STATE v. JAMES

SANDERS, Justice.

ON REHEARING

[56] HAMLIN, Justice.

A rehearing was granted in this matter in order that we might reconsider our finding with respect to Bill of Exceptions No. 2. On original hearing, this Court set aside the conviction and sentence of the defendant for the crime of wilfully and unlawfully possessing and having under his control a narcotic drug, to-wit, one morphine tablet, a crime prohibited by LSA-R.S. 40:962; the matter was remanded to the trial court for a new trial. The majority opinion held that the trial court was in error in overruling defendant's motion to suppress demonstrative evidence (a morphine tablet and equipment), which alleges that all of the evidence in the possession of the State in this case was seized contrary to the Fourth and Fifth Amendments to the United States Constitution and Section 7 of Article I of the Constitution of the State of Louisiana, depriving defendant of equal protection of the law. This Court on original hearing held that the disputed items were obtained by an unreasonable search and seizure and were inadmissible in evidence in the instant criminal prosecution. Bill of Exceptions No. 2, taken to the overruling of the motion to suppress, was considered in the light of Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.

The author of this opinion on rehearing dissented on original hearing.

A reconsideration of Bill of Exceptions No. 2 constrains us to conclude that it is without merit; because of our finding, we feel that it is necessary to quote the pertinent facts associated with the bill as stated on original hearing:

"* * * on June 19, 1961, about 11:15 a.m., Officers Duffy and Warner of the New Orleans Police Department parked their unmarked automobile on Camp Street to watch the James' residence at 2013 Camp Street. The officers knew that the defendant was a narcotic addict because of a previous arrest. Shortly after the surveillance began, James left his residence and walked along Camp Street toward its intersection with Jackson Avenue. The officers followed him in their car. When he reached the intersection, he turned left on Jackson Avenue, at which time the officers lost sight of him. When the police reached the intersection, they saw James in the front seat of an automobile, driven by another man. The vehicle was leaving the curb. It crossed Jackson Avenue in a U-turn. Intending to question James and his companion, the officers forced the automobile to the curb.

"As Officer Duffy stepped from the police car, James stuffed a piece of cellophane, containing what appeared to be a white tablet, in his mouth and jumped from the automobile. He had some paper currency in his hand. Officer Duffy shouted, `Police! Stop!' But, James ran. The officers caught and subdued him. Apparently, he had swallowed the cellophane. The officers picked up approximately $50.00 in currency, scattered on the ground. Meanwhile, the driver of the automobile had driven away in the confusion. He was not apprehended.

"Having informed James that he was under arrest, the officers drove him to his residence about two blocks away. Although James stated that the front door was open, they found it locked. The officers heard a sound inside the house as if someone were running. They broke open the door and entered the house. They found the defendant's wife in the bathroom.

"They called for assistance to make a search of the house. Four other officers aided them in searching the small, `shotgun' house, occupied by the defendant and his wife. The officers made an intensive search of both the house and yard. They examined the cabinets, shelves, and furniture. One officer found a morphine tablet in a chest of drawers. Another officer found an eyedropper and a pacifier (narcotic equipment) in a kitchen cabinet. James admitted the ownership of the narcotic equipment, but denied that the morphine tablet was his. He suggested that the tablet had been placed in the chest by his brother, who had been committed to the penitentiary."

The State, on whose application this rehearing was granted, contends that the statement, "To adopt a search rule broad enough to embrace the residence in the instant case would largely dispense with the requirement of search warrants after an arrest has been made. The protection of the people in the security of their homes would be seriously impaired", is unrealistic. It argues that the search of James' residence was a reasonable one incident to a lawful arrest, and that the evidence seized as a result of such search is legally admissible in evidence.

On original hearing, we properly found that the arresting officers had reasonable cause to believe that the defendant unlawfully possessed narcotics, and that, therefore, they had authority to arrest him without a warrant. We concluded that the arrest was lawful. (The defendant did not apply for a rehearing.)

Since the arrest was lawful, we have posed for our determination the question of whether the search and seizure were reasonable and incidental to arrest and were within the bounds of incidental arrest. We shall approach our determination in the light of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, which held that the Fourth Amendment's right of privacy is enforceable against the States through the Due Process Clause of the Fourteenth Amendment and is enforceable against them by the same sanction of exclusion as is used against the Federal Government.

"* * * Mapp, however, established no assumption by this Court of supervisory authority over state courts, * * * and, consequently, it implied no total obliteration of state laws relating to arrests and searches in favor of federal law. * * * Second, Mapp did not attempt the impossible task of laying down a `fixed formula' for the application in specific cases of the constitutional prohibition against unreasonable searches and seizures; it recognized that we would be `met with "recurring questions of the reasonableness of searches"', and that, `at any rate, "[r]easonableness is in the first instance for the [trial court] to determine,"' * * * thus indicating that the usual weight be given to findings of trial courts." Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 1629, 10 L.Ed.2d 726.

"What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are `unreasonable' searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case. * * * Reasonableness is in the first instance for the District Court to determine. * * *" United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. See, State v. Aias, 243 La. 945, 149 So.2d 400.

"The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted. * * * The legality of the arrests or of the searches and seizures made at the home of Alba is not questioned. Such searches and seizures naturally and usually appertain to and attend such arrests. But the right does not extend to other places. Frank Agnello's house was several blocks distant from Alba's house, where the arrest was made. When it was entered and searched, the conspiracy was ended and the defendants were under arrest and in custody elsewhere. That search cannot be sustained as an incident of the arrests. * * *" Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145, 148.

We have carefully read the Agnello case, relied on by the defendant, and do not find it apposite. The premises searched, Agnello's and Pace's quarters, were not incidental to the place of arrest. The evidence secured at Alba's house where the arrest was made was held admissible.

"It is argued that the search and seizure was justified as incidental to a lawful arrest. Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. * * * This right to search and seize without a search warrant extends to things under the accused's immediate control * * * and, to an extent depending on the circumstances of the case, to the place where he is arrested, * * *. The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. Agnello v. United States, supra, 269 U.S., at 31, 46 S.Ct. at 5, 70 L.Ed. 145. * * *" Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777.

The U.S. Supreme Court found the search to be unreasonable in the Preston Case because the car occupied by the accused at the time of arrest was not searched until after the men had been taken to the police station and booked. The Court held that the search was too remote in time or place to have been incidental to arrest.

In reviewing the evidence adduced herein in connection with Bill of Exceptions No. 2, we find that the arresting officers had the defendant's home under surveillance immediately prior to his arrest. They had reason to believe that the defendant was committing the crime of possessing narcotics; one of the arresting officers, Officer Thomas Duffy, had arrested him for the possession of narcotics eight days prior to the instant arrest; also, he had been convicted in 1954 for possession of narcotics.

In the instant case, the defendant left his home, travelled two blocks and met an apparent acquaintance; he sat in the car with the acquaintance until the police arrived. The officers had grounds to suspect that there was a relation between defendant's house and his meeting with the man who escaped. Immediately prior to the arrest, defendant bit Officer William Warner's finger when he was endeavoring to retrieve from defendant's mouth what he thought was a morphine tablet wrapped in cellophane. The defendant swallowed cellophane and tablet; no test could be made of the contents of his stomach. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. Within minutes after a lawful arrest, the arresting officers and the defendant were back at the defendant's house, a distance of two blocks travelled by car. Defendant did not object to the officers entering his home; Officer Warner asked him for the key and he told the officer that a key was not needed as the door was open. Officer Warner had to force the door open, Cf. LSA-R.S. 15:46, but no resistance was offered by James. Other officers were called to assist in the ensuing search which revealed the controverted evidence.

Defendant's wife testified that he was brought back to his home fifteen minutes after he left.

We find no remoteness between the place of search and the place of arrest, nor between the time of arrest and the time of search and seizure. We find that there was a direct connection between the place of arrest and the place of search and seizure; such a substantial nexus between the arrest and the search and seizure existed, that they were a continuous transaction. People v. Aleria, 193 Cal.App.2d 352, 14 Cal.Rptr. 162, Certiorari denied, 374 U.S. 832, 83 S.Ct. 1876, 10 L.Ed.2d 1055. See State v. Pickens, 245 La. 680, 160 So.2d 577. We find that the search and seizure were incident to a lawful arrest. State v. Aias, 243 La. 945, 149 So.2d 400. The search and seizure under the facts of this prosecution were within the bounds of incidental arrest; they were substantially contemporaneous. Preston v. United States, supra, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. The evidence seized was under the defendant's control and could have been offered in evidence. Harris v. United States of America, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399. Cf. State v. Calascione, 243 La. 993, 149 So.2d 417. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668; Anno: Search Incident to Arrest, 4 L.Ed.2d 1982.

We find, as stated supra, that Bill of Exceptions No. 2 is without merit. Our finding on original hearing with respect to this bill is now set aside.

BILLS OF EXCEPTIONS NOS. 3 AND 14.

Bills of Exceptions Nos. 3 and 14 shall be considered jointly. They were reserved to the trial judge's overruling certain objections advanced by counsel for the defendant to the State's opening statement.

During the course of the opening statement, the assistant district attorney said:

"* * * At approximately 2:00 P.M. Officer Justin Favalora, one of the officers who had arrived after the arrest, was searching one of the dressers in a room next to the kitchen, and he found four medicine droppers, three of these having a black rubber bulb on the same and he also found a small brown envelope containing a 25 calibre cartridge along with a piece of rubber finger stall with a rubber band in the same. This was found in a bottom drawer of the dresser. Again Officers will testify as to the use of all of these objects with the exception of the cartridge by narcotic addicts for the purpose of carrying narcotic drugs and injecting the same into their systems. Officer Favalora then pulled out the middle drawer and in the center of this drawer he found one white tablet. This was the only object in the drawer. Except for this white tablet, the drawer was empty. At this time Favalora called James over to the drawer and he showed him the small tablet. James replied, `that must be an old one. Leslie is sending me to the Penitentiary.' He was asked what he meant by that and he said, `My brother Leslie must have left it in the drawer, before he went to the Penitentiary a couple of years ago.' The evidence will show, as a matter of fact, that the defendant's brother Leslie had been in the Penitentiary for a period of several years. The evidence will also show however, that just one week previous officer Raymond Comstock of the Narcotic Squad had, with other officers, conducted a search of the very same premises occupied by Otis James, and that during the search conducted one week previous, Comstock had personally searched through the very dresser in the very drawer where the one tablet was found and that at that time there was nothing in the drawer.

"While the Officers were at the residence, several telephone calls were received from people asking for Otis James. On two of these particular calls, Officer Patrick Lampard answered the telephone, disguised his voice and held a short conversation with the person on the telephone after learning that the subject's name was Allen. Lampard recognized this person to be Alan Holmes, a person known to him to be an addict. Lampard arranged with Alan to sell him two morphine tablets for the price of five dollars each. The arrangement was made for the sale to take place at Camp and Jackson Avenue in approximately ten minutes from the time of the telephone call.

"Lampard did not identify himself as a police officer but merely someone who was in James's residence. In other words, Lampard made the arrangement, or obstensibly the arrangement was made for the sale to take place on the corner of Camp and Jackson in approximately ten minutes from the time of the telephone call. Officers Lampard and Verdi went to Camp between Jackson and Philip to see if the caller would come, and after about a five minute wait an individual that Lampard knew as Alan Holmes did appear to keep the appointment and he was placed under arrest and was taken back to the house.

"After completion of the search, James was then questioned by Officer Warner in Duffy's presence. He freely and voluntarily answered certain questions. He denied any knowledge of the tablet that was found and denied also that he knew Alan Holmes, and stated that he did have a narcotic habit.

* * * *

"Did have a narcotic habit. He told the officers that he was using narcotics but that his veins were all `burnt out', this was his words, `burnt out from shooting', and again in his own words `getting under the skin.' He then displayed and pointed out several marks on the hands and arms. The Officers inspected his hands and arms and other portions of the body and one or more of them will again be qualified as expert in the recognition of the type of marks left on the body of those injecting and using narcotic drugs. These officers will state that certain marks seen on the body of Otis James were what is known as `track marks', that is, small puncture marks left by the use of narcotic paraphernalia. * * *"

The objection to the above statement recites:

"Object to the statements made by the district attorney that reflect upon the character of the defendant. There has been no evidence before the jury and the reference by the District Attorney about his being an addict, and the reference to his previous arrest and the search made, and the reference to his brother being in the penitentiary, all of which he stated in his opening statement is such to practically put this man in the penitentiary."

Counsel for the defendant contended that under the circumstances of the opening statement, the defendant could not proceed to trial and receive a fair and impartial trial; counsel objected to testimony which enlarged or explained the opening statement.

LSA-R.S. 15:333 sets forth the steps in a trial. It recites that the district attorney shall give an opening statement which explains the nature of the charge and the evidence by which he expects to establish the same.

LSA-R.S. 15:378 states:

"The prosecution has the right to rebut the evidence adduced by the defendant, but the defendant is without right to rebut the prosecution's rebuttal."

In State v. White, 244 La. 585, 153 So.2d 401, this Court held:

"It is made the mandatory duty of the district attorney under Article No. 333 of the Code of Criminal Procedure (now R.S. 15:333) to make an opening statement to the jury `explaining the nature of the charge and the evidence by which he expects to establish the same.' The very basic and fundamental object and purpose of such a statement to the jury is, as has been classically explained in cases and authorities on the subject too numerous to require citation, to so enlighten the jury with respect to the charge and the proof by which the state seeks to establish it beyond a reasonable doubt, it will `enable the jury to understand and appreciate the testimony as it falls from the lips of the witnesses,' in order that the jury may be assisted in `arriving at the truth.' State v. Sharbino, 194 La. 709, 194 So. 756. However, the scope and extent of such a statement must be controlled by the trial judge in the exercise of a wise and sound discretion, and his action in concluding what is and what is not proper is subject to review by this court in order that we may determine whether that discretion has been abused. [Authorities.]"

We have read the testimony of record attached to all bills of exceptions submitted for our consideration (all testimony of record is made part of Bills of Exceptions Nos. 3 and 14); we find that there is evidence which attempts to substantiate all declarations made by the assistant district attorney in his opening statement. State v. Augustine, 241 La. 761, 131 So.2d 56, Certiorari denied, 368 U.S. 922, 82 S.Ct. 246, 7 L.Ed.2d 137. There is also evidence of record showing that Officer Patrick Lampard testified to facts substantiating the opening statement. Officer William Warner testified at length with respect to his conversation with James at the time of the search and seizure concerning his use of narcotics; he also testified with respect to his observation of James' body.

Under the facts and circumstances shown by the testimony and evidence of record, we do not find that the trial judge abused his discretion in overruling the objections of counsel for the defendant to the opening statement of the assistant district attorney. The testimony of Officer Lampard fell within the ruling of State v. Di Vincenti, 232 La. 13, 93 So.2d 676; its purpose was to associate the defendant with the possession of narcotics. The testimony of Officer Warner also had for its purpose the connection of the defendant with the possession of narcotics. This testimony was neither compulsive nor self-incriminating. State v. Hughes, 244 La. 774, 154 So.2d 395; State v. Robinson, 221 La. 19, 58 So.2d 408.

Bills of Exceptions Nos. 3 and 14 are without merit.

BILLS OF EXCEPTIONS NOS. 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13.

Bills of Exceptions Nos. 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 will be considered jointly; they all relate to the trial judge's refusal to give to the jury various special charges requested by counsel for the defendant.

Bill of Exceptions No. 4 was reserved to the refusal of the trial judge to give Special Charge No. 1, which recites:

"I further charge you that if you find from the evidence that the premises that were searched in which the alleged narcotic was purportedly found but that a search warrant was not obtained prior to the search and seizure, then I charge you that you must find the defendant not guilty."

Bill of Exceptions No. 5 was reserved to the refusal of the trial judge to give Special Charge No. 3, which recites:

"Defendant testifying or not testifying in own behalf — I charge you the defendant is permitted by law to testify in his own behalf. If he exercises this privilege, he is governed by the same rules, in testing his credibility, and the correctness of his statements, as every other witness. You have the right to believe or disbelieve him, just as he impresses you as to the truth or falsity of his testimony. When he does not avail himself of this privilege, you should not consider this fact, or permit it to raise a presumption of guilt against him, and you should consider, in determining his guilt or innocence, only those facts testified to and brought out on the trial of the case."

Bill of Exceptions No. 6 was reserved to the trial judge's refusal to give Special Charge No. 4, which recites:

"I further charge you that the defendant is charged in bill of information with wilfully and unlawfully possessing narcotics.

"In that connection I charge you that the sacramental averments of the bill of information must be proved to your satisfaction and beyond a reasonable doubt.

"The mere finding of the alleged narcotic in or about the premises or property of the defendant or in the proximity of his presence is not sufficient of itself in law to warrant a conviction. Before the defendant can be held to account for the narcotic allegedly found in his possession, it must be shown to your satisfaction that he possessed narcotic in the sense that the word `possession' is understood, and that he did possess it wilfully and unlawfully.

"In that connection, the word `unlawfully' is understood to be possession not warranted or permitted by authority in law, and that it is an act which the law prohibits. However, before considering that he possessed it unlawfully, you must first consider whether or not he possessed it wilfully. Wilfully necessarily means knowingly, as one could not wilfully do a thing without doing that thing knowingly.

* * * *

"Every voluntary act of a human being is intentional, but generally speaking, a voluntary act becomes wilful in law only when it involves some degree of conscious wrong or evil purpose upon the part of the actor. * * *

"Therefore, before the defendant can be held accountable under the law for the narcotics that might have been found near or about his person, you must be convinced:

"First, that the narcotics was actually possessed by him and that he possessed it wilfully and unlawfully because a person might have possessed either actual or constructive of such narcotic without his knowing he possessed it or that it was actually found, and if you are convinced that the narcotic was actually found on or about him or his person, but there is a reasonable doubt inside of your mind that he knew that it was there, then your duty is to acquit the defendant as he cannot be found guilty in law unless he had knowledge that the narcotic was where it was found, that it was in his possession and that he had wilful knowledge and he actually did possess it wilfully; otherwise it is your duty under the law to find him not guilty.

"Mere possession of itself without the state proving that the possession was wilful and unlawful, is not of itself sufficient to justify a conviction, and it is the duty of the state at all times to prove that what it alleges in the bill of information, and if the state fails to prove the guilt of the defendant beyond a reasonable doubt, then you must under the law give him the benefit of that doubt and find him not guilty."

Bill of Exceptions No. 7 was reserved to the refusal of the trial judge to give Special Charge No. 5, which recities:

"I further charge you that if you find from the evidence that there was flight on the part of the defendant, that this alone is not evidence of guilt, as a person who truly believes that he is about to be assaulted or otherwise illegally proceeded against, has a right to either flee or to protect himself in such means as the law provides to insure a person from assaultive acts on the part of another.

"It has been shown that there was no `legal process' going on in this case, and defendant was not informed that an arrest was being effected. Therefore, he must regard the circumstances as he sees them, as is his right. If he sees assaultive acts in the form of the car being forced to the curb, a man not in uniform attacking him. He may, therefore, resist, flee, or do whatever he deems advisable to protect his person. * * *"

Bill of Exceptions No. 8 was reserved to the refusal of the trial judge to give Special Charge No. 6. This charge treats of the subject of arrest; because we have found on original hearing that the arrest herein was a legal arrest, we find no need for quoting the requested charge.

Bill of Exceptions No. 9 was reserved to the refusal of the trial judge to give Special Charge No. 7, which recites:

"I further charge you that, when considering the evidence in the jury room, that it would be unfair to the defendant to demand of him the same calm deliberation that you gentlemen are now capable of exercising, in considering his actions and pertinent facts in connection therewith, as one under such circumstances would naturally be under a certain mental stress that would prevent him or her from excercising the same calm deliberation and draw the same deliberate conclusions such as you are capable of exercising at this moment when no such stress and emotion is present or apparent.

"I therefore further charge you that in weighing the testimony, that you try, as far as practicable, to place yourself in the defendant's position both before and at the time of the alleged crime charged as it is only in this way that you can reasonably ascertain the state of mind of the defendant concerning his conduct and actions and his apprehension and belief of danger. You have the right to take into consideration the ability of the defendant to see and observe his proximity, his physical condition, size and ability and his demeanor and his age to determine his ability or lack of ability or capability to commit the crime charged."

Bill of Exceptions No. 10 was reserved to the refusal of the trial judge to give Special Charge No. 8, which recites:

"I further charge you that the following verdicts are the verdicts responsive under the law:

"1. Guilty as charged.

"2. Guilty of the attempted possession of narcotics as set forth in the bill of information.

"3. Guilty of being an addict.

"4. Not guilty."

Bill of Exceptions No. 11 was reserved to the refusal of the trial judge to give Special Charge No. 9, which recites:

"The jury may convict upon circumstantial as well as upon direct evidence, but only with great caution, and, assuming all to be proved that the evidence tends to prove, if there is any reasonable hypothesis, or rational conclusion, consistent with that proof, other than the guilt of accused, then the circumstantial evidence is insufficient to convict. The true test is, not whether circumstances proved produce as full conviction as the positive testimony of a single credible witness, but whether they produce moral conviction to the exclusion of every reasonable doubt."

Bill of Exceptions No. 12 was reserved to the refusal of the trial judge to give Special Charge No. 10, which recites:

"If you believe that any witness in the case either for the State or for the defense, has wilfully and deliberately testified to any material fact, for the purpose of deceiving you, then I charge you that you are justified in disregarding the entire testimony of such witness as proving nothing, and as unworthy of belief. You have the right to accept as true or reject as false, the testimony of any witness, according as you are impressed with his or her veracity."

Bill of Exceptions No. 13 was reserved to the refusal of the trial judge to give Special Charge No. 11 which recites:

"The bill of information in this case is a mere accusation or charge against the defendant, and it is not evidence of the defendant's guilt, and, the fact of such charge being filed is of no weight and does not carry any presumptions of guilt, and you must not be influenced by it in considering the case."

In State v. Hills, 241 La. 345, 129 So.2d 12, 34 we explicitly stated:

"* * * The Court's charge to the jury `must cover every phase of the case supported by evidence, whether accepted as true or not by the trial judge.' * * * And from Marr's Criminal Jurisprudence of La. Vol. 2, pp. 1031 and 1028 respectively. `* * When from the evidence the jury might reach a conclusion of fact favorable to accused, the judge should not limit his charge to his own conclusion upon such issue, but should give a special charge, if requested, on a theory favorable to accused;' and `It is his duty to charge upon every phase of the case made by the evidence, and where evidence is offered to prove a certain state of facts, and it is claimed that they are proved, he should, if requested, charge what the law is as applicable to the facts claimed to be proved, whether he believes or attaches any importance to this evidence or not, since it belongs to the jury alone to determine the weight and credibility of the evidence. * * *'"

The trial judge states in several of his per curiams that counsel for the defendant did not request a written charge. Cf. LSA-R.S. 15:389; State v. Eubanks, 240 La. 552, 124 So.2d 543. In his per curiam to Bill of Exceptions No. 5, the trial judge states that he delivered a stereotyped general charge, which was in writing. Apparently the general charge was not taken down and reduced to writing by the court reporter, as it is not in the record. The trial judge also states that he particularly covered the law with respect to "possession", "search and seizure", "arrest", and "flight" in his general charge. He felt that Special Charge No. 7 was argumentative and invaded the province of the jury. Special Charge No. 8, which requested the trial judge to instruct the jury as to certain enumerated verdicts which it could bring in, set forth one verdict which was not responsive, "Guilty of being an addict." State v. Robinson, 221 La. 19, 58 So.2d 408.

LSA-R.S. 15:390 provides that the trial judge must give every requested charge that is wholly correct and wholly pertinent, unless the matter contained in such charge had already been given, or unless such charge requires qualification, limitation or explanation. The trial judge's per curiams to the bills being considered under this discussion informs us that his general charge covered all matters set forth in the requested special charges.

"Bill of Exception No. 10 was taken to the refusal of the judge to grant two special charges requested by the defendant relative to the rule of circumstantial evidence. The judge, in his per curiam, states that he refused the charges for the reason that they were covered in his general charge. Inasmuch as the defendant did not have the general charge included in the record, we are bound by the Judge's statement in his per curiam that the requested special charges are covered by the general charge." State v. Burkhalter, 211 La. 342, 30 So.2d 112. See, State v. McAllister, 244 La. 42, 150 So.2d 557.

We conclude that the trial judge was not required to give the requested special charges in view of the fact that he states that the matter contained therein was given in the general charge. State v. Bickham, 239 La. 1094, 121 So.2d 207.

Bills of Exceptions Nos. 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 are without merit.

BILLS OF EXCEPTIONS NOS. 15, 16, 17, 18, 21 AND 22.

Bill of Exceptions No. 15 was reserved to the trial court's overruling defendant's objection to the introduction in evidence of a piece of a rubber finger stall and an eyedropper with a rubber pacifier secured to it with a rubber band; these objects were found by Officer Thomas Duffy in defendant's kitchen during the search following the arrest. This bill was also reserved to the trial court's overruling defendant's objection to certain testimony given by Officer Duffy concerning the interrogation of the defendant by Officer William Warner with respect to his use of narcotics.

Bill of Exceptions No. 16 was reserved to the trial court's permitting Officer Thomas Duffy to testify with respect to his conversation with the defendant concerning the morphine tablet. Officer Duffy testified that the defendant told him that the tablet must have belonged to his brother Leslie who was in the penitentiary.

Bill of Exceptions No. 17 was reserved to the trial court's overruling defendant's objection to the testimony of Officer Justin Favalora with respect to his conversation with the defendant concerning the morphine tablet, Officer Favalora stated:

"I asked Otis what about the pill we found, showed it to him, and he stated that his brother was trying to send him to the penitentiary. We asked him what he meant by that and he said that must have been Leslie's pill. I don't know anything about it."

Bill of Exceptions No. 18 was reserved to the trial court's overruling defendant's objection to the testimony of Officer William Warner with respect to his conversation with the defendant concerning his use of narcotics.

Bill of Exceptions No. 21 was reserved to the overruling of defendant's objection to the trial court's permitting Officer Dominick Verdi (called in by the arresting officers to assist in the search) to testify with respect to a search he had made of defendant's home eight days previous to the present search. The officer stated that at the time of the present search the house contained the same furniture as had been there when he made his previous search.

Bill of Exceptions No. 22 was reserved when the trial court permitted Officer Raymond Comstock to testify with respect to a search he had made of dependant's house eight days prior to the present search. The officer testified that he had searched the same drawer in which the present morphine tablet was found and that at that time the drawer was devoid of narcotics.

Defendant contended that the testimony adduced in connection with the bills being presently discussed was damaging and objectionable. He also contended that the reputation of his whole family was brought before the jury by placing before it the question of previous raids.

LSA-R.S. 15:441 provides:

"Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.

"Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissable."

The physical evidence was properly introduced; its purpose was to connect the defendant with the equipment found in his home. State v. Gaines, 223 La. 711, 66 So.2d 618.

The testimony of Officers Duffy and Warner was admissible to show intent; it was relevant and material. It was corroborative of the alleged fact that defendant possessed a narcotic drug. State v. Birdsell, 232 La. 725, 95 So.2d 290; State v. Clark, 220 La. 946, 57 So.2d 904.

The testimony of the officers with respect to a previous search of the defendant's house and with respect to statements of the defendant to the effect that his brother Leslie was sending him to the penitentiary, was admissible to prove falsity. State v. Aspara, 113 La. 940, 37 So. 883.

"In a criminal proceeding, the trial judge has the discretion of determining what is and what is not relevant and material evidence; his ruling in this respect will not be disturbed in the absence of obvious error. * * *" State v. Brown, 242 La. 384, 136 So.2d 394; See, State v. Murphy, 234 La. 909, 102 So.2d 61, Certiorari Denied, 357 U.S. 930, 78 S.Ct. 1376, 2 L.Ed.2d 1373.

We find no abuse of discretion by the trial judge in admitting the controverted evidence. We find no abuse of discretion by the trial judge in admitting the testimony of Officers Duffy, Warner, Favalora, Verdi, and Comstock.

Bills of Exceptions Nos. 15, 16, 17, 18, 21 and 22 are without merit.

BILLS OF EXCEPTIONS NO. 19

Bill of Exceptions No. 19 was reserved to the trial court's overruling defendant's objection to a certain question propounded by the court to Officer Warner. The facts associated with this bill are stated by the trial judge in his per curiam as follows:

"In the course of his testimony on direct evidence, Officer Warner, a witness for the State testified, that he was one of the arresting officers who later went to the home of Otis James, where the morphine tablet was found together with certain paraphernalia used by addicts.

"He also testified that a medicine dropper and bulb found in defendant's home was shown the defendant, who admitted the outfit was his and used by him in his addiction.

"The witness when asked if the bulb was the type ordinarily found on eye droppers, he replied that the bulb portion of the outfit, `appeared to be a rubber pacifier.'

"Upon his qualification as one familiar with the manner in which addicts employed the paraphernalia to inject narcotics into their bodies, Warner testified as to use of the pacifier and the medicine dropper with the hypodermic needle.

"The witness also described the reason for the use of a pacifier as a bulb, rather than the bulb usually found on an eye dropper. He said that the pacifier is made of a harder rubber, and therefore, gives more pressure `to push the blood back,' `pressure to overcome the pressure of the blood in the vein.'

"On cross-examination, Warner stated that he had four children; that the pacifier was used to keep the children from crying, and, that during the course of his investigation he learned that the defendant had a young child.

"He was asked by defense counsel if that pacifier could be used for a child. To this question, the witness answered affirmatively.

"At this point the court made the following observations:

"Let's see if we know what you are talking about when you say pacifier. In the light of your four children do you have a medicine dropper or an apparatus of that kind for your children?'

"The witness answered by saying, `No sir, I do not.'"

Counsel for the defendant contends that the court in asking the above question committed substantial error, and that the rights of the defendant were abused. Counsel argues that the contention of the court is in substance that a pacifier is a piece of narcotic paraphernalia, and that the question to the presiding officer was of character as to persuade the jury that only narcotic users would have such paraphernalia.

We find that the trial judge was endeavoring to clarify the testimony adduced so that it would be intelligible; under such conditions, he had a right to interrogate Officer Warner in the manner above set out. State v. Coffil, 222 La. 487, 62 So.2d 651; LSA-R.S. 15:384.

The rights of the defendant were not prejudiced by the question propounded to Officer Warner; LSA-R.S. 15:557; the trial judge did not commit reversible error.

Bill of Exceptions No. 19 is without merit.

BILL OF EXCEPTIONS NO. 20

Bill of Exceptions No. 20 was reserved to the trial court's overruling defendant's objection to certain testimony given by Officer Patrick Lampard with respect to an incoming telephone call to defendant's home during the time of search and seizure.

We do not find that the testimony of Officer Lampard was hearsay testimony as contended by counsel for the defendant; it was relevant and was offered for the purpose of associating the defendant with the possession of narcotics. State v. Di. Vincenti, 232 La. 13, 93 So.2d 676.

Bill of Exceptions No. 20 is without merit.

BILL OF EXCEPTIONS NO. 23.

Bill of Exceptions No. 23 was reserved to the trial court's overruling defendant's objection to the introduction in evidence of the objects seized at defendant's home at the time of the search and seizure.

The trial judge states in his per curiam that, "In each instance same were properly identified, connected with the defendant and relevant to the issues in the case." In view of the trial judge's statement and our findings on Bill of Exceptions No. 2, there is no need for further discussion.

Bill of Exceptions No. 23 is without merit.

BILL OF EXCEPTIONS NO. 24.

Bill of Exceptions No. 24 was reserved to the refusal of the trial judge to grant counsel for the defendant a five minute recess at the time the State rested its case.

The trial judge states in his per curiam that at the time the request was made counsel did not assign any reason for the request, nor did the court know of any reason justifying the same.

Counsel does not state in the instant bill his reasons for the request. "* * * it is well settled that a bill of exception must state the grounds of objection or point out specifically the errors complained of in order that an opportunity may be given the trial judge to correct them, and that, if it is not sufficiently specific, it will not avail the party raising it. * * *" State v. Labat, 226 La. 201, 75 So.2d 333.

Counsel states in brief that he was surprised by the testimony adduced from various witnesses concerning the addiction of the defendant; that he needed a few minutes to obtain information to properly proceed with his defense.

In view of the facts associated with the taking of this bill, we do not find that the trial judge abused his discretion. We do not find that the defendant suffered any prejudice by the refusal of the trial judge to grant his counsel the five minute recess requested. LSA-R.S. 15:557.

Bill of Exceptions No. 24 is without merit.

BILL OF EXCEPTIONS NO. 25.

Bill of Exceptions No. 25 was reserved to the refusal of the trial judge to grant a mistrial.

The trial judge's per curiam sets forth as follows the events associated with the motion for a mistrial:

"During the cross-examination of one Herbert K. Dempsey, a defense witness, he was asked by the State, `Did you know James (defendant) to be a user of narcotics?' The witness replied `I don't know.'

"At this point defendant objected and asked for a mistrial. The court sustained defendant's objection, but denied the motion for a mistrial. He then reserved this bill.

"While defendant on the trial did not give his reasons for the objection and his request for a mistrial, in his bill, defendant asserts, `neither before nor subsequent to this question did your defendant in any way put his character at issue'.

"Prior to this objection the witness testified that he had known defendant and his family for 18 or 20 years, and had formerly roomed with defendant's family. He further stated that he had permitted defendant and his wife to occupy a room in his home free of charge some 8 or 10 days before this arrest; and, that defendant and his wife had the use of the bathroom. It was also his testimony that the eyedroppers identified by the police as having been found on the premises were similar to those used by the witness. It was also his testimony that the dresser in which the police found the narcotic, and its several drawers were kept in use by him and were filled with his belongings. He also stated that a relative of his had occupied a cot in his room for several days, and that he had put him out because he did not like the looks of his relative's friends, who had used the bathroom for too long a period.

The jury did not believe this witness, nor did the court.

"The witness was under cross-examination. He could be examined upon the whole case. (LSA-R.S. 15:376.)

"Whether defendant was addicted to the use of narcotics was a relevant and material question, on a trial for the possession of narcotics.

"However, as the bill discloses, the witness answered the question, that he did not know if defendant was addicted to narcotics.

"Out of an abundance of caution, the court sustained the defendant's objection. The state did not persue this line of questioning.

"As the court believed the question relevant, and the answer of the witness, did not prejuduce the defendant, the court refused to order a mistrial.

* * * *

"It will be noted that while defendant objected and asked for a mistrial, he did not request the court to instruct the trial jury to disregard the import of the question."

In view of the fact that the witness Herbert K. Dempsey stated that he did not know the defendant James to be a user of narcotics, we find that the defendant suffered no prejudice. LSA-R.S. 15:557; Cf. State v. Broussard, 202 La. 458, 12 So.2d 218; State v. Scruggs, 165 La. 842, 116 So. 206. The trial judge was correct in overruling the motion for a mistrial.

Bill of Exceptions No. 25 is without merit.

BILL OF EXCEPTIONS NO. 26.

Bill of Exceptions No. 26 was reserved when the trial court overruled objections advanced by counsel for the defendant to certain testimony elicited from the defendant's wife on cross-examination by the State.

The testimony had to do with Mrs. James' appreciation of her husband's situation at the time of the search and seizure; it also concerned her conversation with her husband when he was incarcerated at the Sixth District Precinct.

The formal bill gives no reasons for the objections advanced. No reasons were given for the objections at the time they were offered during trial. Under these circumstances, this bill presents nothing for our consideration.

Bill of Exceptions No. 26 is without merit.

BILL OF EXCEPTIONS NO. 27.

Bill of Exceptions No. 27 was reserved to the overruling of defendant's objection to the rebuttal testimony of Officer Justin Favalora.

Counsel for the defendant contended at the time of the objection that the matter to which the witness was testifying had been gone into on cross-examination. Officer Favalora was rebutting the testimony of defendant's witness Herbert Dempsey as to the contents of the chest of drawers in which the morphine tablet was found.

Rebuttal testimony is that which is given to explain, repel, counteract, or disprove facts given in evidence by an adverse party. LSA-R.S. 15:378-379; State v. Poe, 214 La. 606, 38 So.2d 359. It was within the sound discretion of the trial judge to sustain or overrule counsel's objection. We find no abuse of discretion in the trial judge's ruling admitting the testimony which was strictly for the purpose of rebuttal.

Bill of Exceptions No. 27 is without merit.

BILL OF EXCEPTIONS NO. 28.

Bill of Exceptions No. 28 was reserved to the trial court's overruling a motion to quash a bill of information filed against defendant as a multiple offender prior to sentence.

After the jury had rendered its verdict and a motion for a new trial had been denied, the State filed a bill of information against the defendant under LSA-R.S. 15:529.1, in which it charged that he was a double offender and urged that he should be sentenced as such. The State alleged that on August 31, 1954 the defendant was arraigned and pleaded guilty to violating LSA-R.S. 40:962 relative to the possession of narcotics; he was then sentenced to serve five years in State Penitentiary. In the instant matter the defendant was sentenced to serve a term of ten years in the State Penitentiary.

Counsel for the defendant contended that there was no legal evidence upon which to predicate his conviction in the present prosecution, and that the statute under which he was convicted, LSA-R.S. 40:962, was unconstitutional.

On original hearing we disposed of Bill of Exceptions No. 1 (defendant did not ask for a rehearing) and ruled upon defendant's allegations with respect to the unconstitutionality of LSA-R.S. 40:962. Our rulings herein with respect to Bill of Exceptions No. 2 is dispositive of the defendant's contention with respect to the admissibility of the controverted evidence.

Bill of Exceptions No. 28 is without merit.

BILL OF EXCEPTIONS NO. 29.

Bill of Exceptions No. 29 was reserved to the trial court's overruling defendant's motion for a new trial.

A number of the averments set forth in the motion for a new trial have been passed upon in our disposition of the foregoing bills of exceptions. The following averment, however, presents a charge that has not heretofore been considered:

"* * * The court will recall that it was only fifteen minutes between the retiring of the jury and the rendering of the verdict. It is respectfully suggested that the jury could not and did not in that length of time, give the accused the benefit of a fair and impartial trial and their verdict under such circumstances violated his constitutional rights and prerogatives as guaranteed him by both the state and federal constitutions. That counsel under the circumstances must come to the conclusion that someone, whether intentionally or unintentionally made known to the jury in the hallway or otherwise that the defendant had a long criminal record and that it is necessary that the jury be subpoenaed so that both counsel and this Honorable Court can inquire as to whether or not there was:

"1. Any tampering with the jury?

"2. Any intentional or unintentional statement made in their presence by anyone with reference to the criminal record of the defendant?

"3. To inquire as to whether the jurors or any one of them had learned from any source of the criminal record of the defendant, prior to their deliberations.

"That to this end, counsel respectfully requests that all of the members of the jury who returned the said verdict be subpoenaed on a date and hour convenient to this Honorable Court so that the above inquiry can be had."

In his per curiam to this bill, the trial judge states:

"At the hearing on the motion, the defendant summoned the 12 jurors who sat upon his case. Ten of their number responded. The following occurred:

"`Peter Bayer, a witness called by Mover, after first being duly sworn by the Minute Clerk, testified as follows:

"` * * * DIRECT EXAMINATION * * *

"`BY MR. GILL:

"`Q. Are you one of the gentlemen that was on the jury that rendered a verdict of guilty against this defendant?

"`A. I was.

"`Q. Please sir don't answer this question until his Honor rules. The question is did you learn from any source of any degree or connection with this case whatsoever anything concerning the past criminal record of this defendant?

"`BY THE A. D. AT. BRENER:

"`Object on the grounds the witness is not competent to answer.

"`BY THE COURT:

"`Article 470 of the Code of Criminal Procedure states that a jury can not invalidate their verdict or finding of guilt, they can only defend their actions and not attack it, therefore the State's objection is sustained.

"`BY MR. GILL:

"`To which if your Honor please respectfully object and reserve a bill of exceptions to the court's ruling and in addition with your Honor's approval and that of the State stipulate that if the same question would be asked of each other juror that would take the stand that the same objection would be made.

"`BY THE COURT:

"`The same objection would be made and the same ruling and the same bill of exceptions would be reserved without the necessity of putting anyone of the others on the stand.'

"It will be observed that defendant did not claim that any of the supposed possibilities referred to in his motion, did in fact happen. The possibility of some having occurred is simply asserted to explain the length of time needed by the trial jury to reach its verdict. The strength of the State's case and the weakness of the defense, might, with equal certitude have brought about the results.

* * * *

"It is obvious defendant was engaged in a `fishing' expedition. His surmise as to the possibilities referred to in his motion are that and nothing more. To entitle him to a consideration of this phase of the motion he must have alleged with some degree of positiveness, that same did happen. (L.S.A.R.S. 15:507.)

"Assuming for the sake of argument, that information concerning defendant's `long criminal record' did come to the attention of the trial jury, which is denied, the members thereof would be imcompetent to give testimony concerning same. (L.S.A.-R.S. 15:470)"

The shortness of time spent by a jury in deliberating on a verdict is not a ground for granting a new trial. State v. Le Blanc, 116 La. 822, 41 So. 105; State v. Nahoum, 172 La. 83, 133 So. 370; State v. Terrell, 175 La. 758, 144 So. 488, Certiorari Denied, 288 U.S. 589, 53 S.Ct. 386, 77 L.Ed. 968.

LSA-R.S. 15:170 provides:

"No juror, grand or petit, is competent to justify to his own or his fellows' misconduct, or to give evidence to explain, qualify or impeach any indictment or any verdict found by the body of which he is or was a member; but every juror, grand or petit, is a competent witness to rebut any attack upon the regularity of the conduct or of the findings of the body of which he is or was a member."

Under the provisions of the above statute, the trial judge was correct in not permitting the jurors to be interrogated with respect to their alleged acquisition of knowledge concerning the defendant's record.

Bill of Exceptions No. 29 is without merit.

For the reasons assigned, it is now ordered that the conviction and sentence of the defendant be affirmed. The right is granted to defendant to apply for a rehearing.

FOURNET, C. J., dissents being of the opinion our opinion on original hearing is correct.

McCALEB, J., dissents as to the ruling on Bill No. 2 being of the view that our original opinion is correct.

SANDERS, J., dissents and will assign written reasons.