*1
STATE of Louisiana
Lawless MARTIN.
No. 48397.
May 1, 1967.
Rehearing Denied June 708; *2 Doane, Orleans, _E. de- New
Walter fendant-appellant. Gen., Gremillion, Atty. P. .Wil- F..
Jack Schuler, Atty. Gen., liam P. Asst. Jim. Garrison, Korns, Atty., Dist. Louise Asst. Dist.'Atty., appellee.' McCALEB, Justice.
Appellant
possession
tried for
attempted pos-
marijuána and
convicted
imposition
Following
of sentence
session.
appeal, relying
prosecuted this
on seven
during the
exceptions
reserved
bills
of his conviction.
trial for reversal
the,
No. 1 was taken
prescription filed
overruling
plea
of a
by appellant prior
plea
to trial. This
court shall order
the dismissal of said
provisions
prosecution,
founded on the
Articles
and the same
shall
there-
former
9 of our
Code of Criminal Proce-
after be revived.”
dure which
at
law
effect
past
We have had occasion in the
prosecution.1
time of the
those
explain the difference between these two
period
year prescriptive
Articles a three
Articles, dealing
prescription upon
with
provided
felony
prosecution
for the
of all
Bradley,
trials.
In State v.
declares,
(R.S.
cases. Article 8
15:8)
provisions
The on of stated 15:357), it is (R.S. Procedure inal continuances, appellant 14, 1964. Of these jurors purpose examination of that the of 1959, 27, March (October obtained four qualification of is to ascertain May 29, 1964). 1960, 16, 24, July 1962 and juror in the trial of the case in which judge cited these continuances The district tois and examination has been tendered of provisions ground holding as the for purpose. Obviously, the be limited to that the view inapplicable, being Article counsel, defense question propounded action, es- appellant, by had his own criminal in another verdict rendered days continuances caped trial on the juror prospective proceeding on which granted. were Since the record does served, irrelevant to the ascertain had affirmatively show these continuances juror’s qualifications to serve ment for a cause and not were secured lawful Swain, See v. in the case at bar. purposes delay, ruling is cor- Odom, 20, 180 La. So. Truett, 955, 89 rect. Cf. La. State v. So.2d 909 and authorities So.2d 754. Oliver, La. cited, and there State v. It manifest that Article of our is also 729, 174 So.2d is not former Code of Criminal Procedure 3 recites that applicable. at no The minutes show defense refused was taken when years between during time the five witness, request have a State counsel’s trial of filing of the information and the Police New Orleans of the Officer Leaber years three case did State allow report produce Department, police step elapse prosecutive taking without The purpose cross-examination. proceeding. request states curiam plea prescription had testified. before the witness was made overruled. *4 report However, the minutes show to Exceptions No. 2 was taken Bill of of requested cross-examination during was objec- sustaining in the the court’s action police officer. question propounded the State to a of it immaterial whether juror find prospective We by to a defense counsel during concerning prior to or request made examination, on his voir dire 713 714 For, Nevertheless, officer’s in either cross-examination. we find merit no in merit the bill as case, the is without because the evidence attached thereto bill that the trial lay judge defense to foundation reveals found failed a that qualified oyer police report. juris- give for The Schoenshardt was of to expert testimony prudence concerning his chemical is now well settled that the State analysis police of evidence seized required inspection is a permit to of which he marijuana. found to be The police report prior use or a statement for graduate a witness as of Louisiana State cross-examination a State witness of University and impeachment has been certified purposes ac- unless the position of report City State Chemist Civil cused first shows that indicates this, Service Commission. addition that more to one or of the material statements taught he chemistry has testimony high school and contrary therein are sworn to the analytical has laboratory done Weston, of considerable the witness. La. 232 v. jurispru some 766, 305; work for time. Sbisa, 95 v. La. So.2d 232 Court, 961, province dence this it is within the 95 619 Cooper, So.2d and State v. 654, judge of the trial 249 decide whether La. 190 to witness So.2d experts es offered as to be heard 4 forth that it sets was taken that capacity and ruling his will not be dis Schoenshardt, City when Enno of New appeal clearly appears turbed on unless chemist, testify permitted Orleans erroneously. has he ruled :- R.S. objection, an expert, over his respecting 466; Carter, 547, State v. So.2d analysis findings from chemical made Nicolosi, 65, State v. La. 81 So. of the evidence used in the case. The 2d Mills, 771 and State La. states in curiam his So.2d 895. sign refused this bill because the tran- script of the evidence also and the minutes Bill of re No. was reflect that no bill was reserved to served to introduction in evidence ruling qualified Schoenshardt through 18, appel State Exhibits 1 over give expert testimony. objection. lant’s These exhibits consist packages marijuana several cigarettes apparently is mistaken in this paraphernalia and other found in a bucket for the statement shows that his record Bar, at the Pair-A-Dice where signature appended the bill was the bartender. entry 31,- 1966, minute of August declares day signed “The (7) Appellant’s objection reception Court this seven Bills Exception (7) cigarettes Per seven Curiams on evidence based envelope ground flap same”. *5 either Officer initials of bearing the trial as open the cigarettes when was containing the Leaber, or Officer Verdi, in the safe Officer Weber removed evidence was cigarettes the officers who seized deposited by Dan- the three it had been which John them and delivered Chemist, bar, marked City who had in the neker, the former clearly ap- Chemist, it City them the receiving the evidence. to died since laid was foundation pears the he that, when took testified Schoenshardt of the the introduction the State for mari- envelope containing the the brown cigarettes in evidence. analyze cigarettes the safe to juana out of bill is with- hold that therefore this We envelope contents, the flap the the out substance. proved However, the not sealed. the combina- only Danneker had Dr. taken No. was Bill of cigarettes the safe which to give to to to the refusal of death, and after were locked requested by de charges special seven only and then opened once safe was in his fense counsel. The states daughters, presence Dr. Danneker’s rejected special charges curiam that of Public (the Dr. Director Gardiner in his they were contained either because Pancamo, a a Mrs. Health), Mr. Reimer and qualification, charge required general or letter- four therefrom in order remove explanation. gen limitation or Since envelopes “personal property” marked sized charge to and made eral was not attached Afterwards, safe of the decedent. part the bill and is not contained and, subsequently, lock and closed locked re record, presents nothing the bill changed key employed, who and man was view. presence in the safe combination of Crim- former Code Article 390 our Reimer Dr. of Mr. Gardiner. applicable Procedure, inal which was Reimer to Mr. given new combination was requested case, provides this key envelope by lock and in a sealed they given charges need not be when envelope kept this man and the former they charge if general contained in or until the new in his desk drawer locked explana- require qualification, limitation or Schoenshardt, City Chemist, ap- Mr. tion. pointed, at which time the new combination given to Schoenshardt to the safe was reserved Reimer. overruling of a motion new trial.. motion, appellant seven In this sets out In foregoing view of the circumstances why every granted. reasons a new trial should be fact that one further marijuana these, Of three have been discussed and cigarettes at the was identified disposed bills heretofore con- 6 of the motion preju paragraph sidered and the last that the ground is ver- dicial error is claimed because of the fail contrary dict law and the evi- ure of the prove dence, presents nothing marijuana for our re- had gleanings clothing in his view. notwithstanding State, in answer
to a .particulars, motion for a bill of had *6 paragraph It is contended in 2 of set forth prove appel it would the motion new trial that the court lant’s clothing did gleanings. contain such erred in failing grant a continuance be It is difficult appellant to understand how only cause appellant’s of the absence of prejudiced by the failure of the State witness, who ap was not available. Since every, submit evidence fact to establish pellant object overruling failed to alleged prove it intended to in its answer motion for and did a continuance particulars. to the bill of Suffice it time, not reserve a bill at the the State offered some show evidence to acquiesced has ruling of the court appellant’s possession marijuana ciga complaint and his cannot now be considered. charged rettes as satisfied See Article 510 of our former Code of that he guilty attempted possession, Criminal Procedure. a lesser offense. The motion new trial was category the same is paragraph overruled. trial, of the motion for a new in which The conviction and affirmed.
appellant sentence.are contends that the court erred in permit failing disposi him to show the HAWTHORNE, (concurring in charges against persons other Justice part).
present appellant in the barroom when object arrested. Since did not I opinion subscribe- to the all bills the ruling at the time made, it was he is exception except Bills Nos. 1 and acquiesced held to have therein. and as to these I concur in the result. .