Defendant appeals from his conviction of Attempted Theft and his sentence "to pay a fine of $200.00 and costs and to serve one (1) year in the Parish Jail, however the fine and jail sentence are suspended and defendant is placed on Probation for a period of two (2) years, in the custody of the Probation Officer for this area, subject to the conditions outlined in Article 895 of the Code of Criminal Procedure and the additional conditions that he pay the costs of Court and that he make restitution to Charles Flowers within 90 days from this date, March 25, 1970."
Defendant was charged by Bill of Information with the commission of theft of a cashier's check in the amount of $3,000.00, the property of Charles Flowers, in violation of LSA-R.S. 14:67.
A preliminary hearing was held, and at its conclusion the trial court ruled:
The facts disclosed at the preliminary hearing are substantially to the effect that defendant, A. Leroy Richardson, managed the Oak Park Shell Station, Lake Charles, Louisiana, owned by John W. Huber, a Shell Oil Distributor. Defendant was paid a salary and owned his desk and other small office equipment, all of which were located on the premises. He sold his alleged interest in the service station business to Charles Flowers for $3,000.00 paid by cashier's check. The cashing of the check and defendant's use of the proceeds therefrom constitute the basis of the instant charge.
One Bill of Exceptions was reserved by defense counsel immediately prior to trial and eleven Bills of Exceptions were reserved during the proceedings. These twelve Bills are presented for our consideration.
BILLS OF EXCEPTIONS NOS. 1, 3, 4 AND 6.
Bill of Exceptions No. 1 was reserved when the trial judge overruled defense counsel's objection to the following question propounded to the witness John W. Huber, "To your knowledge, did Mr. Richardson own anything in that service station that was worth $3,000.00?"
Bill of Exceptions No. 3 was reserved when the trial judge overruled defense counsel's objection to the following question propounded to John W. Huber, "Do you allow people in your organization to sell their jobs?"
Bill of Exceptions No. 4 was reserved with the trial judge overruled defense counsel's objection to the following question propounded to the defendant on cross-examination, "In what way would that convey to you an idea that this man would now be a dealer?"
Bill of Exceptions No. 6 was reserved when the trial judge overruled defense counsel's objection to the following testimony propounded to the defendant:
In this Court, defense counsel argued that the cumulative effect of the questions, supra, propounded by the District Attorney prejudiced the defendant in the minds of the jurors. In brief, he admits that some of the alleged erroneous impressions conveyed to the jury by the alleged objectionable testimony were cleared by further testimony; he argues that, "As to Bill No. 4, it is true that the erroneous impression sought to be established by the prosecution's contention that defendant had promised, indeed practically guaranteed, that Flowers would become a `dealer' as distinguished from a manager, was cleared up by other testimony, it was calculated to, and perhaps did, create the impression of misrepresentation by the defendant."
With respect to Bill of Exceptions No. 6, defense counsel contends:
Defendant was charged with theft, and it was incumbent upon the jury to determine his guilt or innocence. The questions supra were relevant and material to a determination of the case. Defense counsel at all times had the right of cross-examination and the opportunity of clearing questions propounded by the State. Counsel also had the right to rebut testimony adduced by the State. Thus, the jury had for consideration in its deliberations the testimony of the defense as well as that of the State.
The trial judge's Per Curiam to Bill of Exceptions No. 6 recites:
We do not find that the defendant's rights were prejudiced by the questioning, supra, and further find that the trial judge committed no error in overruling counsel's
Bills of Exceptions Nos. 1, 3, 4 and 6 are without merit.
BILL OF EXCEPTIONS NO. 2.
Bill of Exceptions No. 2 was reserved when the trial court denied defense counsel's motion for a continuance.
At approximately 6:00 P.M., Friday, February 27, 1970, the trial judge recessed his court until 7:30 P.M. After the jury was taken from the courtroom, defense counsel moved:
In denying the motion, the trial judge stated:
In this Court, defense counsel contends:
"* * *
A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor. LSA-C.Cr.P. Art. 712. The granting or refusing of a continuance in a criminal case rests in the sound discretion of the trial judge, and his ruling will not be disturbed except where his discretion has been arbitrarily or unreasonably abused. State v. Skinner, 251 La. 300, 204 So.2d 370; State v. Jones, 249 La. 324, 186 So.2d 608. Cf. State v. Lewis, 255 La. 623, 232 So.2d 294.
The above statement of the trial judge shows that by refusing a continuance he neither abused his discretion nor prejudiced the rights of the defendant. Although tired, able counsel efficiently represented the defendant throughout the entire trial.
Bill of Exceptions No. 2 is without merit.
BILL OF EXCEPTIONS NO. 5.
Bill of Exceptions No. 5 was reserved when the trial judge refused to permit defense counsel to question the defendant in a manner which would fully develop the details and circumstances surrounding a civil suit filed against the defendant by Charles Flowers.
Prior to voicing objection, defense counsel had cross-examined Charles Flowers with respect to the civil suit filed against the defendant; the suit itself had been offered in evidence. Counsel questioned the defendant with respect to the time of service and other details, at which point the trial judge ruled that the questioning was sufficient.
Herein, defense counsel contends:
We agree with the trial judge that the effect of the protracted questioning adduced irrelevant evidence. He did not abuse his discretion, and his per curiam correctly recites:
Bill of Exceptions No. 5 is without merit.
BILL OF EXCEPTIONS NO. 7.
Bill of Exceptions No. 7 was reserved when the trial judge denied defense counsel's motion for a mistrial.
Herein, counsel for the defendant contends:
We do not find that the defendant was prejudiced by the remark, "I think so too, sir." This was merely an expression of opinion by the District Attorney. Defense counsel did not request an admonition, Cf. Arts. 770 and 771, LSA-C.Cr.P., at the time the statement was made. The trial judge cured any wrong impression that might have been made upon the minds of the jurors by instructing them in his general charge to disregard any question when an objection had been maintained as to that question.
Bill of Exceptions No. 7 is without merit.
BILL OF EXCEPTIONS NO. 8.
Bill of Exceptions No. 8 was reserved when the trial judge overruled defense counsel's objection to a statement made by the District Attorney and denied defense counsel his motion for a mistrial.
During cross-examination of the defendant, the following testimony was adduced:
Defense counsel objected to the last question. He contends that, "The extraneous and unnecessary comment by the prosecutor together with the comment illustrated in Bill of Exception No. 7 indicate the nature of the comments made by the prosecutor and illustrate the atmosphere created at the trial. Prejudicial and improper comments like these can serve only to create prejudice against the defendant in the minds of the jury members."
LSA-R.S. 15:280 provides:
Defendant testified at length on direct examination; his testimony concerned his past business endeavors and associations. Under the above jurisprudence and law, the District Attorney was permitted great latitude when he questioned the defendant on cross-examination. Defendant testified extensively on cross-examination following the alleged objectionable remark, "You don't want to answer it fully?"; he was given every opportunity to explain his prior answer to which the District Attorney had commented. Defendant testified on redirect examination, and at that time defense counsel had the opportunity to correct by defendant's testimony any mistaken impression he thought the jurors might have been given. Defendant therefore suffered no prejudice by the rulings of the trial judge.
Bill of Exceptions No. 8 is without merit.
BILL OF EXCEPTIONS NO. 9.
Bill of Exceptions No. 9 was reserved when the trial judge denied defense counsel's motion that he be furnished without cost a complete transcript of the testimony to be made at the trial.
Defense counsel stated during argument in this Court that, subsequent to the reservation of the instant bill, he was furnished a transcript of all testimony required for this appeal. Therefore, this bill need not be considered.
BILL OF EXCEPTIONS NO. 10.
Bill of Exceptions No. 10 was reserved to the trial court's ruling that there was probable cause shown upon the preliminary hearing to form a basis for the charge against the defendant.
The instant Bill of Information was filed on October 30, 1968, and the offense charged was alleged to have been committed on or about March 15, 1968. The preliminary hearing was held on March 3, 1969. Defense counsel reserved the instant bill on February 27, 1970, immediately prior to trial.
Judge Veron presided at both the preliminary hearing and at the trial of defendant. His Per Curiam to this bill states:
Bill of Exceptions No. 10 is without merit.
BILL OF EXCEPTIONS NO. 11.
Bill of Exceptions No. 11 was reserved when the trial judge overruled defense counsel's objection to the condition imposed upon the defendant in his sentence, that he make restitution to Charles Flowers of the sum of $3,000.00 within ninety days from March 27, 1970.
Defense counsel contends:
We find that the trial judge under LSA-C.Cr.P. Art. 895 was empowered to impose the instant sentence. His Per Curiam to this bill states, "There is no doubt in the Court's mind that the beginning of the running of 90 days will be suspended pending the outcome of the appeal and that if the judgment is affirmed, the defendant will have 90 days to make restitution from the date the judgment is final." The defendant therefore has suffered no prejudice. We conclude that the trial judge did not abuse his discretion by imposing upon the defendant the condition of restitution to Charles Flowers.
Bill of Exceptions No. 11 is without merit.
BILL OF EXCEPTIONS NO. 12.
Bill of Exceptions No. 12 was reserved by defense counsel when the trial judge denied his original and supplemental motions for a new trial.
In his supplemental motion for a new trial he alleges that there was a total lack of evidence of the offense charged or an essential element thereof and the verdict of the jury is erroneous as a matter of law.
We find that there is some evidence in the record, particularly of the cashing by defendant of the cashier's check for $3,000.00 paid by Charles Flowers, and defendant's use of the proceeds therefrom. Evidence as to how and in what manner this check was received by defendant, and all events leading thereto is in the record and was heard by the jury. We can not consider the weight or sufficiency of the evidence. Our review is limited to questions of law only.
Otherwise, this bill raises nothing new for our consideration. All other matters urged were covered in substance in our consideration of other bills of exceptions.
Bill of Exceptions No. 12 is without merit.
For the reasons assigned, the conviction and sentence are affirmed.