
    257 So.2d 644
    STATE of Louisiana v. Annie Wainwright DIMOPOULLAS.
    No. 51188.
    Jan. 17, 1972.
    Rehearing Denied Feb. 21, 1972.
    
      DeBlieux, Guidry & Lowe, J. D. De-Blieux, Baton Rouge, for defendant-appellant.
    Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Sargeant Pitcher, Jr., Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant was convicted by a jury and sentenced for violating R.S. 14:81—the commission of lewd and lascivious acts with a male child under the age of seventeen with the intent of gratifying her own sexual desires.

We find no reversible error, and will discuss the bills of exceptions in the order in which they were briefed.

Bill of Exceptions No. 1 is without merit. The defendant objected to allowing a prosecution witness to testify from certain photographs. The basis of the objection was that no foundation had been laid for the introduction of the photographs into evidence. The defendant was adequately protected when the judge instructed the jury that it might consider testimony concerning the photographs only if they were subsequently received into evidence. The photographs were subsequently admitted into evidence without objection from the defendant.

Bills of Exceptions Nos. 2, 3 and 4. Defendant claims she was unduly limited in cross examining the prosecution witness, the father of the “victim” of the offense. The first question ruled inadmissible asked for a description of the incident which resulted in the witness’ son’s first detention in the juvenile facility. The second question ruled out referred to the witness’ son’s school record. The third such question was, “How old was your son when you first started having difficulty with him?” The trial judge was correct in ruling the questions irrelevant, and therefore improper for the purpose of impeaching the testimony of another witness. See R.S. 15:491, 494.

Bills of Exceptions Nos. 5, 7 and 11 concern the introduction into evidence of testimony that defendant purchased “model glue,” that it was one of the substances covered by R.S. 14:93.1, and that defendant supplied the prosecuting witness with the glue, knowing that he intended to use it to intoxicate himself. Defendant contends that she was unduly prejudiced by the introduction of evidence tending to show that she committed criminal acts separate and distinct from that charged.

“Glue sniffing” is inextricably bound to the circumstances of this case. The young prosecuting witness testified that the defendant supplied him with glue often, and that it figured in his relationship with her. He was in frequent difficulty with his family and the juvenile authorities because of glue sniffing. He was friendly with defendant’s son, a contemporary of his, and testified that they were “stoned” together at defendant’s house. On November 4, the day defendant was arrested, she brought glue to the prosecuting witness, at his request. Much testimony about the glue was admitted without objection. The facts concerning the glue are relevant to the relationship of the defendant and the witness, and bear upon the offense charged. There is no error demonstrated by Bills of Exceptions Nos. 5, 7 and 11.

Bills of Exceptions Nos. 6 and 10 were taken to the introduction of tape recordings of telephone conversations between the accused and the prosecution witness. Defendant obtained an order for the production of “all documents, purported confessions, tapes or other exhibits which the State may have or intend to use on the trial of this matter instanter.” The objection to the use of such tapes was based: on the denial by the district attorney that he possessed tapes; that the district attorney failed to mention tapes in his opening statement; and that C.Cr.P. arts. 768 and 769 make it the duty of the State to inform the accused of the intention to use inculpatory statements in advance of trial. The record does not disclose that the tapes contained inculpatory statements. They were of a poor quality, and were partly inaudible. The tapes were of telephone conversations, taped by police officers in the home of the prosecution witness on the day the accused was arrested. Telephone conversations were mentioned by the district attorney in his opening statement. He need only “set forth, in general terms, the nature” of the State’s evidence. C.Cr.P. art. 766. It is not contended that the accused, in the taped conversation, confessed to a crime or admitted to an illegal act. An inculpatory statement must be incriminating. Otherwise, the statement is not governed by rules applicable to confessions. State v. Andrus, 250 La. 765, 199 So.2d 867. The defendant is not entitled to the production of statements which are not inculpatory. See State v. Crook, 253 La. 961, 221 So.2d 473. Although the defendant now argues that the tapes should not be admitted because the district attorney denied that he had any before the trial, the defendant did not urge this as a reason for excluding the evidence before the trial judge, and did not demonstrate that she was prejudiced by the denial. When it became evident that the State intended to introduce the tapes in evidence, the defense attorney demanded and was accorded the right to hear the tapes out of the presence of the jury, before they were introduced into evidence. The trial judge correctly ruled that the evidence was relevant and competent. The use of the tapes in cross-examination of the defendant was not improper.

Bill of Exceptions No. 8 was reserved to the denial of the defense motion for a directed verdict. This court has repeatedly held that the trial judge is without authority to grant a motion for directed verdict at the close of the State’s case. See State v. Graves, 259 La. 526, 250 So.2d 727 and cases there cited.

Bill of Exceptions No. 9 was reserved when defendant’s husband, on cross-examination, was asked if his son was in a mental hospital. It is true that the question was immaterial and irrelevant. The district attorney should not have asked it, and the trial judge should have sustained the objection. This erroneous ruling, however, is not grounds for reversal. C.Cr.P. art. 921. To subsequent continued questioning of the witness concerning misconduct of the son, defendant did not reserve a bill of exceptions. Bill of Exceptions No. 9 is without merit.

Nor is there merit to Bill of Exceptions No. 12. It was reserved to the overruling of a defense objection that certain testimony was not proper rebuttal. The trial judge correctly ruled that the testimony sought tended to contradict and explain prior testimony of a defense witness.

The final Bill of Exceptions, No. 13, was reserved when the trial judge did not sustain defense objection to certain rebuttal argument of the district attorney. The argument concerned the difference between the date of the offense charged in the bill of information and the dates of sexual misconduct by the defendant testified to by the youthful “victim.” The bill charged that the defendant “on the fourth (4th) day of November . . . did violate L.R.S. 14:81 in that she being over the age of seventeen did commit lewd and lascivious acts with Roger D. Bailey, a male child under the age of seventeen, with the intent of gratifying her own sexual desires, . . . ”

In answer to a motion for a bill of particulars, the State alleged that the lewd acts with which the defendant was charged were sexual intercourse and unnatural carnal copulation, on or about October 29, 1969 and on or about November 4, 1969. On argument on the motion, an assistant district attorney stated he would strike from the answer the words “and numerous other occasions.” Evidence of sexual activity between defendant and the prosecution witness on October 29 was admitted without objection. There was never an attempt made by the State to amend the bill of information. (See C.Cr.P. art. 488; State v. Long, 129 La. 777, 56 So. 884).

At the time of the defense objection to the district attorney’s summation, the trial judge instructed the jury that the “argument of counsel is not evidence. The Court will instruct you as to the law at the conclusion of the argument.”

The district attorney argued that the date and time of the offense, charged in the bill of information in the case before the jury, were immaterial under the law of Louisiana. Of course, the date and time of the offense are not “immaterial.” The district attorney simply referred to the provisions of C.Cr.P. art. 468:

“The date or time of the commission of the offense need not be alleged in the indictment, unless the date or time is essential to the offense.
“If the date or time is not essential to the offense, an indictment shall not be held insufficient if it does not state the proper date or time, or if it states the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day.
“All allegations of the indictment and bill of particulars shall be considered as referring to the same date or time, unless otherwise stated.”

A portion of the Official Revision Comment on C.Cr.P. art. 468 is:

“(b) This article follows the substance of the source provisions in providing that the indictment need not state the date or time of the crime unless the date or time is essential to the offense. However, instead of the single word ‘time,’ this article employs the more expressive ‘date or time.’ A robbery, burglary, or theft indictment need not state the date or time of the crime. On the other hand, if the crime is dependent upon the defendant’s act having been committed on. a specific date, such as election day or Sunday, the date of the crime is an element of the offense and must be charged in the indictment.”

The objection is simply to the argument of the district attorney before the jury. There is no contention that the accused was surprised or in any way prevented from defending herself from the accusation of misconduct on or about November 4, nor on or about October 29. The argument of the district attorney was designed to assist the jury in reaching a conclusion on a technical feature of the criminal prosecution — one which was argued and relied upon in the summation of the defense. The argument was not improper. The Code of Criminal Procedure provides in article 774:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
“The argument shall not appeal to prejudice.
“The state’s rebuttal shall be confined to answering the argument of the defendant.”

There is no merit to Bill of Exceptions No. 13.

For these reasons, the conviction and sentence are affirmed.

BARHAM, J., concurs.

SUMMERS, Justice

(concurring).

While agreeing with the result reached in this case, I cannot subscribe to all of its content, especially the statements in footnote 1. It is to answer the questions raised by this footnote and other objections to the Hudson Case that I file this concurring opinion.

Although the footnote is unclear, the implication may be drawn that the decision in State v. Hudson, 253 La. 992, 221 So.2d 484 (1969) is not well-founded, and invalidating the directed verdict is undesirable. In Hudson we declared Article 778 of the Code of Criminal Procedure unconstitutional. We held that the trial judge could not direct a verdict in a jury trial. This conclusion was based upon the constitutional mandate that “The jury in all criminal cases shall be the judges ... of the facts on the question of guilt or innocence. . . . ” La. Const, art. 19 § 9. From this premise we reasoned that to permit the judge to direct a verdict was, in effect, to permit him to acquit the accused, and in doing so he would usurp the jury’s prerogative as the finders of fact on the question of guilt or innocence.

To “demonstrate” a "problem” the Hudson Case presents, the footnote sets forth:

When the trial judge in the instant case ruled on the motion for a directed verdict, he stated, “there is nothing in the record which would support a conviction for indecent behavior on the date alleged in the bill of information, so as stated, the Court would grant a directed verdict, should the Court be authorized to do so.”

Notwithstanding these observations of the trial judge the jury convicted. From this we infer the reader should conclude that the jury finding was unsupported.

This difference of opinion between the trial judge and the jury on the same fact question does not illustrate the desirability of retaining the directed verdict. Rather, this paradox makes the point most emphatically that the directed verdict is incompatible with the constitution and it was properly reprobated by this court. La.Const. art. 6 § 10 (1921); La.Const. art. 9 § 9 (1921); La.Const. art. 6 § 18 (1812); State v. Graves, 259 La. 526, 250 So.2d 727 (1971) and cases cited there.

The likelihood of disparity between the jury’s conclusion and the judge’s conclusion in a given fact situation is a problem the constitution recognizes. It is for this reason a choice is made in the constitution to vest fact finding in the jury in jury trials. The reasons for the choice are obvious.

It is unrealistic to say that a judge is better equipped for fact finding than twelve good men selected from a cross-section of the community who bring to the jury box their wide and varied experience and wisdom. To the contrary, a judge will tend after years on the bench to categorize the witnesses and litigants before him.

In deciding upon the truth of the witnesses’ testimony, as it relates to the conduct of an accused in a given case, the value of human experience can hardly be overemphasized. It is this role the jury performs as a finder of fact. Fact finding is the most difficult problem in the law, and upon reflection, all reasonable men will concede that it is really not a legal problem requiring the sophisticated, educated approach of a lawyer or judge.

Law and justice are from time to time inevitably in conflict. The conflict arises from the nature of law in general, consisting as it does of general rules, while justice is the fairness of a precise case under all of the circumstances. Thus, Wigmore asserts, “this is where the jury comes in. The jury, in the privacy of its retirement, adjusts the general rule of law to the justice of the particular case.” Wigmore favored the jury trial because, “it supplies that flexibility of legal rules which is essential to justice and popular contentment.” The inarticulate nature of the jury findings and the secrecy of the jury room are the elements which more nearly attune justice to the popular concept in any one case. Here the standards of the particular community whose citizens are directly involved come into play and the harshness of the law is often mitigated or its leniency adjusted to that standard. Wigmore, A Program for the Trial of Jury Trial, 12 Am.Jud.Soc’y. 166 (1929).

The role of the jury is fundamental in our system of justice. Concerned about efforts to erode freedom of the press, the writ of habeas corpus, and trial by jury, Thomas Jefferson felt that “these principles form the constellation that has guided our steps throughout the years. The wisdom of our heroes has been devoted to their attainment. If in a moment of alarm we wander from them, let us hasten to regain the road which alone leads to peace, safety and liberty.” Rucker, Justice and the American Civil Jury, 33 N.Y.S.B.J. 133 (1961).

These are the principles which our constitution strives to preserve; these are the principles this court upholds in striking down the directed verdict.

In our decision in State v. Hudson, 253 La. 992, 221 So.2d 484 (1969), declaring the directed verdict in jury trials authorized by Article 778 of the Code of Criminal Procedure to be unconstitutional, the dissenting justices felt we should examine the authority of the Court to sua sponte pass upon the constitutional issue.

The answer to this question is found in Article 920(2) of the Code of Criminal Procedure which permits this Court to consider on appeal “Any error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” The comment to the article elaborates: “For example, if a statute is unconstitutional, the appellate court should be entitled to review the constitutionality of the statute, and if the opposing party is surprised by the raising of the new issue, it is a simple matter to grant a continuance.”

Despite the fact that the Hudson Case had been repeatedly affirmed, it was not until State v. Williams, 258 La. 801, 248 So.2d 295 (1971), that an effort was made in a concurring opinion to attack the rationale of the Hudson decision. That analysis of the case is premised upon this statement: “in ruling on a motion for a new trial, the trial judge is under a duty to pass upon the sufficiency of the evidence to support the conviction. La. Code Crim.P. Art. 851(1); State v. Daspit, 167 La. 53, 118 So. 690 (1928).” Hence it is asserted, since the directed verdict requires no more of the judge, it is not unconstitutional.

Article 851(1) of the Code of Criminal Procedure requires that a new trial be granted whenever “The verdict is contrary to the law and the evidence.” This article does not require the trial judge to pass upon the sufficiency of the evidence in a jury trial. To the contrary, as we have so often held, an allegation that the verdict is contrary to the law and the evidence presents nothing for review. State v. Anderson, 254 La. 1107, 229 So.2d 329 (1969). It is only where the motion for a new trial sets forth the particular manner in which the verdict is contrary to the law and the evidence that a question is presented for consideration.

Thus the lack of any evidence to support an essential element of the crime may present a question of law for the judge to review, but the question of the sufficiency of the evidence is a fact question for the jury. State v. Cattana, 173 La. 151, 136 So. 299 (1931).

The Daspit Case relied upon in the concurring opinion has never been cited by this court, except by one of the justices dissenting in the Hudson Case and the reference to it in the Williams Case concurring opinion. The Daspit Case is, to say the least, contrary to the great weight of authority in this State. See also State v. Daspit, 167 La. 1048, 120 So. 772 (1929). Nevertheless, conceding arguendo that the trial judge may pass upon the sufficiency of the evidence on a motion for a new trial, it does not follow that a motion for a directed verdict is permissible under the constitution. Granting a new trial does not acquit the accused. Its effect is to require that he be tried before a new jury. Granting a motion for a directed verdict, however, results in acquitting the accused. Granting a directed verdict, therefore, requires that the judge pass upon the innocence or non guilt of the accused contrary to the constitutional guarantee “That the jury in all criminal cases shall be the judges of the law and of the facts on the question of guilt or innocence. . . . ” La.Const. art. 19 § 9. A directed verdict may not be employed to accomplish indirectly what the judge may not constitutionally do directly.

The footnote also poses this question: “In the absence of a motion for a directed verdict, how is the question of no evidence to be raised and preserved for review?” The question is then answered by saying, “Grounds for a new trial do not include no evidence.” This answer is incorrect.

The question of no evidence is raised in a motion for a new trial. The rule is stated in State v. Latigue, 251 La. 193, 203 So.2d 546 (1967), viz:

Article VII, Section 10 of the Louisiana Constitution limits the scope of appellate review in criminal cases to questions of law. When there is some evidence of the essential elements of the crime, this Court cannot review the sufficiency of the evidence, (omitting citations)
A question of law is raised, however, when defendant in a motion for new trial alleges the complete absence of evidence as to a specified element of the crime and makes the entire transcript of testimony a part of his Bill of Exceptions. See State v. Cade, 244 La. 534, 153 So.2d 382; State v. McLean, 216 La. 670, 44 So.2d 698; and State v. Wooderson, 213 La. 40, 34 So.2d 369.

As the articles of the Code of Criminal Procedure (La.Code Crim.Proc. arts. 851-58) set forth, the motion for a new trial is based upon the supposition that injustice has been done. A new trial may be granted whenever “The verdict is contrary to the law and the evidence,” provided the specific basis for such a claim is set forth in the motion. Thus the verdict is contrary to the law and the evidence when there is no evidence to support one of the named essential elements of the crime.

It is only necessary for the accused in a criminal case to allege in his motion for a new trial that there is no evidence to support an essential element of the crime, setting forth the element of the crime. If there is no evidence to support an essential element of the crime the motion for a new trial should be granted. On the other hand, if there is any evidence, no matter how little, upon which the jury could base its findings, the judge should deny the motion for a new trial.

When a motion for a new trial is denied, a bill of exceptions should be reserved attaching thereto and making a part thereof a transcript of all evidence taken at the trial. When this bill reaches the Court on appeal, it then presents for review the question of no evidence, which is a question of law.

I respectfully concur.

On Application for Rehearing

Rehearing denied.

TATE, Justice

(concurring).

I concur in the denial of the application, as I signed the original opinion, with grave misgivings.

In denying a motion for a directed verdict (a procedural device which this court has invalidated), the trial judge noted that “there is nothing in the record which would support a conviction for indecent behaviour” as charged. Tr. 192. I personally feel that, could we review the evidence, we might well reach the same conclusion.

Discarding all of the testimony irrelevant to the actual offense charged, the relator was essentially convicted of kissing a boy on November 4th. The evidence of her previous alleged sexual connection with the boy, ostensibly introduced to prove lascivious intent to kiss, is in some large part disproved by admitted inaccuracies in the testimony of the prosecuting witness, a juvenile delinquent repeatedly committed to a detention home.

There is much in the record to suggest that the defendant was convicted because of technically relevant but grossly over-emphasized and prejudicial argument and testimony concerning “glue sniffing” by this juvenile delinquent.

The jury most probably convicted this lady, not of the offense charged, but simply because she had bought glue for the delinquent (she says, innocently). If this were the offense charged, the jury could reasonably determine her guilty of such act as contributing to a minor’s delinquency.

We, as a reviewing court, cannot reverse this conviction of a sexual delinquency on the date charged, although, in my view, no evidence supports it. With regret, I concur in rather than dissent from the denial of rehearing, because our procedure does not admit of correction of an unfounded conviction under the circumstances here represented. 
      
      . This ease demonstrates a problem involving the holding of State v. Hudson, 253 La. 992, 221 So.2d 484. When the trial judge in the instant case ruled on the motion for a directed verdict, he stated, “there is nothing in the record which would support a conviction for indecent behavior on the date alleged in the bill of information, so as stated, the Court would grant a directed verdict, should the Court be authorized to do so.” There is no evidence of lewd and lascivious acts on November 4. The instructions confined the jury to acts on November 4. The district attorney argued to the jui-y that kissing was lewd and lascivious in view of evidence of prior sexual acts between the parties. The jury convicted. In the absence of a motion for a directed verdict, how is the question of no evidence to be raised and preserved for review? Grounds for a new trial do not include no evidence. The motion in this case tracked the provisions of C.Cr.P. art. 851, and alleged that the verdict is contrary to the law and the evidence. This court has repeatedly held that this presents nothing for review. At any rate, the record does not reflect that a bill was reserved to the overruling of the motion for a new trial and none was perfected. The provisions of C.Cr.P. 841 and 920 would operate to prevent review.
      Presumably, in an appropriate case, when a bill is reserved and perfected, this court would hold that the “no evidence” question can be preserved for review in a motion for a new trial. See State v. Matthews, 257 La. 220, 242 So.2d 227; State v. Heymann, 256 La. 18, 235 So.2d 78; cf. State v. Gatlin, 241 La. 321, 129 So.2d 4.
     