State v. Bell Court Opinion

    ffi,nte{e, L.aL' d bLvLrq L't!tl/r' l/vLgrLl'ln-gvl
e%- q b,v?'L)<)n, W|4b^tl

La. 279 SOUTEEBN REPORTER, 2d SERIES16,1

employee of the victim, Mrs. Joyce Per-
kins), IVIr. Kenneth Anthony Temple, and

the testimony of Terrance J. Strada, thc
police patrolnran who exhibitcd the set of
photographs (including a picture of the dc-
fendant) to Mr. Temple and the other eye-
witncsscs. Defendant complained that the
identification proccdure was suggestive
arrd that he had the right to have counscl
present at the viewing of the photographs
by the witness arguing that a photographic
identification is a critical stage in the
prosecution.3

tZ) Thc record does not disclosc any-
thing to suggest that the police procedure
cmployed would give rise to any substantial
likelihood of irreparable misidentification.
We are in accord with the ruling of the
trial judge that the defendant made no

showing that the circumstances under
which the identification took place werc
suggestive in any manner. All witnesses
who identified the photograph of the dc-
fendant testified that the police did nothing
to suggest which photograph they should
identify as the robber. Each witness was
presented rvith four photographs of sub-
jects of similar physical characteristics and

they all positively identified the photo-

graph of the defendant as the armed rob-

ber.

t3] Dclense counsel's argument that
counsel should have been afforded at the

pre-indictment photograph identification is
forecloscd by Kirby v. Illinois,406 tJ.S.

682, 92 S,Ct. t877, 32 t-.Ed,2d, 4lt (1972).

Undcr these circumstances we find that
thc trial court was correct in allowing the

in-court identification of thc defendant.

Iror the reasons assigned, the conviction
an<l sentence are af firmcd.

3. 'l'lrix Blurrf rlrxlrnr)rtt lx trl prcrr,ttt uttrlr,r
trlvisenreut by tlrc U. S. Suprenro Court
whiclr hcnrrl lhe argurnout in Ilniterl

?rr.r.-L *a*iwst oLLR-
i---

STATE of Loulslana

v.

Charlos Ellls BELL.

No.52928.

Su;rrt'rno Corrrt of Louislnna.

.Iune 11, 107i1.

The Nineteenth Judicial District Court
of East Baton Rouge Parish, Donovan W.
Parker, J., found defendant guilty of arm-

ed robbery, and he appealed. The Su-

preme Court, Barham, J., held that repeat-

cdly allowing the State to introduce imi
peachment evidence without instructing thc:
jury on each occasion that the evidencc

was admissible only on the issue of the

witness' credibility and not as substantive

evidence of defendant's guilt constituted
reversible error, notwithstanding the fact

that defense counsel did not ask the judge

to give limiting instructrons.

@.
Summers, J., dissented and

opinion,

Marcus, J., dissented and filed an'

opinion in which Sanders, C. J., concurred.

l. Crlmlnal Law @673(3), I168(2) I

Repeatedly allowing the State to intre
duce ir-npgAshmen!--e.v&!.e!ge without in-

structing the jury on each occasion that

the evidence was admissihlc only on the ie-

suc of the witness' credibility and not

substantive evidence of defendant's guilt

constituted rg'ersi!]g-erroL notwithstand-
ing the fact that defense counsel did
ask the judge to give limiting instructions

2. Crlmlnal Law @703, I171.2

armed robbery prosecution, StatCt

statement, wherein it was sai{i

Slrrlrtx v. Axlr, l)rx'krrl No.7l-1166,
.Ianuary 10, 1073. 12 Cr.L. 4133 (Jan-
ruary 17, 1073).

In
opening

I ,[

filed an

//

r object
evidencc o{
defendant l,

uersible err
etidence rr' ,

ing defcnda
and whert'.
robberies, tl
conncct def,
mony elicrtt
impeach its
pled surpris,
the rvitness

S l{:6{, l5

L Wltnesses

lmpeaclr
ited by the
Ulit.r' and u
crimes had
ferrdant's gr,
.frarged. LS

Carey J. t

lientron', 51

Iouge, for d.

\\'illaim L

.{. Ilartlel:,
Brorrr, Disr

-trsr- Dist. Ar

&{RHAAI

tl1 Char,
tucd roblrt
derged, antl
tlc lauisial
D<ight bills
sipt of aj
prscoted it
{rcificatiorr'
rrtor undqr
tqtr that th,
bing the Sr

Glidcncc \t rl:
aaai rxc;t,rr,r|
{lc only r,

crtdibrlit-v ar,

r{ r}c dcfr:rrrl



o u lslana

,S BELL.
'i28.

rf I,()uisiilllll.

I !t7:i.

,licial District Cottrt

I'arish, f)onovan W'
rrJant guiltY of arm-

rrlrpealed. The Su-

, 1., held that rePeat-

r,rc to introdttce inl-

. ithotrt instructing the

, rn that the evidence

otr the issue of the

rrtl not as substantive

rrt's guilt constittlted

,vithstarrding the fact

,hd not ask the judge

' 
ct iorrs.

rutnded.

rssented and filed an

-sented and filed an

nrlers, C. J., concurred'

;73(3), I 168(2)

ving the State to intro-
, . irletrce without irr-

,,, cach occasion that

,1, 1ssilrlt' onlY on the is-

credibilitY and not as

', of def endant's guilt

,le error, notwithstand-
ltfcnse cotttrsel did not

, limiting instructions'

703, ll7l.2

lrcr] prosecution, State's

. rvherein it was said'

I )rr<:ket No. 7l-7211>'

i. 12 Cr'L' 4133 ('Ian-

iL Wltnessos @362

lmpcaching tcstintorry which rv;rs clic-

ited by thc State to attack rvitncss' crc<li-

hilitl' and rvhich linke<l tleferrdant to othcr

crimes had no prolrative valtte :ts to tlc-

fendant's grrilt or introcetrce of the crime

charged. LSA-R.S. l5 :'{4.5, 15 :-146.

Carey J. Gtrglielnro, Johrr I'. Everett, .l r.'

Kantrow, Spaht, Wcavcr & Walter, llatort
Rouge, for defenclant-aPPellant.

\\'illairn J. Guste, Jr., Atty. Gen., I-eRoy

.\- Hartley, Asst. Atty. Gen., Ossie Il.
Brown, Dist. Atty., IU. Stephen Iloberts,

.{sst. I)ist. Atty., for plaintif f-appellee.

BARIiAM, Justice.

tll Charles Iillis l.iell rvas chargctl rvith

ermed robber)' (R.S. 1'1 :(r-l), cottvictctl :ts

charged, and setrtcllcerl to serve 4() 1'cars il'r

tle l-ouisiana State I'enitentiary. 'l'wett-

ty-eight bills of exceptiotts are irr thc tran-
script of appeal, llrt the defcnse has

presented its case in this court throtrgh

spccifications of crr<;r. We firrd reversiblc

ctror ttnder Specification (C), rvhich al-

Itgcs that the corrrt crred in repeatcdll' al-

h,r'ing the Statc to irrtrotltlce impcaclttncrtt

cidence without irrstrttcting tltc jrrry on

cech occasiotr tlt;tt thc cvirlcrtcc lv;ts lttltttis-

riHe only on tltc isstrc of thc wittrcss's

cdibility and uot as sttbstantivc cvi<lctlcc

cfthe defendant Ilell's guilt.

STATE v. BELL L&, 165
('ill rrs, l,tr., !71) So.ikl l(lt 

-l
ove-lrjcctiorr, that the Sttrte rv<-ruld of fcr At the v;rri<.rtts times whctt inlpcachirlg 

/
er.i6encc of four otScr rslrberies irr rvlrich cvidencc was ititrodttced on this trial, the /
defen6arrt lratl participlttctl, coustitrrtcrl rc- itrdge gavc rto instntctiotts olt tlte limitett 

I

r.ersiSle error, rvherc ltot one scirrtilla of I)urposc for which that evidcrlce was rc- [

er.idcrrce u,as of fered r.rtt the trial conltcct- ceived. The State so concedes, and the

ing defc,dalt with two of those rolrlrerics, testimorry attachcd to the bills of excep-

and rvhcrc, with respcct to the othcr two tir.rns be;trs this otlt. C."::t.Ugl-ggi4
roblreries, the State irrrproPerly sotrght to ant <iid not ask the judge to give such in-.

conncct dcfendant '"!'ith thcm throtrgh tcsti- s!gs!.!.S.!g Evetr so, however' trnder a

mony elicitetl by the Statc in arl cffort to long line of jurisprudence it rvas error for

impeach its orvn witrrcss, after the State the jtrdge not to give thc appropriate in-

pled surprise arrd was perrnitted to rltrestiorr structiorls to the jttry at the time the inr-

the rvitness as a hostile witness. LSA-R. peaching evidence rvas admitted'

S. l-l:61, 15:4'1.5, 15l.446. ,,,t * ,r When an attempt is nrade to

irnpe:Lch a witttess by the introdtrction of
prior inconsistcnt statemcnts thc jud5e

k* n'. at otrce thc lirnited pttrpose for

rvhich strch evidcnce catt be accepted. And

it rh.,rla U" i,r., ad-htt+-

@t, being laymen and

not infornted as to the niceties of the law,

the memlrers thereof will give it improper

application.

"'l'hc <langer of such a probability is

clcarly recognized by this cottrt itr State v.

Willis, 211 La. 79(), l3l So.2d 792, wherein

we observed that the judge should instruct

tlrc jttrl,as to thc timited effect of im'

f eachtnenl ct'idence ot the tinr'e it is adntit-

tctl, antl shoild trot zt'ait to include it later

in, his gcnerLt| instntctions zuhen such body

zt,oukl haue to aPpty th,e instructions in ret-
ros1ectiln. + * *') (EmPhasis suP-

rrlic<I.) Statc r'. lla!,at. ?!Q-Ld99,-lZ
So.2d 69 17<lOZ1; artd cases t!98-!I9{

lloth thc State and the defense citeSlale'
v. Rav. 259 t-a. 105,219 So.Zd 540 (1971)'

ar'r,l :, reaffirmition of our holding there is

necessary. In Ray we repudiated the rule

of uarbar and its predecessors tbat-thr'
d-
priii.-inttt*t,ot,t t.gn.ding t

eilidcucc anrl that his failtrre to do so was

?A)'l-

6;73rr"lrri Inrrst specifically reqtrest the

iml?iih,r,g Eidence, to caution the lury



166

on the linrited purpose for rvhich the evi-

dence is received, and that rT'ithout sttch a

request he cannot avail himsclf of thc

court's failure so to chargc. Ilay is rlot

applicable here, however, for its holding
was specifically given prospective effect
only. The present case was tried in

N{arch, 1971, and the opinion in Ray on re-

hearing was rendered Jtrnc l-1, 1971. The

former jrrrispru<letrce tlrcrefore states thc

law applicable herc, and ttnder that juris-
prudence a reversal is required. .

12,31 Spccification of lilrror (A), in-
volving several lrills of exceptiorrs, also

shows rcvcrsillle error. '['hc State itr opcrl-

ing statement said over objection that it
rvould offer evidence of fotlr other rolr-

beries in rvhich the defcnclant tlell had

participated. Not one scintilla of evidence,

however, was offered on the trial connect-

ing the defendant with two of these rob-

beries. The State sought to connect Rell

with the other two robberies through testi-

mony elicited in its efforts to impeach its

witness Leroy Green. (Our finding of re-

versible error ttnder Specification (C) was

made in connection with this testimony.)
The impeaching testimony could be rrsed

only to attack the credibility of the witness

Green. See State v, Ilarbar, sttpra, and

cases there cited. Any stlch testimol.ry

which linked Bell to other robberies had no

probative value as to his guilt or innocence

of thc crime chargetl, and could not be

used in this indircct and deviotts fashiorr to

show guilty knowledge, system, and intent

under R.S. 15 :445 and 446.

The conviction and scntetrce are reverscd

and set aside, the case is renrandcd to the

trial court for further proceedings'

CALOGERO, J., concurs.

St-rMMllRS, J., dissents :tn<l assigns rca-

s( )tls.

MARCUS, J., dissents for reasons as-

signed.

279 SOUTIIERN R,EPOR,TER, 2d SER,IESLa.

l

SANI)FIRS, C. J., dissents for reasons

assignecl by MARCUS, J.

SUN'I N'l Ii RS, Justice f jyg5.).
Charles Iillis Ilell was charged by bill of

information with thc armed robbery of L.

II. I)ugas on April 25, 1970 at Kroger's su-

pcrmarket. The State contended that Bell,

Lcroy (ircerr and Sterling Jordan commit-

ted this robl.rery, with Green and Jordan
going into the store armed with a shotgun

and pistol and Bell waiting outside in the

getaway car.

After trial lty jtrry, Tlell was found

gtrilty and sctttcttced to thc State Peniten-

tiary.

Twenty-eight bills of exceptions were re-

servetl during thc trial. Defense counsel

presents his argunrent under seven specifi-

cations of error in rvhich the bills of ex'

ceptiolts presenting the issues are grouped.

It is first contended under Specification'
A that the cottrt erred in allowing the

State to get before the jury, under the

grrise of impeachment, evidence of other

robberics in which Bell was allegedly in-

volved.

Irr its opening statement the State an'

norrnced its intent to introduce other armed

robberies committed lty Bell, Green and.

Jordarr to prove the system and modus op--

craridi of Bell in the crime charged. A.- 
,

cording to the State, the system in all these

robberies was that Jordan and Green arm-',

ecl with a shotgun, actually entered the.

store atrd robbed the victim, while Bell re-

maincd outside close by in the getaway car'

While the State announced its intent to in- .

troduce several of the robberies in this re-,

gard, only three robberies were mentioned'

in tcstirnony :rt thc trial; thc Krogcr's roh '

'll 
lLirllll(,t1,

lrcry for which thc defcndant was on trial, '
thc Ancotra's Grocery Store robbery on.

April 1, 1970 and a Burger King robbery

on April 25,1970.

ljvidence was prescr
Green was in the Kr<-rr

tol participating in t I

had given police a t:r

his arrest detailing tl'
been involved in an<l

and Bell. FIe was call.
pudiated his prior star
various robberies implr,
dan. The State plearl,
allowed to question hr,
ness, IIe was then qrr

those other robberies
rvho took his statemer
tioned in that regard.
tion of (ireen and thc
ing thesc other rohlrcll
prior staternent arrd <lt.

ing the trial which is tl
fense contention.

Although "It is nol
peach a witness as to c,

relevant matter," La.R.i
testimony may be im1,

relevant at the trial. 'l

of other similar crimt:'
relevant to establish inr
dus operandi, La.R.S. I

ny regarding this "rele
be impeached. Moreor,
to impeachment were ,

rvitness showed hostilit.r
srver questions concerr
given a prior statemcl,
the voluntary character
claiming that the offi,
statenlent made promis,
properly limited the iml
to the subject matter o
dictory statement. La.R

Defense counsel conr
*as error for the Stat.
nounce in his opening
would offer evidenci r

volvement in four oth,
only two other robberics
the trial, It is sai<l tlrr.
crimes, rtot lrroven, itrr1,

guilt of these unprov,
minds of the jury.



STATE v. BEIL
('ito Its, L{t., 970 So.?d 1(it

167

E,vidence was presentcd at thc trial thrrt 'l'hc State's attorney is required to make

(lreen was in thc Krogcr stor('rvith a pis- :In operlillg statelncnt setting forth in gen-

tol participating in the robberl,. (irer'n cral terms the nature of the evidence by

had given police a taped statenrent aftcr which thc State expects to prove the

his arrest detailing the rolrberies he had charge. La.Code Crim'I'roc' 765-769' The

been involvecl in antl implicating Jordan objcct of this law is to place the defendant

and Bell. IIe was called to tcstify ;rntl re- otr notice of the facts he has to face at the

pudiated his prior statement adrlitting the trial. At least this ohject is servcd by

various robberies implicating Rell and Jor- overstating what is intended to be proved'

dan. The State pleadecl surprise and was Thrrs, it is difficult to ascertain the preju-

allowed to qucstion him as a hostile wit- <lice a dcferrdant incrtrs when the State

ness. lle was thel questionccl cotrccrniug tloes not produce evidence against him

those other robheries arrd the detectives which the State's attorney declared he

nho took his statement were also <1rtes- would produce. A strong inference would

tioned in that regard. It is the examina- scem to follow under these circumstances

tion of Grecu agtl t|c {etcctivcs concclrl- that thc State could not prove its whole

ing thesc other rolrlrcrics tttcrttiottctl in his (::Isc--llll irrfercnce favorahle to the ac-

pJior statcment a1d {crlied lry (ircctr tltrr- cttsctl. Il6wcvcr, concetliug argtlclldo' dc-

ing the trial rvhich is the basis for this de- fettse cottrrsel's point of view' that guilt of

Iense contention, these ttnproven crimes is implanted in the

rninds of the jury when they are mentioned

Although "It is not cornpetent to im- in the opening statement and not proven at

p€ach a witness as to collateral facts or ir- the trial, I cannot find this vague effect to

ielevant matter," La'R'S' 15:494' a witness' lre a proper basis for reversing this convic-

testimony may be impeached on matters tio1. Unless it is shown that the State's

relevant at the trial' Thtts' sitlce evidencc attorney in bad faith mentioned these other

of other similar crimes is admissible and crimes when he was rvithout any evidence

relevant to establish intcnt, system or mo- of them, the Court should not hold him to

dus operandi, I-a.R.S. l5:445-4,16, testimo- their proof if he found such proof unnec-

ny regarding this "relevant" evidetrcc may cssary ancl merely cttmulative. Obviously,

ftt inroeached. I\{oreover, irll prcreqrrisites this is what he decided' for the evidence he

I fo irp.u.tr.ent were present here. l'hc clid prodtrce proved adequate for convic-
| 

.itness showcd hostility lly refusing to an- tiotr. vicissitudes of a trial are often ttn-

s*'er questions concerning which he had forcseeablc' ln an abundance of caution

given a prior statement. IIe repudiated the State must dcclare its whole case in the

, ile voluntary character of his statemcnt' opening statement' If the evidence later

, alairing that the of ficers who took the proves to lte cumttlative, however, I do not

:: t datement made promises' And the State fcel it must be prodttced' After all' two
:- I gttemelll rtlauc P I ur I

; I properly limited the impeachment evidence previo,s armed robberies are enough to

I lm tn. subject matter of the prior contra- prove systenl.

: ldktorv statcment. La.R.S. 15:187'
! L:- While the record does not reflect that
ia Defense counscl cotrtends, also, that it .,,^ i,,,r.,o orlmn.iqherl the iurv at the time

l,n.

s for reasotts

rrling).

'rsed bY biil of
i robberY of L'
rtt Kroger's stt-

'rtded that Ilell,

lordan commit-
1.,., 

^nd 
Jordan

rvith a shotgun

'; outside in the

llcll was f orttrd

rc State Perriteu-

centions were re-

Iie{ense counsel

,tler seven sPecifi-

h the bills of ex-

qsues are grouped'

,rndcr SPecification
,1 in allowing the

,(. lurY, uncler the

"uid.n.. 
of other

'l was allegedlY in-

rnctrt the State an-

rtroduce other armed

,r, Bell, Green and

..t"- *nd modus oP-

crrme charged' Ac-

)rc system in all these

r'<lan and Green arm-

actuallY entered the

victim, while Bell re-

',f in tlrc getaway car'

,rrrtced its intent to tn-

. robberies in this re-

iu,rics were mentioned

, irrl ; thc Krogcr's roh-

lcIctttlattt was on trlal'

rv Store rol'berY on

liu.ger King robberY

xl

flt

ilt
l:l

flil

flrl
It'l

$li

{,11

lii
liri

flii
j;;li

iiir

j'l:[: ,'""Jt? iiill:l"i;,J,]il; ll"'",i] the judge atrmonishcd the jurv at the time

runce i, rris o1,c,irrg statc,nent that hc :Iil ',T[i:l".;i:t ;H'i::,Xl'it;','JI1,.1i
:-. rould of fer evidence to shorv IJell's irt- whcn a contradictory statement is intro-
S:t :jJ1';:','J";r:. 'J[i::" ;;:1, when a contradictorv statement is intro-

ory two other robberi..';.;".;"J;;;';;;; ::::1 ]]'":T,,::tl:, 
t:: '::.:'1"1-::t 

'il::
, 6rv two otner rouDcrr:: 

:^"r::j:::^';^':;;.;; poscs it shoul<l ,ot lrc received as inde-
Ac triat. It is saitl thc rcfcrcttcc to othcr

. cines, not l)l'ovcll, irlrll;ttttcrl thc scctl of lrcltrlcttt cvi<lcncc,': 
":l::t:1::T: ::T:

,, ]l,"li"',,,:;;';;;i,,;;;;,,"'.r,,"., ,,, trrc i, rry the itccusc<I, l,ut onlv as going to thc
-.- L:-^^la

I;r;; ,nll "r. 
' t redibility of the witness himself.



168

II'

In Specification A it is contencled that
the court errcd in allowing the State to go

into the srrbject matter of an alleged prior
statemcnt of the r.r'itness Green'ttrrder the
guise that the evidence rvas for impeach-

ment prlrposes.

The reasons assigncd rutder I)art I of
this opinion dispose of this cotttctttiort. tt
should bc noted, however, that the trial
judgc and the State's attorney carefully
observed the admonition in Section 493 of
Title 1.5 of thc Revised Statutes. Greeu
was first askcd whether he made the state-
ment which was contradictory to his testi-
mony at the trial. Ilis attention rvas called

to the time, place and circumstances and to
the persons to whom the allegcd statemellt

was ma(le. As previously noted, Green ad-

mitted making the contradictory statement,

asserting he was induced to do so lry prom-
ises of the of ficers who took the statement.

When the irnpeachntent evidence rvas in-
troduced defense counsel did not reqtlest a

precautionary instruction from the judge

to the jury that the impeachment evidence

rvas only to be considered on the question

of credibility, nor did defense counsel ob-

ject to the fact that strch instructions rvere

not given at the time of the introductiolr of
the impeaching evidence. Notwithstand-
ing, he claims reversible error resrrlted

when the trial judge failed to give those

instructions at the time he objected to the
impeachmerrt evidence.

Reference has previotrsly been madc to
the fact that, although the precautionary
instruction was ltot givetr when the im-
peachment evidence rvas admitted, the trial
judge did chargc the jtrry correctly on the

subject.

Aside from the obvious fact that this is-

sue is not before tts becattse no objection
was made to the failtrre of the trial judge

to irrstruct thc jury and rto lrill of exccp-

tions rv;ts rcscrvcrl (1,4.(io<lc Crittt.l'rtlc.
;rrts. &ll-tt.l.5), tltt:rc :trc otltcr coltsi<lcrrt-

tions rvhich pursuade me that tlris cotrtcn-

dion has no nrerit.

279 SOUTEER,N BEPOR,TER,, 2d SERIESLa. EXECUTI

MARCUS, 
-II

I do not fin,
resulted in a r,

prejudicial to tl
accused, or cor)
tion of constitr,
Article 921 of tr
dure. Accordirr,
ror,

I respectfully ,

EXECUT'VE CA,
NEW ORLF

Appetr

ALODEX CORi
Appe

n

Automobile
against Iessee to
allegedly dtre und
trict Court for th,
502-800, Walter F
judgment in favor
pealed. The Corr
288, affirmed, anri
262 La. 1129, Z(t(t
Court, Tate, J., hc.
ue adjustment,' p
lease was not invrr r

lect future rentals
the lease.

Af firmed.

Marcus, J., recr

L Dema0o! @SO(3)

In light of evr
loses about 40/6 of

279 So.2d_tIV.

'l'he rule of law that a defendant must

ro(lucst caution;rry instrttctions in order to
clainr error when the trial judge fails to

give thenr was cstalllished by this court in
a dccision rendered January 18, 1971 in

State r'. Ray, 2.59 La. 105, 249 So.2d 540.
'l'herc we said, "Accordingll', in cases tried
hereafter, rve shall require a defendant to

specifically rcquest the trial judge to give

such a lirniting instruction in order to avail

hinrself of its onrission." A rehearing was

srrlrseqrrently granted. In the opinion on

rehearitrg rcndered in June 1971 it was

said that the rule rvould apply "following
thc finality of this decision," and the origi-
nal decree was reinstated. The instant

case \^'as tried Illarch 8, 9, l0 and ll, l97l'
Thus the rule was perhaps not in effect
during this trial. The rulc prior to the de-

cision in State v, Ray was that when a

rvitness othcr than thc defendant is im-

peached by the admission of a prior incon-

sistcnt statemetrt incriminatirrg the defend-

ant, the statement is admissible only on the 
.

issuc of credibility and not as substantive

evidence of the defendant's gtrilt. Our

cases held that the failure to caution the

jrrry as to the limited purpose of thc incon'

sistcnt statement is error despite defend',

ant's failure to reqtlest sttch an instructioru'

State v. Barbar, 250 La. 509, 197 So.2d 69

Since this rule was not stattltory, and be'

catrse the jury was properly charged by the 
,

judge before their deliberations, I can find'
no prejudicial error warrantirtg a reversal.'1.

Cascs to the corttrary were decided before i
t.

thc enactment of Article 921 of the Codc i;j

of Criminal Procedttre. Under the circum-t''
stances of this case, the omissiorl of theif'
limiting instruction only at the time the eY-'

idence was heard, restrlted in no miscar'

riage of justice, nor did it involve a viola-r

tion of a constitutional or statutory righL

I-a.Code Crim.l'roc. art.92l. The instruc',

tion was in fact given and it is presumed'

that it was obeyed by thc jrrrY.

lrr rny vicw tlrc convictiott atttl scntcnc

sh<-rtrld lrc af f irrncd,

I rcspectfully dissent'

(

,ai H'"'1,1,