State v. Robinson

• Decision Date: 18 February 1952
• Docket Number: No. 40507,40507
• Citation: 221 La. 19,58 So.2d 408
• Court: Louisiana Supreme Court
• Parties: STATE v. ROBINSON.

Page 408

58 So.2d 408

221 La. 19

STATE v. ROBINSON.

No. 40507.

Supreme Court of Louisiana.

Feb. 18, 1952.

Rehearing Denied March 24, 1952.

Eugene Stanley, New Orleans, for defendant-appellant.

Bolivar E. Kemp. Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Severn T. Darden, Dist. Atty., Edward A. Haggerty, Jr., 1st Asst. Dist. Atty., John R. Perez, Jr., Asst. Dist. Atty., all of New Orleans, for appellee.

FOURNET, Chief Justice.

The accused, Junius Lee Robinson, alias 'Stale Bread,' having been charged by information with the unlawful possession of narcotics, in contravention of Act 14 of the Second Extra Session of 1934, as amended by Act 416 of 1948, LSA-R.S. 40:961 et seq., is appealing from his conviction and sentence thereunder to serve five years at hard labor in the state penitentiary. He relies for a reversal on a number of errors allegedly made by the trial judge in his rulings, to which timely objection was made and proper bills of exceptions reserved and perfected.

Altogether seventeen bills of exceptions were reserved, and counsel takes issue with the failure of the trial judge to incorporate in his general charge to the jury the accused's special charges Nos. 2, 3, 4, 5, 6, and 7. However, Bills of Exceptions Nos. 5 and 12 have been abandoned, and a number of the other bills have been consolidated with those touching on the same issue, as have also several of the special charges. As thus grouped, they involve nine points of law for our consideration.

The facts of the case are interwoven with a number of the points of law raised, and an understanding of them is important to a decision of the issues involved. As reflected by the per curiams of the trial judge and the notes of evidence in the record, a number of arresting officers, including John Faulkner, then a federal narcotic agent, went to a house owned by Madeline Mike, on Metropolitan Street in New Orleans, Louisiana, where the accused lived with his common-law wife, Violetta Foster, in a room rented by him. Several of the officers entered through the kitchen, requesting Violetta Foster, who they found there, to remain. In the meanwhile, others, entering through the front door, opened to their knock by a colored woman known as Rose Thompson, asked Madeline Mike, then in her own bedroom, to show them Robinson's room. Upon entering this room they found the accused lying or reclining on his bed, as was also another negro male, Detroit Larks. A third negro male, Leon Johnson, was also in the room, but not on the bed. On the bed between the accused and Larks were 209 rolled marijuana cigarettes, while at the foot of the bed were three pounds of loose marijuana in two paper bags, as yet unrolled into cigarettes. On a dresser were fifty capsules of heroin, in a rubber finger. (Johnson had six marijuana cigarettes in his front pocket and when charged with their possession under the federal law, he pleaded guilty and is now serving sentence.) The accused stated, when questioned by the arresting officers, and although there were two other men in the room, that the narcotics discovered there belonged to him.

This evidence was taken in charge by Faulkner and turned over to the federal narcotics bureau, where it was analyzed by the chemist. The accused was then charged in the federal and state courts with violation of the respective narcotic laws. When the federal court, upon the motion of Robinson, suppressed the evidence seized at the time of his arrest, the prosecution against him in the federal court was nolle prossed upon the motion of the federal attorney. The state officials then prosecuted Robinson on the charge against him in the state court, and he was convicted.

At the inception of the trial, counsel for the accused demurred to the indictment on the ground that his client (who was charged on March 8, 1950, and arraigned on March 27, 1950) was granted a legislative pardon when the act under which he was charged, Act 14 of the Second Extra Session of 1934, as amended by Act 416 of 1948, was specifically repealed upon the adoption of the Louisiana Revised Statutes of 1950 (which went into effect on May 1, 1950) without the inclusion in this revision of a proper savings clause. When this demurrer was cverruled, Bill of Exceptions No. 1 was reserved.

Answering this point, counsel for the state cite State v. Mathe, 219 La. 661, 53 So.2d 802. This case is controlling. In addition, it should be pointed out that counsel obviously overlooked the following provision of LSA-R.S. 24:171 (which was not called to our attention when we decided the Mathe case): 'The repeal of any law shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability, civil or criminal, incurred under such law unless the repealing act expressly so provides, and such law shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.'

There is no language in LSA-R.S. 40:961, the 'Uniform Narcotic Drug Law,' not has counsel pointed to any other provision which would have the effect of releasing or extinguishing any criminal penalty incurred under Act 14 of the Second Extra Session of 1934, as amended, and we are directed in LSA-R.S. 24:171 to treat the previous law 'as still remaining in force for the purpose of sustaining' this prosecution.

Counsel next sought to have the indictment quashed on the ground that the state was without authority to prosecute Robinson under Act 14 of the Second Extra Session of 1934, and particularly Section 21, inasmuch as he had already been discharged therefrom in the federal court. Bill of Exceptions Nos. 2 and 17, as well as special charge No. 7, have reference to this contention.

While Section 21 of this act does provide that 'No person shall be prosecuted for a violation of any provision of this act if such person has been acquitted or convicted under the Federal Narcotic Laws of the same act or omission which, it is alleged, constitutes a violation of this act', the record shows that the case against the accused, growing out of this same evidence and charge, was nolle prossed in the federal court. It is obvious, therefore, that Robinson was neither acquitted nor convicted, or even put in jeopardy, of the same charge in the federal court. In fact, the federal attorney could, at any time within the permissible prescriptive period, have him reindicted for this offense. There is, therefore, no merit to this contention. (Emphasis added.)

The third alleged error relied on here by counsel grew out of the refusal of the trial judge to suppress the evidence seized without a search warrant at the time the accused was arrested. Counsel argues that the rule obtaining in this state that evidence so secured is admissible during the trial. City of Shreveport v. Knowles, 136 La. 770, 67 So. 824; City of Shreveport v. Marx, 148 La. 31, 86 So. 602; State v. Zeblit, 152 La. 594, 93 So. 912; State v. Tuggle, 152 La. 747, 94 So. 377; State v. Creel, 152 La. 888, 94 So. 433; State v. Mims, 153 La. 9, 95 So. 264; State v. Lowry, 153 La. 177, 95 So. 596; State v. Davis, 154 La. 405, 97 So. 590; State v. Weaver, 157 La. 95, 102 So. 81; State v. Eddins, 161 La. 240, 108 So. 468; State v. Alvarez, 182 La. 908, 162 So. 725; State v. Shotts, 207 La. 898, 22 So.2d 209, which is in accord with the majority rule in this country, 22 C.J.S., Criminal Law, § 657, page 1005. People v. One 1941 Mercury Sedan, 74 Cal. App.2d 199, 168 P.2d 443, is not only unconstitutional under the guarantees against illegal searches and seizures, but has also been abrogated, in so far as narcotics are concerned, by Section 11-A of the Second Extra Session of 1934. (The adverse rulings of the trial judge admitting this evidence, and permitting testimony with respect thereto, are incorporated in Bills of Exceptions Nos. 3 and 6, and in special charges Nos. 3 and 4.)

The constitutional aspect of this issue has already been decided adversely to the contention of counsel. See State v. Creel, supra, for a splendid dissertation on this matter from an historical standpoint.

There is nothing in the language of Section 11-A, or of any other section of this act, for that matter, from which the conclusion can be reached that the legislature, in setting up the procedure whereby a legal search warrant to aid in discovering illegally kept narcotics might be obtained, intended to change the settled jurisprudence of this court with respect to the admissibility of such evidence. Clearly, therefore, the trial judge's ruling admitting this evidence, as well as the testimony with respect thereto, was correct.

Counsel next contends that inasmuch as the defendant did not take the stand in his own behalf, the trial judge committed reversible error in permitting the prosecution, over his objection, to state in the opening statement to the jury the state intended to prove an examination made of the arms of Robinson at the time of his arrest showed evidence of prick marks, the theory being that such a statement, as well as the testimony of the officers in substantiation, was a violation of Section 11 of Article I of the Constitution of 1921, in that it compelled him to give incriminating bodily evidence against himself. (Bills of Exceptions Nos. 4 and 9 cover these rulings.)

The note of evidence attached to these bills shows that after the officers had placed the accused under arrest in his bedroom, he rolled up his sleeve without protest upon instruction of the witness Faulkner, and an examination disclosed 'numerous marks, which resemble hypodermic injections into the veins,' on the inner side of his arm in the vicinity of the elbow, the witness stating these marks were common to narcotic addicts, and that the accused admitted at the time that he had been an addict for some nine months.

Although there are authorities to the contrary, mostly in those states...