author: KING, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Gary CHILDERS, Defendant-Appellant.
    No. CR84-469.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Rehearing Denied March 7, 1985.
    Writ Denied April 12,1985.
    Bertrand De Blanc, Sr., Linda Veazey, Abbeville, for defendant-appellant.
    Louis G. Garrot, Asst. Dist. Atty., Abbe-ville, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   KING, Judge.

The defendant, Gary Childers, was charged by a Grand Jury Indictment with the crime of second degree murder, a violation of LSA-R.S. 14:30.1. On February 17, 1984, the trial court heard a motion to suppress all inculpatory statements made by the defendant and denied the motion. The defendant, having waived trial by jury, was tried by the court and on March 12, 1984 was found guilty as charged. On March 16, 1984, the defendant was sentenced to serve a mandatory sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The defendant appeals his conviction. We affirm.

FACTS

On July 5, 1983, Francis “Buckwheat” Theriot, the victim, was found shot to death in rural Vermilion Parish. The defendant and Michael Miller reported the death to the police and stated that they had accidentally found the victim’s body. The defendant, the victim, and Michael Miller were acquaintances.

On the night of July 6,1983, Greg Mayon called the Abbeville Police Department and stated that he had seen Michael Miller place a gun by a house near the intersection of Charity Street and Donald Frederick Boulevard, in Abbeville, Louisiana and that shortly before he did this Miller had talked to him three or four times about the Francis “Buckwheat” Theriot killing. Sgt. Mickey Toups was dispatched to that location and found a Crown Royal bag, containing a .38 revolver, wrapped in a yellow towel by this 'same house.

On July 7, 1983, the Abbeville Police questioned Michael Miller and he stated that he was present when Gary Childers, the defendant, had shot “Buckwheat.” On that same day, ballistics tests performed with the revolver revealed that it was the murder weapon. Based upon this information, Chief Hardy instructed Lt. LeBlanc and Sgt. Toups to locate the defendant and ask him to come to the police station for questioning.

Lt. Earl LeBlanc testified that, after he and Sgt. Mickey Toups had knocked on the door of the defendant’s residence, the defendant opened the door and immediately stated that he knew why the police were at his residence and that “Buckwheat” should not have been messing with him. Lt. Le-Blanc immediately advised the defendant of his Miranda rights but the defendant did not respond as to whether he understood those rights. Lt. LeBlanc then advised the defendant he was under arrest for murder. The defendant and the two police officers then entered the defendant’s residence so that the defendant could get dressed. While inside the residence, the defendant continued to state that the victim should not have messed with him and that “Buckwheat” was turning his friend, Michael Miller, into a “junkie” and that he had “done everybody a big favor.” The defendant also repeated these statements to the officers while he was being transported to the police station. At the police station the defendant then made an oral inculpatory statement.

Defendant urges two assignments of error:

(1) The trial court erred in denying a motion of acquittal or in failing to grant a new trial based on insufficiency of the evidence; and
(2) The trial court erred in denying the motion to suppress the defendant’s incul-patory statements as they were procured as a result of an unconstitutional arrest.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant contends that the trial court erred in denying a judgment of acquittal in that no evidence whatsoever was presented to inculpate the defendant except the statements made by a co-conspirator who was charged prior to trial as an accessory after the fact and who was given immunity from prosecution at the trial of the defendant herein.

Pursuant to Louisiana’s second degree murder statute, the State had the burden of proving that the defendant killed the victim with the specific intent to kill or inflict great bodily harm. LSA-R.S. 14:30.-1. The standard of review as set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to be applied in appellate review is whether any rational factfinder, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the offense proved beyond a reasonable doubt. State v. Duncan, 420 So.2d 1105 (La.1982); State v. Austin, 399 So.2d 158 (La.1981); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the factfinder to weigh the respective credibilities of the witnesses, and this court will not second-guess the credibility determinations of the trier of fact beyond sufficiency evaluations under the Jackson standard of review. See, State v. Richardson, 425 So.2d 1228 (La. 1983).

In the instant case, Michael Miller testified that the defendant became angry when he realized that one of his father’s guns was stolen and that the defendant blamed the victim for taking the gun. The defendant had Michael Miller arrange a meeting for him with the victim at a parking lot. Miller testified that he observed a .38 caliber revolver in the back of the defendant’s pants on the way to this meeting. After the defendant, Michael Miller and the victim met in Eckerd’s parking lot, the defendant told the victim to follow him and the three traveled to an abandoned home east of Abbeville toward Erath, Louisiana. Once they arrived, the defendant stated that he knew that the victim had stolen his father’s gun and the defendant pulled his gun. Miller testified that the defendant shot the victim, who was unarmed and about fifteen feet away, before the victim could say or do anything. The victim fell to the ground but was still alive calling to Miller to help him. When Miller protested, the defendant pointed his gun at Miller and told him to back off. Miller testified that he began to run down the driveway and soon heard three to four shots fired.

Michael Miller also testified that the defendant decided to pick up the victim’s brother, Anthony Theriot, and another friend, Carl Bourque, after the shooting and act like he and Miller were just looking for the victim. Miller further testified that he took the murder weapon from the defendant’s van door and hid it after talking to Greg Mayon.

Sgt. Toups testified that, acting upon information obtained from Greg Mayon, he retrieved a .38 caliber revolver from inside a Crown Royal bag wrapped in a yellow towel. David Epstein, a firearms expert, testified that ballistics tests performed on the revolver revealed that it was the murder weapon.

Lt. LeBlanc testified that he and Sgt. Toups were dispatched to the defendant’s residence by Chief Hardy to bring the defendant in for questioning after the ballistics tests proved positive and Miller had made his statement. Lt. LeBlanc further testified that, when he knocked on the door, the defendant opened the door and simultaneously stated that he knew why the police officers were there and that “Buckwheat” should not have messed with him. Testimony also revealed that the defendant was immediately advised of his Miranda rights after this admission and placed under arrest for murder but that he continued to repeat that the victim should not have messed with him. Lt. LeBlanc testified that he, Sgt. Toups, and the defendant went into the defendant’s residence for approximately ten minutes, while the defendant got dressed, and that the defendant continued to make incriminating statements while he was dressing and while being transported to the police station. Sgt. Toups’ testimony corroborated that of Lt. LeBlanc.

While at the police station the defendant was again advised of his Miranda rights, signed a waiver of rights form, and in the presence of witnesses gave an oral inculpa-tory statement admitting the crime.

Dr. Thomas Latour, a psychiatrist, testified that, at the time of the crime, the defendant knew right from wrong and that, in his opinion, the defendant was not suffering from a mental disorder at the time of the offense.

In view of the testimony presented by the State’s witnesses, the defendant’s spontaneous statements when he encountered the officers at his front door and while being taken to the police station, the defendant’s oral inculpatory statements at the police station, and the ballistics reports, a rational factfinder, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of second degree murder proven beyond a reasonable doubt. When added to the above evidence, the oral inculpatory statements made by the defendant after his arrest at the police station prove beyond a reasonable doubt that the defendant committed the second degree murder of Francis “Buckwheat” Theriot. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant contends that the trial court erred in refusing to suppress all of the inculpatory statements that he made after Lt. LeBlanc and Sgt. Toups arrested him at his house without a warrant. Defendant argues that his subsequent incul-patory statements are the “fruits” of an unconstitutional arrest in that there were no exigent circumstances which justified his warrantless arrest.

In order to ascertain the admissibility of defendant’s inculpatory statements, we must first determine whether defendant’s arrest was based upon probable cause to believe that he had committed a crime.

Louisiana Code of Criminal Procedure Article 213 provides in pertinent part:

“A peace officer may, without a warrant, arrest a person when:
* * * sjc * *
(2) The person to be arrested has committed a felony, although not in the presence of the officer;
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer;

The Louisiana Supreme Court in considering the meaning of reasonable cause under this article stated:

“Reasonable cause, which we have treated under this article as consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he had reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Drew, 360 So.2d 500 (La.1978). Probable cause may be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Drew, supra. Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Drew, supra.State v. Arceneaux, 425 So.2d 740, 743 (La.1983).

It is well settled that the Fourth Amendment prohibits warrantless arrests of a defendant in his home unless there are exigent circumstances which justify a war-rantless intrusion into the home. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Inculpatory statements procured as a result of an unlawful arrest are tainted and must be suppressed at the trial of the person subjected to the illegal arrest. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Burton, 416 So.2d 73 (La.1982); State v. Walker, 430 So.2d 1327 (La.App. 3rd Cir.1983) and cases cited therein.

The First Circuit Court of Appeal in State v. Pittman, 428 So.2d 979 (La.App. 1st Cir.1983), writ den., 433 So.2d 155 (La. 1983), cert. den., — U.S. —, 104 S.Ct. 122, 78 L.Ed.2d 120 (1983) has recently listed some of the factors to be considered in determining if sufficient exigent eircum-stances existed at the time of a warrantless arrest to justify such warrantless arrest as follows:

“(1) A grave offense is involved, particularly one that is a crime of violence;
(2) the suspect is reasonably believed to be armed;
(3) there is a clear showing of probable cause, including 'reasonably trustworthy information’ to believe that the suspect committed the crime involved;
(4) there is strong reason to believe that the suspect is in the premises being entered;
(5) there is likelihood that the suspect could escape if not apprehended;
(6) the entry though made without consent is made peaceably.” State v. Pittman, 428 So.2d 979, 982 (La.App. 1st Cir.1983).

Lt. LeBlanc and Sgt. Toups initially went to the defendant’s residence for the purpose of bringing him to the police station for questioning, not to arrest the defendant. A grave offense, the crime of murder, which was a violent offense was involved. The officers knew the results of the ballistics tests and that Michael Miller, an eye witness, had given a statement that the defendant had committed the murder when they approached the defendant’s residence. The officers knew the defendant lived there and that guns were kept there. When the two officers knocked on the door, the defendant voluntarily opened the door and simultaneously told them that he knew why they were there, that “Buckwheat” should not have been messing with him, and that “Buckwheat” deserved what he got. At this point in time, the officers had strong probable cause to arrest defendant for murder and they were faced with exigent circumstances sufficient to justify a warrantless arrest. A violent crime, murder, had been committed and the defendant then knew the police suspected him. The arresting officers had reasonably trustworthy information, together with the defendant’s spontaneous statement, to believe the defendant had committed the murder. The arresting officers knew that there was a likelihood that defendant would escape since the defendant had only lived in the Abbeville area for less than one month. The high risk that defendant would escape if not apprehended made it impractical for the officers to obtain a warrant before arresting defendant. State v. Cormier, 438 So.2d 1269 (La.App. 3rd Cir.1983). Further, the officers then entered the defendant’s house peaceably with his consent. A warrantless arrest must be based on the arresting officer’s reasonable belief that the person to be arrested had committed an offense. Given the totality of these circumstances, there was probable cause for the officers to make a warrantless arrest of the defendant. The subsequent oral in-culpatory statements made by the defendant are admissible as there was a lawful warrantless arrest. Under the circumstances of this case it cannot be said that the defendant’s constitutional rights were violated. This assignment of error is without merit.

For the foregoing reasons, the conviction is affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs. For the reasons which I have advanced many times heretofore. We should not have to follow Jackson v. Virginia.

      . See State v. Johnson, 426 So.2d 95 (La. 1983), which stated that proof of the requisite element of second degree murder, i.e., specific intent, was proven by testimony that the defendant fired four shots as the victim lay defenseless on the ground.

      . See, State v. Robinson, 384 So.2d 332 (La. 1980), which held that voluntary and spontaneous statements are admissible even though Miranda warnings have not been given.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Joe JOSEPH.
    No. CR84-506.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Writ Denied April 1,1985.

      John P. Navarre, Oakdale, for defendant-appellant.
    Alfred R. Ryder, Dist. Atty., John A. Duck, Asst. Dist. Atty., Oakdale, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   DOMENGEAUX, Judge.

Defendant, Joe Joseph, was charged with the crime of armed robbery, a violation of La. R.S. 14:64. He was found guilty as charged by a unanimous jury and sentenced to serve 75 years at hard labor without benefit of probation, parole, or suspension of sentence. Defendant now perfects this appeal from his conviction and sentence alleging 10 assignments of error.

FACTS

On December 19, 1982, Joe Joseph and Arthur Bradley were parked in a truck outside of a game room in Oakdale, La. Around 8:30 P. M. three men in a brown car drove up next to them. Joseph got out of the truck and walked over to the brown car to talk to the three men. One of these men asked Joseph if he had any marijuana to sell. Joseph informed the man that he had none but could obtain some. The defendant then asked Janice Miles to go into the game room to purchase some cigarettes. When she returned from making the purchase, she saw the brown car driving away with Joseph in the back seat. According to Ms. Miles, Arthur Bradley then came up and asked her to drive him to a park on Ballard Road. She further stated that Bradley informed her that he was going to rob the three men in the brown car who had left with Joseph.

Ms. Miles dropped Bradley off two blocks from the park. At this point Bradley took a gun from under the seat of the automobile and asked Ms. Miles to return and pick him up in five minutes. By that time Joseph and the three men had already arrived at the park, and one of the men and Joseph had gotten out of the car. As Bradley walked up the street, the man who had gotten out of the car re-entered the vehicle. Joseph alleged that he “stood back” as Bradley approached the car. Joseph further claimed that Bradley approached the three men in the car and asked them if they had any money. It was Joseph’s testimony that at this point Bradley stated that he was going to rob the three men. Joseph also claims that as one of the men began to hand Bradley something, Bradley shot all three men.

When Janice Miles returned to the park as she had been instructed to, she saw bodies hanging out of the brown car. She left to return to the game room and on her way she picked up Joseph. These two later picked up Bradley as he was running towards his house. According to Ms. Miles, Bradley was holding two wallets, had a pistol in his back pocket, and had blood on his legs.

The group eventually arrived at Emily Calhoun’s house. There Bradley and Joseph entered the bathroom and Bradley washed out blood from his hands and emptied the wallets.

Later that night the brown ear and the bodies which had no identification were found by the police. Several days later, two wallets were found in some nearby woods with the identification cards of the two dead men.

ASSIGNMENT OF ERROR NO. 1:

The defendant contends that the trial court erred in that the verdict is contrary to the law and evidence because the State’s case was based on circumstantial evidence which did not exclude every reasonable hypothesis of innocence. The standard of review for a circumstantial evidence case was outlined in State v. Austin, 399 So.2d 158 (La.1981), as follows:

"... [WJhen we review a conviction based upon circumstantial evidence we must determine that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded.”

This defendant was charged with being a principal to armed robbery, a violation of La. R.S. 14:64, which provides:

“A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than 99 years, without benefit of parole, probation, or suspension of sentence.”

A principal is defined in La.R.S. 14:24 as follows:

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

The circumstantial evidence presented supports the conclusion that the defendant was a principal in the armed robbery. The defendant took an active role in the commission of the offense. Both Bradley and the defendant had contact with the men before the incident. The defendant and the victims drove to a secluded area at which Bradley later arrived. Unless the defendant had told him, Bradley would not have known that the group was driving to the park. Further, both men ran from the scene. After the defendant was picked up by Janice Miles, instead of reporting the incident as would an innocent bystander, Joseph drove to Bradley’s house and picked him up as he was running from the scene of the crime. The men then discussed the wallets taken from the victims.

Expanding upon his first assignment of error in a supplemental brief the defendant argues that he should have been convicted of the lesser crime of simple robbery, inasmuch as he was not armed with a dangerous weapon. In support of his argument, defendant cites State v. Smith, 450 So.2d 714 (La.App. 4th Cir.1984), in which one robber who wielded a hammer found in the store was found guilty of armed robbery, whereas the other robber who made a motion with his hand in his jacket was found guilty of simple robbery.

The case before us, however, can be distinguished from State v. Smith. In State v. Smith, the robbers entered the store without any weapons and, thus, initially intended to commit simple robbery. Neither of the robbers knew of the hammer’s existence until one robber spotted it in the store and decided to use it. In the case before us, however, Bradley took the gun to the park, the scene of the robbery, and did not merely find it there. Joseph drove the three victims to the park where he was met by Bradley.

It should further be noted that State v. Dominick, 354 So.2d 1316 (La.1978), holds that where the defendant was charged as a principle on the theory of aiding and abetting, he need not have personally held a weapon to be guilty of armed robbery. Therefore in the case sub judice, Joseph was guilty of armed robbery by aiding and abetting Bradley even though he did not actually hold the gun.

The inference of the jury that the defendant was a principal was reasonably based on the defendant’s actions both prior to and subsequent to the robbery. The evidence presented did tend to exclude all innocent explanations of the defendant’s actions. This assignment of error, therefore, has no merit.

ASSIGNMENT OF ERROR NO. 2:

The defendant contends that the trial court erred in allowing statements he made to be admitted into evidence. He claims that it was not proven that the statements were free and voluntary because the police officers failed to fully inform him.

Article 1, Section 13 of the Louisiana Constitution of 1974 provides:

“When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self-incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him....”
La.R.S. 15:451 reads as follows:
“Before what purposes to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under thé influence of fear, duress, intimidation, menaces, threats, inducements or promises.

The record shows that the defendant was advised of the charges against him and that both of the statements were voluntary. Although one of the deputies interrogating Joseph could not remember specifically informing Joseph of the charge against him, he testified that it was customary to recite the charges before an interrogation. The other deputy interrogating Joseph testified that before the interrogation Joseph was informed that he was charged with armed robbery. Both deputies also testified that the defendant was read his rights and stated that he understood them.

The admission of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession for purposes of admissibility will not be overturned on appeal unless they are not supported by the evidence. State v. Haynie, 395 So.2d 669 (La.1981); State v. Gaines, 354 So.2d 548 (La.1978). There is sufficient evidence in the record to support the trial judge’s conclusions as to the admission of the confession and thus this assignment is without merit.

ASSIGNMENT OF ERROR NO. 3:

By this assignment the defendant claims that the trial court erred in allowing the State to introduce evidence about the autopsy and death of the victims. He claims this was not an essential element of the crime of armed robbery. The defendant contends that the pathologist’s testimony on this subject was prejudicial.

In State v. Redwine, 337 So.2d 1041 (La.1976), a pathologist’s testimony relating to medical reasons for death was not found prejudicial and was admissible to establish the use of force on the victim in an armed robbery prosecution. In the case before us the trial judge instructed the pathologist to testify only as to the cause of death. The pathologist therefore, described the points of entry of the bullets and the cause of death but did not give details of the autopsy. Here as in Red-wine, the evidence about the autopsy and cause of death was not prejudicial and was relevant to the essential element of the crime of armed robbery, i.e., use of force. This assignment of error therefore, lacks merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5:

In his fourth assignment of error the defendant claims that the trial court erred in its refusal to declare a mistrial which he requested after several jurors examined the vehicle in which the victims were found. This action was taken without the court’s permission. In assignment of error No. 5 the defendant further claims that the trial court erred in allowing the entire jury to view and examine the vehicle in which the victims were killed since that evidence did not relate to an element of armed robbery and that viewing the bullet riddled and bloody vehicle inflamed the jury.

The determination of the existence of unnecessary prejudice warranting a mistrial is a matter within the sound discretion of the trial judge. State v. Smith, 430 So.2d 31 (La.1983). The trial court’s determination of the admissibility of evidence is also not to be disturbed in the absence of a clear showing of abuse of discretion. State v. Daigle, 440 So.2d 230 (La.App. 3rd Cir.1983), writ denied, 444 So.2d 123 (La. 1984). After a review of the record we are convinced that the trial court did not abuse its discretion in not declaring a mistrial and allowing the entire jury to view the car.

At trial, during a recess, four jurors viewed the car involved in the crime which was parked behind the courthouse. After learning of the incident, instead of granting a mistrial, the trial judge suggested that all jurors examine the ear.

This examination of the car by the jurors was not the first one. Earlier during the trial in order to prove the element of force in armed robbery, the State had introduced explicit photographs of the car. The photographs were taken at the scene of the crime, and some depicted the locations where the bullets penetrated the car.

The jurors viewing the car outside of the courthouse could not have prejudiced or inflamed them, since they had already studied detailed photographs of the car. The trial judge, therefore, properly exercised his discretion in not granting a mistrial and allowing the entire jury to view the car. These assignments of error therefore, lack merit.

ASSIGNMENT OF ERROR NO. 6:

The defendant contends that the trial court erred in admitting a videotape of the death vehicle with bodies dangling from it. He claims this was not necessary in an armed robbery prosecution and only served to inflame the jury.

The test for determining whether an alleged “gruesome” photograph is admissible is whether its probative value outweighs its possible prejudicial effects upon the jury. A photograph, as other evidence, must be relevant to the material issue before the Court. State v. Cooper, 334 So.2d 211 (La.1976); State v. Redwine, supra.

Joseph was prosecuted for being a principal to armed robbery of which the use of force is an element. Evidence tending to establish the use of force on the victim is a material issue in the State’s case. The trial judge allowed the jury to view only a small section of a videotape showing that the shirt of one of the victims had been pulled off. The purpose of admitting this section was to establish the use of force.

In State v. Redwine, supra, the colored photograph of the dead body of the robbery victim was not considered so gruesome as to inflame the jury and was admitted to establish the use of force in an armed robbery prosecution. The photograph showed that the victim had been tied and revealed traces of blood on the victim’s head, on the floor, and on the pillow used to muffle the gunshot. In Redwine the jury was not considered to have been inflamed by such photographs. Likewise the jury in this case can not be considered to have been inflamed by a section of videotape which was less gruesome.

In comparing the value of the videotape to its possible prejudicial effect we find that the probative value outweighed the inflammatory effect. Consequently, the trial judge did not err in admitting the section of the videotape. This assignment of error is therefore, nonmeritorious.

ASSIGNMENT OF ERROR NO. 7:

The defendant claims that the trial court erred in that the State of Louisiana throughout the entire trial continuously referred to triple homicides. It is his contention that this resulted in prejudice because he was being tried for armed robbery, not murder.

La.C.Cr.P. Art. 770 reads in part as follows:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
* * * * * *
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible; ...”

The State’s having referred to the death of the three victims was intended to show the use of force, an element of armed robbery. This mention of the death, therefore did not constitute a reference to another crime. State v. de la Beckwith, 344 So.2d 360 (La.1977).

ASSIGNMENT OF ERROR NO. 8:

By this assignment the defendant alleges that the trial court erred in denying his motion for directed verdict at the conclusion of the State’s case. He claims the State charged him with the armed robbery of three persons and failed to prove beyond a reasonable doubt that three persons were in fact robbed. More specifically the defendant claims that since only two wallets were recovered the State had failed to prove the fact that the third victim was actually robbed. It is thus his contention that the conviction cannot stand.

The standard of review to be applied in appellate review of the issue of sufficiency of the evidence to support a conviction is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Austin, 399 So.2d 158 (La.1981).

At trial, the State presented testimonial evidence that; (1) Defendant rode from the game room to the park where the crime was committed with three men. (2) That defendant’s accomplice stated that he intended to rob all three men. (3) That the bodies of three victims were found in the car. (4) That none of the three victims found had any identification or any articles of value left in their possession.

In view of this testimonial evidence, it appears that when it is viewed in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that defendant did intend and actually did participate in the robbery of three persons.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 9:

By this assignment the defendant contends that the trial court erred in that it should have granted his motion for a mistrial because of the inflammatory and improper remarks of the district attorney in his rebuttal argument. He argues that the district attorney improperly referred to “killings”.

LA.C.Cr.P. Art. 774 provides:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the State or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The State’s rebuttal shall be confined to answering the argument of the defendant.”

In interpreting the above Article the Louisiana Supreme Court in State v. Luckett, 327 So.2d 365 (La.1976), stated that if the evidence is properly admitted, it is not improper for the State to refer to that evidence in their closing argument. The Court further held that the use of the word “bloody” in a robbery prosecution was not inflammatory but rather constituted permissible comment on the evidence to show that the State had proven force or intimidation in the taking.

In State v. Luckett, supra, the references to bloody were considered to be comments on the evidence showing the use of force. Likewise the State’s. references in this case to the deaths of the three victims should also be considered to be comments on the evidence as to the use of force. During the trial evidence as to those deaths was admissible to show the use of force, thus references to those killings in the rebuttal arguments was permissible and not inflammatory. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 10:

By his last assignment of error the defendant claims the sentence imposed was excessive and as such constituted the imposition of cruel and unusual punishment.

As to determining what is excessive punishment under the United States Eighth Amendment’s prohibition against cruel and unusual punishment, the Louisiana Supreme Court in State v. Sepulvado, 367 So.2d 762 (La.1979), decided that the imposition of a sentence, even though within the statutory limits, may be unconstitutionally excessive in violation of Article 1, Section 20 of the Louisiana Constitution of 1974. A sentence has been determined to be excessive punishment when the penalty is so disproportionate to the crime as to shock the senses of justice or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Reed, 409 So.2d 266 (La.1982); State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir. 1983). However, due to the trial judge’s unique advantage of viewing subjective factors not available from the appeal record, he is given wide discretion in the imposition of sentences within statutory limits, and a sentence imposed by him should not be set aside as excessive in the absence of manifest abuse of this discretion. Sepulvado, and Goodman, supra; State v. Forshee, 395 So.2d 742 (La.1981).

The trial judge having the benefit of a presentence investigation report determined that the defendant had previously been convicted of numerous other crimes. The court went on to point out that it was convinced that under the sentencing guidelines the defendant was in need of correctional treatment and that that could best be provided by incarceration in an institution. The trial court also determined that any lesser sentence would tend to deprecate the seriousness and multiplicity of the crimes which the defendant had committed.

We are unable to find any manifest error. The trial judge followed the sentencing guidelines and gave extensive reasons for the sentence imposed. Further the sentence is within statutory limits and follows the defendant’s conviction of a most serious and heinous crime. Therefore we will not disturb this sentence on appeal.

DECREE

For the above and foregoing reasons defendant’s conviction and sentence for the crime of armed robbery are affirmed.

AFFIRMED.

       Should be "purports". The Supreme Court, in quoting the section, has, at least twice, inserted "[purports]" following "purposes”. See State v. Joseph, 1950, 217 La. 175, 46 So.2d 118; State v. Lanthier, 1943, 201 La. 844, 10 So.2d 638."

      . Although reviewing courts are obliged to follow the Jackson standard as mandated by the Louisiana Supreme Court, the author of this opinion has expressed opposition to this standard because it relegates the reviewing power of the appellate courts to nothing more than "second guessing" the triers of fact. See State v. Gatson, 434 So.2d 1315 (La.App. 3rd Cir.1983), concurring opinion at 1321, and State v. Anderson, 440 So.2d 205 (La.App. 3rd Cir.1983), concurring opinion at 223, writ denied, 444 So.2d 1241 (La.1984).

      . The author of this opinion is compelled to again state his position as to appellate review of sentences for excessiveness. Our state constitution does not provide for nor does it mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), concurring opinion at 533; State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983) concurring opinion at 1339, writ denied, 433 So.2d 729 (La.1983). See also State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983), concurring opinion at 1169; see also State v. Rainwater, 457 So.2d 1280 (La.App. 3rd Cir. 1984), concurring opinion at 1282.


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Thomas James SANDERS, Defendant-Appellant.
    No. CR84-515.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Homer C. Singleton, Jr., Richard Michels, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., F. Wayne Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   DOUCET, Judge.

This appeal arises from the conviction of Thomas James Sanders for the second-degree murder of a Lake Charles woman.

On September 24, 1983 at about 10:00 A.M., the Lake Charles Police Department was notified of a homicide at an apartment complex at 3117 Deaton Street in Lake Charles, La. The female victim had been beaten to death, then sexually violated in her apartment at about 3:00 A.M. that day. A man’s wallet containing a social security card and driver’s license for the defendant, Thomas James Sanders, of 3117 Deaton Street, was found near the victim’s body. Questioning of the victim’s sister, who lived in the apartment with the victim and her children, revealed that neither the victim nor her sister were acquainted with Thomas James Sanders. That same afternoon, the police located the father of the defendant at the apartment complex. He told the police officers that his son could be found at an auto paint and body shop near Broad Street and First Avenue in Lake Charles, La. Officer Brian Brewton and Captain T.W. Smith went separately to that location. Sergeant Robert Martin arrived shortly afterward. Upon finding the defendant, Officer Brewton asked the defendant to voluntarily accompany him back to the station for questioning. The defendant agreed to go with the officers. He indicated that he would tell them “all about it” but that he did not want to talk at the body shop. The defendant was told his rights under the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), put in a police car and taken to the police station. There is a conflict in the testimony of the officers with regard to whether the defendant was hand-cuffed before he was put in the police car, as is normal police policy in Lake Charles.

At the police station, the defendant was advised that he was to be questioned with regard to a homicide investigation. He was again advised of his Miranda rights by a detective before questioning. He signed a written waiver of his rights. He then voluntarily gave to the detectives oral and written statements describing the murder in detail. He included a description of the location of items of clothing which he wore during the offense and which he subsequently hid in his apartment. The defendant gave the officers permission to perform a “rape kit” of his person. Then both the defendant and his father gave permission to search and seize items at their apartment. All these events, from discovery of the body to the confession and consent to search and seize, occurred within a single day. Following the description given by the defendant in his confession, police officers went to defendant’s apartment and seized a briefcase containing a pair of bloody jeans and tennis shoes.

The defendant was indicted by a grand jury for first degree murder. The trial Judge granted a motion for a sanity commission. He ordered the appointment of a sanity commission to examine the defendant and submit a report of its findings. The sanity commission hearing was held on December 14, 1983. The trial court found the defendant to be competent and able to proceed to trial. The defendant was arraigned on the charge of first degree murder. He pled not guilty and not guilty by reason of insanity. The defendant filed motions to suppress the confession and the evidence, which were heard and denied by the trial court.

On the motion of the Calcasieu Parish District Attorney’s Office, the bill of indictment was amended to a charge of second degree murder. The defendant was again arraigned and again pled not guilty and not guilty by reason of insanity.

On March 21, 1984, a twelve-person jury found the defendant guilty as charged. On March 27, 1984, the defendant was sentenced to a term of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

Defendant appeals based on alleged error in the decision of the trial judge in connection with the sanity commission hearing; and in connection with the denial of the motions to suppress the confession and the evidence.

The defendant argues that the trial court was in error in finding that the defendant had the capacity to proceed to trial based on the testimony at the sanity commission hearing.

La.C.Cr.P. art. 641 states that the “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”. Under La.R.S. 15:432, a defendant is legally presumed to be sane and responsible for his actions. The defendant carries the burden of proving by a clear preponderance of the evidence that, as a result of a mental disease or defect, he lacks the capacity to understand the proceedings against him or to assist in his defense and therefore, is incompetent to proceed. State v. Bennett, 345 So.2d 1129 (La.1977); State v. Brown, 414 So.2d 689 (La.1982).

In this case, two court appointed medical experts in the field of psychiatry, Drs. Giles Morin and Harper Willis, interviewed the defendant, submitted reports, and testified, both at the sanity hearing and at trial, that the defendant was competent to stand trial. Both examining physicians filed written reports and testified at the sanity hearing that the defendant possessed the capacity to understand the proceedings against him and to assist in his defense.

Unlike the defendant in Bennett, supra, Thomas James Sanders was not indigent and was not forced to rely on the findings of the court appointed sanity commission. This is evidenced by the fact that the defense hired Dr. Charles Cox to examine the defendant and to testify as to the defendant’s mental condition at the trial on the merits. Nevertheless, the defendant failed to offer medical testimony or any other proof of mental defect or incapacity at the sanity hearing. Neither Dr. Cox nor any other witness testified as to the defendant’s mental condition at the sanity commission hearing.

“A trial court’s determination of the mental capacity of a defendant is entitled to great weight and his ruling will not be reversed in the absence of manifest error. State v. Brown, supra; See also State v. Morris, 340 So.2d 195 (La.1976) and State v. Flores, 315 So.2d 772 (La.1975).”

The testimony of the physicians corroborates their reports in stating that the defendant met the criteria outlined by the Bennett decision and was competent to stand trial. Their testimony revealed that the defendant could distinguish between right and wrong and was able to communicate coherently. They further testified that the defendant was not psychotic. Based upon this evidence, the trial judge had sufficient factual support for his finding that the defendant possessed the requisite capacity to stand trial.

In light of the lack of evidence of incapacity, we cannot find that the trial court’s determination of competency was clearly erroneous. As the Supreme Court stated in State v. Brown, supra:

“Viewing the evidence in a light most favorable to the prosecution, the defendant has failed to establish the affirmative defense of insanity by a preponderance of the evidence. No rational trier of fact would have found defendant legally insane on the basis of the evidence presented. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Roy, 395 So.2d 664 (La.1981).”

In his remaining arguments defendant contends that the trial judge erred in denying the motion to suppress the confessions and the evidence on several grounds.

First, he argues that the confession and the consent to a search are inadmissible as the fruit of a warrantless arrest made without probable cause or exigent circumstances.

La.C.Cr.P. art. 213 states that a peace officer may arrest a person without a warrant when he has “reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of an officer.” Contrary to the contentions of the defendant, “an arrest made in a public place without a warrant is

valid if founded on probable cause, regardless of the presence or absence of exigent circumstances. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).” State v. Marks, 337 So.2d 1177 (La.1976).

The Louisiana Supreme Court in State v. Arceneaux, 425 So.2d 740 (La.1983) explained that:

“Reasonable cause, which we have treated under this article as consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13. L.Ed.2d 142 (1964); State v. Drew, 360 So.2d 500 (La.1978). Probable cause may be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Drew, supra. Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623,10 L.Ed.2d 726 (1963); State v. Drew, supra.

In this case, a wallet containing a social security card and driver’s license in the name of Thomas James Sanders was found next to the body of the victim. Upon questioning the victim’s sister, the police discovered that she knew neither Thomas James Sanders nor of any reason for the wallet’s presence in the apartment. The police officers immediately attempted to locate Sanders. Sanders was located and asked to accompany the officers to the Police Station in order to answer some questions. He answered that he would tell them all about it but not there (at the body shop). The information in the possession of the officers was sufficient to justify men of average caution in believing that the defendant committed the murder.

It is not clear whether the defendant thought he was under arrest or detained by police at any point before his confession, or whether the police officers involved believed Thomas Sanders to be arrested, forcibly detained or simply voluntarily answering police inquiries. It is clear, however, that probable cause existed for arrest or forcible detention. Therefore, any arrest or detention was legal. It follows that the evidence and confession were not the fruits of an illegal arrest. They were admissible. The trial judge was correct in denying the defendant’s motions to suppress.

The defendant further argues that the confession and consent to search were improperly taken. Defendant contends that, since the defendant was only a few months over seventeen years of age when the offense was committed and the confession and consent were made, a parent or legal counsel should have been present at the taking of a confession and when the consent to search was obtained, under the rule of State in the Interest of Dino, 859 So.2d 586 (La.1978).

The defendant misreads the intention of the court in the Dino decision. As the Louisiana Supreme Court later clarified in State v. Edwards, 406 So.2d 1331 (La. 1981), the protections of Dino extend only to those who the law defines as juveniles, that is those under seventeen years of age. With regard to criminal responsibility, the defendant was an adult in the eyes of the courts at the time of the offense and the confession.

The defendant also argues that the confession and consent to search should have been suppressed since they were made without his being properly informed of the charge against him.

La. Constitution Article I, § 13 states, in part, that when a person has been arrested or detained in connection with the investigation or commission of any offense, he should be advised of the reason for his arrest or detention. In this case it is clear that the defendant knew why the police wanted to question him. Upon being asked to come to the police station to answer questions, he acquiesced readily, saying that he would tell them all about it, before he was even told why or on what subject he was to be questioned. He was immediately given his Miranda rights, put in a police car and taken to the station. The testimony taken at the suppression hearing revealed that upon his arrival at the police station, Corporal John Pape told the defendant that he was to be questioned regarding a homicide investigation. The defendant was again advised of his rights and had those rights explained to him. When the officers were satisfied that he understood his rights he was asked to sign a waiver of rights, which he apparently did readily. He then unhesitatingly gave written and oral statements in which he confessed to the murder. It is clear that the defendant was informed of the reasons for questioning and completely understood his circumstances before confessing to his crime.

Finally, the defendant argues that the totality of the circumstances surrounding the confession and consent to search and seizure created a coercive environment in which he could not make a free and rational choice to waive his rights. The admissibility of a confession is a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession will not be overturned on appeal unless they are not supported by the evidence. State v. Perry, 420 So.2d 139 (La.1982). The evidence taken at the suppression hearing and at trial supports a finding that the confession and its re-enactment in order to reduce it to writing were free, voluntary and without any pressure from any police officer.

As to the defendant’s contention that the consent to search was wrongfully obtained, the record reflects that both the defendant and his father, who was present at the police station, were advised of the circumstances and each freely gave his permission for officers to enter their residence to search for items of clothing described by the defendant. Furthermore, the defendant’s father accompanied the officers to his apartment for that purpose.

There is no evidence to indicate that the conduct of the police in this case was other than proper or that the confession was not a product of a voluntary and rational choice by the defendant. As a result, we find that the trial judge properly denied the defendant’s motions to suppress.

Accordingly, for the reasons assigned, we affirm the conviction and sentence.

AFFIRMED.


author: PATTERSON, Chief Justice,

text:
    Raymond SMITH v. STATE of Mississippi.
    No. 54089.
    Supreme Court of Mississippi.
    Feb. 22, 1984.
    Rehearing Denied Feb. 27, 1985.
    Charles R. Wilbanks, Corinth, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.
   PATTERSON, Chief Justice,

for the Court:

Raymond Smith was convicted of murder and sentenced by the Circuit Court of Al-corn County to life imprisonment.

Although there are numerous assignments of error designated for reversal, we address only those concerning the granting of certain instructions.

On June 8, 1980, Amos Ergle came from Alabama to the home of Raymond Smith, his cousin, in Alcorn County. Ergle stated to Smith that he was running from the law and was armed. He appeared agitated and wanted something to drink. Upon Ergle’s insistence, Smith went with him to purchase some whiskey and vodka. They imbibed and returned to Smith’s home where Ergle continued to drink. Afterward Ergle became belligerent and threatened to beat Smith. Smith attempted to get Ergle to use a bedroom and sleep it off, believing the rest would calm Ergle, but this effort was fruitless.

Thereafter Smith, his wife and Ergle visited Smith’s mother whose home was next door. After a few minutes Smith’s wife returned to her home leaving the appellant; his mother, Mary Lou Smith; and Amos Ergle. Thereafter Ergle began to destroy the furnishings in the home of Mrs. Smith and when she attempted to stop him by entreaty and asked him to leave, he threatened her and refused to leave her house. In this state of affairs the appellant and his mother left the house to return to the appellant’s home. While en route Mrs. Smith heard gunshots behind her, turned and observed Ergle lying on the ground and her son walking to his home.

Smith testified he shot as Ergle ran toward him. Alluding to events earlier in the day, Smith stated that Ergle had accused him of calling him a “queer,” and of complicity in the drowning of Ergle’s brother. He also insisted that Smith drive him back to Alabama, threatened to kill him and the entire family, and refused to leave the premises after he had been asked to do so. Under these circumstances Smith stated he thought he had no alternative but to obtain his gun. He testified that when he and his mother left her house that Ergle followed them and his mother cried out that he was coming after them and told him to run but he could not do so because of his physical condition. He then shot Ergle as he could not escape him.

On this testimony Smith was convicted of murder. Being of the opinion the evidence reveals no crime greater than manslaughter, and because the jury was improperly instructed, we reverse and remand for a new trial.

Before addressing the instructions assigned as error and to place them in proper perspective, we think reference to homicide less than murder need be mentioned. The term “justifiable homicide” is commonly understood to mean the killing of another in necessary self-defense under extreme circumstances warranting an acquittal of the accused. Another homicide less than murder is the killing of another in the heat of passion, without malice aforethought and is generally referred to as “manslaughter.” It does not justify a homicide as does self-defense but rather reduces the greater crime of murder to the lesser crime of manslaughter because “malice aforethought” is lacking. Manslaughter does not exonerate the homicide but requires a sentence less than that for murder. Mississippi Code Annotated, Section 97-3-35 (1972) provides:

The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.

It will be noted that every homicide “without malice,” and “not in necessary self-defense”, and “in the heat of passion” shall be manslaughter. The distinction between murder and manslaughter is that the latter is without malice.

The cogent issue presently before the court is whether instructions S-l and S-2 properly instructed the jury on the issue of manslaughter. We are of the opinion they did not.

Instruction S-l provides:

The defendant, Raymond Smith, has been charged by an indictment with the crime of Murder for having caused the death of Amos Ergle, with the deliberate design to kill Amos Ergle. If you find from the evidence in this case beyond a reasonable doubt that the deceased, Amos Ergle, was a living person, and the defendant, Raymond Smith, did wilfully and of his deliberate design kill Amos Ergle, by shooting the deceased with a deadly weapon, to-wit: a .22 caliber revolver, and that the killing was without authority of law, then you shall find the defendant, Raymond Smith, guilty of Murder.

This instruction directs the jury to find the defendant guilty of murder if Amos Ergle was willfully and deliberately killed by Raymond Smith without authority of law. Of course, a homicide may result from a willful act or deliberate design without being murder if the killing occurs in necessary self-defense or results from an act committed in the heat of passion without malice aforethought. In this case there is no evidence of malice aforethought, but since the killing resulted from an intentional act and was without authority of law, the jury by the above quoted instruction was mandated to find the defendant guilty of murder. The instruction was peremptory to murder, in our opinion, necessitating the case to be reversed unless it can be said the instruction was cured by others.

Instruction S-2 provides:

The Court instructs the Jury that every killing of a human being without authority of law and not in necessary self-defense, is either Murder or Manslaughter; Murder when done with malice aforethought and Manslaughter when done without malice aforethought in the heat of passion and not in necessary self-defense. Thus if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Raymond Smith, shot and killed Amos Ergle, without authority of law and not in necessary self-defense with his malice aforethought then in that event you should find the defendant guilty of Murder as charged. In the event you believe from the evidence in this case beyond a reasonable doubt that the defendant shot Amos Ergle without authority of law and not in necessary self-defense without malice aforethought and in the heat of passion then in that event you should find the defendant guilty of Manslaughter. (Emphasis added.)

On close scrutiny this instruction sets forth the distinction between murder and manslaughter as it refers to “with his malice aforethought” and, in the last sentence, “without malice aforethought and in the heat of passion,” and the jury was authorized to find the defendant guilty of manslaughter if the homicide occurred without malice aforethought and in the heat of passion. The problem, as we view it, is that it is contradictory to Instruction S-l which mandated the jury to find defendant guilty of murder if the homicide was intentional and without authority of law. Or stated differently, the jury first had to decide which of these two instructions correctly portrayed the law. This is a function of the court and not the jury. We therefore think the cause must be reversed for a new trial.

See Cooley v. State, 346 So.2d 912 (Miss. 1977), and Pittman v. State, 297 So.2d 888 (Miss.1974). In Patterson v. State, 289 So.2d 685 (Miss.1974), this Court held, “There appears to be some confusion as to this instruction but we point out at this time that any such instruction should make it clear to the jury that ‘malice aforethought’ must pre-exist the infliction of a mortal wound in a murder case.” 289 So.2d at 686.

In Bangren v. State, 196 Miss. 887, 17 So.2d 599 (1944), it was held:

... However, we think that the trial court was in error in not limiting the issue for the jury to the question of manslaughter or justifiable homicide. While malice aforethought is a necessary element in the crime of murder, it does not always follow therefrom that the existence of actual malice at the time of the slaying would necessarily have the effect of rendering a particular homicide a case of murder. A person may be guilty only of manslaughter or justifiable homicide when slaying another even though the accused is made and is bearing ill will toward his adversary at the time of the killing, if the act is done while resisting an attempt of the latter “to do any unlawful act, or after such attempt shall have failed," if such anger or ill will is engendered by the particular circumstances of the unlawful act then being attempted, or the commission of which is then thwarted, and is nonexistent prior thereto. Each case must depend upon its own facts and circumstances. To constitute murder, the malice must precede the unlawful act which is being attempted or committed by the person killed, where the killing is done in resisting his attempt to do an unlawful act. (Citation omitted.) (Emphasis added.)

196 Miss, at 897, 17 So.2d at 600.

Additionally, complaint is made of Instruction C-5, which follows:

A person has the right to act in self defense if he has reasonable belief that he is in imminent danger of death or great bodily harm at the hands of another and if you believe that Raymond Smith shot Amos Ergle when he had a reasonable cause to believe and did believe that he was in imminent danger of being killed by Ergle or of receiving great bodily harm at his hands, then you will find the defendant, Raymond Smith, Not Guilty.
However, mere fear, apprehension or belief, however sincerely entertained by one person that another designs to kill him or do him great bodily harm will not necessarily justify the former in shooting the latter. A party may have an apprehension that his life is in danger and believe that the grounds of his apprehension are just and reasonable but the person shooting the other acts at his peril. It is for the Jury to determine the reasonableness of the grounds on which he acted.

Although we do not reverse because of this instruction, we nevertheless call the court’s attention to Robinson v. State, 434 So.2d 206 (Miss.1983), which was critical of a similar instruction.

REVERSED AND REMANDED FOR A NEW TRIAL.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.


author: ROY NOBLE LEE, Presiding Justice,

text:
    Clarence Wilbert BERRY v. Almeadie BERRY, Shelby Jean Berry, Carl Erskine Berry and Pursue Energy Corporation.
    No. 54942.
    Supreme Court of Mississippi.
    Aug. 1, 1984.
    Rehearing Denied Feb. 27, 1985.
    Barry W. Gilmer, Charles I. Knauss, Jr., Gilmer & Jones, Jackson, for appellant.
    Alex A. Alston, Jr., Janice Holley Parsons, Thomas, Price, Alston, Jones & Davis, Jackson, for appellees.
    Jerry T. Johnston, Johnston & Younger, Brandon, for intervenor.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

Clarence Wilbert Berry filed suit October 14, 1982, in the Chancery Court, Rankin County, Mississippi, against Almeadie Berry, Shelby Jean Berry, Carl Erskine Berry and Pursue Energy Corporation, seeking an adjudication that he is the illegitimate son of Shelby Berry, and that he be allowed to share in the estate of Shelby Berry. From an order June 14, 1983, dismissing the bill of complaint, he appeals and assigns as error in the trial below, the following:

The lower court erred in rendition of its final judgment wherein the appellant’s claim was adjudged barred by the general six-year statute of limitations.

Appellant was born June 18, 1934, in Rankin County, Mississippi. Shelby Berry died in 1958, leaving an estate consisting of one hundred sixty (160) acres of land. The appellees, except for PursueJEnergy .Corporation and Jerry T. Johnston, are heirs-at-law of the intestate Berry. During the twenty-five (25) years since the death of Shelby Berry, approximately eighty (80) persons claim they have acquired, and now own, oil, gas and mineral interests in the acreage. No action has been brought prior to this suit for the purpose of establishing appellant’s heirship, or his claim against the estate of Shelby Berry. In dismissing the bill of complaint, the lower court held that appellant’s claim is barred by the general six-year statute of limitations. That court apparently relied upon Knight v. Moore, 396 So.2d 31 (Miss.1981). Appellee argues that the application of the law in Estate of Kidd v. Kidd, 435 So.2d 632 (Miss.1983), to the effect that the six-year statute begins to run at the death of the putative father, properly should be applied here. Larsen v. Kimble, 447 So.2d 1278 (Miss.1984), disposes of the question now before the Court, and it is not necessary to discuss Knight v. Moore, supra; Estate of Miller v. Miller, 409 So.2d 715 (Miss.1982), Estate of Kidd v. Kidd, supra; Vance Witt, Successor-Administrator of the Estate of Mayes v. Mitchell, 437 So.2d 63 (Miss.1983).

Mississippi Code Annotated Section 91-1-15 (1972), applying to illegitimates, was amended effective July 1, 1981. Pertinent part of the section which governs in this case follows:

(ii) * * *
Any claim existing prior to July 1, .1981, concerning the estate of an intestate whose death occurred prior to such date by or on behalf of an illegitimate or an alleged illegitimate child to inherit from or through its natural father and any claim by a natural father to inherit from or through an illegitimate child shall be brought 'within three (3) years from and after July 1, 1981, and such time period shall run notwithstanding the minority of a child.
In Larsen, this Court said:
Perhaps the most significant aspect of this remedial statute is the fact that it created a remedy in favor of all illegiti-mates regardless of the date of the death of the intestate but placed in a three year limitation period, after July 1, 1981, notwithstanding the minority of a child (illegitimate) within which to file such claim. This was done by inclusion of subsection (3)(d)(ii) 2 which states as follows:
A remedy is hereby created in favor of all illegitimates having any claim existing prior to July 1, 1981,' concerning the estate of an intestate whose death occurred prior to such date by or on behalf of an illegitimate or an íalleged illegitimate child to inherit from or through its natural father and any claim by a natural father to inherit from or through an illegitimate child shall be brought within three (3) years from and after July 1, 1981, and such time period shall run notwithstanding the minority of a child.
The question now arises how does this code section apply to the issues presented in the instant ease. Earl Irene Stuart Kimble could not have asserted a claim against Earl B. Kimble prior to July 1, 1981. This is true for two reasons. First and foremost, throughout the life of Earl Irene Stuart Kimble, Eárl B. Kimble was alive. Because no person is an heir of another living person, Earl Irene Stuart Kimble had no claim to assert.
# ⅜: ⅜ jjs ⅜ *
... [T]he remedy created by § 91-1-15 did not come into existence until July 1, 1981. Therefore, no cause of action existed prior to July 1, 1981. At that point § 91-1-15 created a remedy for all ille-gitimates and descendants of illegiti-mates. Subsection (3) of this statute provides that: “The children of illegitimates and their descendants shall inherit from and through their mother and father according to the statutes of descent and distribution.” Therefore, the statute also created a cause of action for those descents of illegitimates who wished to assert a claim against their ancestor’s estates. Such is just the case in the immediate suit. Although Earl Irene Stuart Kimble never had a cause of action, a remedy was created for the first time in favor of Darlene Larsen on July 1, 1981.
* * * * $ *
... The one year or ninety (90) day period of limitation is therefore applied only to those cases where the intestate died subsequent to July 1, 1981. In the instant case, Earl B. Kimble died prior to July 1,1981. Because that is so, Darlene Larsen had until June 30, 1984 in which to assert her claim as an heir to the estate of Earl B. Kimble. Clearly then, this suit was timely filed. [447 So.2d at 1281-82, 1283].

Following Larsen v. Kimble, supra, as we are bound to do, in our opinion the chancellor erred in dismissing the complaint. The judgment of the lower court is reversed and the cause is remanded for a trial on the merits.

REVERSED AND REMANDED.

WALKER, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.

      . Amendment to Section 91-1-15 effective March 14,^983.


text:
    William (Billy) SMITH v. STATE of Mississippi.
    No. 55310.
    Supreme Court of Mississippi.
    Dec. 19, 1984.
    Lydia Quarles, McAlpin, Wise & Quarles, Starkville, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Pat Flynn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

Appellant, William (Billy) Smith, was con-' victed in the Justice Court, District One, Clay County, on a charge of simple assault, and was sentenced to pay a fine of two hundred sixty-nine dollars fifty cents ($269.50) and serve ninety (90) days in the Clay County Jail. The jail sentence was suspended for the period of one (1) year. He appealed to the Circuit Court of Clay County where he had a de novo trial, was found guilty and sentenced to pay a fine of three hundred fifty dollars ($350.00) and serve six (6) months in the county jail. Five and one-half (5½) months of the jail sentence were suspended and fifteen (15) days of the jail sentence were to be served. Smith has appealed to this Court and assigns only the following error:

The circuit court erred in imposing upon appellant a more severe sentence after his conviction in the de novo trial than he received upon conviction in the justice court.

Appellant and friends went to the Red Hot Restaurant in Clay County on the night of April 30, 1983, where they imbibed alcoholic beverages. Appellant became rowdy and was rude to the waitresses and other customers. The Red Hot Restaurant was owned by Bryant Smith, brother of appellant, and his wife. He was called for the purpose of getting appellant to quieten down and behave himself. When Bryant arrived, a scuffle ensued between appellant and him, and “Big Jimmy” McKee intervened in an attempt to stop the fight between the brothers. As often happens when outsiders become involved in a family fight, Big Jimmy McKee, who was 5 ft. 10 inches tall, weighed 200 lbs. and was quite a brawler himself, would up on the bad end of the deal. Several blows from appellant injured (knocked out) two of McKee’s teeth, cracked four more, not to mention lacerations about his face. The dentist estimated the cost of repairing McKee’s mouth and teeth to be twenty-one hundred dollars ($2,100).

Appellant solely and simply contends on this appeal that the court erred in imposing upon him a more severe sentence after his conviction on the de novo trial in the Circuit Court of Clay County than he received upon conviction in the justice court. We

have been cited no cases in this state addressing the question, and, therefore, it appears to be a case of first impression on the issue here.

Appellant cites and relies upon North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), as authority for his position. That case involved the retrial of a defendant who had successfully obtained a reversal of his original conviction. On the second trial, he was given a more severe sentence. The United States Supreme Court held that there was no constitutional bar to enhance the punishment at the second trial, but, in order to justify enhanced punishment, there must appear in the record events subsequent to the first trial which are brought to the trial judge’s attention and which justify the increased sentence. There was no such justification in Pearce, and the enhanced punishment was found to be constitutionally impermissible. In the absence of such a justifiable reason, the Court was of the opinion that the possibility for judicial vindictiveness and the corresponding chilling of the exercise of appeal rights was too great. Further, that a protective rule was needed when the defendant was being retried in the same court and often by the same judge, who had been found to be in error at the first trial.

The United States Supreme Court had before it a similar situation in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), with the exception that sentencing was determined by the jury. The Court was of the opinion that this method was not “inherently vindictive” and was constitutionally permissible, since different juries fixed the sentence. See Thigpen v. Roberts, — U.S. —, 104 S.Ct. 2916, 82 L.Ed.2d 23 (1984) and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), as distinguished from Chaffin, supra.

We are of the opinion that Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), is controlling in the case sub judice. Colten was convicted in the Quarterly Court of Fayette County, Kentucky, on a charge of disorderly conduct and fined $10.00. He exercised his right for trial de novo where he was convicted and fined $50.00 by the higher court. The United States Supreme Court held that Kentucky’s two-tiered court system did not justify the application of the Pearce rule. Further, that since in a two-tiered system the defendant was not being sentenced by the original court, and was not required to show that any error was made by the lower court, the possibility of judicial vindictiveness was very low.

Like Kentucky, the criminal court system in Mississippi is a two-tiered system, viz, a justice court trial, and appeal to the county court or circuit court where the accused is entitled to, and receives, a trial de novo, and different judges and juries hear the case.

In Colten, the United States Supreme Court, speaking through Justice White, said:

The right to a new trial is absolute. A defendant need not allege error in the inferior court proceeding. If he seeks a new trial, the Kentucky statutory scheme contemplates that the slate be wiped clean. Ky Rule Crim Proe. 12.06. Prosecution and defense begin anew. By the same token neither the judge nor jury that determines guilt or fixes a penalty in the trial de novo is in any way bound by the inferior court’s findings or judgment. The case is to be regarded exactly as if it had been brought there in the first instance.

407 U.S. 113, 92 S.Ct. at 1958, 32 L.Ed.2d at 591.

We are of the opinion that the lower court did not err in imposing on appellant the sentence of a $350.00 fine and six months in jail, with five and one-half months suspended, and the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

      . It is interesting to note that the circuit court sentence was 180.50 more than the justice court sentence but that under the justice court sentence, after one year, appellant would be required to serve ninety (90) days in jail. Under the circuit court sentence appellant was placed on probation for two (2) years but would serve only fifteen (15) days in jail. Which is the more severe sentence? Most courts and people probably would say that service of a ninety-day jail sentence is tougher than enhanced fine of $80.50 and probation for two years on a 5½ month suspended jail term.


text:
    George BULLOCK, et ux. v. SARRETT BUILDERS & REALTY, INC. and/or Jerry Sarrett.
    No. 55256.
    Supreme Court of Mississippi.
    Jan. 9, 1985.
    David Oliver, Gulfport, for appellants.
    W.E. Gore, Jr., Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; Jack Travis, Special Judge.

Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.

Reversed and Remanded.

WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, PRATHER and SULLIVAN, JJ., concur.


author: DAN M. LEE, Justice,

text:
    Willie C. HARPER v. STATE of Mississippi.
    No. 55244.
    Supreme Court of Mississippi.
    Jan. 16, 1985.
    Rehearing Denied Feb. 27, 1985.
    Thomas D. Lee, Forest, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Scott County wherein the appellant, Willie Harper, was found guilty of the rape of a Scott County woman. Harper was sentenced to serve a term of thirty-five years in the custody of the Mississippi Department of Corrections. From his conviction and sentence he brings this appeal. Finding no merit to his arguments, we affirm.

The prosecutrix testified that on the evening of August 25, 1982, she went to bed at approximately 10:00 p.m. in her apartment on the ground floor of an apartment building in Forest, Mississippi. In the early morning hours she was awakened by something pressing on her neck. As she awoke she realized someone was standing over her next to the bed holding a knife to her throat. She then noticed that her five-year-old daughter had climbed in her bed and was sleeping next to her.

The figure with the knife told the prose-cutrix to lie still. The prosecutrix testified that she recognized the voice “by just being around.” She identified the voice as that of Willie Harper. She stated that she had heard Harper before at soft ball games and around her apartment. She stated that she had known Harper “As long as I can remember.” She testified that she had no doubt that the voice of her assailant belonged to Willie Harper.

The prosecutrix further testified that Harper took off his clothes and got in bed with her. He then removed her underwear and had sex with her. She testified that all the while he kept the knife pressed tight against the right side of her neck and that she only had sex with him out of fear for her life and the safety of her daughter. She stated that when her assailant put his mouth against her neck she didn’t feel any teeth. He told her that he had been to prison and would be going back in three days.

The entire episode lasted a half-hour to forty-five minutes. After Harper left, the prosecutrix lay on her bed for a few minutes to make sure that he was gone and then got up and searched her house. She noticed that there was grass and sand on the couch in her living room directly under an open window. She grabbed her daughter and drove to her parents’ home. She noticed the time was 3:15 a.m. when she left her house.

Deborah Derrick, a former girlfriend of Harper’s, testifiéd that she lived in the same apartment building as the prosecu-trix. Ms. Derrick testified that the morning of the rape, Willie Harper came to her door and hollered for her to open it. She testified that he knocked persistently and said if she didn’t open the door he was going to shoot it down. Out of her fear of Harper, she yelled to a passerby to go get her father. Thereafter Harper left and Ms. Derrick last saw him near the prosecu-trix’s apartment window. She stated that in between the time he first came and pounded on her apartment door and when he left, Harper was with a person in a blue van but that that person left before Harper.

Ms. Derrick further testified that some two to three weeks before the alleged rape she heard Harper remark that he would not mind “having some” of the prosecutrix. Ms. Derrick testified that Harper had no top teeth.

Dr. Bill Lewis, a hospital physician, testified that at 3:50 a.m. on August 26, 1982, the prosecutrix arrived at the hospital. She explained that she had been raped and was given a standard rape exam at 4:25 a.m. That exam revealed sperm in her vagina indicating that she had recently engaged in sexual intercourse. Dr. Lewis testified that the prosecutrix was upset and crying.

Hiram Richardson, an investigator with the Forest Police Department, verified that there was sand and grass on the prosecu-trix’s couch and living room rug which indicated the possibility that someone had climbed in the living room window. He further testified that Willie Harper had no top teeth.

Phil Gray, a/k/a Johnny Gray, testified for the defense. He stated that he lived “just down the road” from Willie Harper. On the night of August 25, 1982, he and Harper went to a nightclub in Forest, Mississippi called Soul City. They arrived there at approximately 7:30 to 8:00 o’clock p.m. At some point in the evening Harper left with Edward Smith, a/k/a Poonie, in a blue van. Gray testified that around 2:10 to 2:15 a.m. he again met up with Harper. Gray stated that he didn’t have a watch but he knew what time it was because Soul City had closed at 2:00 o’clock. Gray had just left Soul City and he saw Harper coming from that direction. Gray was in the company of two women and he stopped to pick up Harper. According to Gray, they took the women home. The first woman, Lisa Townsend, lived in Johnsontown, approximately twenty minutes away. The second girl, Frieda Johnson, lived in the Brusher community, approximately fifteen minutes away. Gray testified that after taking the women home he took Harper home. By then it was about 3:00 o’clock in the morning.

Gray admitted that Harper is his second cousin and close friend. He also testified that Harper has no top teeth. Following Gray’s testimony, the defense rested. The jury deliberated on the above detailed testimony and returned a verdict of guilty of rape. The jury did not establish Harper’s sentence at life imprisonment and therefore the circuit judge was left with the responsibility to sentence Harper to a term reasonably calculated to be less than life. Circuit Judge Marcus Gordon sentenced Harper to a term of thirty years. Actuarial tables establish Harper’s expected life span as 37.3 years.

CONSTITUTIONALITY OF § 97-3-65

Harper’s first assignment of error is that the circuit court erred in refusing to sustain his demurrer to the indictment on the ground that the statute is unconstitutional because although it establishes a crime for the rape of a female, it fails to also make it a crime to rape a male; therefore, argues Harper, it is violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution.

Harper was indicted under § 97-3-65(2) Miss.Code Ann. (Supp.1984) which reads:

(2) Every person who shall forcibly ravish any female of the age of twelve (12) years or upward, or who shall have been convicted of having carnal knowledge of any female above the age of twelve (12) years without her consent, by administering to her any substance or liquid which shall produce such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, upon conviction shall be imprisoned for life in the state penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment the court shall fix the penalty at imprisonment in the state penitentiary for any term as the court, in its discretion, may determine.

This Court has not yet faced the exact question presented here; however, in the case of Green v. State, 270 So.2d 695 (Miss. 1972), we held that the code section which made it a crime for a male to be a “peeping tom” was not violative of the equal protection clause on the ground that it did not also make it a crime for a female to commit the same act.

It is important here to realize what Harper is arguing. He is not arguing that the statute impermissibly fails to make it a crime for a woman to commit an act of rape. Indeed the language of the statute states that “every person who shall forcibly ravish any female ...” shall be guilty of the crime of rape.

What Harper is arguing is that he is a member of a class of individuals (rapists of women) who have been unreasonably singled out for punishment from the total class of rapists (all of those who commit rape whether their victims be female or male.) This argument presumes that the rape of males is not a punishable offense; however it ignores the existence of the sexual battery statute, § 97-3-95 Miss. Code Ann. (Supp.1984). That section states, in part, that a person is guilty of sexual battery if he or she engages in sexual penetration of another person without his or her consent. Section 97-3-97(a) Miss.Code Ann. (Supp.1984) defines sexual penetration as:

(a) “Sexual penetration” includes cunnilingus, fellatio, buggery or pederdasty, any penetration of the genital or anal openings of another person’s body by any part of a person’s body, and insertion of any object into the genital or anal openings of another person’s body.

The penalty for sexual battery is incarceration in the state penitentiary for a period not to exceed thirty years. Section 97-3-101 Miss. Code Ann. (Supp.1984). Therefore, the anal rape of a male is certainly as illegal as the vaginal rape of a female. This statute would be equally applicable to a male who is forced to engage in sexual intercourse with a female.

Other courts have rejected arguments identical to Harper’s. These courts have relied upon the rationale that sex is a legitimate classification as it is reasonably related to the legitimate objective of the statute in protecting women from rape and the potential ensuing social ills including physiological, psychological and sociological trauma, possible pregnancy, and of medical and moral problems. People v. McDonald, 86 Mich.App. 5, 272 N.W.2d 179 (1978); People v. Reilly, 85 Misc.2d 702, 381 N.Y. S.2d 732 (1976); State v. Witt, 310 Minn. 211, 245 N.W.2d 612 (1976); Brooks v. State, 24 Md.App. 334, 330 A.2d 670 (1975); People v. Gould, 188 Colo. 113, 532 P.2d 953 (1975). Other states which have upheld rape statutes with a gender base classification of the victim include Arizona, Colorado, Georgia, Illinois, Kansas, Louisiana, Maryland, Minnesota, Montana, New York, Tennessee, Washington, West Virginia and Wisconsin.

Florida is the only state which takes the opposite view. In Brinson v. State, 278 So.2d 317 (Fla.App.Div. I, 1973) the Florida intermediate court of appeals held that a rape statute which purported to limit the protective provisions of that law to females while withholding the protection for males was violative of the state constitution and the Fourteenth Amendment to the United States Constitution. On appeal to the Florida Supreme Court, the Brinson decision was reversed on other grounds in an opinion which did not address this issue. Regardless, in Washington v. State, 302 So.2d 401, cert. denied 421 U.S. 918, 95 S.Ct. 1582, 43 L.Ed.2d 786 (Fla.1974), the Florida Supreme Court held that males are entitled to the same protection from degrading ravishment and sexual assaults regardless of the orifice involved, and that it is no longer consonant with constitutional principles of equal protection to continue criminal sanction against sexual assault on females and not provide the same criminal sanctions for assaults made on males. Importantly, the issue in Washington was the definition of the term in the Florida rape statute: “carnal knowledge.” The Florida decision did not strike down the statute for failing to apply a sanction for the rape of males, rather the court interpreted “carnal knowledge” to include the rape of a male. Therefore, the Florida decision simply held that the Florida rape statute included the anal rape of a male. Therefore, the court’s language as to equal protection does not relate to an argument such as one asserted by Harper.

No ultimate court of appeals has yet adopted the reasoning Harper urges upon this Court. We are of the opinion that because the sexual battery statute effectively makes illegal the anal rape of males and because of the above mentioned societal concerns regarding the rape of females there is no merit to Harper’s assignment of error.

Harper next argues that the trial court erred in refusing to grant him a new trial because the verdict was against the overwhelming weight of the evidence. Harper also asserts that he should have been given a directed verdict at the close of the state's case and a peremptory instruction following the close of all testimony.

The rule in this state is well known. In passing on motions for a directed verdict or a request for a peremptory instruction, all evidence on behalf of the state must be taken as true, together with the reasonable inferences that may be drawn therefrom, and if there is sufficient evidence to support a verdict of guilty, the motion for a directed verdict must be overruled and the peremptory instruction must be denied. Wilks v. State, 408 So.2d 68 (Miss.1981); Goldman v. State, 406 So.2d 816 (Miss.1981). Harper argues that the basis of the error in not granting him a new trial, directed verdict or peremptory instruction was that the state had failed to prove identification in that the prosecu-trix’s identification of him was based on hearing his voice at a softball game eight or nine years prior. In making this assertion, Harper fails to fully acknowledge all of the evidence against him. The prosecu-trix testified that she had known Harper for as long as she could remember. She testified that there was no question in her mind but that Harper was the man who raped her. She also testified that she recognized his voice “by just being around.” When her testimony is combined with Ms. Derrick’s testimony placing Harper at the apartments at approximately the time of the assault and the proof that Harper did not have any upper teeth, corroborating the description of the assailant, we are of the opinion that the evidence is ample to sustain the conviction.

Harper’s third assignment of error is that the trial court erred in refusing to grant Instruction D-10. That instruction reads:

The Court instructs the jury that if you believe from the evidence that there may be some other person who committed the crime of which the defendant is charged, and that the name of that person has not been disclosed by the evidence, it is not required of the defendant to show the name of such person.

During the discussion between the judge and counsel as to which instructions would be granted, the court informed the attorney for Harper that it would grant only one instruction on the law of alibi. Instruction D-12 was given:

The Court instructs the jury that the defense interposed by the defendant in this cause is known in law as an alibi, that is, that the defendant was at another place at the time of the commission of the crime charged and such defense is as proper and legitimate, if proved, as any other, and all the evidence bearing on that point should be carefully considered by the jury; and, if in view of all the evidence, the jury have any reasonable doubt as to whether the defendant was in some other place when the crime was committed, then it is your sworn duty to give the defendant the benefit of the doubt and find him not guilty.

Harper relies on Jeffries v. State, 89 Miss. 643, 42 So. 801 (1906), in his argument that D-10 should have been granted. In that case an instruction identical to D-10 was refused. In a very terse opinion, the Court stated, “While we would not, for this only, in this case, reverse for the refusal to give the twelfth charge asked by appellant, still we think it should have been given.” 89 Miss, at 646, 42 So. at 801.

While we agree with Harper that Instruction D-10 is a sound instruction on alibi, we are also of the opinion that the jury was adequately instructed on the burden of proof, elements of the crime, presumption of innocence and alibi. The failure to grant Instruction D-10 does not require the reversal of this case.

Harper’s next assignment of error is that the court erred in allowing certain testimony of Deborah Derrick. The complained of testimony reads as follows:

Q. Deborah, I believe just while ago, I had asked you had you ever had occasion to be in the presence of the Defendant at a time when he may have made a statement about [the prosecutrix]. Tell us whether you heard Willie C. Harper make any statement directed toward [the prosecutrix].
A. Yes, sir, I did.
Q. Where were you at the time?
A. In my apartment.
Q. Was this the apartment at Meadow-lawn?
A. Yes, sir.
Q. And how long before August the 26th, 1982, in your best judgment, was this?
A. For about two to three weeks.
Q. All right. Who else was present besides you?
A. Willie C. Harper.
Q. What statement did Willie C. Harper —well, did y’all see [the prosecutrix]?
A. [The prosecutrix], yes, sir.
Q. Where was she?
A. Outside.
Q. What statement did you hear Willie C. Harper make about [the prosecutrix]?
A. He said that he wouldn’t mind having some of her.
Q. Would not mind having some of her?
A. Yes, sir.

Harper argues that the statement was inadmissible because it could not be taken as a threat or expression of ill will. Certainly the statement is not hearsay as it was not admitted to prove that Harper wouldn’t mind having some of the prosecu-trix. It was admitted to establish that Harper had recently entertained thoughts of sexual acts with her. While we agree with Harper that the statement does not constitute a threat, it was nevertheless admissible as it was probative on the issue of whether Harper would commit an act of sexual aggression against the prosecutrix.

The final assignment of error Harper urges upon this Court is that the trial court was wrong in failing to reduce his sentence or make it run concurrently with a separate judgment in Smith County. As will be recalled, the jury found Harper guilty but declined to fix his punishment at life imprisonment. Therefore, the judge ordered a presentence report by the parole officer of the district. Upon receiving that report, the judge noticed that in May of that year Harper had been sentenced in Smith County to serve a term of thirty years for another rape. The court also noted that mortality tables established Harper’s life expectancy at 37.3 years. He was at the time 29 years old. The court then sentenced him to a term of thirty-five years in the state penitentiary. Prior to that sentencing the attorney for Harper stated:

“Your honor, I would just ask the court that although he has been convicted of the crime of forcible rape, to take into consideration he is presently serving a thirty year sentence out of Smith County, Mississippi, and, of course, any sentence imposed here would have to run consecutively to that sentence.”

The defense filed a motion to reduce the sentence and argued that because the sentences were required to run consecutively and, because the court was required to sentence Harper to a term reasonably expected to be less than life, the court-was required to consider the Smith County sentence in imposing the sentence for the Scott County crime.

Only five months before, the Legislature had amended § 99-19-21 Miss.Code Ann. (1972). We have previously held that a defendant must be sentenced under statutes in effect at the time of the alleged offense. Allen v. State, 440 So.2d 544 (Miss.1984).

Prior to its amendment § 99-19-21 required that separate sentences be served consecutively unless the court expressly ordered they be served concurrently. In the instant case the trial court gave no indication that the sentences were to run concurrently and the defense readily admitted that they must run consecutively. Nonetheless there is no merit to Harper’s assertion that his first sentence must be considered in arriving at a second sentence “reasonably calculated to be less than life.”

For us to hold as Harper urges would create an unacceptable result. It is conceivable that the Court would be unable to sentence a defendant for crimes because he was already serving consecutive terms of what actuarial tables tell us is just short of a life imprisonment. By outliving the span of life predicted by the actuarial table, the defendant would go unpunished for the crimes the court was not permitted to sentence him to. The Scott County rape was an independent criminal act for which Harper may be punished independently. The crimes were totally unrelated to each other and the punishment imposed in the second case is not required to bear any relation to the first. Therefore, we find no merit to this assignment of error.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and HAWKINS, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

ROY NOBLE LEE, P.J., not participating.

      . The name of the prosecutrix is of no relevance to this appeal.