201 So. 2d 105 | La. | 1967
Appellant was charged on March 16, 1966 in three separate bills of information
On this appeal, appellant is relying upon three bills of exceptions reserved during the trial. These bills relate to the overruling of the motions to quash the bills of information, the overruling of his objection to the introduction in evidence of a worthless check in case No. 48,529 and the overruling of the motions in arrest of judgment.
Appellant’s claim of reversible error is founded on certain evidence which is par
Appellant was arrested in his hotel room in the city of Lake Charles where merchandise and other personal property were seized. The judge sustained appellant’s motion to suppress the evidence taken in this warrantless seizure on the ground that the officers did not have reasonable or probable cause to believe that a felony had been committed. The fact of appellant’s arrest was reported in the local newspapers and thereafter various local merchants who had cashed the worthless checks issued by appellant (on the faith of which he had obtained the seized wares and articles), contacted the police and made the complaints on which the present charges are based.
It appears to be the theory of defense counsel that, since appellant was illegally arrested and all evidence taken from his hotel room suppressed, the information concerning the worthless checks was obtained directly or indirectly as the product of the illegal arrest and seizure and, forasmuch as the prosecution is founded on the issuance of these checks, the bills of information should be quashed.
We find no merit in this claim. The trial judge pointed out in his per curiams that he had suppressed “ * * * all evidence that was seized in the defendant’s hotel room at the time of his arrest, and none-of this was offered at the trial of these cases. It is obvious that the worthless checks written by the defendant, which constituted the basis of the offenses for which he was prosecuted, were not obtained as a result of any search or seizure, * * ”.
If it be conceded that constitutional protection (United States Constitution, Fourth and Fourteenth Amendments) against use of the fruits of an illegal arrest and ttnlawful seizure of property extends to other evidence secured by law-enforcement officers as a result of information obtained by the unlawful search or arrest (see, for example, “The Fruit of the Poisonous Tree” doctrine as announced and applied in Nardone v. United States (1937), 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 and the second Nardone case (1939), 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307), this shield does not cover evidence obtained from independent sources, as in this case. The circumstance that the newspaper accounts of appellant’s arrest alerted the merchants, who had accepted the worthless checks in payment for the seized merchandise, does not justify a conclusion that the evidence used in these prosecutions are the product. of either the unlawful arrest or seizure,. This being so, the illegality of the prior-
The second bill of exceptions is predicated, in part, on the same ground as the first bill. It was taken to the admission in evidence of the worthless checks over the objections of appellant.
The other portion of Bill No. 2 has reference solely to case No. 48,529, in which appellant is charged with issuing a worthless check for $36.57 drawn upon Calcasieu Marine National Bank of Lake Charles, Louisiana, Enterprise Boulevard Branch. ' The check offered in evidence does not show that it was drawn on any particular ' branch of Calcasieu Marine National Bank but contains a rubber stamp notation across its face “Enterprise Boulevard Branch”. When counsel’s objection to the admission • of the check in evidence was overruled, an exception was reserved and he now asserts that there is a variance between the charge and the proof.
In his per curiam, the judge states that the objection to the admissibility of the check in evidence was based on the ground that the prosecuting attorney, in his opening statement, had declared that the amount of the check was $56.57 and not $36.57 and that the court overruled that objection because it was felt that counsel was in error. However, the court further stated in effect that, even if the prosecuting attorney had erroneously stated the amount of the check, it was an inconsequential mistake that could not prejudice appellant.
We find no error in this ruling. Since counsel failed to state in his objection to the admission of the check the basis of the complaint now made, the point cannot be raised for the first time on appeal. If it be conceded for purposes of discussion that there is a variance between the check described in the charge and the check offered in evidence, as the judge indicates in his per curiam, appellant should have directed the judge’s attention to the defect either during the trial or on an application for a new trial (which was not applied for),
Bill No. 3 was reserved to the denial of appellant’s motions in arrest of judgment. These motions are based on the same claims asserted in Bills Nos. 1 and 2. They were properly overruled, if for no other reason, because the motion in arrest of judgment reaches only those errors patent upon the face of the record. It cannot be aided by evidence. Articles 517 and 518 of our former Code of Criminal Procedure (R.S. 15:517 and R.S. 15:518); State v. Gatlin, 241 La. 321, 129 So.2d 4.
The convictions and sentences are affirmed.
. Originally there were 11 charges involving separate checks. Only three are before this Court on appeal, one for $33.-95, drawn upon the Gulf National Bank of Bake Charles (case No. 48,527) ; one for $41.12, upon Gulf National Bank of Lake Charles (case No. 48,528) and one for $36.57, upon the Calcasieu Marine National Bank of Lake Charles, Louisiana, Enterprise Boulevard Branch (case No. 48,529).
. Under R.S. 14:71, the crime of issuing worthless checks is made a felony when the amount of the chock is for more than $20.00.
. The second bill correctly raises the issue presented in the first bill as it relates to the alleged improper admissibility of evidence. Indeed, the first bill taken to the overruling of the motion to quash is procedurally without merit as the bills of information clearly and fully state the nature and cause of the accusations.
. Additionally, if there was a variance (which we doubt) appellant has suffered no injury as the evidence reveals that he has no bank account at all in Calcasieu Marine National Bank, neither at the main office nor any of its 19 branches.