On May 2, 1968, appellant, Charles R. Welch, was indicted by the Grand Jury for the Parish of Iberia with one William L. Hess and Bobby Gene Powers for simple burglary of a residence belonging to Mrs. Ivy Bailey in violation of R.S. 14:62. Prior to trial Powers pleaded guilty.
Bills Nos. 1 and 2 relate to appellant’s claim that certain items of property were taken in an unreasonable search and seizure of his premises by the deputy sheriffs without a search warrant and without his consent in violation of the Fourth and Fourteenth Amendments to the United States Constitution. Specifically, Bill No. 1 was reserved when the court ..denied appellant’s motion to suppress certain physical evidence, i. e., portions of meat, personal
The State admits that the officers did not have a warrant to search the premises appellant and his wife were jointly occupying with Hess. However, at the trial on the motion to suppress, it claimed that the search and seizure was not unreasonable since appellant and the other concerned parties voluntarily consented to the search and, indeed, assisted the officers in securing the items of physical evidence which were later introduced at the trial.
It appears from the record that Bobby Powers, who had been previously arrested for another burglary and who was in the custody of the two officers conducting the search, was appellant’s principal witness at the trial of the motion to suppress. Appellant, strangely enough, did not appear, (his presence was waived under Article 834 C.Cr.P.), and the only person who gave probative evidence on his behalf was Bobby Powers.
The testimony of Deputy Haik, who testified for the State, and Powers reveals that there had been a burglary of a place of business called “Movible Offshore” (the location of this business is not clearly disclosed by the evidence), wherein certain equipment, including a tire, an air temperature gauge, a sweater and a coat (belonging to one of the company’s employees) had been stolen. A warrant for the arrest of Powers had been secured, and officers of St. Mary Parish, ascertaining that Powers was working on a movable drilling rig, had Powers brought in to Franklin, Louisiana by helicopter where he was jailed. Shortly thereafter, the St. Mary Parish officers transported Powers to the Iberia Parish line where he was placed in the custody of Officers Haik and Robicheaux of Iberia Parish. Upon his transfer to Iberia Parish, Powers requested the officers take him to Jeanerette, where he had previously lived with Welch and Hess, for the purpose of securing his personal belongings which he had left at the
Powers testified that he had left some clothes and a duffle bag with appellant and Hess, and he was desirous of retrieving it. And it is clear from his testimony that he freely consented for the officers to search for his personal belongings. When Powers, accompanied by the two officers, reached the dwelling on Main Street, they went to the porch on the rear of the building where the wife of appellant was standing. Powers says that, as they approached, he gave a sign to appellant’s wife that he was accompanied by the police, and then she immediately left, stating that she would go over to the pool hall and get her husband and Hess. Thereafter, Hess and appellant returned, accompanied by Officer Robicheaux. When they appeared, according to Powers’ testimony, one of the deputys stated, “We’ve got some stuff missing. Would you mind helping us look for it?” and appellant replied, “Yes, * * * we’re going ahead and help you.”
The only difference between this testimony and that of Officer Haile is that the latter states that, when appellant and Hess came from the pool hall, they were told by the officers they wanted to search the place and requested permission, otherwise they, the officers, would secure a search warrant as they believed that some of the stolen goods were there, and further affirms that he and Officer Robicheaux remained on the back gallery and did not enter the house until appellant’s consent was secured. He says, “They told us it would be all right.”
The trial judge gave cogent reasons for his holding that the State had carried the burden of proof since appellant and Hess had freely consented, not only to the search of the premises, but also volunteered to help the officers in locating the stolen goods. The judge declared that, at the time of the search, Powers was under arrest in custody of the officers and, at that time, he was the only party suspected of being involved in the burglary of and theft from Movible Offshore. Hence, since Pless and Welch were not then suspected as either accomplices or principals, there was no reason for them to withhold consent to the search. Conversely, it was to their interest for the officers’ attention to have been
The law of this State and elsewhere is well settled that only unreasonable searches and seizures are protected by the Fourth Amendment to the Federal Constitution and Section 7 of Article I of the Louisiana Constitution and that, when the State relies on consent to establish reasonableness of the search, the burden is on it to show by clear and convincing evidence that such consent was given freely and voluntarily. See State v. Turner, 248 La. 141, 177 So.2d 115 (1965), and State v. Andrus, 250 La. 765, 199 So.2d 867 (1967), and the many authorities cited in these cases. In the instant matter, we think the district judge properly found that the State has carried the burden of showing that the consent to the search was given freely and voluntarily and, accordingly, Bills Nos. 1 and 2 are untenable.
While Mrs. Bailey, the victim of the burglary was testifying for the State, she was shown a television set and asked if she could identify it as the set which had been taken from her home. She first stated positively that she knew the set was hers and named the dealer from whom it was purchased. Subsequently, she weakened her testimony somewhat by stating that it looked like her television set. Whereupon, the State offered to introduce the television set in evidence, and defense counsel objected on the ground that the set had not been sufficiently identified. The judge sustained this objection in part and, at this time, he instructed the jury that it was entitled to give whatever weight it believed proper to Mrs. Bailey’s testimony that she owned a set similar to the one tendered in evidence. Counsel then objected to this instruction, and reserved Bill of Exceptions Nos. 3. He contends here in brief that, since the television set had not yet been received in evidence, the instruction to the jury was erroneous.
The bill is insubstantial. If any error was committed by the judge, it was his failure to receive the television set in evidence at the time it was offered, because the testimony attached to the bill clearly shows that Mrs. Bailey identified the set as the one stolen from her home. In any case, the instruction to the jury was not improper as Mrs. Bailey’s subsequent statement, that the set looked like her set, was clearly admissible. Whether the set, which was later received in evidence, was Mrs. Bailey’s television is a matter which addressed itself to the weight of the testi
While Hess, one of the accused, was testifying for the State, he was asked on cross-examination by defense counsel whether or not appellant appeared to him (Hess) obviously drunk. When the State objected to this question on the ground that it called for a conclusion or an opinion of the witness, it was sustained by the court. Defense counsel then reserved Bill No. 4.
In upholding the objection, the judge was of the view that the question as framed by counsel called for the giving of an opinion by the witness, and he stated in so ruling that the witness would be allowed to testify to facts that he saw but not as to his conclusion from the facts.
While this ruling may make too fine a distinction between the observations of a witness and the conclusions he draws therefrom, this is a matter that we need not here decide.
The conviction and sentence are affirmed.
. A man named Joe Singleton, who operated a pool room in Jeanerette, Louisiana situated across the street from the house which Welch, his wife and Hess were occupying, also testified. However, as found by the district judge in his ruling, Singleton’s testimony is of little value in determining the issue for decision on the motion to suppress. He simply testified that he had permitted Welch and Hess to occupy the premises, which he (Singleton) had leased, and that he had gone to the premises while the search for stolen goods was being conducted apparently by the occupants, Welch and Hess, in conjunction with the two deputy sheriffs and Powers. He was unable to say whether consent for the search had been first obtained from Welch, but he negatively stated that there was no reference anent consent while he was present.
. Although Powers’ statement varies somewhat as to whether the search had begun before appellant and Hess gave their consent, he admitted finally under cross-examination that the only items of personal property examined by the officers prior to the time appellant and Hess returned to the house was “my duffle bag and my box of clothes” with his (Powers’) consent.
. This Court has stated to the contrary in a prosecution for driving a motor vehicle while intoxicated. In State v. Blackwood, 162 La. 266, 110 So. 417 (1926), it was said that the question of intoxication is a fact and a matter of common knowledge and observation and evidence of it is not opinion evidence.