State v. Bourg

• Decision Date: 17 January 1966
• Docket Number: No. 47833,47833
• Citation: 182 So.2d 510,248 La. 844
• Parties: STATE of Louisiana v. Allen Joseph BOURG.
• Court: Louisiana Supreme Court

Page 510

182 So.2d 510

248 La. 844

STATE of Louisiana v. Allen Joseph BOURG.

No. 47833.

Supreme Court of Louisiana.

Jan. 17, 1966.

Rehearing Denied Feb. 23, 1966.

Robert D. Edwards, Gaudin & Edwards, Gretna, for appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Frank H. Langridge, Dist. Atty., Thomas P. McGee, Asst. Dist. Atty., for appellee.

SUMMERS, Justice.

This is an appeal by Allen Joseph Bourg from a conviction and sentence for pandering as denounced by R.S. 14:84(4), which defines that crime as the intentional 'Receiving or accepting by a male as support or maintenance, anything of value which is known to be from the earnings of any female engaged in prostitution * * *.'

Several questions of law are presented by bills of exceptions reserved below.

Late on the evening of November 16, 1964 four officers, undercover men Jimmy Roberts and Dexter Poore and Detectives Donald Reed and Walter Lightell of the Jefferson Parish Sheriff's Office Vice Squad, met at a supermarket parking lot. They proceeded to record serial numbers of certain U.S. currency to be used by Officers Poore and Roberts as evidence in connection with a planned investigation into suspected prostitution activity being carried on within the parish. Poore was given $40 of this currency.

Pursuing this plan Officers Poore and Roberts proceeded to visit various suspected establishments, and in time they entered appellant Bourg's place of business, the Oasis Bar and Lounge at 427 Barataria Blvd. in Marrero, at approximately 1:20 on the morning of November 17th.

The two officers sat within sight of one another and ordered beer from Bourg who was tending bar. Shortly thereafter Mary Rapp approached Officer Poore and engaged him in conversation. She solicited a drink for herself and coin for the juke box. The talk led to an offer by the Rapp woman to have intercourse with Officer Poore for $50; but Poore has only $42, $40 of which was the identified currency, and that sum was finally agreed upon.

Before accepting the money, however, the Rapp woman obtained Poore's driver's license and submitted it to appellant Bourg in order that Poore's identity might be ascertained, and, presumably, in order that it might be determined whether he was connected with law enforcement. After scanning the driver's license Bourg returned it to Poore; Poore then paid Mary Rapp $42; and she, in turn, gave the money to Bourg who put in in the cash register. Both Officers Poore and Roberts observed the details of this transaction.

The Rapp woman and Poore left the bar in her car and went to her apartment at 519 Hamilton Street, where she disrobed and got in bed. Poore then arrested her. She was booked at the Jefferson Parish lockup.

In the meantime Poore had contacted Detectives Reed and Lightell, and all three of the men returned to the Oasis Bar and Lounge. They were informed by Roberts, who had remained at the bar and observed the actions of Bourg, that, after Poore and the Rapp woman departed, Bourg had taken money from the cash register, walked to the juke box where he opened the cash box, then to a room adjacent to the front door and, thereafter, outside where he opened the trunk of his automobile located approximately 25 feet from the front door.

It was about 2 o'clock in the morning when the officers returned to the Oasis Bar and Lounge. At that time Bourg was arrested. He requested permission to call his attorney but was refused because the officers were in the process of searching the establishment and Bourg's automobile.

Within an hour after his arrest Bourg's automobile was searched, and, secreted within the trunk of the car, the officers found $97, $40 of which were the identified bills Poore had passed to the Rapp woman. The Bureau of Identification Squad was then summoned, and they photographed the hiding place of the money in the trunk of the car. The scene was also photographed to show the location of Bourg's car with relation to the entrance of the Oasis Bar and Lounge, a distance of about 25 feet.

When the officers discovered the money in the trunk of the car, Bourg, who was nearby, declared in their presence, 'You have me for prostitution, but you don't have me for the other thing,' meaning there was evidence against him relating to the pandering offense, but not for a suspected narcotics violation which the officers were also investigating at the time.

Bourg was taken to the parish jail where he was booked and permitted to use the telephone to call his attorney, which was approximately one and a half hours from the time of his arrest at the bar.

The first bill of exceptions is directed at the refusal of the trial judge to order the district attorney to furnish all of the information requested in an application for a bill of particulars. The district attorney answered the application and volunteered the information requested in the first interrogatory concerning the 'day, month and time' of the alleged offense, but refused the particulars requested in eleven other interrogatories because the information requested involved evidence which might be presented at the trial. The trial judge ruled that the answer was sufficient in law and declined to order the State to further particularize.

The application for particulars requested the serial numbers and denominations of the currency. It sought to ascertain from whom Bourg had obtained knowledge that the money allegedly received by him from Mary Rapp was earned by her as a prostitute; when and where had she been previously convicted as a prostitute; with whom and where had she committed the acts which made her a prostitute, and what had she charged for said acts prior to November 17, 1964; whether she was accused of acts of prostitution on November 17, 1964, and, if so, when, where and with whom, and who paid the charge and how much; if Mary Rapp committed an act of prostitution on November 17, 1964 was the other party a deputy sheriff, an auxiliary deputy or so-called 'civilian undercover agent' working for and with monies of the Sheriff's Office of the Parish of Jefferson; and if the answer to the latter question is yes, did said person engage Mary Rapp in conversation and entice and persuade her into offering to commit an act of prostitution; and, finally, if Mary Rapp committed prostitution on November 17, was sexual intercourse actually committed?

Defense counsel points out that the bill of information specifically charges Bourg with violation of R.S. 14:84(4) and reiterates the vital elements of the crime when it recites 'that he did intentionally receive and accept as Support and maintenance from one Mary Rapp, a female, the sum of $42.00, which he knew to be from the earnings of Mary Rapp, whom he knew was engaged in Prostitution.' The bill of information and the statute make it clear, he asserts, that the accused must receive the money as 'support and maintenance' and the woman from whom he receives it must be engaged in 'prostitution,' which involves sexual intercourse. These are, therefore, essential elements of the crime which, defense counsel argues, the State must prove. For this reason he says the accused is entitled to factual particulars concerning these elements of the crime, and, also, to information concerning the denominations of the money and their serial numbers 'so that at a later date the Sheriff's office would not be in a position to provide other monies and claim that they were the monies which had been used and previously identified by the deputies.'

This first bill is without merit.

The provisions of R.S. 15:235 and R.S. 15:288 and the jurisprudence of this court make it a well-settled proposition that the function of a bill of particulars is to inform the accused concerning matters which are pertinent to the charge against him, which the trial court in its sound discretion considers necessary in fairness to permit the accused to defend himself. The accused, however, is not entitled to the evidence upon which the State relies to establish its case, for the State is not required to disclose the facts upon which it relies for a conviction in advance of trial. State v. Barksdale, 247 La. 198, 170 So.2d 374 (1965); State v. Mills, 229 La. 758, 86 So.2d 895 (1956); State v. Mines, 137 La. 489, 68 So.2d 837 (1915); State v. Clark, 124 La. 965, 50 So.2d 811 (1909). See also State v. Dickinson, 248 La. 500, 180 So.2d 403 (1965).

What defense counsel sought by his application for particulars was a pretrial revelation of the evidence upon which the State would rely to convict him. In doing so he sought also to determine whether the State was prepared or not to prove certain elements of the crime with which he was charged. He was not entitled to this information as a matter of right, and, in view of the entire adequacy of the bill of information which amply informed him of the nature and cause of the accusation against him,¹ he was at no unfair disadvantage in his defense. Under these circumstances this court will not disturb the ruling of the trial judge.

Bills of Exceptions Nos. 2 and 3 involve motions to suppress evidence, which was the $97 in currency, including the $40 passed by Poore to Mary Rapp, found by the officers in the trunk of Bourg's automobile. It is contended that the search of Bourg's car was unauthorized, without a search warrant and unreasonable in violation of the Federal and State Constitutions, and the evidence should have been excluded by the trial judge who allowed its introduction at the trial.

Though the State concedes that the search was conducted without a warrant, it takes the position that Bourg consented to the search, or, alternatively, that the search was incident to a valid arrest and, therefore, reasonable; hence, the trial judge was correct in refusing to suppress the evidence. Our decision is based upon the theory that the search was properly conducted as an incident to a valid arrest....