
    STATE of Louisiana v. James CUMMINGS.
    No. 54605.
    Supreme Court of Louisiana.
    Oct. 11, 1974.
    Murphy W. Bell, Director, Michael Ca-vanaugh, Trial Attorney, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Anthony J. Graphia, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

James Cummings appeals his conviction on a charge of armed robbery (R.S. 14:64) for which he was sentenced to serve forty-five years without benefit of parole, probation or suspension of sentence.

Finding reversible error in the rulings of the trial court in Bills of Exceptions Nos. 5, 6, 7 and 9, we need not discuss the other bills reserved during the course of the trial.

These bills relate to the introduction by the State of evidence of another offense other than the one charged in this prosecution. The objections and motions for mistrial urge that the allowance of this evidence without prior notice by the State violates the rules laid down by this Court in State v. Prieur, 277 So.2d 126 (La.1973) and State v. Moore, 278 So.2d 781 (La.1973). The guidelines set out in the Prieur decision were not followed.

When defendant was arrested, a Derringer was found in his house. Three police officers testified at the trial that at the time of arrest the defendant admitted the gun belonged to him. Defendant took the stand and was asked if the gun was his. He stated that it was. The State cross-examined him regarding his asserted ownership. It was defendant’s testimony that he had purchased the Derringer from a “dude” in a bar some two or three months prior to his arrest.

On re-direct examination by his counsel, defendant again asserted his ownership by purchase of this Derringer. The State then called in rebuttal, the witness Boeker. Boeker stated that he had owned the gun, it having been given to him by his mother in 1950. He testified that this Derringer was stolen from him in a service station robbery on December 13, 1972. The robbery involved in the present prosecution occurred on December 21, 1972. In response to the State’s question: “And do you see the man in the courtroom who took it from you?” Boeker replied, “Yes sir.” The State then asked: Would you point him out to the jury” and Boeker answered : “Right there” pointing to the defendant.

The objections and motions for mistrial contained in these bills are levelled at this interrogation and the identification by Boeker of the defendant as the person who robbed him on December 13, 1972 and took the Derringer during this robbery.

The contention of the State is that this was rebuttal evidence offered to contradict the testimony given by the defendant himself that he was the owner of the gun. Thus, the State urges the Prieur and Moore decisions are not applicable.

The contention of the State has been answered adversely in two recent decisions of this Court handed down since the trial of this matter. In State v. Ghoram, 290 So. 2d 850 (La.1974) and State v. Pearson, 296 So.2d 316, handed down, 1974, the procedural rules of Prieur were held applicable not only to the State’s evidence in chief but also to cross-examination and rebuttal evidence.

It is to be observed that the issue of ownership of the gun by the defendant was first injected into the case by the State in its presentation of the testimony of three police officers. Defendant’s testimony as to his ownership of the gun was simply corroboration of the police officers’ testimony. There was no legal reason for the State to “contradict” this by offering the rebuttal testimony of Boeker as to the robbery of him by defendant, and allowing Boeker to point out the defendant as that robber in the presence of the jury.

Clearly, such procedure violates Prieur, Moore, Ghoram and Pearson. The erroneous admission of the extraneous offense is reversible error and grounds for a mistrial under Article 770(2) C.Cr.P.

For the reasons assigned, the conviction and sentence are reversed, and the case is remanded for a new trial.

SUMMERS, J., dissents and assigns reasons.

SANDERS, C. J., dissents with written reasons.

DIXON, J., concurs with reasons.

SANDERS, Chief Justice

(dissenting).

In the present case, the defendant took the witness stand in his own behalf. On direct examination, in response to his attorney’s questions, he testified as follows:

“Q That gun> — you knew that gun was yours ?
^ Right.
d Was it yours?
>5 Yes, sir.
d Is it still yours ?
^ Yes, sir.
o Where’d you keep that gun ?
> Kept it under my bed.” (Tr. 129).

I construe the defendant s testimony to mean that he owned the gun.

Assuming that the ownership of the weapon is a collateral matter and I have some doubt about this, the State is still entitled to contradict defendant’s testimony on this point. See State v. Ledoux, 157 La. 821, 103 So. 177 (1925); State v. Walters, 135 La. 1070, 66 So. 364 (1914); State v. Bellard, 132 La. 491, 61 So. 537 (1913); State v. Swindall, 129 La. 760, 56 So. 702 (1911) ; 2 Wharton’s Criminal Evidence (Torcia, 13th ed.) § 467, p. 408 (1972).

For the reasons assigned, I respectfully dissent.

DIXON, Justice

(concurring)

I respectfully concur.

The standard which determines the admissibility of evidence of an extraneous offense is whether the evidence is probative of a material issue, and whether the probative value of the evidence outweighs its prejudicial effect. State v. Moore, 278 So.2d 781 (La.1973). False or fabricated issues will not support introduction of evidence of other crimes even where such evidence is relevant to those issues. State v. Moore, supra, and the authorities cited therein. See also State v. Harrison, 291 So.2d 782 (La.1974); State v. Jordan, 276 So.2d 277 (La.1973).

In the instant case, ownership of the pistol was a false issue. The defendant was arrested in a house along with one Jackson. The police discovered the gun in question under a mattress. They then asked who the gun belonged to and the defendant admitted it was his. The source of the defendant’s possession or the true ownership of the weapon was never at issue in this case. Possession or access to the weapon was effectively removed as an issue from the case by the admission made by the defendant in his out-of-court statement and his testimony from the stand.

The State argues that the evidence was admissible to show that the defendant lied from the stand when he stated that he had bought the gun. The evidence is thus alleged to be relevant to the credibility of the defendant.

Although the credibility of a defendant who takes the stand is always at issue, the methods by which he, or any witness, may be impeached are limited. One limitation is that a witness may not be impeached on a collateral matter. R.S. 15 :494.

It is clear that ownership of the weapon and the source of the defendant’s possession were collateral facts in this prosecution since they were not real and material issues.

The jurisprudence of this State has developed a rule that the prosecution may contradict the defendant’s testimony given in examination in chief upon an issue which he brought into the case even though it is immaterial and collateral. See State v. Ledoux, 157 La. 821, 103 So. 177 (1925); State v. Walters, 135 La. 1070, 66 So. 364 (1914); State v. Bellard, 132 La. 491, 61 So. 537 (1913). Under this rule only collateral facts elicited on cross-examination may not be contradicted. State v. Swindall, 129 La. 760, 56 So. 702 (1911); Wharton’s Criminal Evidence, Vol. 2, § 467 (13th ed. 1972). The apparent purpose behind this rule is to prevent the entrapment of a witness subject to a broad scope of cross-examination which is not necessarily limited to material issues and may, within discretion of the court, range rather far afield, while, at the same time, permitting the impeachment of a witness who deliberately includes untruths in his testimony even though they are not germane to the case.

Where a defendant takes the stand and undertakes to testify on direct examination with regard to activity extraneous to that at bar, I have little doubt that evidence of other offenses which contradicts that testimony and thus impeaches the witness is admissible. Cf. State v. Ledoux, supra. In such an instance I do not believe that the notice requirements of Prieur would be applicable, since the use of the evidence could not reasonably be anticipated by the State.

In the instant case the testimony of the defendant on direct — that the gun was his —amounts to no more than an assertion that the gun was in his possession. The statement did not tend to exculpate the defendant; rather it had the opposite effect. The State then proceeded to fabricate the issue of ownership of the weapon by eliciting from the defendant on cross-examination a story of how he acquired the gun. Then on rebuttal this story was contradicted by a witness who testified that the gun was his and had been stolen from him by the accused.

Under the circumstances I do not believe the simple admission made by the defendant from the stand constituted such testimony as to justify introduction of evidence of other crimes,. Rather, the State on cross-examination erected a basis on which it could impeach the witness on a collateral matter by use of evidence of other crimes. Such a procedure is improper and the prejudicial nature of the evidence used to contradict dictates reversal.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by the Chief Justice.  