text:
    In re ESTATE of Lila K. McGLONE, Deceased.
    No. 82-2088.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellant Louise Ellstrom.
    No appearance on behalf of appellees.
   DOWNEY, Judge.

Lila McGlone left a Last Will and Testament dated March 20,1970, which contained a bequest “to Glenn E. Ellstrom and Louise Ellstrom, his wife, or the survivor of them.” By identical language the Ellstroms were made beneficiaries of twenty-five percent of the residuary estate.

In June, 1981, Glenn and Louise Ellstrom were divorced, and in January, 1982, the testatrix died. During the course of the administration of her estate, Southeast Bank, as personal representative, filed a petition to determine heirs and beneficiaries. The trial court ruled that the bequest to Glenn and Louise lapsed because the testatrix intended the bequest to vest in Glenn and Louise as tenants by the entire-ties. This testamentary intention was gleaned by the court from the use of the words “his wife” following the names, Glenn E. Ellstrom and Louise Ellstrom. From that order this appeal was perfected.

The general rule is that, absent the manifestation of a contrary intention, a testamentary gift to the “husband” or “wife” of a designated person is intended as a gift to that person whether or not that person occupies that status at the time of the testator’s death. The addition of the term “husband” or “wife” is merely descriptio personae. The general rule is set forth in 80 Am.Jur.2d Wills, § 1224 (1975), as follows:

The cases generally support the conclusion that a testamentary gift to the “husband” or “wife” of a designated person may be claimed by the individual who occupied that status at the time the will was made despite a subsequent divorce or decree of nullification, unless it is clear from the language of the will and the accompanying circumstances that it was the testator’s intention that the gift should not go to a legatee occupying the changed relation resulting from a divorce. The presumption that the testator intended that the donee should take although divorced is strongly fortified where he or she is named as well as described as “husband” or “wife,” or where a lapse of some time occurs between the granting of the divorce and the death of the testator, the latter having ample opportunity to change his will during that time and being shown to have had knowledge of the divorce.... (Footnotes omitted.)

The rule was similarly applied in Application of Carleton 105 Misc.2d 444, 432 N.Y. S.2d 441 (1980), and Matter of White, 82 Misc.2d 323, 369 N.Y.S.2d 330 (1975).

So as to dissipate any indication of a contrary intention, appellant adduced evidence demonstrating her close relationship with the deceased both during and after her marriage to Glenn. In addition, the provisions of the will directing that the bequest should pass to the survivor of Glenn and Louise evinces an intention that the property not be taken exclusively as a tenancy by the entirety.

Accordingly, the order appealed from is reversed and the cause is remanded with directions to reinstate the testamentary gifts to Glenn and Louise Ellstrom.

REVERSED AND REMANDED, with directions.

BERANEK and GLICKSTEIN, JJ., concur.


source: Caselaw Access Project

author: DOWNEY, Judge.

license: Public Domain

text:
    AMERICAN SAVINGS AND LOAN ASSOCIATION OF FLORIDA, Appellant, v. ATLANTIC INVESTMENT CORP., a Florida corporation, n/k/a Reed-Atlantic Investment Corporation, Appellee.
    No. 83-38.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.

      Lewis Horwitz of Broad & Cassel, Bay Harbor Islands, for appellant.
    Charles S. Dale, Jr., of Dale & Stevens, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Appellant, American Savings and Loan Association of Florida (American), seeks reversal of a judgment reestablishing a lost or destroyed lease agreement.

The undisputed facts reflect that in 1958 Land and General Finance Corporation (Land) leased certain realty to Atlantic Investment Corporation (Atlantic) for a ninety-nine year term. The leased parcel was adjacent to a parcel owned and used by Land. Ijn 1964 Coral Ridge Properties, Inc. (Coral Ridge), successor in interest to Land, proposed an agreement with Atlantic styled “Agreement for Erection and Maintenance of Signs and for Parking and Drainage Improvements” which would allow Coral Ridge to erect and maintain a large sign on Atlantic’s leasehold for the remainder of the lease. The purpose of the sign was to advertise the Galt Plaza Promenade being operated on Coral Ridge’s parcel. In 1972 American succeeded to the interests of Coral Ridge, whereupon American replaced the top half of the sign reading “Galt Shopping” with a new sign which read “American Savings.” In 1979 Atlantic notified American to remove the sign and this litigation ensued.

Essentially, the case resolved itself into a suit to reestablish a lost document. Atlantic contended that it had entered into the aforementioned agreement with American’s predecessor allowing the latter to erect and maintain the sign and reserving the right to require the sign to be removed on 80 days written notice. However, the agreement could not be found.

The president of Atlantic, Reed, testified .that he took a proposed agreement to Atlantic’s lawyer, who recommended adding a thirty day written notice termination provision. Reed agreed and his attorney, Dale, interlined the modification. Reed then took the agreement, signed it and forwarded it to Coral Ridge. Dale corroborated Reed’s testimony relating to the modification by interlineation. Shortly thereafter, Coral Ridge erected and maintained the sign. Reed testified that he assumed that Coral Ridge had signed the modified agreement and retained custody of it, as specifically provided therein. Neither the chairman of the Board of Coral Ridge nor its attorney could remember the agreement, and they were unable to find any such agreement among the corporation files. However, there was evidence that Coral Ridge had lost a large number of its files.

The cases are uniform in holding that proof of the operative parts of a lost or destroyed document must be clear, strong and unequivocal. Weinsier v. Softer, 358 So.2d 61 (Fla. 3d DCA 1978), cert. denied, 365 So.2d 714 (Fla.1978); Locke v. Pyle, 349 So.2d 813 (Fla. 1st DCA 1977), cert. denied, 357 So.2d 187 (Fla.1978). But that is not to say that the proof may not be in part circumstantial. In this case, Atlantic produced an original proposed agreement prepared by Coral Ridge. Reed found that agreement among his files. Both Reed and Dale testified that this agreement as modified by the thirty day termination modification was forwarded to Coral Ridge. We hold this evidence was sufficient to meet the burden to prove the contents of the agreement which appellee sought to reestablish.

The execution of the agreement by Coral Ridge is another story. While there is no direct evidence that Coral Ridge executed the agreement, the circumstances appear sufficient to support the trial court’s finding that Coral Ridge did sign it. Coral Ridge proposed and prepared an agreement; it erected the sign shortly after Reed executed and forwarded the modified agreement to Coral Ridge; and it main-tamed the sign for fifteen years. Circumstantial evidence may be used to prove both the content and execution of a lost deed or other instrument. Miller v. Fleming, 149 Tex. 368, 233 S.W.2d 571 (1950); Arreguin v. Cantu, 609 S.W.2d 639 (Tex.Civ.App. 1980); Crosby v. Davis, 421 S.W.2d 138 (Tex.Civ.App.1967). As the court said in Crosby:

Proof of a lost deed may be made by circumstantial or presumptive evidence. Miller v. Fleming, 149 Tex. 368, 233 S.W.2d 571; Smith v. Taylor (Tex.Civ. App.), 197 S.W.2d 851 (n.r.e.); Price v. Humble Oil & Refining Company (Tex. Civ.App.), 152 S.W.2d 804. The authorities draw no distinction between proof of a deed by circumstantial evidence and proof of circumstances from which the execution of an ancient instrument may be presumed. Price v. Humble Oil & Refining Company, supra, citing cases. Proof of circumstances of a long asserted and open claim, either by possession or other acts of dominion and control adverse to that of apparent ownership, together with the latter’s non-claim and acquiescence, is usually held to be sufficient to show a transmutation of title, whether there is evidence of the existence of a lost deed or not. Hutchison v. Massie (Tex.Civ.App.), 226 S.W. 695; Magee v. Paul, 110 Tex. 470, 221 S.W. 254; Masterson v. Harris County Houston Ship Channel Nav. Dist. (Tex.Com.App.), 15 S.W.2d 1011, 67 A.L.R. 1324; Smith v. Taylor (Tex.Civ.App.), 197 S.W.2d 851; Price v. Humble Oil & Refining Company, supra.

Crosby, supra, at 142. In Fries v. Griffin, 35 Fla. 212, 17 So. 66, 68 (1895), the Supreme Court of Florida stated:

When a deed to real estate has been lost, and the contents thereof have been established, Christy v. Burch [25 Fla. 942, 2 So. 258] holds that a liberal presumption will be indulged in favor of the due execution of the deed ....

The conduct of the parties described above, taken together with the testimonial and documentary evidence adduced at trial, appears sufficient to support the judgment reestablishing the agreement. Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

i

LETTS ahd DELL, JJ., concur.

      . The agreement also provided that it was not to be recorded.


author: PER CURIAM.

text:
    Stanley J. HARTE, individually, Petitioner, v. PALM BEACH BILTMORE CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, Respondent.
    No. 83-1430.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.

      Stephen J. Cohen of Conrad, Scherer & James, P.A., Fort Lauderdale, for petitioner.
    Richard B. Warren of Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for respondent.
   PER CURIAM.

This is a petition for common law certio-rari. We deny the petition on jurisdictional grounds. Petitioner/defendant was sued in a five-count complaint alleging construction defects in a condominium building. Petitioner moved for summary judgment on Count V only. The motion for summary judgment was based on the recent case of Olympian West Condominium Association, Inc. v. Kramer, 427 So.2d 1039 (Fla. 3d DCA 1983). The trial court denied the motion for summary judgment, and petitioner seeks review of this order by certiorari.

Even if petitioner is correct in contending that error occurred, there is an obvious adequate remedy by appeal if judgment is eventually entered against him on Count V. As this court has repeatedly held, under such circumstances a petitioner must demonstrate both a departure from the essential requirements of law and lack of an adequate remedy by appeal after judgment. See Chalfonte Development Corporation v. Beaudoin, 370 So.2d 58 (Fla. 4th DCA 1979), and Palm Beach Newspapers, Inc. v. Parker, 417 So.2d 323 (Fla. 4th DCA 1982). The order in question is not a permitted interlocutory appeal and is not a proper matter for certiorari. See Combs v. State, 436 So.2d 93 (Fla.1983). Therein, the Supreme Court stated:

A district court may refuse to grant a petition for common law certiorari even though there may have been a departure from the essential requirements of law.

Although the Combs decision relates to review of circuit court appellate decisions, the rationale is appropriate here. We will not review the denial of a defendant’s motion for summary judgment as to a single count absent a demonstration of both a departure from established law and the lack of an adequate remedy by appeal. As we have so often held, the necessity of proceeding with a trial is not a sufficient ground to invoke certiorari. If it were, then the denial of every motion to dismiss and the denial of every motion for summary judgment would automatically provoke immediate appellate review by every defendant. In almost every case, trial judges make preliminary rulings on matters of law in defining the issues presented by the parties. The overall structure of the appellate system in this state does not countenance piecemeal review as to each of those rulings. Absent a demonstration of the elements necessary for common law certiorari, we will presume the trial court to be correct in the preliminary stages of the litigation and defer ruling until such time as a final appealable judgment has been rendered in the matter. Obviously, the petitioner/defendant may not have judgment rendered against him on Count V, and an appeal on this issue may never be necessary. The fact that other counts remain pending as to this defendant also militates against consideration of the matter at this time.

The only authority cited by petitioner in support of this court’s jurisdiction is Keehn v. Mackey, 420 So.2d 398 (Fla. 4th DCA 1982). This case is no comfort to petitioner. Keehn specifically held that in a situation where this court denies common law certio-rari, it is precluded from ruling on the merits. We caution that our present denial of certiorari does not constitute any indication whatsoever as to how we would dispose of the matter if it is ever presented on appeal from judgment.

Certiorari is thus denied on jurisdictional grounds and the matter shall proceed below.

CERTIORARI DENIED.

BERANEK, HURLEY and DELL, JJ., concur.


text:
    Herman Lee MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 83-1607.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Herman Lee Marshall, appellant, pro se.
    No appearance required for appellee.
   PER CURIAM.

Herman Marshall appeals the trial judge’s order denying his motion for post conviction relief. The trial judge denied the motion without holding an evidentiary hearing or attaching to his order a record sufficient to demonstrate that appellant is entitled to no relief, as required by Rule 3.850, Florida Rules of Criminal Procedure. The order denying the motion for post conviction relief is reversed and the cause remanded for proceedings in compliance with Rule 3.850.

REVERSED and REMANDED.

DOWNEY, HERSEY and DELL, JJ., concur.


text:
    Cleveland ARNOLD, Appellant, v. STATE of Florida, Appellee.
    No. 83-1608.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Cleveland Arnold, Clermont, pro se, appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed on the authority of Crump v. State, 412 So.2d 441 (Fla. 4th DCA 1982).

LETTS, HERSEY and HURLEY, JJ., concur.


author: LEHAN, Judge.

text:
    Garry STRAHORN, Appellant, v. STATE of Florida, Appellee.
    No. 82-1604.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 1983.
    William B. Plowman, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant appeals his conviction and sentence for attempted manslaughter and shooting into an occupied vehicle. We affirm in part and reverse in part.

The charges against defendant arose out of an incident which began on the evening of November 3,1981, when an officer of the Pinellas Park Police Department observed defendant and another person, Joseph Ac-quaviva, getting into a van in the parking lot of a bar. Acquaviva was driving. Because the officer had recently stopped Ac-quaviva on a traffic violation and believed that his driver’s license was suspended, the officer followed the van. The officer signaled the van to stop, using lights and sirens, but the vehicle did not heed the signals. The officer notified other local law enforcement departments that he was in pursuit, and Officer Culberson of the Kenneth City Police Department joined the chase. While directly behind the van in pursuit, Officer Culberson radioed for assistance, stating that he had been fired upon.

At trial Officer Culberson testified that he had seen an arm come out of the passenger’s side of the van and that he observed two muzzle flashes, followed by two loud thumps or “pangs,” and the appearance of two damaged areas, on his windshield. He stated that something hit the windshield but ricocheted off and never penetrated the window. Officer Culberson testified that he did not hear any gunshots.

The van finally stopped, either because, according to a police officer, it was forced off the road by one of the police cars or because, according to the defendant and Acquaviva, the defendant reached over and removed the keys from the ignition. No gun was found in the van or on the person of the defendant or Acquaviva. Officer Culberson testified that he saw nothing thrown from the van during the chase after he observed what he thought were gunshots.

When the van was searched, a wallet was found on the dashboard area with two credit cards inside which were not in the name of either defendant or Acquaviva.

Prior to trial, defendant filed a motion to produce the damaged windshield and a motion in limine requesting that no evidence be admitted at trial concerning what an officer said were stolen credit cards. Both motions were granted. Subsequently, however, the defendant was notified that the windshield had been destroyed when it was removed from the police car. Due to that destruction, the defendant filed a motion to dismiss the charges, which was denied. Also, notwithstanding the motion in limine, testimony regarding the credit cards was admitted into evidence at trial.

Defendant was tried by jury for attempted murder in the first degree and shooting into an occupied vehicle. Defendant was convicted of attempted manslaughter and shooting into an occupied vehicle. The trial court sentenced defendant to fifteen years imprisonment on each charge, to be served concurrently, with a three year minimum mandatory sentence on the conviction of attempted manslaughter pursuant to section 775.087(2), Florida Statutes (1981).

Defendant’s first point on appeal is that the destruction of the windshield constituted a denial of defendant’s constitutional rights to confrontation and due process. Prior to the destruction of the windshield, the state had performed a sodium rhodizo-nate (lead) test. At trial the person who performed the test testified that neither of the two damaged areas on the windshield were positive for the presence of lead. Her opinion was that it was just as conceivable that a stone had caused the damage to the windshield as a bullet. In addition to her testimony, photographs that she had taken of the damaged windshield were admitted into evidence. Those photographs showed a ruler next to the damaged areas to indicate the size of the indentations.

Defendant claims that he was prejudiced by the destruction of the windshield because he was prevented from rebutting the state’s assertions that the indentations were made by a bullet and was prevented from conducting his own tests which might have proven that the marks had been caused by pebbles or some foreign object other than bullets. The defendant claims that he was denied his Sixth Amendment right of confrontation. We disagree. As this court noted in State v. Armstrong, 363 So.2d 38, 39 (Fla. 2d DCA 1978), the Sixth Amendment confrontation provision “is by its terms restricted to ‘witnesses’ and does not encompass physical evidence as well.”

Defendant also claims that the destruction of the evidence violated his right to due process. In Adams v. State, 367 So.2d 635 (Fla. 2d DCA 1978), this court discussed the criteria for determining when failure of the state to produce evidence requires the reversal of a conviction. The court stated that when the destruction of evidence was less than a flagrant and deliberate act done in bad faith, the conviction may be overturned only if the record shows that the defendant’s case was prejudiced by the omission of the nonpreserved evidence. See also State v. Snell, 391 So.2d 299 (Fla. 5th DCA 1980). In this case, the defendant does not contend, and we do not find, that the state deliberately destroyed the windshield or acted in bad faith. Thus, the question is whether defendant’s case was prejudiced by the destruction of the evidence. We do not find that it was. Defendant had the benefit of the test results conducted by the state which, if not favorable to defendant, were at least neutral because the tests did not indicate the presence of lead on the windshield. The defendant was also able to cross-examine the person who had conducted the tests and to use the photographs which had been taken of the damaged windshield. Defendant has not shown that an examination of the windshield by his own experts would have produced results any more favorable to him than the state’s testing did. The mere possibility that nonpreserved evidence might have helped the defendant is not a sufficient showing of prejudice. United States v. Agurs, 421 U.S. 97, 96 S.Ct. 2932, 49 L.Ed.2d 342 (1976); State v. Sobel, 363 So.2d 324 (Fla.1978).

Defendant’s second point on appeal is that the trial court erred in permitting the admission of testimony pertaining to the credit cards that belonged to neither Acquaviva nor defendant. The admission of this testimony was, at most, harmless error because there was no evidence or testimony at trial that defendant had anything to do with the cards or even had any knowledge that the cards were present. No one was permitted to testify that the cards were stolen. All evidence connected the cards with Acquaviva. Therefore, we do not find that the testimony about the credit cards should be considered evidence of a crime committed by defendant other than the crime for which he was on trial, admission of which is controlled by section 90.-404(2)(a). Florida Statutes (1981), and Williams v. State, 110 So.2d 654 (Fla.1959).

Defendant’s third issue on appeal is that the trial court erred in denying his motion for judgment of acquittal based on the insufficiency of the evidence. We do not find error in the denial of the judgment of acquittal. As his fourth point on appeal, defendant objects to a jury instruction that was given at trial, but defendant did not preserve that point by a timely objection in the trial court and is, therefore, not entitled to raise it on this appeal.

Defendant’s last issue on appeal is that the trial court erred in imposing a three year minimum mandatory sentence for the conviction of attempted manslaughter because manslaughter is not included in the offenses enumerated in section 775.-087(2), Florida Statutes (1981), as requiring the three year minimum mandatory sentence. We agree that manslaughter is not considered to be included within the category of “any murder” listed in that statute. Jones v. State, 356 So.2d 4 (Fla. 4th DCA 1977); Rozier v. State, 353 So.2d 193 (Fla. 3d DCA 1977). Therefore, we reverse and remand to the trial court for entry of a sentence which omits the three year mandatory sentence.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR ENTRY OF CORRECTED SENTENCE.

HOBSON, A.C.J., and SCHOONOVER, J., concur.


text:
    The STATE of Florida, Appellant, v. Donnie JOHNSON, Appellee.
    No. 82-2196.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1983.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Upon the appellee’s confession of error, the trial court’s order dismissing the cause is reversed and the cause remanded to the trial court for further proceedings. No rehearing will be permitted, and the mandate will issue immediately.

Reversed and remanded.


author: LEMMON, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Vernon Ray CHAPMAN.
    No. 80-KA-2513.
    Supreme Court of Louisiana.
    May 23, 1983.
    Rehearing Denied Sept. 1, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Dist. Atty., Marion B. Farmer, Dist. Atty., William R. Alford, Margaret A. Coon, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Richard Reynolds, Garic K. Barranger, Brady M. Fitzsimmons, Covington, for defendant-appellant.
   LEMMON, Justice.

This is the second time that defendant’s appeal is before us. On defendant’s initial appeal, his conviction of aggravated rape and his sentence to life imprisonment were affirmed on original hearing and again on rehearing. However, this court granted a second rehearing and, although again affirming the conviction, remanded the matter to afford defendant an opportunity to introduce evidence in support of his motion for a new trial. See State v. Chapman, 410 So.2d 689 (La.1982).

The motion for a new trial was based principally on‘an affidavit submitted by a witness to the initial identification of defendant. In the affidavit (reproduced in full in footnote 3 of our opinion on rehearing at 410 So.2d at 711), the witness, a nurse who attended the rape victim at the hospital, claimed that the chief of police prejudicially influenced the victim prior to her seeing defendant (who was then in custody) and also claimed that the victim expressed uncertainty immediately after identifying defendant.

At the hearing ordered by this court on the motion for new trial, defendant introduced the testimony of the nurse and other evidence tending to discredit the victim’s identification of defendant as the rapist, as well as evidence that defendant had “passed” a polygraph test in which he denied raping the victim. The trial judge denied the motion for a new trial, and defendant has again appealed. The sole remaining issue is whether the trial judge improperly exercised his discretion in denying a new trial.

I.

The victim, a 57-year old widow, was awakened by noises on the front porch of her Madisonville residence at about 2:50 a.m. on June 3, 1979. Upon pulling aside the curtains, she saw a man (later unequivocally identified by her as defendant) attempting to open a window to enter her home. According to the victim, she had a good view of him because an outside light illuminated the porch area in which he was standing.

The man told the victim that he had been stabbed and asked her to open the door. When she stated that she would call the police, the man broke through the screen and glass and entered the house through the hole in the jalousied glass door. Once inside, the man grabbed the terrified victim, threw her down (causing her to cut her leg on the broken glass), and forced her through the dark house into her bedroom, where he raped her.

After completing an act of intercourse, defendant stole some money and fled. The victim saw him run from her home toward the street and cautiously followed him outside, where she heard a car speed off into the night.

When the police arrived at her home, the victim gave a detailed description of the assailant’s physical characteristics and clothing (an open vee-neck shirt worn by hospital orderlies). Realizing that defendant fit the physical description and that he frequently wore a hospital scrub shirt, the chief of police dispatched an officer to check on defendant and another suspect.

When the officer , arrived at defendant’s home at about 3:30 a.m., he discovered that defendant’s automobile engine was warm and that tire tracks were visible in the early morning dew (indicating that the car had recently been driven into the yard). Defendant’s wife answered the door and acknowledged that defendant had only recently returned home. Observing defendant in bed without a shirt, the officer noticed cuts on his side and back. The officer also noticed a green vee-neck shirt with blood stains on it.

Defendant was taken in handcuffs to a local hospital, where the victim had been taken for treatment. While the victim was in the emergency room in a curtained-off treatment area, an officer told her that they had a suspect for her to view. When the curtain was pulled back and the victim (seated in a wheel chair) came face to face with defendant, she immediately and very emotionally cried out that defendant was the rapist. Defendant was then booked for aggravated rape.

The victim’s positive identification of defendant as her assailant, both in the hospital and' in later courtroom proceedings, formed the basis of the prosecution. Since the state’s other evidence was circumstantial, the victim’s positive identification was critical.

At the trial, defendant presented the testimony of an expert concerning studies which tended to discredit eyewitness identification generally. In addition, several alibi witnesses testified that defendant was in a local barroom at the approximate time of the rape. Defendant also testified, flatly denying that he was the rapist and directly contradicting the testimony of some of the investigating officers. Despite his firm denials and a vigorously presented defense, the jury obviously credited the victim’s positive identification, as corroborated by some circumstantial evidence (which by itself was by no means conclusive).

II.

In this context, we now proceed to review the trial judge’s exercise of discretion in denying defendant’s motion for a new trial.

At the hearing on the new trial motion, the defense presented a state policeman who had administered a polygraph test shortly after defendant’s arrest and release on bail. The results of the test, which was conducted at defense counsel’s office, led the officer to conclude that defendant responded truthfully when he denied raping the victim. On cross-examination, the officer admitted that he had not ascertained all of the details of the offense before conducting the test and that it is especially difficult in a rape case to formulate questions which produce the most accurate findings. Nevertheless, the officer opined that the testing, which indicated no deception, was accurate.

In denying the new trial, the trial court stated that he gave little weight to the “exculpatory” polygraph evidence.

In State v. Catanese, 368 So.2d 975 (La.1979), this court held that the trial court may consider a properly conducted favorable polygraph test result as a factor in support of granting a new trial to serve “the ends of justice”. La.C.Cr.P. Art. 851(5). However, the Catanese decision indicated that such evidence does not necessarily entitle a defendant to a new trial. Therefore, we cannot say, particularly in view of the polygraph operator’s own admissions regarding the weaknesses in his questions, that the judge abused his discretion in according little weight to the polygraph results.

The newly discovered evidence issue presents a much more difficult problem. The evidence, as indicated earlier, consisted of the testimony of a nurse who claimed to have been attending the victim in the emergency room at a local hospital when defendant (who had apparently known the nurse from his previous employment as a hospital orderly) was brought in for identification. The nurse testified at the hearing that the chief of police made a racially derogatory remark about defendant and in effect told the victim that they “had the man” who had committed the rape before she was presented with an opportunity to see defendant. She also testified that the victim expressed uncertainty about her identification.

Given the already less than ideal setting in which the initial identification occurred, this evidence, if credited by the jury, would doubtlessly have weakened the state’s case, which rested largely on the strength of the victim’s positive in-court identification. However, the chief, the other officers, and the victim expressly and without reservation denied that the chief conducted the “show-up” in the manner described by the nurse. In denying the motion, the trial judge remarked that the nurse’s revelations (which he termed “late” because she did not come forward until after the trial) were “highly suspect”.

In ordering a hearing on the motion for a new trial, this court mandated that the trial court hear the testimony of the nurse witness (and the testimony of state witnesses who might contradict her) and weigh its probable impact on the jury’s verdict in light of the evidence presented at the trial. Obviously, the trial judge who heard the trial evidence is uniquely suited to weigh the probable effect of the nurse’s testimony. Furthermore, the judge’s assessment regarding the credibility of the new witness (versus that of the witnesses at trial and also of those witnesses who directly contradicted the new witness at the hearing) is very significant, because the trial judge can better assess what credence (and hence, what weight) the jury would likely have given to the new witness’ testimony. In this case, we cannot conclude that the trial judge erroneously exercised his discretion in deciding that defendant had not shown that the newly discovered evidence “probably would have changed the verdict”.

There were several factors in this case which reasonably led the judge to conclude that the jury would probably not have assigned much weight to the nurse’s version of the events in the emergency room. First, the nurse’s testimony was not affirmatively exculpatory (such as the testimony of a newly discovered and unimpeachable alibi witness). She merely gave a more damning version of the already highly challenged “one to one” show-up. As noted earlier, the trial judge exercised his discretion to allow defendant to present the testimony of a psychologist to the jury on the weakness of eyewitness identifications. The jury was also aware that defendant was brought (in handcuffs) before the victim in a “one to one” show-up only a couple of hours after the rape and that she was told that the officers had a suspect for her to view. On the other hand, the victim testified that she had an excellent opportunity to view defendant as he stood in the well-lighted porch area before breaking into her house. The jury weighed the strengths. and weaknesses of the identification evidence and was obviously convinced beyond a reasonable doubt that the victim’s in-court identification stemmed from her having seen defendant on her porch on the night of the rape.

Second, the weight of the nurse’s version was undermined by several factors. She apparently was aware of defendant’s arrest, but said nothing until after the trial was over. Defendant himself was obviously present at the confrontation, but said nothing in his trial testimony about the racially derogatory remark (“Get his black ass out of here”) which (according to the nurse) was shouted by the chief to the officers holding defendant in their custody. Probably most significant is the testimony of the victim and the officers which directly contradicts the nurse. The chief and one of the officers, as well as the victim, explicitly denied the racial epithets, and the other officers (who were also in the room, but further away) denied hearing any such remarks. Finally, the victim denied ever having or expressing any reservations about identification.

Thus, using our analysis in State v. Talbot, 408 So.2d 861 (La.1981), we conclude that defendant has not shown that the trial court erred in refusing to find that the newly discovered evidence was so “fit for a new jury’s judgment” that a new trial was required.

Defendant’s conviction and sentence are affirmed.

CALOGERO, J., dissents.

DENNIS, J., dissents and assigns reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The test applied in reviewing a trial court’s determination of whether newly discovered evidence warrants a new trial is not whether the trial judge reasonably disbelieved the new evidence or whether a jury probably would have believed it. These are the tests which the majority actually seems to apply.

In footnote number nine, the majority opinion alludes to, what I believe is the correct test:

Will another jury, conscious of its oath and conscientiously obedient to it, probably reach a verdict contrary to the one that was reached on a record wholly different from the present, in view of the evidence recently discovered and not ad-ducible by defense at the time of the original trial?

408 So.2d at 885.

Under this test, if a conscientious jury, hearing the case anew, including the newly discovered evidence, probably would have a reasonable doubt as to the guilt of the defendant, a new trial should be granted. When this test is applied correctly, it is evident that any reasonable, conscientious jury probably would have been shaken enough to have a reasonable doubt by the disinterested witness’s testimony as to the prejudicial circumstances' which preceded, and the expressions of doubt and uncertainty which followed, the victim’s one-on-one identification of the culprit.

      . The other suspect was determined to have been at home at the time of the incident.

      . Defendant had not yet been told he was “under arrest”, although he had been handcuffed and advised of his rights.

      . The officer contended that he utilized this identification procedure to determine whether he had the right suspect, intending to release defendant if the victim “cleared” him. Such prompt “one to one” confrontations have generally been accepted because they do lead to a speedy release of an innocent suspect and because the short period between the offense and the viewing may even promote a more accurate identification. See State v. Bland, 260 La. 153, 255 So.2d 723 (La.1971); State v. Richey, 258 La. 1094, 249 So.2d 143 (La.1971); Russell v. United States, 408 F.2d 1280 (D.C.Cir.1969); Bates v. United States, 405 F.2d 1104 (D.C.Cir. 1968).

      . The admissibility of the victim’s in-court identification was litigated in a pretrial motion, and this court upheld the trial court’s denial of the motion to suppress. The trial judge determined that the victim had sufficient opportunity to view defendant at the time of the rape so that her in-court identification stemmed from her recollection of him and that she was not prejudicially influenced by the “one to one” hospital confrontation. State v. Chapman, above. See also Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Compare State v. Newman, 283 So.2d 756 (La. 1973).

      . The state’s other evidence consisted primarily of the testimony of defendant’s friend, who saw defendant in his automobile in the vicinity of the victim’s house, and of crime lab technicians, who found body fluids consistent with defendant’s blood type (and not consistent with the victim’s) at the scene of the rape. The defense challenged the technician’s testimony, criticizing the handling of the evidence and the fact that certain tests were not performed which might have “cleared” defendant.

      .The trial court permitted Dr. Robert Buckh-out, a psychologist, to testify concerning his research which substantially tended to discredit the accuracy of much eyewitness testimony, especially when the victim’s observations were made under certain circumstances (such as those present in defendant’s situation).
      This court held in State v. Stucke, 419 So.2d 939 (La.1982), that defendant was not entitled to offer such evidence, on the theory that the potential persuasiveness of this type of testimony might have a greater influence on the jury than the other evidence and might thus invade the province of the jury. A concurring opinion emphasized that the trial judge may (as was done here) exercise his discretion in favor of admitting such evidence, in the interest of justice, when the judge determines that the proffered evidence would assist the jury in deciding the question of identity. 419 So.2d at 951.

      . According to the nurse’s version of the events, the chief of police came to the victim in the treatment area, leaned over next to her in her wheel chair, and said, “Mrs. (Victim), we have the black son of a bitch bastard that did this to you and I want you to identify him for us.” Defendant was then brought before the victim, who merely looked up and said “Yes”. Then the chief shouted, “We’ve got his black ass. Get him out of here”, or words to that effect. The victim immediately thereafter expressed grave reservations about whether defendant was the rapist.
      As will be discussed below, the chief and the other policemen who participated in the identification procedure, as well as the victim, denied that the chief made such statements. It is noteworthy that one of the officers who participated in the challenged procedure (and who denied any racial slurs by the chief) was a black police sergeant.

      . Since we hold that the trial court did not err in denying the motion for a new trial because the new evidence “probably” would not have changed the verdict, we do not address the question of defendant’s possible lack of diligence in failing to discover the nurse’s revelation. In our original opinion, however, we decided that defendant’s failure to discover the nurse did not stem from a lack of diligent trial preparation.

      . We cannot say that the trial judge “misused his discretion” in reaching a negative conclusion to the question posed in Talbot:

      “Will another jury, conscious of its oath and conscientiously obedient to it, probably reach a verdict contrary to the one that was reached on a record wholly different from the present, in view of the evidence recently discovered and not adducible by defense at the time of the original trial?” 408 So.2d at 885.


author: PER CURIAM. LEMMON, J.,

text:
    Ernest JEFFERSON v. MORTON SALT COMPANY.
    No. 83-C-0865.
    Supreme Court of Louisiana.
    June 10, 1983.
   PER CURIAM.

The court of appeal is ordered to grant a rehearing in this matter and, after due consideration, to enter an appropriate order including possible remand to the trial court for the taking of additional evidence relative to plaintiffs surgery.

BLANCHE, J., would deny the writ.

LEMMON, J.,

concurs. The only dispute was whether plaintiff had a residual disability from a work related injury. Since the new evidence was obtained before the judgment became definitive, plaintiff is entitled to a remand to the trial court for a hearing and decision, in the light of that evidence, on whether plaintiff is entitled to a new trial.


author:
LEMMON, Justice.
     WATSON, Justice,

text:
    STATE of Louisiana v. Scott LINGLE.
    No. 82-KK-2864.
    Supreme Court of Louisiana.
    June 27, 1983.
    Rehearing Denied Sept. 1, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., E. Sue Bernie, Kendall Green, Leon A. Cannizzaro, John Craft, Asst. Dist. Attys., for relator.
    Robert Glass, New Orleans, for respondents.
   LEMMON, Justice.

We granted the state’s application for certiorari (previously denied by a divided court of appeal) in order to review the trial court’s suppression of evidence seized in the search of defendant’s residence pursuant to a warrant. 425 So.2d 769. We now reverse the pretrial ruling and overrule defendant’s motion to suppress.

Mrs. Janet McLeod, a 62-year old live-in housekeeper who was a friend of defendant’s grandmother, Mrs. Philomene Cu-sachs, was found stabbed to death in her residence on March 13, 1982 at 6:10 p.m. During the investigation that evening, Officer Farrar determined that Mike Rautis, who lived across the street from the victim, had seen a white car drop off a young man in front of the victim’s home earlier that afternoon and had observed the man knock at the side and rear doors before he lost sight of the young man in the rear yard.

Further investigation led officers to seek information from defendant, who lived with his grandmother. When the officers went to defendant’s home on March 15, Mrs. Cu-sachs expressed a preference that any questioning be conducted in the presence of an attorney. The officers honored her request and left. Outside the residence, the officers encountered a group of young men and questioned them about defendant. One of the young men, Steven Calogero, informed the officers that defendant had admitted being at the victim’s home near the time of the murder. Officer Farrar went to the house of one of the young men to question them further, while Officer Bonura returned to headquarters. Farrar telephoned the information obtained in the interview to Bonura, who promptly utilized this information, along with previously obtained information, to prepare an affidavit in support of an application for a warrant to search defendant’s residence for evidence of the recent crime.

In his affidavit, Officer Bonura stated that defendant told Calogero he “was at the scene of the murder on the day of the murder and at the time of the murder” and “was at the house knocking on the front and rear doors when McLeod was killed”. He further stated that Mrs. Cusachs had a telephone conversation with the victim “at about 5:15 P.M.”, that the victim had to hang up because someone was knocking at the door, and that a neighbor across the street “at that same time” saw a young man fitting defendant’s description knock at the rear carport door and the side door before returning to the rear of the house, where he went out of sight. Additionally, the affidavit stated that defendant, in his statement to Calogero, admitted entering the house, finding and turning over the body, hearing an invalid lady ring a bell for assistance, knocking over a ceramic cat, running out of the door, and being scratched on the arm while jumping fences.

The magistrate immediately issued a warrant to search defendant’s residence for the purpose of seizing any blood stained clothing, any property taken from the victim’s residence, and any prescription bottles with the names of the victim or the other two ladies who occupied the residence. The police executed the warrant the same evening and seized a shirt, pants, socks, tennis shoes and a cooking utensil with pills. Defendant moved to suppress the seized items. At the hearing on the motion to suppress, defense counsel focused on developing inconsistencies between the facts gathered by the officers in the investigation and the facts stated in Officer Bonura’s affidavit. Officer Farrar admitted his notes reflected that Calogero had told him that defendant said “he was probably at the house at the front or rear door when the crime was going on” and not that defendant had explicitly stated he “was at the scene of the murder on the day of the murder and at the time of the murder”, as reported in the affidavit. (Emphasis supplied) Another “inconsistency” involved Officer Farrar’s notes of the neighbors’ interviews, which reflected that Rautis had seen the young man at the victim’s door between “5:00 and 5:30 p.m., maybe later”. . In composing the affidavit from Officer Farrar’s telephone information and from Officer Farrar’s notes taken at the interviews with the neighbors, Officer Bonura alleged that a neighbor (who was incorrectly identified by the name of a different neighbor) saw the young man in the victim’s yard “at that same time” as the telephone conversation between the victim and the defendant’s grandmother, which allegedly occurred “at about 5:15”. Defense counsel, in order to refute the time of the telephone conversation stated in the affidavit, presented Mrs. Cusachs, who testified that she told the police she had placed the telephone call to the victim at “just maybe a few minutes after five,” but that the call was not “closer to 5:15 than 5:00.” Finally, Officer Farrar admitted that his notes indicated defendant had told Calogero that he left his grandmother’s home (two or three miles from the victim’s home) while his grandmother was still talking on the telephone to the victim, but that this information was omitted from the affidavit.

After the hearing on the motion to suppress, the trial judge concluded that the affidavit contained several misrepresentations of fact. However, the judge assumed (without specifically deciding) that the misrepresentations were made unintentionally and in good faith, and he “retested” the remainder of the affidavit (with the misrepresentations excised). See State v. Rey, 351 So.2d 489 (La.1977). Although the judge noted that the “police were totally justified in their suspicion of the defendant in connection with this crime”, he concluded that the “suspicion should have only motivated the officers to seek additional facts to include within a search warrant”. He further concluded that the retested affidavit (and probably the original affidavit) failed to establish probable cause for the search of Lingle’s residence, and he accordingly suppressed the evidence.

In this court, the prosecutor argues that the affidavit, before and after reconstruction by addition of the omissions and deletion of the inaccurate conclusory statements, established probable cause for the search. See State v. Lehnen, 403 So.2d 683 (La.1981).

Since the trial judge did not explicitly find that the police acted with an intent to deceive the magistrate, the judge correctly “retested” the affidavit, after the inclusion of the “omitted” fact that defendant was at home when Mrs. Cusachs was speaking to the victim on the telephone and after the revisions to adjust the conclusory “misstatements”. State v. Ogden, 391 So.2d 434 (La. 1980). However, we disagree with the trial judge’s legal conclusion that the reconstructed affidavit failed to establish a reasonable basis for the magistrate to authorize the invasion of defendant’s privacy interest in his home for the purpose of discovering bloody clothing and other items (for example, prescription bottles) which would associate defendant with the recent crime and might establish a motive for the seemingly senseless murder.

The officers were acting in the haste of a criminal investigation, with one policeman telephoning recently obtained information to his fellow officer, who was at the station endeavoring to structure the facts drawn from various sources into a coherent sworn statement for presentation to a magistrate. Whenever information of this rather complex nature is translated through various persons, some modifications, conclusory statements, and inaccuracies are likely to occur. A typical example of this was the inaccuracy regarding the name of the neighbor (Rautis, not Reuter) who saw the young man in the victim’s yard. Typical also were the affiant’s assertions regarding the time sequences, which are the affiant’s reasonable constructions of the information, although not stated exactly as relayed to him. For example, the preciseness of affi-ant’s statement about the time of the telephone conversation depended upon the length of the conversation, since a call initiated “a few minutes after five” may well have still been in progress “at about 5:15”, which was the midpoint of the neighbor’s time range estimate of his sighting the young man in the victim’s yard.

The inaccuracies in this case added little to the determination of probable cause. Both the original and the reconstructed affidavit convey the impression that defendant portrayed himself to his friends as an innocent visitor who happened onto the victim of a recent murder, became frightened and fled. The inaccuracies in the original affidavit do not make it appear that defendant confessed the murder to his friends, but rather relate to the fact (admitted by defendant) that defendant was at the victim’s house at the time of or shortly after the crime. The inaccurate time sequence perhaps makes it appear that defendant was the person knocking on the victim’s door when she terminated the telephone conversation, but the impreciseness does not detract from the admitted facts that defendant let himself inside the house, touched the body, broke the ceramic piece, fled without summoning assistance, and scratched his arm at some point during the incident.

Moreover, the “piecing together” of bits of information in order to present a logical, understandable sequence of events to a magistrate is a difficult thing to do, even for an attorney who has the benefit of training in the art of written expressions and of the quieter atmosphere of a law office. To demand of police officers the sort of preciseness of expression expected from lawyers and judges is unrealistic and is certainly not required by the Fourth Amendment. The United States Supreme Court has often noted that affidavits are “normally drafted by non-lawyers in the midst and haste of criminal investigation” and that “technical requirements of elaborate specificity ... have no proper place” in the evaluations of such documents. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965).

Given the circumstances with which the officers were faced in this case (having just alerted defendant that he was a possible suspect in a murder case), a judge evaluating the magistrate’s determination of probable cause must use a “non technical, commonsense” standard. See Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Ventresca, above. When this standard is applied to the present affidavit (with or without the correction of inaccuracies and addition of omissions), the resultant picture in our opinion establishes a sufficient factual basis to justify the magistrate’s approval of an intrusion into the privacy of defendant’s home to search for the described evidence, which might shed further light on his involvement. The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit, there is a “fair probability” that evidence of a crime will be found in a particular place; and the task of the reviewing court is simply to insure that the magistrate had a “substantial basis” for concluding that probable cause existed. Illinois v. Gates, above. Moreover, the task of the reviewing court in evaluating a reconstructed affidavit is to determine whether the magistrate’s conclusion as to probable cause would have been different if the affidavit had not contained the inaccuracies established at the hearing on the motion to suppress.

In the present case, the issuing magistrate had substantial and uncontroverted information on which to decide that there was a “fair probability” that evidence of a crime would be found in the place to be searched. First, there was no doubt that a brutal murder had been recently committed by an unknown assailant. The identification and apprehension of the offender needed to be accomplished with all possible haste. See State v. Crain, 409 So.2d 603 (La.1982); Iverson v. North Dakota, 480 F.2d 414 (8th Cir.1973). Second, Lingle was familiar with the victim’s residence, had admitted his entry, and had described in vivid detail the gruesome scene of the victim’s body and the “gurgling sound” of blood flowing from her neck when he turned her prostrate body. Third, someone fitting defendant’s description was seen arriving at the house during the approximate time frame within which the murder occurred. Finally, and possibly most important, defendant fled the scene without alerting anyone of his discovery of the body and without coming forward to endeavor to aid authorities in apprehending the murderer of his grandmother’s friend. The fact that Calogero observed a scratch on defendant’s arm, after defendant had fled the scene where someone had probably struggled with the victim, also adds to the establishing of probable cause.

Inasmuch as probable cause is a fluid concept which turns on the assessment of probabilities in particular factual contexts, we conclude that the issuing magistrate was presented with an affidavit which rea: sonably supported his independent judgment on probable cause. See Illinois v. Gates, above; State v. Patterson, 422 So.2d 1131 (La.1982). Further, even when the procedure of “retesting” the “reconstructed” affidavit is followed, we conclude that the magistrate’s conclusion of probable cause to search defendant’s residence would not have been different if the affidavit had not contained the inaccuracies established at the hearing on the motion to suppress.

Accordingly, the judgment of the trial court is reversed, the motion to suppress the evidence is overruled, and the case is remanded for further proceedings.

DENNIS, J., concurs with reasons.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

The trial judge correctly granted defendant’s motion to suppress. The reformed affidavit did not establish probable cause. THE AFFIDAVIT

Defendant attacked the accuracy of the affidavit in two respects: the sentence stating that Lingle was present “at the time of the murder” and the sentence to the effect that Lingle told Calogero he was knocking on the doors “when McLeod was killed”.

The affidavit is inaccurate as to what Lingle told Calogero. Officer Steve Farrar admitted that the notes he took at the time of his conversation with Calogero indicated Lingle “was probably at the front or rear door when the crime was being committed”. (Vol. 2, p. 264; emphasis added).

The inaccuracies contained in the affidavit must be excised. State v. Rey, 351 So.2d 489 (La., 1977). Thus, the statements indicating that Lingle was at the scene when McLeod was killed must be excised before evaluating the warrant for probable cause.

Defendant also established that the affidavit contained significant additions and an omission, as well as inaccuracies. The additions concern the statement that Mrs. Cu-sachs, Lingle’s grandmother, was on the telephone at about 5:15 p.m. with the victim and the subsequent statement that “also at that same time” a neighbor, “James Reu-ter ... observed a white male fitting the description of Lingle get out a white vehicle” and disappear toward the rear of the victim’s house after knocking at the side and back doors. Rantis (Reuter) thus placed Lingle at the murder scene at the same time, 5:15 p.m., the victim said someone was at the door, the strong inference being that the murderer at the door was young Lingle. Officer Farrar was frank to admit that the observation made by the witness Rantis (Reuter) was “about 5:30 P.M. He wasn’t exactly sure of the exact time by minute.” (Vol. 2, p. 274) The “at that same time” phi;ase was added on his own initiative by Detective Bonura. (Vol. 2, p. 288)

Also, the 5:15 time did not have a factual basis and apparently originated with Detective Bonura. Philomene Cusachs testified that she told the police she talked to the victim “near 5:00” (Vol. 2, p. 232) Her testimony was: “And he says, ‘Would you say it was closer to 5:15 than to 5:00?’ I said, ‘No. I firmly recall it was just maybe a few minutes after 5:00.’ ” (Vol. 2, p. 233)

While the time differential is small, it becomes important when considered with a salient fact omitted by the police in preparing the warrant. Calogero told the police Lingle said Miss McLeod and Mrs. Cusachs were talking on the telephone while he was leaving the Cusachs’ residence. (Vol. 2, p. 266) This statement was left out of the affidavit. The Cusachs’ house where Lingle resides with his grandmother is two or three miles from the scene of the homicide. If the magistrate had been apprised that Lingle said he was two or three miles from the scene of the murder shortly after 5:00 p.m., he may have inferred that some other party had been knocking on the door.

When material facts are omitted from an affidavit, the reviewing court must add those facts and retest the question of probable cau⅝e. State v. Lehnen, 403 So.2d 683 (La., 1981); State v. Patterson, 422 So.2d 1131 (La., 1982).

The sufficiency of the affidavit must be considered after deleting the statements to the effect that Lingle told Calogero he was at the scene at the time of the murder, or when McLeod was killed; deleting the statement that Lingle’s grandmother was talking on the telephone to the victim at 5:15 p.m.; deleting the statement that at the same time a neighbor saw a person fitting Lingle’s description at the victim’s house; and adding the fact that Lingle said he was at the Cusachs’ residence when Mrs. Cusachs was talking to the victim on the telephone.

The question is whether the restructured affidavit gave probable cause for issuance of the warrant.

PROBABLE CAUSE

Probable cause is difficult to define. In the leading treatise on the Fourth Amendment, Professor LaFave mentions several scholarly articles and court decisions, which say that probable cause is: an “exceedingly difficult concept to objectify”; “a plastic concept”; a balance between rash and unreasonable interferences and the fair leeway for enforcing the law; something recognized by “a prudent man”, “a man of reasonable caution” or “a reasonably discreet and prudent man”.

Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) sets the limits of probable cause: not the weight of evidence required to prove guilt; less evidence than would justify condemnation; more than mere suspicion. Brinegar does not delineate where, between proof beyond a reasonable doubt and mere suspicion, the facts and circumstances amount to probable cause.

One concept which should aid in determining probable cause is the “more probable than not” theory. However, neither the federal nor state courts have arrived at a suitable rule for the degree of probability required to believe that a given individual is the perpetrator of a known offense.

Louisiana has adopted the rule that “probable cause exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” State v. Johnson, 408 So.2d 1280, 1283 (La., 1982).

“A search warrant may not be issued upon an affidavit reciting nothing more than the affiant’s reasonable cause to suspect that the premises shelter contraband or evidence of crime.” State v. Tassin, 343 So.2d 681, 689 (La., 1977).
“The factual information which is the foundation for the determination of probable cause must be contained in the affidavit .... Mere suspicion or belief is not sufficient.” (citations omitted) State v. Flood, 301 So.2d 637, 641 (La., 1974).

An appellate court should avoid substituting its own judgment for that of the magistrate and should only determine whether there was a substantial basis for the determination of probable cause, recognizing that a showing of probable cause requires much less evidence that proof beyond a reasonable doubt. State v. Ogden, 391 So.2d 434 (La., 1980).

SUFFICIENCY OF THE AFFIDAVIT

Since this affidavit required reformation, the deference generally due the magistrate’s conclusion as to probable cause is not required. The action of the trial court rather than that of the magistrate is at issue, and the trial court’s judgment is due deference. Compare Iverson v. State of North Dakota, 480 F.2d 414 (8 Cir.1973), cert. denied 414 U.S. 1044, 94 S.Ct. 549, 38 L.Ed.2d 335.

The trial court focused on the inaccuracy of the affidavit in stating that Lingle admitted being present at the time of the murder. The trial court implied that the misrepresentation was not made in good faith, stating that “even if this court gives the affiant the benefit of the doubt as to the misrepresentation being made in good faith; the search warrant still must be quashed since the residue does not establish probable cause.” (Vol. 2, p. 339) The testimony of Detective Bonura, who confected the affidavit, is not a model of candor. The trial court noted that “reasonable suspicion alone may never form the basis for the issuance of a search warrant to search a person’s home,” (Vol. 2, p. 341) and concluded:

“The police were totally justified in their suspicion of the defendant in connection with this crime.
“However, that suspicion should have only motivated the officers to seek additional facts to include within a search warrant.
“In and of itself the suspicion cannot justify the issuance of the warrant.”

Review of the restructured affidavit supports the trial court’s conclusion. The police officers had reason to suspect Lingle of being involved in the homicide: however, there was no concrete evidence which would justify a reasonable person in believing that Lingle had committed the offense. There is nothing in the affidavit indicating that it is probable that Lingle killed the victim. Suspecting Lingle, the police wanted to search his house for evidence which would give reason to believe he was guilty.

There is nothing in the affidavit which explains why the police wanted to look for tennis shoes; nothing to indicate that property was taken from the house in which the homicide was committed; and nothing to suggest that prescription bottles were missing. The only facts in the affidavit relating to the property described in the warrant pertain to the statements that Lingle scratched his arm and the victim was bleeding. Therefore, the only connexity between the facts of the crime, as recited in the affidavit, and the property described in the warrant, is “[b]lood stained clothing”.. There is a wide discrepancy between most of the items for which the police allegedly obtained the search warrant and the facts stated in the affidavit. When the facts are not “... sufficient to support a reasonable belief ... that evidence or contraband may be found at the place to be searched”, there is no probable cause.

Accordingly, the trial court was correct in determining that the police had reasonable suspicion but lacked probable cause for the search warrant. The judgment of the trial court granting the motion to suppress should be sustained.

I respectfully dissent.

       CALOGERO, Justice, recused on original submission and on consideration of petition for rehearing.

      . The entire affidavit reads as follows:
      “On Saturday March 13, 1982 Miss Janet McLeod w/f 61 was brutally killed at at 5401 St. Bernard Ave. Since that time an investigation has transpired.
      “On Monday, March 15, 1982 Dets. Bonura and Farrar had occasion [sic] to interview a known witness identified as Steve Calogero w/m age 17. According to Calogero on Sunday March 14, 1982 he talked with a Scott Lingle w/m 15 whom he knows a [sic] friend. Calogero learned from Lingle that Lingle was at the scene of the murder on the day of the murder and at the time of the murder. According to Calogero Lingle stated he was at the house knocking on the front and rear doors when McLeod was killed. According to Calogero Lingle stated further that he tried the rear carport door and the door opened and he enterd [sic], Lingle found McLeod on the floor face down lying in a pool of blood: Lingle turned McLeod over and heard a gurgling sound like blood coming, from a neck wound on McLeod. Lingle stated he ran knocking over a ceramic cat breaking it on the floor. Lingle stated he her [sic] Mrs. Seicnaydre [sic] who was an invalid in one of the bedrooms ringing a bell she used to call for assistance from her bed. Lingle related he ran out the front door and to a nearby bus stop where he waited a short time but no bus came. Lingle stated he ran till he dropped and got a ride home with an unknown negro female. According to Calegero [sic] he noticed a scratch on the left forearm of LKingle [sic] but Lingle stated he got the scratch after he ran out the house and was jumping fences.
      “Through investigation it was determined that Scott Lingle’s sister resided at 5401 St. Bernard until just a short time ago and that Scott Lingle had been to the residence before. “Scott Lingle was determined to have run away from his father’s home in Ocean Springs Mississippi and was staying at 4603 Venus St. with his grandmother. This was confirmed through interview with the grandmother Mrs. Mary Lou Cusachs [incorrect reference to Philomene Cusachs] who resides at that address.
      “Scott Lingle stated he entered an [sic] found McLeod dead[;] however through investigation it was determined that McLeod was on the telephone with Mrs. Cusachs at about 5:15 P.M. Saturday March 13, 1982 and stated someone was at the door and that she would have to go and hung up the phone. This was the last person to talk [to] McLeod alive. Also at that same time a neighbor identified as James Reuter [an incorrect reference to Mike Rautis] w/m age 25 living across the street from the murder observed a white male fitting the description of Lingle get out a white vehicle and go to the rear carport door and knock and then to the side door on Mithra st. and knock and then return to the rear of the house but Reuter lost sight of him near the Mithra St. rear yard. This conflicts with Lingle’s statement that he entered the residence because the door was open/ Also only someone-who was in the residence could have known about the ceramic cat being overturned and broken.
      “It is for the above reasons that I request permission to search the residence at 4603 Venus.” (Emphasis supplied)

      . In this regard, we note that this case involves a search warrant, not an arrest warrant, and it was not necessary to establish probable cause to arrest defendant for murder.

      . When such inaccuracies are shown at a suppression hearing, the court must determine whether those sometimes inevitable but good faith distortions have reached a level which defeats the validity of the affidavit. This determination should be made by the process of “retesting” described in State v. Rey, above, and State v. Lehnen, above.
      Louisiana courts have viewed an intentional misrepresentation to the magistrate as a fraud upon the courts and impermissible govemmen-tal overreaching. See State v. Rey, above, at 492. In such a case, the proper sanction generally is to quash the warrant. However, under the United States Supreme Court’s approach in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), even deliberate falsehoods by a police affiant or statements by a police affiant evincing a reckless disregard for truth need only be excised from the affidavit. The remaining facts are then examined to determine whether they warrant a finding of probable cause absent the misrepresentations. The Rey decision provided a more realistic approach to reprehensible police conduct, which the exclusionary rule is designed to prevent.

      . At the hearing, the grandmother testified that the victim was “quite a conversationalist”, an indication that the conversation may have lasted for some considerable period of time. Of course, the length of conversation also bears on the importance of defendant’s presence in the Cusachs’ residence during part of the conversation.

      . This court has recognized the great significance of unquestioned proof of the commission of a crime on the establishment of probable cause. See State v. Johnson, 363 So.2d 684 (La. 1978); State v. Drott, 412 So.2d 984 (La. 1982); State v. Collins, 378 So.2d 928 (La. 1979); State v. Mosley, 390 So.2d 1302 (La. 1980); State v. Floyd, 435 So.2d 992 (La. 1983).

      . This court has recognized in prior cases that flight, although not alone determinative of probable cause, is a factor to be considered in support of probable cause, because flight may be an indication of “consciousness of guilt”. See State v. Burge, 359 So.2d 616 (La. 1978); State v. Lee, 381 So.2d 792 (La. 1980).

      . The trial court stated that there was serious doubt whether the affidavit established probable cause even if the misrepresentations were not excised.

      . The information was obtained from Mike Rantis rather than James Reuter, but the explanation offered by Detective Bonura that this was simply human error appears to be correct and no legal significance attaches.

      . Detective Bonura had a slightly different version of the time element, testifying that the investigation notes indicated “5:00 P.M. to 5:30 P.M., possibly later.” (Vol. 2, p. 288)

      .LaFave, Search and Seizure, West Publishing Company, St. Paul, 1978, Section 3.2, pp. 449-459.

      . Professor LaFave’s treatise suggests that this approach is appropriate only to determine whether there is probable cause to believe that a crime has been committed, not whether a given individual has committed a known crime. LaFave, supra, pp. 484-485.

      . See the discussion of the proposed “reasonable good faith” exception to the exclusionary rule in Volume 73 of The Journal of Criminal Law and Criminology at page 916.

      . The warrant listed the following property as objects of the search:
      “1) Blood stained clothing.
      “2) unknown type shoe with ridges on the soles similar to a tennis type shoe
      “3) any and all property that may have been taken from the residence at 5401 St. Bernard; prescription bottles in the names Janet McLeod; Helen Russell or Emma Seicnay-dre.”

      . In Iverson, supra, there was not one but a “considerable number” of scratches. 480 F.2d at 417. They were present on the suspect’s hand, neck and arms. The search warrant was apparently limited to describing items of evidence, supported by the affidavit, such as blood stained clothing. See State v. Iverson, 187 N.W.2d 1 (1971).

      . State v. Johnson, supra.


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

text:
    STATE of Louisiana v. Brian CHISM.
    No. 82-KA-0777.
    Supreme Court of Louisiana.
    June 27, 1983.

      William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., William Kelly, Asst. Dist. Atty., for plaintiff-appellee.
    Wellborn Jack, Jr., Jack, Jack, Cary & Cary, Shreveport, for defendant-appellant.
   DENNIS, Justice.

The defendant, Brian Chism, was convicted by a judge of being an accessory after the fact, La.R.S. 14:25, and sentenced to three years in the parish prison, with two and one-half years suspended. The defendant was placed upon supervised probation for two years. We affirm his conviction, but vacate the sentence because it is illegal. Under the Jackson v. Virginia standard, the record in this case contains legally sufficient evidence to support a trier of fact’s finding of the essential elements of the charged offense. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

On the evening of August 26, 1981 in Shreveport, Tony Duke gave the defendant, Brian Chism, a ride in his automobile. Brian Chism was impersonating a female, and Duke was apparently unaware of Chism’s disguise. After a brief visit at a friend’s house the two stopped to pick up some beer at the residence of Chism’s grandmother. Chism’s one-legged uncle, Ira Lloyd, joined them, and the three continued on their way, drinking as Duke drove the automobile. When Duke expressed a desire to have sexual relations with Chism, Lloyd announced that he wanted to find his ex-wife Gloria for the same purpose. Shortly after midnight, the trio arrived at the St. Vincent Avenue Church of Christ and persuaded Gloria Lloyd to come outside. As Ira Lloyd stood outside the car attempting to persuade Gloria to come with them, Chism and Duke hugged and kissed on the front seat as Duke sat behind the steering wheel.

Gloria and Ira Lloyd got into an argument, and Ira stabbed Gloria with a knife several times in the stomach and once in the neck. Gloria’s shouts attracted the attention of two neighbors, who unsuccessfully tried to prevent Ira from pushing Gloria into the front seat of the car alongside Chism and Duke. Ira Lloyd climbed into the front seat also, and Duke drove off. One of the bystanders testified that she could not be sure but she thought she saw Brian’s foot on the accelerator as the car left.

Lloyd ordered Duke to drive to Willow Point, near Cross Lake. When they arrived Chism and Duke, under Lloyd’s direction, removed Gloria from the vehicle and placed her on some high grass on the side of the roadway, near a wood line. Ira was unable to help the two because his wooden leg had come off. Afterwards, as Lloyd requested, the two drove off, leaving Gloria with him.

There was no evidence that Chism or Duke protested, resisted or attempted to avoid the actions which Lloyd ordered them to take. Although Lloyd was armed with a knife, there was no evidence that he threatened either of his companions with harm.

Duke proceeded to drop Chism off at a friend’s house, where he changed to male clothing. He placed the blood-stained women’s clothes in a trash bin. Afterward, Chism went with his mother to the police station at 1:15 a.m. He gave the police a complete statement, and took the officers to the place where Gloria had been left with Ira Lloyd. The police found Gloria’s body in some tall grass several feet from that spot. An autopsy indicated that stab wounds had caused her death. Chism’s discarded clothing disappeared before the police arrived at the trash bin.

An accessory after the fact is any person, who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment. La. R.S. 14:25.

This court has said that the statute requires that in order to convict an accused of being an accessory after the fact the state must prove that the accused acted with the specific intent to prevent the apprehension or punishment of a person he knows or has reason to believe has committed a felony. State v. Jackson, 344 So.2d 961 (La.1977). The statement in the Jackson opinion to the effect that being an accessory after the fact is a specific intent crime was erroneous and not necessary to the decision of that case. In the absence of qualifying provisions, the terms “intent” and “intentional” have reference to “general criminal intent.” La.R.S. 14:11. The statute contains no provisions qualifying the term “intent”, and we have no reason to believe that the legislative aim was to exclude from its ambit offenders who have a general criminal intent. Accordingly, we conclude that a person may be punished as an accessory after the fact if he aids an offender personally, knowing or having reasonable ground to believe that he has committed the felony, and has a specific or general intent that the offender will avoid or escape from arrest, trial, conviction, or punishment. See R.S. 14:10; State v. Jackson, supra; W. Lafave & A. Scott, Criminal Law § 66 at 522-23 (1972); R. Perkins, Criminal Law § 8.4 at 667 (2d ed. 1969).

An accessory after the fact may be tried and convicted, notwithstanding the fact that the principal felon may not have been arrested, tried, convicted, or amenable to justice. La.R.S. 14:25. However, it is still necessary to prove the guilt of the principal beyond a reasonable doubt, and an accessory after the fact cannot be convicted or punished where the principal felon has been acquitted. Id. Reporter’s Comment. State v. Prudhomme 171 La. 743, 129 So. 736 (1930); State v. Philip 169 La. 468, 125 So. 451 (1929). Furthermore, it is essential to prove that a felony was committed and completed prior to the time the assistance was rendered the felon, although it is not also necessary that the felon have been already charged with the crime. La.R.S. 14:25; See Lafave & Scott, supra.

Defendant appealed from his conviction and sentence and argues that the evidence was not sufficient to support the judgment. Consequently, in reviewing the defendant’s assigned error, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that (a) a completed felony had been committed by Ira Lloyd before Brian Chism rendered him the assistance described below; (b) Chism knew or had reasonable grounds to know of the commission of the felony by Lloyd, and (c) Chism gave aid to Lloyd personally under circumstances that indicate either that he actively desired that the felon avoid or escape arrest, trial, conviction, or punishment or that he believed that one of these consequences was substantially certain to result from his assistance.

There was clearly enough evidence to justify the finding that a felony had been completed before any assistance was rendered to Lloyd by the defendant. The record vividly demonstrates that Lloyd fatally stabbed his ex-wife before she was transported to Willow point and left in the high grass near a wood line. Thus, Lloyd committed the felonies of attempted murder, aggravated battery, and simple kidnapping, before Chism aided him in any way. A person cannot be convicted as an accessory after the fact to a murder because of aid given after the murderer’s acts but before the victim’s death, but under these circumstances the aider may be found to be an accessory after the fact to the felonious assault. Lafave and Scott, supra; Clark and Marshall, Law of Crimes p. 525 (7th Ed.1967); J. Turner, Russel on Crime p. 166 (12th Ed.1964); E. Dangel, Criminal Law p. 269 (1951); W. Burdick, Law of Crime p. 302 (1946); Warren and Bilas, Warren on Homicide p. 217 (Perm Ed.1938); 2 Hawkins P.C. 448, c. 29, s. 35 (Cur.Ed.); 4 Blackstone Comm. 38. In this particular case, it is of no consequence that the defendant was formally charged with accessory after the fact to second degree murder, instead of accessory after the fact to attempted murder, aggravated battery or simple kidnapping. The defendant was fairly put on notice of the actual acts underlying the offense with which he was charged, and he does not claim or demonstrate in this appeal that he has been prejudiced by the form of the indictment. Cf. State v. Vanderhoff, 415 So.2d 190 (La.1982) State v. Pichler, 355 So.2d 1302 (La.1978).

The evidence overwhelmingly indicates that Chism had reasonable grounds to believe that Lloyd had committed a felony before any assistance was rendered. In his confessions and his testimony Chism indicates that the victim was bleeding profusely when Lloyd pushed her into the vehicle, that she was limp and moaned as they drove to Willow Point, and that he knew Lloyd had inflicted her wounds with a knife. The Louisiana offense of accessory after the faet deviates somewhat from the original common law offense in that it does not require that the defendant actually know that a completed felony has occurred. Rather, it incorporates an objective standard by requiring only that the defendant render aid “knowing or having reasonable grounds to believe” that a felony has been committed. La.R.S. 14:25, Reporter’s Comment.

The closest question presented is whether any reasonable trier of fact could have found beyond a reasonable doubt that Chism assisted Lloyd under circumstances that indicate that either Chism actively desired that Lloyd would avoid or escape arrest, trial, conviction, or punishment, or that Chism believed that one of these consequences was substantially certain to result from his assistance. After carefully reviewing the record, we conclude that the prosecution satisfied its burden of producing the required quantity of evidence.

Intent, like any other fact may be proved by circumstantial evidence. La.R.S. 15:445. This is evidence of one fact, or a set of facts, from which the existence of the fact to be determined may reasonably be inferred. McCormick, Law of Evidence, p. 435 (2d ed. 1972); Prosser, Law of Torts, p. 212 (4th ed. 1971). In criminal cases, the rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La.R.S. 15:438.

Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference by which a conclusion is drawn. Like all other evidence, it may be strong or weak; it may be so unconvincing as to be quite worthless, or it may be irresistible and overwhelming. There is still no man who would not accept dog tracks in the mud against the sworn testimony of a hundred eye-witnesses that no dog passed by. The gist of circumstantial evidence, and the key to it, is the inference, or process .of reasoning by which the conclusion is reached. This must be based on the evidence given, together with a sufficient background of human experience to justify the conclusion. Prosser, supra, at 212.

Consequently, before a trier of fact can decide the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made. In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.

In this case we conclude that the evidence is sufficient to support an ultimate finding that the reasonable findings and inferences permitted by the evidence exclude every reasonable hypothesis' of innocence. Despite evidence supporting some contrary inferences, a trier of fact reasonably could have found that Chism acted with at least a general intent to help Lloyd avoid arrest because: (1) Chism did not protest or attempt to leave the car when his uncle, Lloyd, shoved the mortally wounded victim inside; (2) he did not attempt to persuade Duke, his would-be lover, exit out the driver’s side of the ear and flee from his uncle, whom he knew to be one-legged and armed only with a knife; (3) he did not take any of these actions at any point during the considerable ride to Willow Point; (4) at their destination, he docilely complied with Lloyd’s directions to remove the victim from the car and leave Lloyd with’ her, despite the fact that Lloyd made no threats and that his wooden leg had become detached; (5) after leaving Lloyd with the dying victim, he made no immediate effort to report the victim’s whereabouts or to obtain emergency medical treatment for her; (6) before going home or reporting the victim’s dire condition he went to a friend’s house, changed clothing and discarded his own in a trash bin from which the police were unable to recover them as evidence; (7) he went home without reporting the victim’s condition or location; (8) and he went to the police station to report the crime only after arriving home and discussing the matter with his mother.

The defendant asserted in his statement given to the police and during trial, that he helped to remove the victim from the ear and to carry her to the edge of the bushes because he feared that his uncle would use the knife on him. The defense of justification can be claimed in any crime, except murder, when it is committed through the compulsion of threats by another of death or great bodily harm and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed. La.R.S. 14:18(6). However, Chism did not testify that Lloyd threatened him with death, bodily harm or anything. Moreover, fear as a motivation to help his uncle is inconsistent with some of Chism’s actions after he left his uncle. Consequently, we conclude that despite Chism’s testimony the trier of fact could have reasonably found that he acted voluntarily and not out of fear when he aided Lloyd and that he did so under circumstances indicating that he believed that it was substantially certain to follow from his assistance that Lloyd would avoid arrest, trial, conviction, or punishment.

For the foregoing reasons, it is also clear that the judge’s verdict was warranted under the due process standard of Jackson v. Virginia, supra. There is evidence in this record from which a reasonable trier of fact could find a defendant guilty beyond a reasonable doubt. We have greater confidence in this conclusion because of our preceding analysis of the evidence. Although the circumstantial evidence rule may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, 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. Torcia, Wharton’s Criminal Evidence § 6 (13th Ed. 1972).

Therefore, we affirm the defendant’s conviction. We note, however, that the sentence imposed by the trial judge is illegal. The judge imposed a sentence of three years. He suspended two and one-half of years of the term. The trial judge has no authority to suspend part of a sentence in a felony case. Compare La.C.Cr.P. art. 893(A) with art. 894(A). The correct sentence would have been a suspension of all three years of the term, with a six-month term as a condition of two years probation. See La.C.Cr.P. art. 895(B). We therefore vacate the defendant’s sentence and remand the case for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.

DIXON, C.J., dissents with reasons.

BLANCHE, J., concurs and assigns reasons.

LEMMON, J., concurs subscribing to the reasoning on sufficiency of evidence and standard of appellate review, but does not necessarily agree that accessory after the fact is not a specific intent crime.

BLANCHE, Justice

(concurring).

I agree with the majority’s treatment of the circumstantial evidence question in this case. See particularly the text at fn. 3, and following. In adopting this view as my own, I expressly abandon the contrary view I expressed in State v. Moore, 432 So.2d 209 (La.1983). Writing for the majority in Moore, I wrote that a combining of the Jackson standard and the circumstantial evidence standard set out in LSA-R.S. 15:438 could possibly lead to an “impermissible blurring of the proper role appellate courts should assume in evaluating sufficiency claims in circumstantial evidence cases.” My views at that time were based in large part upon State v. Graham, 422 So.2d 123 (La.1982), and the Moore opinion was tailored to comport in large part with the identical views expressed in State v. Shapiro, 431 So.2d 372 (La.1983), which we handed down the same day as Moore.

Upon further reflection, I am now of the view that such a dichotomy is unnecessary and confusing. Whether by direct or circumstantial evidence, any rational trier of fact, in viewing such evidence in the light most favorable to the prosecution, must conclude that the state proved the essential elements of the crime beyond a reasonable doubt; where the evidence against the defendant is circumstantial, every element is proved beyond a reasonable doubt when every reasonable hypothesis of innocence has been excluded per the mandate of LSA-R.S. 15:438. The Jackson standard is a constitutional standard gleaned from the due process clause of the 14th Amendment. R.S. 15:438 is a statutory evidentiary standard — not a constitutional standard — and, as such, forms part of the inquiry in assessing the sufficiency of the evidence under the Jackson standard of appellate review, i.e., exclusion of every reasonable hypothesis of innocence, where the evidence against the defendant is circumstantial, forms but part of the broader Jackson inquiry. A single standard for appellate review, comporting with the sufficiency standard established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is all that is constitutionally required. Cf. State v. Austin, 399 So.2d 158 (La.1981); State v. Moore, supra (Marcus, J. concurring); State v. Shapiro, supra (Marcus and Lemmon, JJ. concurring).

I respectfully concur.

DIXON, Chief Justice

(dissenting).

I respectfully dissent from what appears to be a finding of guilt by association. The majority lists five instances of inaction, or failure to act, by defendant: (1) did not protest or leave the car; (2) did not attempt to persuade Duke to leave the car; (3) did neither (1) nor (2) on ride to Willow Point; (5) made no immediate effort to report crime or get aid for the victim; (7) failed to report victim’s condition or location after changing clothes. The three instances of defendant’s action relied on by the majority for conviction were stated to be: (4) complying with Lloyd’s direction to remove the victim from the car and leave the victim and Lloyd at Willow Point; (6) changing clothes and discarding bloody garments; and (8) discussing the matter with defendant’s mother before going to the police station to report the crime.

None of these actions or failures to act tended to prove defendant’s intent, specifically or generally, to aid defendant avoid arrest, trial, conviction or punishment.

      . Our recognition that La.R.S. 14:25 is a general intent offense does not pave the way for the reintroduction of the.) crimes of misprison or compounding a felony, since these actions would not constitute the requisite “aid” under the* statute. The modem trend is a narrowing interpretation of the word “aid” in statutes imposing accessorial liability, either because the acts are de minimis are because they are justified or protected by law. See A.L.I., Model Penal Code, part 2, article 242.3, comment 4 (1980). An illustrative list of the types of “aid” contemplated by La.R.S. 14:25 appears in article 242.3 of the Model Penal Code: (1) harboring or concealing the criminal; (2) providing or aiding in providing a weapon, transportation, disguise or other means of avoiding apprehension or effecting escape; (3) concealing or destroying evidence of the crime, or tampering with a witness, informant, document, or other source of information, regardless of its admissibility in evidence; (4) warning the other of impending discovery or apprehension except for the purpose of bringing the other into compliance with the law, and (5) volunteering false information to law enforcement officers. See A.L.I. Model Penal Code, part 2, article 242.3 (1980).

      . The Louisiana offense, therefore, is a compromise between the traditional common law crime of accessory after the fact, which required actual knowledge of a completed crime plus specific intent to aid the felon avoid justice, and the emerging modem trend, which recharacterizes the offense of accessory after the fact as obstruction of justice, and which dispenses with the requirement of a completed felony and knowledge of that fact by the accessory, allowing for conviction so long as the obstructive purpose is present. See A.L.I., Model Penal Code, part 2, article 242.3 and comment 3 (1980).

      . This court has in dicta discussed whether this test adds anything to the Jackson v. Virginia standard of review. State v. Shapiro, 431 So.2d 372 (La. 1983). State v. Williams, 423 So.2d 1048 (La.1982); State v. Graham, 422 So.2d 123 (La.1982). It is interesting to note that Professor McCormick, without a great deal of discussion, observed that the circumstantial evidence rule “adds little” to the strict federal test for the granting of a directed verdict: “evidence that should satisfy reasonable men beyond a reasonable doubt.” McCormick, supra, at pp. 79-91. See R. Burns, Weighing Circumstantial Evidence, 2 S. Dakota L.Rev. 36, 38 (1957). See also Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954).