author: CUTRER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Sena Mae Cruse Whitehead PORTER and Russell Porter, Defendants-Appellants.
    No. CR83-683.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Writ Denied Sept. 28, 1984.

      Patrick L. Durusau, Jena, for defendants-appellants.
    Dan B. Cornett, Asst. Dist. Atty., Norris Dale Jackson, Jena, for plaintiff-appellee.
    Before CUTRER, DOUCET and YEL-VERTON, JJ.
   CUTRER, Judge.

The defendants, Russell and Sena Mae Porter, husband and wife, were indicted by the LaSalle Parish grand jury on one count of attempted arson with intent to defraud (LSA-R.S. 14:53 and 14:27) and on two counts of arson with intent to defraud (LSA-R.S. 14:53). These indictments were the result of three separate incidents, the final one culminating in the partial destruction of the defendants’ insured house in Tullos. After pleading not guilty to those charges, the defendants were jointly tried before a six person jury and each was convicted on all three counts. Motions for post verdict judgments of acquittal and for a new trial were denied by the trial court.

The defendants were sentenced as follows:

(1) Mr. Porter: On the two counts of arson with intent to defraud, he was sentenced to serve thirty months imprisonment in the custody of the Louisiana Department of Corrections on each count. Further, he was ordered to pay a fine of $2,500.00 for one of those convictions plus the costs of his prosecution. For the conviction of attempted arson with intent to defraud, he was sentenced to ten months imprisonment and to the payment of a $500.00 fine. All three of the prison terms were ordered to be served concurrently;

(2) Mrs. Porter: On the two counts of arson with the intent to defraud, she was sentenced to the payment of a single fine of $1,500.00, to the payment of costs and to serve eighteen months at hard labor with the Department of Corrections on each count. The attempt conviction resulted in a sentence of nine months imprisonment and a fine of $500.00. All three prison terms (ordered to be served concurrently) were suspended, and she was placed on four years supervised probation with special conditions imposed.

The defendants have appealed their convictions, raising various assignments of error, all of which deal with the sufficiency of the evidence upon which they were convicted.

FACTS

The property forming the basis of the defendants’ convictions was a frame house in Tullos, Louisiana. It was owned by Mrs. Porter as a result of her earlier marriage to Dub Whitehead who died in 1977. The defendants were married in 1979 and lived together in the Tullos house. The next door neighbors of the defendants were Sandy Whitehead (Mrs. Porter’s son) and his wife, Nancy, on one side and Lavita Fife and her son, Darwin, on the other side.

In August 1981, the defendants moved to Broussard, Louisiana, where Mr. Porter was hired as a maintenance supervisor; they did, however, make periodic weekend trips to Tullos where they would stay in their house. Although the house was vacant other than during the Porters’ visit, all of the utilities remained connected. On the weekend of Sunday, January 31, 1982, the defendants were present in Tullos on one of their visits. According to Mr. Porter, he received a telephone call on that Sunday, near the noon hour, from his employer telling him that he was needed at a distant job site. The Porters left shortly after receiving the telephone call and put a note on the Whiteheads’ door telling of their departure. Apparently no one saw the defendants leave; Lavita Fife stated that they were gone when she returned from church at 12:30 P.M.

Earlier that morning and prior to their departure, the defendants spoke with Nancy Whitehead concerning some dishes Mrs. Porter was going to give her. Nancy was to pick up those dishes from the defendants’ house that Sunday afternoon. (Sandy Whitehead had a key to the house.) The Whiteheads returned to their home from church at approximately 1:00 P.M. that afternoon and Sandy Whitehead, noticing that a light had been left on at the Porter house, went over to extinguish it.

When Sandy entered the house with the use of his key, he detected the heavy odor associated with natural gas and he began yelling for his wife, Nancy, and their neighbor, Lavita Fife. Both Nancy and Lavita responded to Sandy’s calls and each smelled the heavy fumes. Lavita testified that it caused her eyes to water. Sandy determined the source of the gas to be a gas line in the hallway coming up through the floor. That line ordinarily serviced a gas heater but the heater was not connected. The cap of the gas pipe had been unscrewed and was left merely seated on the pipe. Lavita stated that the cap was moving as the gas escaped from under it.

Sandy, Nancy and Lavita testified that several elements on the electric stove, including the oven (with its door open), were on and that all were red hot. Sandy screwed the gas cap back on with his hands and turned the gas off at the meter. Apparently, the defendants, who did not return to Tullos until Friday, February 26, 1982, were not told of the discovery by the Whiteheads and Lavita.

Testimony at trial indicated that the defendants used the electric stove and oven for heating the kitchen. Mr. Porter said that those appliances were left on that Sunday to keep the house warm for Nancy who was to later remove the dishes previously promised her. The defendants both testified but gave no explanation for the removed gas cap. The incident on January 31st was the basis for the conviction of attempted arson with intent to defraud.

On Friday, February 26, 1982, the defendants returned to Tullos enroute to attending a criminal trial in Jena, wherein Sandy was the defendant. Prior to attending the trial that afternoon, the defendants (who were traveling in a motor home) stopped at their house in Tullos to make a long distance telephone call. Their nine-year-old daughter, Stacy (the natural daughter of Mr. Porter but adopted daughter of Mrs. Porter), remained in the vehicle while her parents were inside. Darwin Fife had received oral surgery earlier that day and he was resting at the Fife home next door when he saw the defendants arrive at approximately 1:00 P.M. According to Darwin, the defendants were in their house only five to ten minutes before they left, and only minutes (approximately five to ten) after they departed, Darwin noticed smoke coming from the Porter house. Darwin’s testimony was corroborated by Lavita’s, the latter being the one who summoned the fire department.

Initially, the members of the Tullos Volunteer Fire Department broke the windows to a bedroom from which most of the smoke was issuing through a window air conditioning unit. The bedroom was erroneously doused with water before it was discovered that the fire was at the other end of the house and consisted of a bag of burning trash against the den wall. The door was kicked open, the trash dragged outside, and the fire was extinguished, although some charring and scorching to the walls resulted. A fireman at the scene testified that the fire was completely extinguished. Further, he inspected the house to make sure that there were no other fires.

Phil Bryant, an insurance investigator accepted by the trial judge as an expert in the field of determining fire origins, testified that the fire was the result of a human element, such as a match. Bryant could not determine whether the fire was started intentionally or accidentally. He did state that the fire was not started electrically or spontaneously. This occurrence on February 26th (we refer to this as the first fire) resulted in the defendants’ convictions on one count each of arson with intent to defraud.

At approximately 4:00 P.M., the Porters returned to their house and were told by Darwin what had happened after they left. The defendants stayed long enough for Mr. Porter to cover the broken bedroom window with a piece of wood, after which they left. According to Mr. Porter, he had a pressing job requirement which needed his attention in Texas. The Porters’ daughter again stayed in the motor home during this visit.

Lavita, from her home, observed the defendants’ departure and she said that she only saw Mrs. Porter leave the house, but she was walking “real fast.” The defendants then left immediately after backing quickly from their driveway. Approximately three to five minutes later, Lavita saw smoke pouring out of the house, whereupon she again summoned the fire department. Before the fire was extinguished extensive damage was incurred to the house.

The insurance investigator, Bryant, testified that the fire was caused by the spreading of a fire accelerant on the hallway, kitchen and bedroom floors. This determination was reached because of the burn patterns on those floors and along the lower baseboards.

Charles Newsom, one of the volunteer firemen, testified that he saw a partially burned can, containing floor lacquer, in the hallway following the second fire. After the first fire (at 1:00 P.M.), he had walked through the house and had not seen that can in the hallway or elsewhere. There were other undamaged cans of this same highly flammable lacquer located in a storage building on defendants’ property.

Bryant took three floor samples from the hallway and bedroom and a sample from the lacquer can found in the hallway. He had them analyzed by a chemist, Dr. Andrew Armstrong (qualified as an expert chemist at trial). Dr. Armstrong, after extensive scientific testing, determined that all four of the samples contained the same highly volatile and flammable substance generally associated with lacquers. Computer testing rather conclusively matched all four samples. Bryant testified that there was no doubt in his mind that the second fire was intentionally set.

William McBroom, called as a witness by the State, was standing across the road from the Porter house, a distance of 100 to 125 yards, shortly before the second fire. McBroom testified that he had good vision from that distance and that he saw Mr. Porter carrying a can, which appeared to be one used to hold paint thinners. After learning of the fire, McBroom conveyed his observation to a fire marshall several days later.

Both defendants testified at trial. Mr. Porter testified that the container he was carrying into the house, and seen by McBroom, was actually a water container in which he was carrying water to Mrs. Porter to aid her in taking her medication. Mrs. Porter testified that the can of lacquer recovered from the hallway resembled one which had been stored in a bedroom closet for a long time.

The second and final fire was the basis for the other conviction of each defendant for arson with intent to defraud. The Porters denied their involvement in any of the three incidents. Each testified that they were in the other’s company during all of the pertinent periods of time concerning the allegedly criminal acts, and that, if one had done something, the other would have seen it.

ASSIGNMENT OF ERROR

The defendants allege that the State provided insufficient evidence of their guilt as to the three convictions received by each. Appellate review exists upon the basis of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This court recently stated in State v. Deville, 451 So.2d 129 (La.App. 3rd Cir.1984), the standard of review applying to this allegation as follows:

“Under the law, we are called upon to review the evidence in the light most favorable to the prosecution; only if we then find that any rational factfinder could not have found that the State proved every element of the crime beyond a reasonable doubt can we supplant the factual findings of the lower court.”

In the instant case, because there were no direct witnesses to the actual, allegedly culpable acts by the defendants, the State was required to prove its case with the use of circumstantial evidence. State v. Graham, 422 So.2d 123 (La.1982). Our Supreme Court has stated the rule pertaining to circumstantial evidence thusly:

“Where circumstantial evidence is used to prove the commission of the offense, La.R.S. 15:438 mandates that: ‘Assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.’
“This Court has recognized that R.S. 15:438 is not a purely separate test from the Jackson standard to be applied instead of a sufficiency of the evidence test whenever circumstantial evidence forms the basis for the conviction. State v. Austin, 399 So.2d 158 (La.1981). Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. Due process requires no greater burden. R.S. 15:438 provides an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. Exclusion of every reasonable hypothesis of innocence is therefore a component of the more comprehensive reasonable doubt standard, where circumstantial evidence is used to convict. As we stated in State v. Chism, 436 So.2d 464 (La.1983), La.R.S. 15:438 ‘may not establish a stricter standard of review than the more general reasonable jur- or’s reasonable doubt formula, [but] it emphasizes the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence.”

State v. Wright, 445 So.2d 1198 (La.1984).

The crime of arson with intent to defraud is defined in LSA-R.S. 14:53 thusly:

“Arson with intent to defraud is the setting fire to ... any property, with intent to defraud.’’

An attempt is defined in LSA-R.S. 14:27(A) as follows:

“A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.”

The applicable statutes require that the State prove that one accused of the instant crimes possessed the intent to defraud. Because this is an intent to produce or accomplish some prescribed consequence, it is deemed to be a specific intent. See State v. Fuller, 414 So.2d 306 (La.1982). An “attempt” is expressly designated as a specific intent crime. LSA-R.S. 14:27(A). A specific criminal intent is defined in R.S. 14:10(1) as being “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed consequences to follow his act or failure to act.”

The court in State v. Graham, 420 So.2d 1126 (La.1982), stated the following:

“However, specific intent is a state of mind, and need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of defendant. State v. Boyer, 406 So.2d 143, 150 (La.1981); State v. McDermitt, 406 So.2d 195 (La.1981); State v. Williams, 383 So.2d 369 (La.1980); State v. Garner, 241 La. 275, 128 So.2d 655 (La.1961).
# # s(c # >i< *
“Specific intent is an ultimate legal conclusion to be resolved by the fact finders. State v. LeCompte, 371 So.2d 239, 243 (La.1979). The defendant was tried by a ... jury of his peers. The jury returned a verdict of guilty as charged. Since the jury is the ultimate trier of fact, they have necessarily reached a conclusion that specific intent was present, along with all of the other elements... We find that this conclusion is within the jury’s discretion. The discretion of the jury should be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. State v. McKeever, 407 So.2d 662, 665 (La.1981); and Jackson v. Virginia, supra.

In its determination of the defendants’ guilt, the jury had before it all of the evidence which consisted of three separate incidents, the third resulting in a serious fire. The totality of the circumstances as to each conviction included the circumstances regarding the other two convictions.

The incinerated house and its contents were insured by the North Assurance Company of America for a total of $76,500.00. Following the fire, the defendants placed a claim for their loss in the amount of $69,-750.00. Mickey Riley, the vice-president and manager of the Tullos branch of the LaSalle State Bank, had loaned money on various occasions to the defendants. Riley testified that he would not have loaned the defendants more than approximately $20,-000.00, using their house as security.

Much testimony was elicited by the State and the defense regarding the financial status of the defendants, the latter attempting to establish that no financial needs were present which might necessitate the defendants’ entry into the field of arson. From that testimony we note the following:

(1) Mr. Porter had “lost very heavily” in the logging business in 1979;

(2) The defendants had received some past due notices on loans in 1981 from the LaSalle State Bank; and

(3) Various loans with their bank had been consolidated by the defendants into one loan in 1981 of approximately $20,-000.00.

Under these circumstances, it is clear that the defendants did possess the specific intent to defraud their insurer, if they committed the incendiary attempt on January 31st and the two separate arsons on February 26th. We, therefore, focus our attention on the circumstantial evidence tending to establish that the defendants were the perpetrators of the three culpable acts.

As the defendants testified that each was privy to the actions of the other, we shall consider their convictions as to each count jointly. For purpose of this review, we shall refer to the conviction for attempted arson with intent to defraud as Count One. Count Two refers to the first fire of February 26, 1982, at approximately 1:00 P.M., consisting of the trash found burning in the defendants’ house. Count Three involves the second and final fire, also occurring on February 26th. We will consider each count separately.

COUNT ONE

This conviction for attempted arson with the intent to defraud was the result of the incident on January 31, 1982, wherein it was discovered that, shortly after the defendants left their house, a gas cap had been loosened filling the house with natural gas and that the electric stove and oven were left burning.

The defendants argue in brief that the testimony of Sandy Whitehead, who first noticed the house filled with gas fumes and the red hot stove and oven, is false and should not be accepted as evidence against the defendants. This contention is based on several allegations purporting to affect Sandy’s credibility. To this argument we note the following language by our Supreme Court in State v. Trosclair, 443 So.2d 1098 (La.1983):

“The defendant claims, however, that a guilty verdict could not properly be founded upon the testimony of these witnesses as their credibility was destroyed. But it is not our function to assess credibility or reweigh the evidence. Our review for minimal constitutional sufficiency of evidence is a limited one which ends upon our finding that the rational trier-reasonable doubt standard has been satisfied."

Also, see State v. Wright, 410 So.2d 1092 (La.1982), and State v. Klar, 400 So.2d 610 (La.1981). We may not, therefore, find incredible the testimony of a witness, which was obviously found credible by the appropriate factfinder.

The evidence of guilt as to Count One consists of the following: the defendants left their house in Tullos at approximately noon; Sandy had to unlock the house with his key to enter it one hour later; Lavita saw Sandy enter the house and heard his yells for help; Lavita, Sandy and Nancy all detected the gas and the loosened cap with the stove and oven burning; Dr. Armstrong testified that the natural gas would eventually explode under those circumstances; and there were two other incidents later (to be discussed infra) which finally resulted in the house’s destruction by fire. The circumstantial evidence when considered in its totality clearly excludes every reasonable hypothesis other than that the defendants attempted to commit an arson with the intent to defraud their insurer.

COUNT TWO

The evidence tending to establish the defendants’ guilt as to this incident is summarized as follows: a month earlier an attempted arson had failed; the defendants were seen to drive up to their home on February 26th, and they left a short time later; their young daughter stayed in their vehicle, not entering the house; only minutes later the Fifes saw smoke coming from the Porters’ house; it was caused by a trash fire against the inside wooden wall of a room in the house; the firemen had to kick the door open to gain entry; Bryant, an expert in fire origins, testified that the fire did not start spontaneously, that it was not of an electrical origin and that it was started by a human; he could not say whether the fire was started intentionally; and three hours later the house was burned under the circumstances to be capsulized under Count Three.

The defendants failed to present any reasonable hypothesis regarding the ignition of this fire which might exculpate them. The only reasonable hypothesis is that the defendants started the fire and left with the hope that it would destroy their house.

COUNT THREE

The circumstantial evidence establishing the defendants’ guilt as to the final fire on February 26th is overwhelming: the defendants were in their house only a short time before leaving at approximately 4:00 P.M.; once again their daughter stayed in their vehicle and did not enter the house; testimony reflected that the first fire earlier that day had been completely extinguished; Mr. Porter was seen carrying a can similar to those containing paint thinner into the house shortly before the fire; Charlie Newsom saw a can of lacquer in the burnt hallway after this fire, and he had not seen this can during his earlier tour of the house following the trash fire; only three to five minutes after the defendants rapidly drove away, the Fifes noted the heavy smoke billowing from the house; and expert testimony from Bryant and Dr. Armstrong conclusively established that the fire was ignited by the lacquer from the can, which had been spread in three rooms of the house.

Under all of these circumstances, there exists no reasonable hypothesis other than that the defendants intentionally committed the arson of their house with the specific intent of defrauding their home insurer.

In summary, the State successfully met its burden at trial of proving the defendants’s guilt beyond a reasonable doubt as to all three crimes. As stated earlier, the jury had before it all of the evidence regarding the three incidents of which the defendants were convicted. That evidence established a sequence of criminal events, each evidentially supportive of a conviction on each count. Further, the circumstantial evidence rule requiring that there be no reasonable hypothesis of innocence as to each count has also been satisfied.

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

AFFIRMED.

      . Mr. Porter had a prior felony record including an armed robbery conviction.

      . According to Mr. Porter, the water pipes to the house had previously burst because of a freeze and there was no water for this reason.

      . No other reasonable hypothesis as to who could have loosened the gas cap was presented.

      . The defendants attempted to establish that the fire could have started in the attic, which had not been examined carefully by fire inspectors. However, Bryant's testimony negated the possibility of the attic being a point of the fire origin.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    Mrs. Emma Viator REAUX, Et Al., Plaintiffs-Appellants, v. IBERIA PARISH POLICE JURY, Defendant-Appellee.
    No. 83-728.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Writ Denied Oct. 12, 1984.

      Eugene D. Broussard, Sr., New Iberia, Voorhies & Labbe, Marc Judice, Lafayette, for plaintiffs-appellants.
    Ralph K. Lee, Jr. and Bernard Boudreau, Iberia Parish Dist. Attorney’s Office, New Iberia, for defendant-appellee.
    Before GUIDRY, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

Plaintiffs, Emma Viator Reaux, Harold Andrew Reaux and Joseph C. Romero, instituted suit against defendant, Iberia Parish Police Jury, to enforce certain options to repurchase land. These options were reserved in 1942 by repurchase clauses contained in property deeds executed by plaintiffs’ ancestors to defendant. The rever-sionary clauses provide that the land would be reconveyed to plaintiffs for the nominal consideration of the 1942 sales price, in event defendant desired to sell the property and no longer needed it for any public purpose. The trial court held that plaintiffs’ reversionary interests were no longer operable and that a reconveyance to plaintiffs for consideration of the 1942 nominal purchase price would constitute a disguised donation by a political subdivision to individuals in contravention of article 7, section 14 of the Louisiana Constitution. Plaintiffs appeal. We affirm.

FACTS

Plaintiffs, heirs of Wilfred Reaux and Joseph Romero, brought this action to enforce a reversionary clause contained in the conveyances from their ancestors in title to the parish of Iberia in 1942. . The reversion-ary clause provides:

“It is understood and agreed that in the event the property hereinabove conveyed is no longer used as an airport, or for any public purpose whatsoever, and the Iberia Parish Police Jury desires to dispose of the said property, the present vendors shall have the privilege and option of purchasing the said property within ninety (90) days after the police jury gives public notice of intention to sell the same for the same basic price per acre paid by present purchaser.”

Prior to March 28, 1942, the parish of Iberia, Louisiana, was desirous of establishing an airport in their parish. In furtherance of this program, 926.787 acres of contiguous land were voluntarily purchased by the parish from the individual landowners. Two of these landowners were plaintiffs’ ancestors, namely Joseph Romero who sold 2 acres to the parish on March 31, 1942, and Wilfred Reaux who sold 50 acres to the parish on May 6, 1942. In all, there were twenty-three separate acts of cash sale executed between the landowners and the parish and all contained the reversion-ary clause, supra, which granted the former owners an option to repurchase their property at 1942 prices if the property was no longer used for public purposes and the parish desired to dispose of the property.

In addition to the repurchase clause contained in each deed, the parish also, on April 9, 1942, passed the following resolution:

“BE IT RESOLVED by the Police Jury of Iberia Parish, Louisiana, that in the event the property acquired for the proposed airport by the Police Jury of Iberia Parish is no longer used as an airport or for any public purpose whatsoever, and the Iberia Parish Police Jury desires to dispose of said property, the vendors of said land shall have the privilege and option of purchasing their respective property within ninety (90) days after the police jury gives public notice of intention to sell the said property for the same basic price per acre paid by the said Iberia Parish Police Jury, and that any resolutions or ordinances contrary to or in conflict herewith are hereby repealed.”

After the property was acquired, the airport was established and put into use. On December 13, 1955, the parish donated the entire 926.787 acres of land to the United States for use as a naval auxiliary air station. On December 6, 1956, the United States filed expropriation proceedings in the United States District Court against the former owners of the property, (including plaintiffs’ ancestors) to cure any title questions arising from the reversionary clauses. On May 1,1964, the United States District Court rendered judgment against defendants, including Wilfred Reaux, deceased husband of plaintiff Emma Viator Reaux and father of plaintiff Harold Reaux, decreeing that the defendants had no right, title or interest of any kind whatsoever in or to the property condemned in the proceedings. United States v. 926.787 Acres of Land, Etc., 227 F.Supp. 361 (1964), affirmed, Nelson v. United States, 345 F.2d 888 (1965).

On June 9, 1964, the United States District Court rendered judgment dismissing Joseph Romero, father of plaintiff Joseph C. Romero, from the expropriation suit for failure to answer in that any claim Joseph Romero might have asserted would have been on the same ground as that of the other defendants.

On May 6, 1968, the United States conveyed the 926.787 acre tract back to the parish. The conveyance contained the condition “That no property transferred by this instrument shall be used, leased, sold, salvaged or disposed of by the grantee for other than airport purposes without the written consent of the Federal Aviation Administration ...” Since 1968, the property has been maintained and operated by the parish as Acadiana Regional Airport.

In 1976, the Acadiana Regional Airport Authority developed a master plan for the airport’s future growth and development. As part of this plan, the land formerly owned by plaintiffs’ ancestors was designated as an industrial area and subdivided into lots for industrial development. The parish asked the Federal Aviation Administration to release 43.03 acres of the industrial area to sell to private industries. The Federal Aviation Administration released the property April 17, 1979. The property which is the basis of the present suit is a part of the 43.03 acres.

On May 9, 1979, the parish adopted a resolution to sell lots from the 43.03 acres of land to private industry for $12,500 per acre. On May 31, 1979, published minutes of the Airport Authority reflect the Authority’s similar intention to sell the acreage to privateindustry at the same price.

On July 31 and August 27, 1979, plaintiffs recorded documents indicating their interest to repurchase the property in accordance with the 1942 reversionary clauses.

On September 12, 1979, the parish adopted a resolution authorizing the president of the police jury to sign respective deeds of sale from the police jury to the plaintiffs at the 1942 price. The president of the police jury refused to sign the sale documents on advice of the district attorney.

On December 18, 1979, plaintiffs filed the present suit and on January 9, 1980, the parish withdrew its previous offers to sell. On May 13, 1983, the Iberia Parish Police Jury rescinded its September 12, 1979 resolution wherein it had agreed to sell property to plaintiffs at the 1942 price.

An exception of res judicata was filed by the defendant and granted on the basis of the above mentioned federal court judgment. The exception was reversed by the Court of Appeal and the case remanded for trial on the merits. Reaux v. Iberia Parish Police Jury, 411 So.2d 727 (3rd Cir.1982).

The trial resulted in judgment in favor of defendant. Plaintiffs appeal from this judgment.

ISSUES

The following issues are presented on appeal:

1) Whether the plaintiffs’ 1942 reversion-ary interests and/or option rights remain valid and enforceable in light of the federal condemnation proceedings;
2) Whether the Iberia Parish Police Jury is legally bound to sell the disputed portion of property to plaintiffs in accordance with their resolution of September 12, 1979 to do so; and,
3) Whether the sale of land by the police jury for a nominal price pursuant to an adopted resolution, constitutes a disguised donation from a political subdivision to an individual in contravention of Louisiana Constitution article 7, section 14.

ISSUE # 1: PLAINTIFFS’ REVERSION-ARY INTERESTS

Plaintiffs contend that they presently maintain a reversionary interest in the disputed property arising out of an option to repurchase it for the nominal consideration recited in the 1942 land sale from plaintiffs’ ancestors to defendant. Conversely, defendant argues that the federal condemnation judgment, rendered in 1968, vested full ownership of the property in the United States and totally divested plaintiffs of any and all reversionary rights in the property that may have been reserved to them in 1942.

The record indicates that defendant donated the subject property to the United States in 1956 after acquiring it from plaintiffs’ ancestors in 1942. Subsequently, the United States procured a judgment denoting a fee simple title to the property divesting plaintiffs of their reversionary interests contained in the 1942 land deed. United States v. 926.787 Acres of Land, etc., supra. The trial court in this instance upheld the federal court judgment and recognized the divestiture of plaintiffs’ rever-sionary rights in the property.

The federal condemnation proceeding is one in rem. All previous existing rights, estates or interests in the subject land are obliterated. An unqualified appropriation in fee simple by the United States under 40 U.S.C. 257 et seq. creates a new title. The condemnation award (compensation) stands in the place of the land and the rights of all persons may be treated as though transferred to the award. Duckett and Company v. United States, 266 U.S. 149, 45 S.Ct. 38, 69 L.Ed. 216; United States v. 25.936 Acres of Land, etc., 153 F.2d 277 (3rd Cir.1946).

Plaintiffs and plaintiffs’ ancestors in title were cited to appear in the federal condemnation proceedings. They were dismissed from the proceeding because of their failure to appear. They never received compensation for divestiture of their reversionary interests in the property. Nevertheless, we hold, as did the trial court, that the plaintiffs are now bound by the legal effect of the federal court judgment. Since we are bound by the federal court judgment which declared the United States to have a fee simple title, we are compelled to hold that the donation from the United States to the parish vested defendant with full ownership, i.e., fee simple title to the land. Accordingly, plaintiffs have been divested of their reversionary interests in the property and may no longer assert any reversionary interests against the present owner of the property.

We hold that defendant’s legal obligation to convey the property to plaintiffs in accordance with the terms of the 1942 rever-sionary clause is no longer enforceable as a civil obligation. Accordingly, plaintiffs are without a cause of action to proceed on the basis of the 1942 reversionary clauses.

ISSUE #2: EFFECT OF POLICE JURY’S RESOLUTION TO SELL; A NEW CONTRACT

Given that the reversionary clauses of 1942 were no longer operative by virtue of the federal court proceedings, the trial court held that there was no written contract or option to sell between the parties and that without such the resolution of September 12, 1979 by the police jury to sell was unenforceable and not binding. We agree.

At the outset, we note that the trial court properly relied upon LSA-C.C. art. 2462 which provides:

“Art. 2462. Specific performance of options and promises to sell

A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same.
One may purchase the right, or option to accept or reject, within a stipulated time, an offer or promise to sell, after the purchase of such option, for any consideration therein stipulated, such offer, or promise can not be withdrawn before the time agreed upon; and should it be accepted within the time stipulated, the contract or agreement to sell, evidenced by such promise and acceptance, may be specifically enforced by either party.” (Emphasis Added)

After conducting a thorough review of the record, considering all relative written documents and correspondence between the parties, we hold, as did the trial court, that there was no written contract between the parties evidencing an option to purchase in favor of plaintiffs. A contract to purchase or sell immovable property, to be enforceable, must be in writing. Louisiana State Board of Education v. Lindsay, 227 La. 553, 79 So.2d 879 (1955).

Accordingly, we find no merit to plaintiffs’ contention that they possess enforceable rights to repurchase the property subject to a new and second reversionary contract independent of the 1942 clause.

ISSUE # 3: DONATION BY POLITICAL SUBDIVISION

Assuming, however, that there exists a written contract to sell between the parties in conformity with LSA-C.C. art. 2462, by placing far-reaching significance to plaintiffs’ written “notices” and the resolution of September 12, 1979, which was later reduced to writing, we find further legal impediment to consummation of the sale to plaintiffs for the terms stated.

Louisiana Constitution, article 7, section 14 prohibits the donation of property by a political subdivision (parish) to any person, association or corporation. Defendant therefore argues that the repurchase of the disputed property by plaintiffs for the nominal purchase price recited in the 1942 sale to defendant would constitute a disguised donation since the price would not be serious. LSA-C.C. art. 2464 provides:

“Art. 2464. Essential elements of price
The price of the sale must be certain, that is to say, fixed and determined by the parties.
It ought to consist of a sum of money, otherwise it would be considered as an exchange.
It ought to be serious, that is to say, there should have been a serious and true agreement that it should be paid.
It ought not to be out of all proportion with the value of the thing; for instance the sale of a plantation for a dollar could not be considered as a fair sale; it would be considered as a donation disguised.”

The present market value of the disputed 43.03 acres is $12,500 per acre. The Reaux heirs propose to purchase 10.526 acres at the 1942 price of $189.48 per acre and the Romero heirs propose to purchase 2 acres at $1,840 per acre. This prompted the president of the police jury, on advice of the district attorney, not to sign the acts of sale as ordered by the defendant’s resolution of September 12, 1979.

It is inescapable that sale of the property to plaintiffs for the proposed 1942 sale price would be both lesionary and in contravention to the Louisiana Constitution. LSA-C.C. art. 1860 et seq.; Louisiana Constitution, art. VII, § 14 (1974).

Accordingly, even if we were to hold that defendant’s resolution to sell the property was of binding effect, the contract remains unenforceable for want of sufficient and adequate consideration.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.

      . The Reaux heirs were to purchase 10.526 acres at $189.48 per acre for a total of $1,944.57. The Romero heirs were to purchase 2 acres at $1,840 per acre for a total of $3,680.

      . Fee simple title is ownership of an estate with unconditional power of disposition, deviation and descendibility. Blacks, 5th Ed. page 554. In Louisiana this is analogous to full ownership, where the elements of ownership (usus, fructus, abusus) are held in common by one person.


author: YELVERTON, Judge.

text:
    STATE of Louisiana, Relator, v. Earl CLARK, Jr. and Bret K. Verrett, Respondents.
    No. K83-1147.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Writ Denied Sept. 20, 1984.

      Edwin 0. Ware, Dist. Atty., G. Earl Humphries, III, Asst. Dist. Atty., Alexandria, for defendant-relator.
    Michelle Fournet, Small, Williamson & Brocato, Alexandria, for plaintiffs-respondents.
    Before CUTRER, DOUCET and YEL-VERTON, JJ.
   YELVERTON, Judge.

The issue in this case is whether a motion to suppress evidence seized by a private citizen in a prosecution for misdemeanor offenses was properly granted under the exclusionary rule. We hold that the motion was improperly granted.

The facts are: On the evening of August 16, 1983, Earl Ashmore heard several gunshots fired in an area near the site of his partially completed home on which he was working near the community of Glenmora in Rapides Parish, Louisiana. As president of a hunting club having a lease in the area, he was concerned. He thought there might be poaching because he had been hearing gunshots for two weeks prior to this date. He put up his tools and went out on the public road to see what he could find.

As he was driving his pickup along Ash-more Road adjacent to the fenced and posted property of a Mr. Monroe, he observed that a gate, normally wired closed, was open. He stopped and looked closely. It had rained within the hour. There was evidence of the tracks of a three-wheel vehicle leading onto Mr. Monroe’s property but not out again. Suspecting that the person or persons who had fired the shots were still on the property, he wired the gate shut and started to leave to notify a wildlife enforcement agent. Before he could leave, he heard a three-wheel vehicle approaching. He entered the property and waited in some tall grass for the three-wheel vehicle to stop at the gate. When the three-wheeler came into view he recognized the defendants and saw a dead doe and a gun lying on Bret Verrett’s lap. He also noticed two more guns in the gun rack on the front of the three-wheeler.

At the moment the three-wheeler stopped, Ashmore stepped from his hiding place and grabbed both the young defendants by their shoulders. When one of them made a motion as if to reach for a gun, Ashmore advised against such a move and then took possession of all three weapons.

He then informed the defendants that he was taking the deer, their three-wheeler and their guns to a local wildlife agent who could handle the matter. Ashmore then told the defendants to “hit the road walking” and to go home. The defendants left. Ashmore took the evidence to a deputy-sheriff’s house who in turn phoned the wildlife office. Two wildlife enforcement agents came and took possession of the property that had been seized by Ashmore.

The two wildlife agents then proceeded to the home of one of the defendants where both of them were found. The defendants were advised of their rights and were issued citations for hunting with an unplugged gun, a violation of LSA-R.S. 56:124(2); hunting and taking deer during closed season, a violation of LSA-R.S. 56:123(A); taking of illegal deer, a violation of LSA-R.S. 56:124(1); hunting without a valid license, a violation of LSA-R.S. 56:103(A); and hunting without a big game license, a violation of LSA-R.S. 56:103(0(1).

The defendants filed a motion to suppress the physical evidence seized by Ash-more. After a hearing the trial judge granted the motion to suppress. His reasoning was that Ashmore made an unlawful arrest because the offenses were misdemeanors, and there is no authority under Louisiana law for a private citizen to make an arrest for a misdemeanor. He then concluded that the evidence seized was consequently unlawfully seized and had to be suppressed.

We granted a writ on the application of the State and ordered that the complete record be forwarded to this court for a full hearing.

The matter is now before us for a decision.

OPINION

The trial judge applied the exclusionary rule. The State argues that the exclusionary rule does not apply to seizures by private citizens. After a careful examination of the facts as well as the several cases by our Supreme Court touching on this subject, we conclude that the State is correct: the exclusionary rule does not apply to seizures by private citizens. Therefore, the trial judge was incorrect in suppressing the evidence. We reach this conclusion as a result of the following reasoning process.

Article 1, Section 5 of the Louisiana Constitution of 1974 declares in part:

“Section 5. Every person shall be secure in his person, property ... and effects against unreasonable searches, seizures, or invasions of privacy....”

“The universal interpretation of provisions similar to Article 1, Section 5 and the Fourth Amendment ... has been that government intrusion upon any of the elements of personal security specifically listed therein by a search or seizure conducted outside of the judicial process, without pri- or approval of a judge or magistrate, is prohibited as unreasonable per se.” State v. Reeves, 427 So. 2d 403 (La.1982) (dissenting opinion of Justice Dennis).

The seizure by Ashmore, who was neither a governmental agent nor acting under the color of any statutory authority, was not government intrusion. It was the act of a private citizen.

It is well settled that the applicability of the Fourth Amendment to the United States Constitution against unreasonable searches and the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) is limited to cases where the seizure is effected by governmental agencies. State v. Mora, 307 So. 2d 317 (La.1975), remanded for clarification 423 U.S. 809, 96 S.Ct. 20, 46 L.Ed.2d 29, on remand 330 So. 2d 900 (La.1976), cert. den. 429 U.S. 1004, 97 S.Ct. 538, 50 L.Ed.2d 616 (1976).

Whether the rule excluding evidence from a criminal trial because of an unreasonable seizure applies to evidence seized by private persons, has never been decided by the Louisiana Supreme Court since Article I, Section 5 of the Louisiana Constitution of 1974 came into existence. Earlier, under the Constitution of 1921, the issue was squarely presented in the case of State v. Mora, supra, and answered in the negative. However, in the subsequent case of State v. Hutchinson, 349 So.2d 1252 (La.1977), Justice Dennis as the organ of the court reserved judgment on the question stating that, although under the Fourth Amendment the rule still holds, under our new Constitutional provision which grants broader protection to citizens than the Fourth Amendment, “[we] are unwilling to hold that ... private searches and seizures are not within the ambit of protection afforded by our State Charter.” That was not the basis for the decision validating the seizure, however, as the court found that the search in that case was not unreasonable and based its decision on that finding.

In the only other ease where there was a search by a person who was unquestionably a private citizen not acting under color of State law, the Supreme Court again validated the seizure by finding that the search was reasonable, and did not decide the exclusionary rule question. In State v. McCabe, 383 So.2d 380 (La.1980), the defendant, drunk, drove his truck carrying a Doberman pinscher into a residential neighborhood to visit. The dog got loose and the defendant walked down the street, acting strangely. A private citizen, Hall, looked in the truck and discovered a loaded gun, whiskey and drugs. He called the police. The Supreme Court said that the search was reasonable and that “any privacy interest which the defendant may have had was subordinated to Hall’s concern for the safety and welfare of his children.” The court made the further comment that courts have frequently held that evidence obtained by a private search is admissible where a superior right or interest attaches to the individual conducting the search at that time or place.

Suppressions were ordered in two other cases where the citizen action was found unreasonable and where the citizen was found to have been acting under color of State law. In State v. Nelson, 354 So.2d 540 (La.1978), security guards for a store choked a suspected shoplifter in an effort to make him spit out jewelry thought to be in his mouth. They did not get the jewelry but did get an inculpatory statement. The inculpatory statement was suppressed, the Supreme Court reasoning that the search, made under color of authority of LSA-C. Cr.P. art. 215, was unreasonable in method and extent and violated Article I, Section 5 of the Louisiana Constitution of 1974.

Subsequently in State v. Longlois, 374 So.2d 1208 (La.1979), the Supreme Court suppressed physical evidence when the defendants were arrested by a wildlife and fisheries agent for possession of marijuana. The court concluded that there had been an unreasonable seizure for purposes of Article I, Section 5 of our Constitution. This was based on the determination that the agent acted outside the scope of his authority as a wildlife and fisheries agent in arresting the defendants for possession of marijuana and that the arrest was therefore illegal. The court explained that the arrest could not be validated as a citizen’s arrest because a citizen cannot make an arrest for a misdemeanor, possession of marijuana being a misdemeanor. Because the arrest was made “by a special police officer purporting to act under authority of law”, the court felt it necessary to suppress the evidence “to discourage police officers, both regular and special, from unreasonably exceeding their lawful authority.”

The court in Longlois recognized that the exclusionary rule of Mapp v. Ohio was designed to deter police misconduct in arrest and search and seizure areas and that it is therefore not applicable to action by private individuals. It added, however, that some searches by private individuals may be unreasonable, as in State v. Nelson, supra, and violate Article I, Section 5 of our Constitution.

What we have here was not an unreasonable search; there was no search at all. We do not consider it an unreasonable invasion of privacy. Defendants had no reasonable expectation of privacy in their voluntary exposure of themselves, their guns, and their contraband on somebody else’s posted and fenced property shooting illegal deer out of season.

However, when we consider in the light of the above discussed cases whether there was an unreasonable seizure we run into immediate difficulty. Ashmore was not acting under the color of any authority when he made the seizure. He was simply a private citizen who had no authority to make an arrest for a misdemeanor or to get a search warrant. We cannot say that Ashmore’s seizure could be justified under the rule announced in State v. McCabe, supra, that evidence obtained by a private search is admissible where a superior right or interest attaches to the individual conducting the search at that time or place. Ashmore had no greater right to be on the posted and fenced lands of another than did defendants. It can hardly be said that his interest as a hunter in enforcing the game laws justifies this as a reasonable seizure. This case cannot be compared to State v. Hutchinson, supra, where it was held there was a reasonable search when the owner of the premises got down on his knees and looked under defendant’s van, and merely reported to the police what he saw there in plain view. Also, we cannot say that the seizure was reasonable for Ashmore’s personal protection, considering there is evidence one of the defendants made a move as if he was going for his shotgun. It is clear that Ashmore’s purpose when he stepped from his hiding place was to seize the evidence.

In short, if the test of the admissibility of this evidence is whether the seizure was reasonable, we would have to find the evidence inadmissible. We are thus compelled to consider the ultimate question posed by the facts of this case and that is whether the exclusionary rule applies to seizures by private citizens.

It is our opinion that Article 1, Section 5 of the Louisiana Constitution does not create an exclusionary rule applicable to the conduct of private citizens. The exclusionary rule is a jurisprudential creature of the United States Supreme Court made applicable to the States through the 14th Amendment. Mapp v. Ohio, supra. The underlying basis for the rule is that exclusion of evidence procured by police misconduct deters police misconduct. That this is the underlying basis of the rule is demonstrated by our own Supreme Court in State v. Longlois, supra, in the following language:

This Court has never had to decide whether evidence should be suppressed when seized pursuant to an arrest made by an officer acting under color of authority, but lacking the same, and which arrest could not be validated under a citizen’s arrest analysis. After careful consideration, we must conclude that such an arrest is an unreasonable seizure for the purposes of Article 1, § 5 of our Constitution. We cannot truthfully say the arrest in this case was made by a “citizen” and therefore, the reasoning of Mapp v. Ohio, supra, does not apply. It is clear that the arrest was made by a special police officer purporting to act under authority of law. We believe our holding is necessary to discourage police officers, both regular and special, from unreasonably exceeding their lawful authority. (footnote omitted)

We deem this expression by our Supreme Court to mean that deterence of police misconduct is the basic reason for the exclusionary rule. Absent the deterrent effect of the exclusionary rule, presumably, police misconduct would be a problem. We can think of no reason to similarly apply the rule to seizures by private citizens. This court is not aware that unconstitutional seizures of criminal evidence by private citizens is much of a problem in this country. Therefore there is no reason to create an exclusionary rule to deter it.

The other basis for the application of the exclusionary rule usually given is that it is necessary to preserve judicial integrity. The idea is, judicial integrity requires that we cannot countenance use of evidence seized by State action in violation of the defendant’s constitutional rights, in order to convict him. How judicial integrity is preserved by throwing out evidence seized by a well-meaning, courageous private citizen doing, at considerable risk to himself, what he conceived to be his duty as a citizen, would be difficult to explain.

We can conceive of no justification under any of the traditional reasons given for the exclusionary rule to apply it when the seizure occurs at the hands of a private citizen.

While it is true there are some superficial differences between our Article I, Section 5 and the Fourth Amendment, we fail to see how these differences justify holding that the exclusionary rule does not apply to private seizures under the Fourth Amendment but does apply under our Constitutional provision.

For these reasons we conclude that the ruling of the trial court granting the motion to suppress was error. We issue a writ peremptorily setting aside the granting of the motion to suppress and remanding the case for further proceedings.

WRIT GRANTED AND MADE PEREMPTORY; RULING ON MOTION TO SUPPRESS VACATED AND SET ASIDE; CASE REMANDED.


author: KLIEBERT, Judge.

text:
    STATE of Louisiana v. Edward JOSEPH.
    No. 83-KA-839.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 1984.

      John M. Mamoulides, Dist. Atty., William C. Credo, III, Elizabeth M. Gaudin, Asst. Dist. Attys., Gretna, for plaintiff-appellee.
    Philip E. O’Neill, Gretna, for defendant-appellant.
    Before KLIEBERT, GAUDIN and DU-FRESNE, JJ.
   KLIEBERT, Judge.

Defendant, Edward Joseph, was charged under LSA-R.S. Article 14:64 by bill of information with the armed robbery of $54.00 from Billy Gully. The robbery was alleged to have occurred on February 28, 1981. Following an August 13, 1981 arraignment on this charge, the matter was continued to May 21, 1982. On that day, the bill was amended to show the amount taken as $109.00, the victim as Betty A. Bruer, and the date of the crime as April 21, 1981. Three days later, following the trial judge’s denial of motions to suppress evidence and a confession, the defendant was arraigned on the amended bill and plead not guilty. Trial before a jury commenced on May 26, 1982. The defendant was found guilty as charged and was sentenced to serve 99 years in the custody of the Department of Corrections without benefit of probation, parole or suspension of sentence. It is from this conviction and sentence the defendant now appeals, urging eleven assignments of error.

The events which occurred are as follows: On April 21, 1981, at approximately 12:15 A.M., a man entered the Lil’ General Food Store on Williams Boulevard in Ken-ner, Louisiana. After obtaining a beer from the back cooler in the store, the man returned to the counter and robbed the cashier of the store, at gunpoint. After giving the man money from the cash register and a carton of cigarettes, the subject left the store. The police was notified and given a description of the alleged perpetrator.

On May 1, 1981, at about 2:00 A.M., Officer Grady Smith, a Jefferson Parish Deputy, heard a broadcast over the police radio of a pursuit in progress. The subjects were wanted in connection with the armed robbery of a Lil’ General Store located at Bonnabel and Veterans which had occurred only moments previous. Since he was in the vicinity of the chase, Officer Smith positioned his police unit for a roadblock. The suspected vehicle was observed by the officer approaching his unit and since the driver did not appear to be slowing to stop, Smith exited his car. According to Officer Smith, prior to the impact, a female passenger appeared to fire shots at him, hence, he returned the fire. After the suspect’s car collided into the police unit, the subjects were removed from the automobile and placed under arrest.

The male subject was identified as Edward Joseph, the defendant here. Following interrogation, approximately eleven hours after his arrest, Joseph gave a statement implicating himself in five armed robberies in the Kenner area, four of which were particularized in the statement. One of those which was particularized coincided factually with the robbery of Betty Bruer. The present prosecution is of that crime.

ASSIGNMENT OF ERROR NO. 1

The defendant complains it was error for the trial court to permit the State to transfer an alloted case from one division of court to another division by amending the bill of information.

Although the defendant contends the amendment violated the rules of court of the Twenty-fourth Judicial District Court, he cites no support for his argument. We note, however, that a trial court may, under the provisions of LSA-C.Cr.P. Article 488, allow an amendment to a bill of information. Further, the defendant has neither shown nor argued that he was prejudiced in his defense as a result of this amendment. Rather, the record shows the defendant and his attorney were both personally present when the amendment was made in open court and neither objected to the amendment at that time. We have additionally read the criminal rules of the Twenty-fourth Judicial District Court, as adopted for 1982, and find under Rule XIII thereof that cases on any of the criminal dockets of said court may be transferred as often as necessary for the proper expedition of the business of the court from one division of the court to another. Therefore, the amendment and transfer did not violate the rules of court for the Twenty-fourth Judicial District Court.

For the reasons stated, we find no merit in this assignment of error.

ASSIGNMENTS OF ERROR NOS. 2 and 9

In his second and ninth assignments of error, the defendant argues that the gun seized from the defendant’s car at the time of the arrest was not admissible in evidence for two reasons: (1) the warrantless seizure of the gun violated the defendant’s constitutional right against illegal searches and seizures, and (2) the State has failed to show a possessory interest in the pistol by the defendant or its connection with the crime charged here. Hence, in assignment of error No. 2 he argues the Motion to Suppress should have been granted and in assignment of error No. 9 he argues it should not have been admitted in evidence at the trial.

Only unreasonable searches and seizures are prohibited by Amendment No. 4 of the United States Constitution and by Louisiana Constitution Article 1, Section 5. Hence, it is self-evident the seizure of an object in plain view does not violate the United States or the Louisiana constitutional prohibitions against unreasonable searches and seizures. Also, under the jurisprudence an officer may conduct a limited warrantless search for weapons during a lawful investigatory stop where such a search is necessary to neutralize the threat of physical harm without violating the prohibition against an illegal search. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Consequently, and for the same reason, an officer has the right to seize or take a weapon into custody for his own protection. State v. Reed, 388 So.2d 776 (La.1980); State v. Williams, 421 So.2d 874 (La.1982). Here, according to the testimony of Officer Smith, he seized the gun after the defendant’s girl friend pointed the gun out of the window of the car and attempted to shoot at him just before colliding into the police unit he had positioned across the road as a roadblock. After the collision, he saw the gun on the floorboard on the front passenger side of defendant’s car. Under these facts, the officer’s seizure of the gun was reasonable when viewed under the plain view doctrine or the rationale of State v. Reed, supra.

We next consider the defendant’s second reason for contending the Motion to Suppress should have been granted and/or the gun should not have been admitted in evidence because the State failed to show a possessory interest in the defendant and failed to connect the gun to the crime charged.

The lack of a possessory interest and the failure to connect the gun to the crime charged addresses itself to a question of relevancy and/or chain of custody and therefore is not properly within the scope of a motion to suppress filed under the authority of C.Cr.P. Article 703. Under this article, a defendant adversely affected may move to suppress any evidence from the use at the trial on the merits on the grounds such evidence was unconstitutionally obtained. As was held by our Supreme Court in State v. Naas, 409 So.2d 535 (La.1981), writ denied 457 U.S. 1119, 102 S.Ct. 2933, 73 L.Ed.2d 1332, Article 703 applies only to the suppression of evidence obtained by an unconstitutional search and does not pertain to challenges of relevancy or prejudicial affect. Consequently, defendant’s contentions insofar as they are urged to show error in the trial judge’s failure to grant the motion to suppress the evidence is without merit.

The defendant makes the same contentions in support of his position the gun was not admissible at the trial. His position is grounded in the fact the State did not prove the defendant owned the gun and the victim’s inability to positively identify the gun as the one used in committing the crime involved here. This is coupled with the contention the State failed to prove the “corpus delicti” of the crime here. Consequently, he argues, even if the defendant’s confession is found valid, the State cannot rely on the confession alone to support admissibility of the gun because the confession can only be used to corroborate the commission of a crime.

In order to introduce demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case; lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than its admissibility. State v. Sam, 412 So.2d 1082 (La.1982); State v. Williams, 362 So.2d 530 (La.1978).

Although the victim of the crime testified that she thought that the weapon used in the armed robbery was darker than the weapon introduced here, she also testified the gun used to rob her was similar to the one in question here. Her uncertainty goes to the weight of the evidence rather than its admissibility. State v. Robertson, 421 So.2d 843 (La.1982). Further, the gun was connected to the defendant by Officer Smith’s testimony as „to circumstances in which the gun was seized.

With respect to the defendant’s contentions as to the corpus delicti, we note the following:

Black’s Law Dictionary defines “corpus delicti” as:

The body of a crime. The body (material substance) upon which a crime has been committed, e.g., the corpse of a murdered man, the charred remains of a house burned down. In a derivative sense, the substance or foundation of a crime; the substantial fact that a crime has been committed. The “corpus de-licti” of a crime is the body of substance of the crime, which ordinarily includes two elements: the act and the criminal agency of the act. State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051, 1055.

In State v. Reed, 420 So.2d 950, 951, n. 1 (La.1982), the court noted: “Corpus delicti, the body or substance of a crime, has two elements: (1) an unlawful injury has occurred; and (2) some person’s illegal conduct caused that injury. 1 Wharton, Criminal Law, § 28 (Torcía ed. 1978).”

LSA-R.S. 14:64 defines armed robbery as “the taking of anything of value belonging to another from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.”

The victim Betty Bruer testified:

“This guy, he came in the store and he went to the cooler to get a beer. He came back to the counter and told me that this was a hold up and he pulled a gun out of his pants and he told me to give him the money, and ‘I’m not going to hurt you’ and I did that and he asked me for a carton of cigarettes and I did that.”

The testimony of Ms. Bruer established that the offense of armed robbery had occurred. Accordingly, the corpus delicti was proven independently of the defendant’s confession. As noted in State v. Freetime, 334 So.2d 207, 210 (La.1976), “[pjroof that defendant was the person who engaged in this unlawful conduct is of course necessary for the conviction, but it is not an element of the corpus delicti, [citations omitted] [emphasis added].” See also 1 Wharton § 28 (Torcía Ed. 1978), McCormick, Evidence (1972).

Once the corpus delicti has been established by the required showing, the confession (if otherwise deemed admissible) may be considered with the independent proof in determining whether the State has sustained its burden of proof in establishing the guilt of the accused. At that point, the confession can be utilized to corroborate the details of the previously proven corpus delicti. See State v. Reed, supra.

Since the weapon used to commit the offense of armed robbery need not be produced in order to establish that the offense of armed robbery was committed, see State v. Davis, 336 So.2d 805 (La.1976); State v. Williams, 449 So.2d 60 (La.App. 5th Cir.1984), the gun was merely corroborative evidence of the defendant’s guilt, not part of the proof necessary to establish the corpus delicti. The use of the confession, if otherwise valid, to establish the relevance of the piece of demonstrative evidence is not in conflict with the present jurisprudence.

For the above reasons we hold the defendant’s assignments of error Nos. 2 and 9 are without merit.

ASSIGNMENTS OF ERROR NOS. 3 and 6

In assignment of error number three, the defendant contends the trial court erred in denying the defendant’s motion to suppress his confession. Further, the defendant, in assignment of error number six, contends it was error for the trial court to permit the State to introduce into evidence the purported confession of the defendant without demonstrating the foundation or predicate that the alleged confession was knowingly and voluntarily made. Because of their similarity we consider the two assignments of error together.

At the hearing of the motion to suppress the confession, the State called Detective Mark Murret of the Kenner Police to testify regarding the voluntariness of the defendant’s confession. According to Detective Murret’s testimony, after advising the defendant of his Miranda rights, on May 1, 1981, he took the statement from the defendant which was subsequently introduced at the trial as a confession. Murret testified that the defendant: (1) did not exhibit any physical injury which would indicate the need for medication, (2) did not request medication, and (3) did not appear to need physical attention or medical attention. More specifically, he did not see any open abrasions or bleeding, cuts, or any swelling to the defendant's eyes or his face.

At the suppression hearing, the defendant testified that he was beaten by Officers Rooney and Nicolosi at the Kenner lockup following his arrest and prior to the statement to Murret. He further testified that he was punched in the back, hit in the head, hit on the forehead with a telephone book, and kicked in the face. He claims he requested medical treatment on many occasions, but was denied same.

The State has the burden of affirmatively proving that a confession was made freely and voluntarily and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451; State v. Vaccaro, 411 So.2d 415 (La.1982); State v. Dison, 396 So.2d 1254 (La.1981). Because of its heavy burden of proving voluntariness of a confession, the State must rebut defendant’s testimony of specific incidents of coercion and cannot simply rely on general testimony of officers not present that they witnessed no coercion, intimidation or other undue influence. State v. Kennedy, 438 So.2d 210 (La.1983); State v. Carson, 336 So.2d 844 (La.1976).

In the instant case, we are not faced with a factual situation where the State’s witnesses testify that they did not beat, coerce or otherwise threaten the defendant into making a statement and the defendant testifies in contradiction thereof. In that situation, it would be unnecessary for the officers to take the stand to repeat their testimony after the defendant testifies. State v. Sims, 310 So.2d 587 (La.1975).

However, we are faced with a situation where one officer testifies that he did nothing to coerce the defendant to make a statement nor did he witness any such coercion and the defendant’s testimony to the effect that other officers beat him to get him to confess. The officers accused of beating the defendant did not testify at the motion to suppress; hence, the State did not rebut the defendant’s specific allegations of coercion. Also, the accused officers did not testify at the trial when the question of the voluntariness of the confession was again presented.

In State v. Jackson, 424 So.2d 997, 1000 (La.1982), under a similar situation to that involved here, the Supreme Court summarized the applicable law as follows:

“Normally, reversal is required when trial error permits a jury to be exposed to an incriminating statement by the defendant, when that statement might not be admissible, if inquiry has been permitted which was curtailed by the erroneous trial ruling. State v. McGraw, 366 So.2d 1278, 1289-90 (La.1979). Nevertheless, when the error has occurred in a ruling during a hearing on a pre-trial motion to suppress a confession, our recent practice has been to remand the motion for a reopened hearing to admit the omitted or improperly excluded evidence. State v. Scott, 355 So.2d 231 (La.1978); State v. Hills, 354 So.2d 186 (La.1977); State v. Simmons, 328 So.2d 149 (La.1976). As we explained in Simmons, 328 So.2d 153, by this practice ‘the error might be eliminated upon another trial of the motion to suppress,’ and a new trial on the merits be avoided if in fact no error at such trial has occurred. State v. Edwards, 375 So.2d 1365, 1366 (La.1979).”

See also State v. Kennedy, supra; State v. Davis, supra.

In the absence of rebutting testimony regarding the specific and detailed allegations of abuse made by the defendant Joseph against Officers Rooney and Nicolo-si, the trial judge may have erred at the suppression hearing by finding the confession voluntary. Therefore, we are compelled under the ruling of the Jackson and Kennedy cases to remand the case to the district court for retrial of the motion to suppress.

Although perhaps erroneous, since the court denied the motion to suppress the confession, was the State (as contended by the defendant in assignment of error number six) obliged to introduce at trial the testimony of Officers Rooney and Nicolosi where the admittedly minimal evidence of voluntariness (the testimony of Officer Murret) was not specifically rebutted with competent testimony by the defense?

The court, in State v. Whitmore, 353 So.2d 1286, 1291 (La.1977), said: “[a] pretrial ruling on a motion to suppress a confession or inculpatory statement is binding at the trial on the merits. If the confession is ruled admissible, no additional hearing by the judge to determine admissibility is required at the trial. LSA-C.Cr.P. art. 703(B); State v. Whatley, 320 So.2d 123 (La.1975).”

In Whatley, supra, at page 126, the defendant’s mother testified at the suppression hearing that “the boy [had] showed her bruises on his chest and told her that he had been beaten previously.” After her testimony “the officers testified that absolutely no coercion was used in their presence and that they were not aware of any claim or sign of beating at the time of the interrogation.” The defendant himself did not testify at the suppression hearing. The trial court found the confession to be voluntary. On appeal, the defense argues that the police officer’s testifying failed to establish affirmatively that no maltreatment occurred while the defendant was not in their custody. The court said:

“Had the boy himself testified as to specific occasions of beating, the jurisprudence may well have required such negativing testimony. Here, however, where the mother’s testimony as to evidence of a prior beating was countered by subsequent testimony of police officers then present, we are unable to hold that the trial court erred in holding that the state bore its burden of proving the confession free and voluntary, nor in holding that the Miranda warnings had been given and understood.”

At trial in Whatley, a single officer testified as to the voluntary nature of the confession. After cross-examination of the officer by the defense, the confession was admitted into evidence over the objection of defense counsel. Later, during the presentation of the defense case, the defendant took the stand and testified that he gave the statement because he was beaten by “Officer John” before his mother arrived at police headquarters. The following portions of the Supreme Court's ruling, at page 127, are noted:

“La.C.Cr.P. art. 703(B) provides that a ruling on a motion to suppress the defendant’s confession or statement is binding at the trial on the merits. We have held that, as to at least the issues raised and tried by motion, the ruling is conclusive as to admissibility. State v. Whitsell, 262 La. 165, 262 So.2d 509.
However, the same code provision also provides:
When a ruling on a motion to suppress is adverse to the defendant, the state shall be required prior to presenting the written confession or written inculpatory statement to the jury, to introduce evidence concerning the circumstances surrounding the making of the written confession or written inculpatory statement for the purpose of enabling the jury to determine the weight to be given to it.
The [issue] posed by the defendant [is this]: What predicate must the State lay at the trial to show the voluntary nature of the confession — _, does as here the simple bald statements of the lack of coercion by the investigating officer suffice?
[I]n view of the denial of the motion to suppress, we are unwilling to hold that the trial court abused its discretion by permitting the confession to go to the jury upon the minimal but uncontested (at the time) evidence of its voluntary nature. See State v. Simpson, 247 La. 883,175 So.2d 255 (1965). The safeguard for the defendant is that, if the state places in evidence only minimal evidence of voluntariness, cumulative evidence to such effect would be improper rebuttal and could not as such be used to deprive the accused of an opportunity to defend against it. La.R.S. 15:282; La.C.Cr.P. art. 756(5); State v. Campbell, 263 La.1058, 270 So.2d 506 (1972); State v. Davis, 246 La. 383, 164 So.2d 589 (1964); 2 Marr’s Criminal Jurisprudence of Louisiana, Section 633 (1923).” [footnote omitted]

As in Whatley, supra, the State in the present case took a chance by only minimally establishing a predicate. If the defense had presented competent evidence on the traversal, the State would have been barred from offering the testimony of the other officers on rebuttal.

In our view, while the trial judge may have erred in refusing to grant the motion to suppress the confession, that ruling, however erroneous, was binding at trial. Therefore, the State was not obligated to re-try the motion at trial in order to establish a predicate for the confession. Consequently, in the event the State successfully overcomes with competent evidence the defendant’s testimony of being beaten by two officers at the re-opened motion to suppress the confession, there need be no retrial of the defendant.

ASSIGNMENT OF ERROR NO. 4

In this assignment of error, the defendant contends the trial judge erred in restricting the voir dire examination of a prospective juror as to his knowledge of the constitutional requirement the State advised the defendant of his Miranda rights.

The scope of voir dire examination is within the trial judge’s discretion and his ruling will not be disturbed in the absence of the clear abuse of that discretion. State v. Stucke, 419 So.2d 939 (La.1982); State v. Robinson, 404 So.2d 907 (La.1981). In evaluating the fairness of a trial court’s ruling on voir dire examination, the entire examination must be considered. State v. Jackson, 439 So.2d 622 (1st Cir.1983); State v. Stucke, supra.

Our review of the voir dire examination in this case leads us to conclude the defendant was afforded a wide latitude in the examination of prospective jurors. The complained-of ruling was the result of defense counsel’s questions to the prospective juror relative to whether that juror would consider whether proper Miranda warnings were given to defendant prior to making any confession. In order to respond to the question, the jurors would have had to have some basic legal background necessary for a complete understanding of the question in order to respond thereto. We conclude that the trial judge did not abuse his discretion in prohibiting the question as posed by the defense counsel and also conclude that defense counsel was given the required wide latitude in the voir dire examination.

Thus, we cannot say the trial judge erred in making the ruling complained of in this assignment.

ASSIGNMENT OF ERROR NO. 5

In this assignment of error the defendant contends it was error to permit the State to admit into evidence the entirety of the defendant’s confession without first deleting reference to other crimes contained in the confession.

LSA-R.S. 15:450 provides that every confession, admission or declaration sought to be used against anyone must be used in its entirety, so that the person to be effected thereby may have the benefit of any exculpation or explanation that the whole state may afford.

As was stated by the court in State v. Morris, 429 So.2d 111 (La.1983), at page 121:

A defendant is entitled to insist upon introduction of the entirety of a statement sought to be used against him, although, of course, he may waive the benefits of the protective statute. La. R.S. 15:450; State v. Haynes, 291 So.2d 771 (La.1974). Consequently, when the state seeks to introduce a confession, admission or declaration against a defendant which contains other crimes evidence, but which is otherwise fully admissible, the defendant has two options. He may waive his right to have the whole statement used, object to the other crimes evidence, and require the court to excise it before admitting the statement; or, he may insist on his right to have the statement used in its entirety so as to receive any exculpation or explanation that the whole statement may afford. A third alternative, that of keeping the whole statement out, is not available to defendant, unless, of course, the confession itself is not admissible. State v. Sonnier, 379 So.2d 1336 (La.1980); State v. Snedecor, 294 So.2d 207 (La.1974); 7 Wigmore on Evidence §§ 2100, 2115 (3rd Ed. 1940).

At the trial, defense counsel objected to the use of the confession in its entirety and requested that the trial court delete therefrom reference to the crimes other than the one for which he was then being prosecuted. Complying with the guidelines in State v. Prieur, 277 So.2d 126 (La.1973), the State sought to have the entire confession considered for the purpose as evidence of other crimes under the provisions of LSA-R.S. 15:446.

It has been held that evidence of other armed robberies is admissible where almost identical tactics are used to show the system and modus operandi employed by the defendant. State v. Lawrence, 294 So.2d 476 (La.1974).

The statement given by the defendant to the police shows that the defendant used the same tactics and used the same weapon to commit other armed robberies as he had used in the instant case. Therefore, we conclude that this statement, if otherwise properly admissible, could be used as evidence to show the system and modus oper-andi employed by the defendant. Hence, we cannot say the trial judge abused his discretion in allowing the introduction into evidence of the entire statement over objections of defense counsel.

ASSIGNMENT OF ERROR NO. 7

By this assignment of error, the defendant contends it was error to deny him the benefit of hearsay testimony on a motion to suppress in order to show he had been beaten and had requested medical treatment.

The defendant, while testifying on his motion to suppress, attempted to relate to the trial court what a doctor had told him relative to his medical treatment received from that doctor. The State objected on the grounds of hearsay and the trial court sustained the objection.

As defined in State v. Martin, 356 So.2d 1370 (La.1978), hearsay evidence is either testimony or written evidence of an out of court statement offered to prove the truth of the matter, its value resting on the credibility of the out of court declarant.

The information sought to be admitted here was rank hearsay offered for the purpose of proving the truth of the statement itself and, hence, not admissible on a motion to suppress or at a trial. Thus, we find no merit in this assignment of error.

ASSIGNMENTS OF ERROR NOS. 8 and 10

Citing State v. Raymond, 258 La. 1, 245 So.2d 335 (1971), as authority for the admissibility of out-of-court statements to show the declarant’s state of mind, the defendant sought to call Davis McDowell as a witness. He would have testified that the defendant had repeatedly told him that-he had been beaten and was in need of medical treatment. Although Mr. McDowell’s testimony was proffered, the defense sought to have the defendant’s own prior out-of-court statements admitted as circumstantial evidence of his having been beaten and forced to sign a confession. The court’s refusal is the basis for assignment of error No. 8.

Further, in support of his contention the confession was not freely and knowingly given, the defense sought to call Grover Craft, Jr., a minute clerk for the Twenty-fourth Judicial District Court, as a rebuttal witness to show the defendant had filed motions to obtain medical treatment into the record. The trial judge refused to admit the presentation of the testimony to the jury. This refusal forms the basis for assignment of error No. 10. The defendant contends he has been denied the right to rebut the State’s allegation of the validity of the confession as he is entitled to do under R.S. 15:451. Also, the defense submits that the trial court further erred in failing to take judicial notice of the court records (the motions for medical treatment) filed in Division H of the same court.

Since these assignments of error are interrelated, they will be treated as one.

In State v. Raymond, supra, at p. 340, the court held that “[w]hen an out-of-court statement is offered to prove circumstantially the declarant’s state of mind, it is non-hearsay. It is admitted in evidence, not to prove the truth of the facts recited, but to prove that utterance occurred as a basis for inference, [citation omitted].” Consequently, the court in that case held that the murdered victim’s utterance as related by the witness was admissible because it was circumstantial evidence of the victim’s state of mind or emotional attitude toward the defendant.

It was held in State v. Ratcliff, 416 So.2d 528, 532 (La.1982) that “evidence is not hearsay if introduced to show that an utterance occurred or that a conversation has taken place rather than to show the truth of the matter. State v. Naas, 409 So.2d 535 (La.1981).” See also State v. Huizar, 414 So.2d 741 (La.1982).

Here the defense contends “[djefendant sought by circumstantial evidence of his own statements to show that he had been beaten and denied medical treatment.” Clearly, from the jurisprudence, such statements could be admitted only to evidence the declarant’s state of mind at the time of the utterance or simply to show that the utterances had been made. However, the defense sought their admission and urges their consideration as circumstantial evidence that the defendant was beaten by the investigating officers. Since neither Mr. McDowell nor Mr. Craft witnessed any beating of the defendant, they cannot testify as to the truth of the defendant’s allegations of a beating.

The defense also takes exception to the fact that the trial court, in Section D, refused to take judicial notice of the court records filed in Section H of the Twenty-fourth Judicial District. R.S. 15:422(7) states, in pertinent part, that “[¿Judicial cognizance is taken of_matters pending in the court taking such cognizance and who are its attorneys.” R.S. 15:459 states that:

“Whenever, during the trial of any criminal case, either party may desire to offer in evidence any record, paper or document belonging to the files or records of the court in which the trial is proceeding, the presiding judge shall, at the request of such party, direct the clerk to produce such record, document or paper, in order that the same may be used in evidence; and it shall not be necessary for the clerk in any such case to make a copy of such record, document or paper.”

See also R.S. 13:3723 which provides similarly, expanding its applicability for “any suit or process, whether civil or criminal....”

In a case similar to the one presented here, the court in State v. Landry, 388 So.2d 699, 705 (La.1980) discussed the purpose of these statutes as follows:

“As can be seen, the statutes simply provide a mechanism whereby a party seeking to make evidentiary use of a record, paper or document already in the court’s files or records can do so without the necessity of obtaining a copy of the paper, record or document to be introduced. The party need only, under the statutes, request that the court instruct the clerk to produce the original. The statutes are therefore designed for the convenience of the parties in the production of evidence, but make no mention of the admissibility of such evidence after it is produced by the clerk.”

The defendant, Landry, requested that documents evidencing exculpatory statements made by his alleged accomplices, which had been admitted into evidence at their respective trials, be admitted into his evidence at his trial. The defendant sought to have these out-of-court statements introduced to prove the truth of the matters asserted in those documents and cited R.S. 13:3723 and R.S. 15:459.

The court, in deciding, at page 706, whether a statutory exception to the inadmissibility of hearsay was provided for by these statutes, determined that:

“The statutes involved in the instant case certainly do not, by their express terms, provide for an exception to the hearsay rule. Nor do they give any guarantee that all evidence in the court’s files or records is trustworthy. In short, the statutes provide no indication that the legislature intended to create a broad exception to the hearsay rule by their enactment.
Since the evidence sought to be introduced was hearsay, and did not fall within any recognized exception to the rule that such evidence must be excluded, the trial court did not err in refusing to allow its admission.”

Further, it may well be construed that the defendant made the requests for medical assistance, alleging a beating, in an attempt to neutralize the damaging effect of his confession. State v. Melerine, 236 La. 929, 930, 109 So.2d 471, 486 (1959) held that “[s]elf serving declarations by an accused, unless a part of the ‘res gestae’, are not admissible in evidence. State v. Vernon, 197 La. 867, 2 So.2d 629; State v. McDonald, 224 La. 555, 70 So.2d 123.” Clearly, the allegations of a beating and the defendant’s requests for medical treatment are not a part of the res gestae and, accordingly, would not be admissible.

For the reasons stated, therefore, these assignments of error have no merit.

ASSIGNMENT OF ERROR NO. 11

The defendant in this assignment of error contends there was insufficient evidence to support a conviction. In support, the defense points out that the alleged victim of the armed robbery was unable to testify as to the details of the event, such as the date and the amount of money. She identified the defendant as the perpetrator but was unable to give a height description even though he was six feet five inches (6'5") tall. She originally stated he had a grey streak in his hair, but a mug shot taken one week later contradicted this description. The victim was further unable to identify the gun presented by the defense as the weapon used in the robbery of the convenience store. In sum, the defense submits that the failures and discrepancies of the victim’s testimony were such that without the defendant’s illegally obtained confession, no rational trier of fact could have found the defendant guilty of armed robbery.

The standard of review for the sufficiency of evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Sweeney, 443 So.2d 522 (La.1983); State v. Cockerham, 442 So.2d 1257 (5th Cir.1983). It is well settled that an accused party cannot be legally convicted on his own uncorroborated confession without proof that a crime has been committed by someone; in other words, without proof of the corpus delicti. State v. Simmons, 443 So.2d 512 (La.1983); State v. Mullins, 353 So.2d 243 (La.1977); State v. Morgan, 157 La. 962, 103 So. 278 (1925). Once the corpus delicti has been independently established, a confession alone may be used to identify the accused as the perpetrator of the crime. United States v. Opdahl, 610 F.2d 490 (9th Cir.1979), cert. denied, 444 U.S. 1091, 100 S.Ct. 1056, 62 L.Ed.2d 780 (1980); United States v. Johnson, 589 F.2d 716 (D.C.Cir.1978); State v. Reed, 420 So.2d 950 (La.1982) (Calogero, J., concurring); State v. Freetime, 334 So.2d 207 (La.1976); 1 H. Underhill, Criminal Evidence § 36, at 18 (6th Ed. P. Herrick 1980 Supp.); 1 F. Wharton, Criminal Evidence § 691, at 490 (13th Ed. C. Torcía 1972).

In the instant case, the victim of the armed robbery testified that the defendant entered the Lil’ General Store where she was employed as a cashier and after getting a can of beer from the cooler, the defendant returned to the counter in the store and at gunpoint demanded that she turn over the money in the register, which she did. The defendant then left the store and walked away.

Although defense counsel pointed to certain deficiencies in the victim’s testimony, the victim was positive in her in-court identification of the defendant as the person who had robbed her at gunpoint. Since the corpus delicti of the armed robbery was established by sufficient evidence independent of the defendant’s confession, the confession, if otherwise properly admissible, may be considered together with all of the other evidence in our review. The confession matches identically the events as described by the victim. Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could have determined beyond a reasonable doubt that the defendant committed the crime with which he was charged.

Therefore, we hold this assignment of error has no merit.

CONCLUSION

We therefore remand this case to the district court for another trial on the motion to suppress. Because retrial of the motion may eliminate the error here, we do not reverse defendant’s conviction at this time. If the trial court finds that the confession was inadmissible, it must grant defendant a new trial. Otherwise, we reserve to defendant the right to appeal once more any adverse ruling on the motion. In the absence of such an appeal, his conviction and sentence will be affirmed. State v. Kennedy, supra.

CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED; CASE REMANDED FOR RETRIAL OF THE MOTION TO SUPPRESS.

      . Although the record does not contain a Prieur Notice Form, the transcript of the proceedings on the motion to suppress the confession indicates the State had given the required notice and the defendant apparently acknowledged having received same.