STATE v. KELLY

FOURNET, Chief Justice.

The defendants, Frank Kelly and Isom Larry Curry, having been tried on a bill of information charging them with violation of Article 89 of the Louisiana Criminal Code 1 "* * * in that they engaged in an unnatural carnal copulation with each other, they being of the same sex, * * *" but convicted of attempt to commit crime against nature, are appealing from their convictions and sentences thereunder,2 relying for a reversal thereof on six bills of exceptions reserved during the proceedings in the court below.3

The first bill of exception was reserved when the trial judge allowed the prosecuting attorney to amend the bill of information so as to show that the genital organ of defendant Kelly was used in the act of unnatural copulation, whereas the bill of information, as originally drawn, charged that defendant Curry's genital organ was used.

There is no merit to this bill, since under the express provisions of R.S. 15:253 "* * * the court may at any time before, during or after the trial amend the indictment [or bill of information] in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence * * *." The defendant's remedy was to move for a discharge of the jury and a reasonable continuance of the cause, if the amendment was made to the substance of the indictment or bill of information. In the instant case, counsel for defendants not only failed to avail themselves of this right, but—according to the per curiam of the trial judge—insisted on going to trial, thereby waiving their objection to the amendment. See, State v. Walker, 189 La. 241, 179 So. 302; State v. Johnson, 181 La. 1, 158 So. 570.

The next bill was reserved when the trial judge, upon objection of the prosecuting attorney, restricted the testimony of a character witness to show character only as to such moral qualities as have pertinence to the crime with which these defendants are charged; and the third bill was reserved when the trial judge instructed the jury to disregard all previous testimony as to defendant's character except as to those answers relating to moral qualities pertinent to the crime charged.

While Article 480 of the Louisiana Code of Criminal Procedure declares that "evidence of the good character of accused is always admissible in his behalf, and must be considered in connection with and as a part of the whole testimony and due weight be given it, but it can not destroy conclusive evidence of guilt," it contains the further provision that "such evidence must be restricted to showing character as to such moral qualities as have pertinence to the crime with which he is charged." Clearly, therefore, the trial judge did not err in these rulings.

Bill of exception No. 4 was reserved when the trial judge allowed the witness Alvin Doyle, Jr., who had been placed on the stand by the defense to identify certain photographs he had taken at the scene of the alleged crime and to testify with reference thereto, to answer under cross-examination by the state, over defendants' objection, what instructions he had received in connection with the taking of these pictures, contending that "the pictures are the best evidence of what they show" and that "any instructions or statements made to the witness in taking the pictures are completely irrelevant and immaterial."

This contention is untenable. As of necessity, the pictures, taken by the witness, a professional legal photographer, pursuant to instructions given to him by the defendants, and allegedly depicting the scene of the crime with reference to the location of the defendants' car and that of the deputies, are of little, if any, probative value in themselves and cannot be properly evaluated as evidence without this witness' testimony showing exactly what instructions he followed in taking them.

Bill No. 5 was taken to the trial judge's ruling refusing to strike the entire testimony of the state's two witnesses, McCormick and Anderson, after McCormick, having been called by the state in rebuttal, testified during the ensuing cross-examination that he had discussed the case with Anderson in violation of the court's ruling ordering the sequestration of the witnesses.

According to the per curiam of the trial judge,4 disposing of this bill, there is no evidence to suggest that the violation of the sequestration order had resulted in depriving the defendants of a fair trial, and counsel for the defense, although having been permitted to further cross-examine McCormick on this point, thus having had an opportunity to show whether defendants' rights had in fact been prejudiced, refrained from doing so. Under these circumstances and in view of the lower court's finding that "the assistant district attorney conducting the prosecution made a satisfactory showing to the Court that Deputy McCormick disobeyed the rule without his knowledge and without his connivance," we do not think that the trial judge abused the discretion vested in him under Article 371 of the Code of Criminal Procedure.5

The next bill (No. 6) was taken to the action of the trial judge in overruling defendants' objection to the following statement made by the assistant district attorney in his closing argument: "You see the condition and the weeds along this area? At the time these photographs were taken on July 23, Mr. Doyle said that it would be impossible to see the light on the car after it had turned this curve. He tested it that night, the night of July 24 about 8:00 o'clock. Very probably he could not because of the weeds, but we have no testimony whatsoever as to whether those weeds were there on April 15 or not and it's very probable that looking right directly across this line, that Mr. McCormick could have seen the light on their automobile."

The trial judge, in his per curiam to this bill, informs us that "the State's two witnesses (the arresting officers) testified that on the night of the alleged crime they could see the lights of the car occupied by the accused after it had rounded a curve. Mr. Doyle, the defense witness, testified that he tested out this statement on the night of July 24 at about 8:00 o'clock. He placed a car around the curve at a point where the two accused told him their car was located at the time and then took a position where the deputies were approximately located when they claimed that they saw the lights of the car of the accused." Under these circumstances, we conclude, as did the trial judge, that this comment was neither improper nor prejudicial, but a reasonable inference drawn from the evidence introduced in the case, and as such permissible under the provisions of R.S. 15:382.6

The motion for a new trial, in addition to reiterating some of the alleged errors herein disposed of, is mainly based on the contention that the jury's verdict of attempt to commit crime against nature is not responsive to the charge of crime against nature, and that there is no evidence to sustain the conviction of attempt to commit crime against nature.

The generally accepted test to determine the responsiveness of a verdict (except for those crimes enumerated in R.S. 15:386) is whether the lesser offense is generic to and included in the definition of the offense charged. Arts. 386,7 405,8 406,9 La.Code of Crim.Proc.; Art. 5,10 La.Crim.Code. As the charged crime is not specifically listed in Article 386 of the Code of Criminal Procedure,11 Article 27 of the Louisiana Criminal Code,12 defining an attempt as "a separate but lesser grade of the intended crime," is applicable.

Inasmuch as all the elements of the charged crime, i. e. crime against nature, with the exception of completion, being present in the attempt to commit such crime, the verdict of attempt to commit crime against nature was responsive to the charge. Whether or not the actions taken by the defendants amounted to a mere preparation to commit the crime against nature or constituted an overt act directed toward the accomplishment of the crime was a question to be determined by the jury; State v. Carter, 213 La. 829, 35 So.2d 747. In the absence of a showing to the contrary, the presumption is that the jury was properly charged by the trial judge as to the law applicable to the case.

The motion in arrest of judgment incorporates all of the previous objections which have already been ruled upon and, therefore, presents nothing further to review.

For the reasons assigned, the convictions and sentences are affirmed.

HAWTHORNE, J., absent.