Defendant was tried under a bill of information charging him with armed robbery. R.S. 14.64. He was convicted after a trial by jury and was sentenced under the habitual offender statute to ninety-nine years at hard labor. Defendant appeals, relying on four bills of exceptions.
The facts as disclosed by the record are as follows:
On April 29, 1968 at approximately 12:15 a. m., the night manager of the Roslyn Hotel, 629 Carondelet Street, New Orleans, was robbed at gun point of his watch by two black men who fled the scene on a bicycle. The men on the bicycle were pursued by two taxicabs. During the chase the cab drivers broadcast their position and a general description of the bandits. The police picked up the broadcasts and converged upon the area. As the police turned onto Clio Street near Carondelet they observed a bicycle sliding down the street and a man crawling underneath a parked car. The man was pulled from underneath the car and was searched. The victim's watch was found in his pocket. Approximately ten minutes elapsed between the robbery and the time the defendant was apprehended.
Bills of Exceptions Nos. 1 and 2
The bills pertain to the denial of a motion to suppress and the admission of the
Article 213 of the Code of Criminal Procedure provides in pertinent part:
In the present case, the fact that the person arrested had apparently been riding a bicycle, as had the robbers, that he fit the general description of one of the robbers, that he was apprehended near the place of the crime some ten minutes after it was committed and that he was apparently attempting to hide under a parked car, support a finding that reasonable belief or probable cause existed to arrest the defendant. As such a search of his person incidental to that arrest was proper. Cf. State v. DiBartolo, supra.
These bills are without merit.
Bill of Exceptions No. 3
This bill was reserved when the trial court overruled defense counsel's objection to the introduction of a brown hat and a bicycle into evidence. Defendant argues that the items were improperly admitted since no relationship was shown between them and the defendant.
The hat, which was found some two blocks from where the defendant was arrested, was identified by the victim as being similar to that worn by the defendant during the robbery. The bicycle, which was in the street approximately
We find the foundation laid by the State with regard to both objects was sufficient to establish the requisite relationship.
This bill is without merit.
Bill of Exceptions No. 4
This bill was reserved when the trial court overruled defendant's objection to a question posed to the defendant while he was under cross-examination.
On direct examination defense counsel had posed the following questions to the defendant:
Then, on cross-examination, the district attorney made the following inquiries:
R.S. 15:462 permits a cross-examination of a defendant who takes the stand in the same manner and scope as any other witness. R.S. 15:495 provides:
Under this provision, only the fact of conviction is admissible and not the details of the prior offenses. State v. Kelly, 271 So.2d 870 (La.1973); State v. Brent, 248 La. 1072, 184 So.2d 14 (1966). Included within the prohibition against cross-examination on an indictment or information are inquiries concerning the indictment under which the witness was convicted. State v. Hayes, 262 La. 674, 264 So.2d 603 (1972).
Here the defense attempted to make the familiar point before the jury—that "every time I've been guilty before, I pleaded guilty—this time I'm not guilty." The State argues that it has the right, in attacking defendant's credibility, to show that his motive for pleading guilty to the prior offense was not a dedication to truth, but to escape a more serious charge. The argument is plausible, but not so plausible as the prohibition of R.S. 15:495. In addition to other sound reasons for prohibiting cross-examination of prior indictments, a strict interpretation of R.S. 15:495 will prevent a diversionary contest on a collateral issue, for it is logical to expect a defendant to then attempt to prove that he really was not guilty of the greater offense charged (which included the lesser offense to which he pleaded guilty).
Although the trial court was in error in permitting questions concerning the former indictment, it is clear from the record
For these reasons, the conviction and sentence are affirmed.
SUMMERS, J., concurs in the decree and assigns reasons.
BARHAM, J., dissents with reasons.
BARHAM, Justice (dissenting).
The majority have found error under Bill of Exceptions No. 4. When the defendant took the stand, his counsel used the usual and accepted tactic when a defendant has a prior conviction. Since convictions may be used to impeach a witness, including the defendant, the better practice is for the defendant who takes the stand to openly admit his convictions rather than having them presented to the jury by the State on cross-examination. If the defendant
Here, after the defendant admitted a conviction for manslaughter, the State was permitted to interrogate him in regard to the original indictment. The State presented to the jury the fact that although the defendant was convicted of manslaughter he was indicted for murder. R.S. 15:495 prohibits evidence concerning an indictment for a crime as it permits evidence concerning conviction of a crime. While the majority have admitted the State's interrogation to be error, they state it is not reversible error because "* * * it is clear from the record that it [questions relating to indictment] had no significant bearing on the outcome of the case, * * *" The record in this case as shown by the majority opinion consists of two bills of exceptions dealing with a pretrial motion to suppress, one bill of exceptions which concerns the admissibility of physical evidence and the present bill of exceptions. On that record, I am unable to determine what effect the error committed under the last bill had upon the outcome of the case. Perhaps the majority have read more than the record consisting of these bills. Perhaps they have read the full transcript of the proceedings in the trial court and have evaluated the evidence of guilt or innocence and determined the defendant's guilt was established regardless of the error committed.
I have repeatedly stated that we can not apply the federal harmless error rule in proceedings in Louisiana as long as bills of exceptions are required and the record is limited. See dissents in State v. Hopper, 253 La. 439, 218 So.2d 551 (1969), State v. Anderson, 254 La. 1107, 229 So.2d 329 (1970), and State v. Hills, 259 La. 436, 250 So.2d 394 (1971). See also concurring opinions in State v. McGregor, 257 La. 956, 244 So.2d 846 (1971) and State v. Mixon, 258 La. 835, 248 So.2d 307 (1971). C.Cr.P. Arts. 920 and 921 set forth the scope of our review and the matters which are not grounds for reversal. Articles 920 and 921 provide as follows:
"Art. 920. Scope of appellate review
"Art. 921. Matters not grounds for reversal
The record referred to in Article 921 is the record which is defined by Article 920. Moreover, Article 921 requires a reversal when the error complained of constitutes a substantial violation of a statutory right. The court here committed a substantial, direct and complete violation of the statutory right granted under R.S. 15:495.
I respectfully dissent.
I do not agree that the trial court was in error by permitting questions concerning the former indictment under the facts of this case. The ruling is, moreover, contrary to the jurisprudence of this State. See State v. Polk, 258 La. 738, 247 So.2d 853 (1971); State v. Richardson, 258 La. 62, 245 So.2d 357 (1971); State v. Williams, 250 La. 64, 193 So.2d 787 (1967).
It is correct to say that for the purpose of impeachment the prosecutor may generally refer only to evidence of conviction and may not question the accused concerning the background of the charge relied upon to impeach. Under the circumstances of this case, however, it was not error to bring out that the original charge was murder and the guilty plea was to the lesser crime of manslaughter.
The defense opened the door to the cross-examination complained of when on direct examination the accused testified to his motive in entering the guilty plea to manslaughter.
A great latitude on cross-examination is contemplated by the foregoing statute. This permits a defendant to be cross-examined on all matters brought out in his direct examination, and it is no objection that his answers may affect his credibility and character. And mere doubts as to the propriety or the extent of cross-examination are always resolved in favor of the cross-examination. State v. Richardson, supra.
Since the conviction and sentence were affirmed, however, I will concur in the result reached.