issue a certificate of public necessity and convenience, ... it is sufficient that ... his conduct in relation to his position, employment, or duties is intended to be influenced corruptly . . . ”.

The State’s position is that each offer and each gift constitutes a separate crime; that the installments were separate attempts to influence. However, there was a specific intent to influence a public employee in only two respects. Four of the counts charged had the same essential elements as those two. Since the gravamen of the six charges is essentially represented by two, Ponthier was erroneously charged with six counts of public bribery. See State v. Didier, 262 La. 364, 263 So.2d 322 (1972). There were two violations rather than six. Defendant filed a timely motion to quash the extraneous counts. Compare State v. Johnson, 278 So.2d 84 (La., 1973).

The next question is whether defendant was so prejudiced by having the two crimes charged in six counts that all the convictions must be reversed. Generally, one offense can be charged in separate counts, but only one sentence can be imposed. See Comment, 37 La.L.Rev. 203 at 227. However, if multiplicity creates such prejudice that a fair trial is impossible, the multiple counts should be quashed. Compare LSA-C.Cr.P. art. 495.1.

Here, the separate counts related to a common scheme or plan. LSA-C.Cr.P. art. 493. No evidence was presented on the six counts that would have been inadmissible if Ponthier had been charged with only two. The jury in effect reached separate verdicts on components of two crimes. However, the facts were not complex. There was no reason for the jury to have been confused. The appropriate remedy is vacation of the convictions and sentences as to the excess counts. United States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976); State v. Bluain, 315 So.2d 749 (La., 1975).

Only two sentences were imposed on Pon-thier. However, the collateral effects of the additional four convictions require that they be vacated. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); United States v. Canty, 469 F.2d 114 (D.C., 1972); Blenski v. State, 73 Wis.2d 685, 245 N.W.2d 906 (1976); People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1 (1974); Carr v. State, 338 So.2d 267 (Fla.App. 1 Cir. 1976). Therefore, the convictions on counts III, IV, V and VI must be vacated.

Although the trial court imposed only two sentences, those sentences reflected conviction on six counts. Therefore, the matter must be remanded for resentencing on counts I and II.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant complains of the trial court’s refusal to allow cross-examination of Officer Biossat about a fake raid conducted at the Clown Room Lounge. The questioning was designed to show that the only purpose of the raid was to give the patrons confidence in the officers who congregated there. It related to an entrapment defense. Since the alleged raid was conducted after the initial bribe, it was irrelevant to the entrapment defense.

This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

The defendant assigns as error the trial court’s refusal to give a requested charge about entrapment. The actual instructions to the jury more than encompassed the requested instruction.

This assignment has no merit.

For the foregoing reasons, the convictions on counts III, IV, V and VI are vacated and set aside. The convictions on counts I and II are affirmed, but the convictions are remanded for resentencing.

REVERSED IN PART; AFFIRMED IN PART; REMANDED FOR RESENTENC-ING.

      . Another $110 was paid that morning in the Parish of West Baton Rouge, where the battery charge was to be tried.

      . Ponthier paid Biossat a total of $510 but only $400 in the Parish of East Baton Rouge.