State v. Cryer

• Decision Date: 05 June 1972
• Docket Number: No. 51509,51509
• Citation: 263 So.2d 895,262 La. 575
• Parties: STATE of Louisiana v. Jerry Don CRYER and John H. Seay, Jr.
• Court: Louisiana Supreme Court

Page 895

263 So.2d 895

262 La. 575

STATE of Louisiana v. Jerry Don CRYER and John H. Seay, Jr.

No. 51509.

Supreme Court of Louisiana.

June 5, 1972.

Rehearing Denied June 29, 1972.

Dissenting Opinion July 10, 1972.

D'Amico, Curet & Bush, Sam J. D'Amico, Brumfield & Brumfield, H. Alva Brumfield III, Baton Rouge, for defendants-appellants.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Sargent Pitcher, Jr., Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.

SANDERS, Justice.

The State charged the defendants, Jerry Don Cryer and John H. Seay, Jr., with the sale of marijuana on December 4, 1969, to 'a person over the age of 21 years,' in violation of LSA-R.S. 40:962(A) of the Uniform Narcotic Drug Law. The case came on for trial on September 17, 1970. The jury returned a verdict of guilty. On February 18, 1971, the trial judge sentenced each of them to a term of seven years in Louisiana State Penitentiary. The sentencing minutes recite:

'Upon inquiry by the court each accused, on advice of counsel, refused to state his age to the court.'

The defendants have appealed relying upon nineteen bills of exceptions reserved in the trial court.

BILLS OF EXCEPTIONS NOS. 1, 18, and 19.

The defendants filed a motion to quash the Bill of Information alleging that the Bill charged no offense known to the laws of Louisiana and that the statutes upon which the charge and sentence were based were unconstitutional. They reurged these contentions by motion in arrest of judgment.

In their motion for a new trial (Bill of Exceptions 19) defendants alleged there was no proof of an essential element of the offense, the defendants' age.

At the time the crime was committed and the charge was filed, the Uniform Narcotic Drug Law (LSA-R.S. 40:961 et seq.) was in effect. Under LSA-R.S. 40:981, the minimum and maximum prison terms for selling marijuana were greater for a defendant over 21 years of age. ¹ Prior to the trial, however, Act 457 of 1970 became effective. The new statute substantially altered the sentencing structure. It contained no sentence variation based on age. Instead, it provided for imprisonment of not more than ten years or a fine of not more than $15,000.00 or both. ²

Section 4 of Act 457 of 1970 provided:

'Crimes committed before this Act becomes effective, shall be prosecuted and punished under the laws in effect at the time of the commission of the crime, and, to the extent of such application only, such laws are hereby preserved; provided that sentences hereinafter imposed may not exceed the maximum terms herein specified and the judge shall have discretion to impose such minimum sentences as are provided for herein.'

Defendants contend the penalty provisions of Act 457 of 1970 repealed the penalty provisions of the statute under which they were charged; that Act 457 of 1970 is unconstitutional as applied to the present offense because it adds a $15,000.00 fine, not authorized under the previous law. Hence, as to this offense, Act 457 of 1970 is an unconstitutional ex post facto law.

These contentions lack merit. Section 4 of Act 457 of 1970 clearly provides that prior crimes shall be prosecuted and punished under the laws in effect at the time of their commission. The only modification is favorable to the defendants. The maximum sentence imposed cannot exceed that provided in the new statute. Within his discretion, the judge may use the lower minimum sentences provided in the new act.

Defendants have no standing to complain of the $15,000.00 fine because no fine was imposed in the present case. They are in no way affected by the fine provision. A party who assails the validity of a statute on constitutional grounds must show that a decision on those grounds is necessary to protect his rights. Courts will not assume to pass upon constitutional questions unless it is essential for the disposition of the cause before them. Aucoin v. Dunn, 255 La. 823, 233 So.2d 530 (1970); State v. Rue, 236 La. 451, 107 So.2d 702 (1958); 16 Am.Jur.2d, Constitutional Law § 111, pp. 296--299.

Under the earlier statute, the minimum sentence for a defendant over 21 years of age is 10 years, and the minimum sentence for a defendant under 21 years is 5 years. Act 457 of 1970 establishes no minimum sentence for the present offense but does provide a maximum of 10 years in prison.

The record reflects that, in imposing his seven-year sentence, the trial judge used the no-minimum provision of the law act. Under this provision, the age of the defendant is immaterial.

Assuming, however, that the age provision of the earlier statute is relevant to the present sentence, defendant's contention that the age of the defendants must be alleged and proved lacks merit. We have previously held that for this offense the age of the defendant need not be alleged in the bill of information nor established by evidence before the jury. See State v. Kaufman, 234 La. 673, 101 So.2d 197 (1958); State v. Wagner, 229 La. 223, 85 So.2d 272 (1956).

Taking note of these decisions, the defendants contend that they should be overruled. We disagree. As we observed in State v. Kaufman, the defendant's age in LSA-R.S. 40:981 is not an essential element of the offense. It relates only to the sentence. The judge alone has the duty of fixing the sentence. We recently held in State v. Harris, 258 La. 720, 247 So.2d 847 (1971), that the jury has no role in the fixing and imposing of sentences in noncapital cases.

The defendants rely upon State v. Toney, 205 La. 451, 17 So.2d 624 (1944); State v. Sailbold, 213 La. 415, 34 So.2d 909 (1948), and State v. Dozier, 258 La. 323, 246 So.2d 187 (1971). These cases are inapposite. State v. Toney and State v. Saibold deal with cruelty to a juvenile (LSA-R.S. 14:93) and indecent behavior with a juvenile (LSA-R.S. 14:81), crimes in which the age of the defendant and victim is made an essential element by the statute. State v. Dozier, dealing with the adequacy of a bill of information, does not deal with the question before us.

Finding no constitutional infirmity in the statute and no defect in the bill of information, we conclude that the trial judge correctly overruled the motion to quash and the motion in arrest of judgment. He likewise correctly overruled the motion for a new trial complaining of the absence of evidence of defendants' age. ³

BILLS OF EXCEPTIONS NOS. 2, 3, and 4:

Statements of Co-conspirator.

Gerald L. Thomas, employed as an undercover agent by the Sheriff of East Baton Rouge Parish, testified for the state concerning his contact with an allegd coconspirator, Damien P. Falcon, jointly charged but not on trial. Over defendants' objection, Thomas testified he purchased narcotic drugs from Falcon, who told him he got the drugs from the defendants.

The objection is based upon two grounds: (1) the District Attorney made no reference to this evidence in his opening statement and (2) a prima facie case of conspiracy had not been proved.

Contrary to defendants' assertion, the District Attorney did mention in his opening statement that he intended to prove a conspiracy between the present defendants and Damien D. Falcon, the co-defendant who had absconded.

LSA-R.S. 15:455 provides:

'Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.' (Italics ours.)

The defendants assert that the statute provides that the State must prove a prima facie case of conspiracy before any statement or act of a co-conspirator can be introduced in evidence. They further contend that the trial judge erred in admitting the evidence of Falcon's acts and declarations before the State had established a prima facie case of conspiracy.

We do not so construe the statute. The statute deals with the effect of the acts and declarations of one conspirator on the other conspirators. It does not purport to regulate the order of proof.

The question of whether a conspiracy has been established is one of fact for the jury. State v. Skinner, 251 La. 300, 204 So.2d 370 (1967). The jury determines the existence of the conspiracy and the weight to be given the acts and declarations of the parties during the course of the conspiracy.

The order of proof of the conspiracy, the acts, and declarations rest within the sound discretion of the trial judge. When two or more defendants are charged with the same crime, the trial judge may receive evidence of acts and declarations of one of them before the evidence of a conspiracy has been offered. See State v. Courtney, 170 La. 314, 127 So. 735 (1930); State v. Dundas, 168 La. 95, 121 So. 586 (1929); State v. Fernandez, 157 La. 149, 102 So. 186 (1924); State v. Lebleu, 137 La. 1007, 69 So. 808 (1915); State v. Gebbia, 121 La. 1083, 47 So. 32 (1908); State v. Bolden, 109 La. 484, 33 So. 571 (1903).

In State v. Dundas, supra, this Court stated:

'(T)he bill of indictment charges both Picou and defendant jointly with having stolen the cattle, alleged to have been stolen in this case. As the larceny is charged as being their joint act, the indictment charges a conspiracy. State v. Ford, 37 La.Ann. 443, 459; State v. Gebbia, 121 La. 1083, 1104, 47 So. 32. The acts and declaractions of one conspirator within the scope of the conspiracy and in furtherance thereof is admissible against all coconspirators, and the trial judge need not pass upon the question of conspiracy in the first instance, but may receive the evidence of the acts and declarations of the alleged conspirators, leaving it to the jury to give effect to them against all engaged in the...