State v. Royal
| Decision Date | 23 February 1970 |
| Docket Number | No. 49989,49989 |
| Citation | 255 La. 617,232 So.2d 292 |
| Parties | STATE of Louisiana v. L. D. ROYAL. |
| Court | Louisiana Supreme Court |
James L. Davis, Many, for appellant.
Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., J. Reuel Boone, Dist. Atty., Thomas A. Self, Asst. Dist. Atty., for appellee.
The defendant was tried and convicted under a bill of information charging simple burglary and sentenced to serve nine years in the state penitentiary. From this conviction and sentence he has appealed.
The bill of information originally charged: '* * * He committed simple burglary of the store building belonging to W. W. Jett. * * *' Prior to trial it was amended to read: '* * * He committed simple burglary of the store building belonging to Marion H. Dover, in which was operated a mercantile business known as Florien Mercantile Company, owned by W. W. Jett. * * * ' The first bill of exception was reserved when the court overruled an objecton to this amendment on the ground that it was a change in substance and came too late. Bill of Exception No. 1 has no merit. The trial court has completely and succinctly answered the defendant's bill of exception:
To the overruling of defendant's motion for a continuance on the ground that he was not prepared to defend under the bill of information as amended, the second bill of exception was reserved. No showing is made that the defendant was taken by surprise or prejudiced in presenting any defense. To the contrary, the transcript attached to this bill verifies that counsel for defendant had prior knowledge of the true ownership of the building. 1 The defendant failed to make the required showing for a continuance under Code of Criminal Procedure Article 489, and the trial judge's refusal to grant the continuance was a correct ruling.
Bills of Exception Nos. 3 and 4 were reserved when the State over the defendant's objection was permitted to introduce certain physical evidence, seven pairs of pants. The objection on which Bill No. 3 is based is '* * * that the evidence had not been properly identified' and that '* * * the chain of custody * * * had not been established'. The defendant has failed to attach any testimony to his bill, but the trial judge's per curiam fully establishes that the proper identification was made and that the chain of custody necessary for the admission of the evidence was proven.
The final bill of exception was reserved to the following ruling:
Initially, we are doubtful that an oral motion to suppress made during the trial effectively presents anything for the trial court's consideration. 2 Even if an oral motion were allowed, the defendant did not contend in this motion that before trial he had no opportunity to file a motion to suppress or had no knowledge of the grounds for the motion. A simple objection of counsel may not be the basis of an attack upon the constitutionality of a search or seizure. State v. Davidson, 248 La. 161,...
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... ... Therefore, whether the defect be considered one of form or of substance, amendment of the bill of information with respect to such defect was properly allowed. State v. Hubbard, 279 So.2d 177 (La.1973); State v. Royal, 255 La. 617, 232 So.2d 292 (1970). Assignment of Error No. 4 is without merit ... ASSIGNMENT OF ERROR NO. 5 ... Defendant contends the trial judge erred in denying his motion for a thirty days' continuance filed after the trial judge permitted the state to amend the bill of ... ...
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