State v. Hopper, 203 So. 2d 222 (La. 1967)

HAMLIN, Justice:

John T. Hopper and Joe A. Woodard, defendants, were jointly indicted for the crime of murder (LSA-R.S. 14:30) of Joseph Ralph Beeson. They were tried, found guilty of “Manslaughter,” and sentenced to serve fifty-nine (59) months at hard labor in the Louisiana State Penitentiary. On appeal to this Court, they present for consideration fifty-three bills of exceptions.

Bill of Exceptions No. 1 was reserved when the trial court overruled defendants’ objection to the association of Chris J. Roy (allegedly the brother of District Attorney Anthony J. Roy, Jr.) in the prosecution of this case. Herein, counsel for defendants argue that there was no authority for the association, and that LSA-R.S. 15:17 is unconstitutional insofar as it provides a method of appointment of assistant district attorneys different to that set forth in Art. VII, Sec. 60, La.Const. of 1921.

Sec. 60 of Art. VII, La.Const. of 1921, provides:

LSA-R.S. 15:17 provided:1

We find no conflict between LSA-R.S. 15:17 and Art. VII, Sec. 60, La. Const. of 1921. LSA-R.S. 15:17 is merely a legislative enactment carrying into effect the constitutional provision. The jurisprudence has been legion that private counsel may be employed to assist the Attorney General or the district attorney in the trial of a criminal' cause. State v. Petrich, 122 La. 127, 47 So. 438; State ex rel. Stewart v. Reid, 113 La. 890, 37 So. 866; State v. Mack, 45 La.Ann. 1155, 14 So. 141. Defendants have not shown prejudice.

Bill of Exceptions No. 1 is without merit.

Bill of Exceptions No. 2 was reserved when the trial judge sustained the objection of the district attorney to being questioned on cross-examination during the hearing of the Motion to Suppress Evidence.

Prior to the trial judge’s ruling, counsel for defendants asked the district attorney the following question after having called him under cross-examination:

After responding affirmatively to this question, the district attorney was asked at what time the information was brought to his attention. He then said:

In sustaining the objection of the district attorney, the trial judge stated that counsel for defendants had other avenues to determine all of the facts and circumstances that had any bearing upon the statements that were made (allegedly by defendants) and were being sought to be suppressed. The court said that those avenues would not subject the district attorney to reveal information. The court felt that the information received by the district attorney and the information in his possession as well as what prompted him to act were perhaps based upon confidential information that the district attorney had a right to refuse to divulge.

Herein, counsel for defendants argue that they were not attempting to get the district attorney to divulge any secret information or evidence he had in his files. They contend that the trial court committed prejudicial error to the rights of the accused; they argue that since the district attorney freely and frequently took the witness stand during the trial of the case before the jury, he should not have been averse to taking it on the hearing of the Motion to Suppress Evidence. Finally, counsel contend that the action of the district attorney was not consonant with the basic concept of a “fair and impartial” trial, his attitude not being that prescribed in State v. Tate, 185 La. 1006, 171 So. 108:

Under the circumstances existing at the time this bill was reserved, we do not find that the constitutional rights of the defendants were violated. Likewise, we do not find that the trial judge abused his discretion in ■ ruling as he did. No Louisiana authority holding that a district attorney must testify under cross-examination on the hearing of a Motion to Suppress Evidence has been pointed out to us. Our research reveals none. Defendants have not shown prejudice. Therefore, we conclude that the defendants were not prejudiced and suffered no deprivation of rights afforded at a “fair and impartial” trial.

Bill of Exceptions No. 2 is without merit.

Bill of Exceptions No. 3 was reserved when the trial judge permitted Trooper Carl Clifford Slaughter of the Louisiana State Police to answer the following question:

Trooper Slaughter’s answer was in the affirmative.

Counsel for defendants contend that the trial court was in error in permitting this witness to testify as to what he heard over the radio when he was not a party to the communication. It is contended that his testimony was hearsay.

A reading of the entire testimony of this witness reflects that the testimony was technical in great part; he described the radio operations at his communications center. Trooper Slaughter was on duty as the radio operator in Troop E headquarters in Alexandria, Louisiana, from midnight April 19, 1964 until sometime later in the morning; Troop E has jurisdiction over Avoyelles, Rapides, Natchitoches, Winn, Grant, La-Salle, Concordia and Catahoula Parishes.

Because of the seriousness of the instant occurrence, there were many radio communications concerning it. Defendants suffered no prejudice from Trooper Slaughter’s affirmative answer. Defendants have shown no prejudice. We find that the testimony objected to was only incidental to the entire testimony. ■

Bill of Exceptions No. 3 is without merit.

Bill of Exceptions No. 4 was reserved when the trial judge permitted certain witnesses to answer allegedly improper questions propounded to them during the

pre-trial proceedings on the Motion to Suppress Evidence.2

Counsel contend that the answers of the witnesses prejudiced the rights of the defendants, and that the cumulation of such errors impeached the fair and impartial character of the proceedings. State v. Henry, 196 La. 217, 198 So. 910.

We find that the testimony objected to was relevant to the Motion to Suppress Evidence. It was therefore not cumulatively erroneous. Defendants have not shown, and we do not find that defendants suffered prejudice from the admission of the testimony. The rules of fairness and impartiality were not violated.

Bill of Exceptions No. 4 is without merit.

Bill of Exceptions No. 5 was reserved when the trial judge overruled defendants’ Motion to Suppress Evidence. The motion sought to have excluded from the evidence the following unsigned oral statements given to Major Harold J. Henderson, Chief Deputy in the Sheriff’s Office of Avoyelles

Parish, shortly after the apprehension and arrest of the defendants :3

ing up. We then pushed him down between the concrete slab and the Truck. Then we both hit him 4 or S times each while he was down. Most of the blows landed on the head. I then kicked him on the side of the head. Johnny hit him a couple of times on the head after I kicked him. Then we saw a whole lot of blood on the concrete slab. The slab is on the East side of the Building about half way to the back.

out and dance then come back and sit down. We danced a couple of time and I was out of a drink. I then went over to Nobles’ table to get a drink. I picked up the whiskey and coke and took them back to the girls table. I asked the girls if they wanted to drink and they said no so I mixed me another drink. We would dance some and when we come back to the table my drink would be missing. It happened 1 or 2 times then I would get a glass and mix another one. Right along then I was getting pretty drunk. I guess. I don’t know what time it was when the 4 girls said they were leaving.

Counsel for the defendants contend that the rights and immunities of the defendants were violated as follows:

statement; their counsel was not present at the time of their making any such statement; they were not advised of the consequences that might follow from their making any such statement; they were not advised of their right to have counsel present at the time of making any such statement; they were not advised of their right to remain silent and not to make any statement; all in violation of their constitutional and statutory rights under the Sixth and Fourteenth Amendments to the United States Constitution, Article 1, Section 2 of the Louisiana Constitution, and Article 1, Section 9 of the Louisiana Constitution, and Section 142 of the Louisiana Code of Criminal Procedure.

THE LEGALITY VEL NON OF THE ARREST.

On April 19, 1964, Reese McNeal, Deputy Sheriff in Avoyelles Parish and radio operator, was on duty in the radio room of the Sheriff’s office. Chief of Police Paul Dubea of the City of Marksville, who used the radio facilities of the Sheriff’s office because of the inadequacy of City facilities at that time, was also in the office. At approximately 1:30 A.M., Chief Dubea answered a telephone call and was told that a truck had run over a boy and to call an ambulance. An ambulance was thereupon dispatched to the Pelican Club.

On arrival at the Pelican Club, Chief Du-bea and Officer Pete DeNux were confronted with a crowd of between forty and fifty persons, a number of them allegedly being drunk. Lying on a concrete slab in a puddle of blood was the instant victim, Joseph Ralph Beeson. While mixing in the crowd, Chief Dubea determined that the victim had not been run over; that he had allegedly been beaten. A young woman told him that three boys, whom she did not know, had driven off in a white Chevrolet Corvair; she gave him a description of the car and the license number.

We believe that the evidence is replete to the effect that Chief Dubea had sufficient information to indicate that the three boys had fled the scene of the altercation, and that they had driven to the Ranch House Motel.

Chief Dubea and Officer DeNux went to the hospital, and on learning that Beeson was dead they returned to the Sheriff’s office where they secured the registration of Woodard’s automobile. They then immediately proceeded to the Ranch House Motel. Upon spotting Woodard’s car, the license number matching that given by the young woman, they inspected it with a flashlight and discovered blood. Chief Du-bea, in full dress uniform, and Officer DeNux walked through a crowd of onlookers and “looked in one of the apartments there at the Ranch House, they had a crack in the door and I presumed it might have been the ones that the car belonged to so I went up to the door and I knocked and one of them inside said ‘come in’ so we did, me and DeNux.” (Chief Dubea’s testimony, record p. 620.) In the room were three boys and a woman. With respect to his entry, Chief Dubea testified:

—had his wife, him and his wife, Nobel, well, we just brought those three. ”

Having been arrested, the defendant Joe A. Woodard and his two friends were taken to the Courthouse in the back seat of Chief Dubea’s car; they were not handcuffed. They were brought to the Sheriff’s office where Major Henderson, the Sheriff, the District Attorney, the Coroner, and Allen Normand were present. Chief Dubea testified that Frazier was pretty highly intoxicated and Woodard wasn’t too highly intoxicated. Some short time elapsed before Woodard was interrogated, during which time he remained seated in the Sheriff’s office.

Sgt. Patrick Lemoine of the Louisiana State Police, accompanied by Trooper Eddie Bordelon, received a radio bulletin telling him to be on the lookout for the instant Corvair; they had also received news bulletins with respect to the occurrence at the Pelican Club. The officers concluded some business at the Marksville Hospital, where they were approached by two men who gave them details of the instant offense, and then proceeded to the Ranch House Motel. There they found the defendant John T. Hopper alone and bleeding from his ear; Hopper was concealed in a closet of the room when Woodard and the other two boys (with whom we are not concerned herein) were arrested; Hopper’s testimony affirmed this fact. Sgt. Lemoine told Hopper that he was wanted for murder by the City and Parish Officers and placed him under arrest.

Trooper Eddie Bordelon stated that Hopper answered affirmatively to Sgt. Le-moine’s question as to whether he had been with the boys who had been picked up by the City Police. Bordelon affirmed that Sgt. Lemoine told Hopper he was under arrest; he also stated that Hopper said, “Oh my God, what have we done.”

Hopper was taken to the Sheriff’s office, where he was turned over to the deputies and later questioned by Major Henderson; during the interval he was seated with his friends. During the ride to the Courthouse he had been handcuffed, but his handcuffs were removed upon arrival in the Sheriff’s office.

On the hearing of the Motion to Suppress Evidence, Hopper answered negatively when asked whether the police officer told him he was acting under any specific authority or that he had any charge against him, or warrant for his arrest — that he was being investigated with a criminal offense.

Woodard testified that Chief Dubea told him that Beeson was dead. He said Chief Dubea told him to come go with him, but that he did not tell him he was under arrest. He answered negatively when asked whether the Chief said “either in the room or at any time to you that you were under arrest or that you were being investigated in connection with any charge.”

James Nobles, who was taken to the Sheriff’s office with Woodard, testified that Chief Dubea told him to come on downtown, and that he did not think Chief Dubea told him or anyone else that they were under arrest.

Cyrus William Frazier, Jr., a roommate of Joe Woodward, who was also taken to the Sheriff’s office with Woodard, testified that Chief Dubea did not tell the boys anything about placing them under arrest; that he did not mention any charges.

LSA-R.S. IS :60 (now Article 213 of the New Code of Criminal Procedure), in effect at the time of the instant offense, provided:

“(3) When a felony in fact has been committed and he has reasonable cause to believe that such person has committed it;

As stated supra, counsel for defendants contend that the arrest of the accused was not lawful, for the reason that it was not based on reasonable cause or probable cause as defined in the jurisprudence. They argue that at the time the accused were arrested there was no reliable information from a creditable person which would lead the police officers to reasonably believe that the accused had committed a crime. They say that the basis of arrest made by Chief Dubea of the defendant Woodard could not even rise to the dignity of a mere conclusion which basis for an arrest was condemned in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.4

In the very recent case of State v. Johnson, 249 La. 950, 192 So.2d 135, this Court discussed “probable cause” in detail; we find our reasoning in that case applicable here.5 See, also, State v. Bourg, 248 La. 844, 182 So.2d 510; State v. Aias, 243 La. 946, 149 So.2d 400. Cf. State v. Green, 244 La. 80, 150 So.2d 571.

We find that the weight of the evidence supra is to the effect that defendants were told that they were under arrest and were thereafter arrested prior to being taken to the Sheriff’s office. The evidence preponderates to the effect that the arresting officers knew that a felony had been committed; they likewise had probable cause, as shown by the evidence supra, to believe that defendants were involved in the commission of such offense. We therefore conclude that defendants were lawfully arrested, and that their constitutional rights were not violated by such arrest.

COUNSEL AND THE RIGHT TO REMAIN SILENT.

As stated supra, counsel for the defendants contend that the confessions or admissions, supra, purportedly made by defendants could not be said to have been made freely and voluntarily in the light of the totality of the circumstances as revealed by the evidence. They argue, as stated supra, that the constitutional rights, privileges and immunities of the accused, as interpreted by the jurisprudence of the United States Supreme Court, were unquestionably denied to them.

Harold J. Henderson, Chief Deputy in the Sheriff’s office in Avoyelles Parish, interrogated the defendants on the morning of April 19, 1964 and reduced to writing the statements supra. He testified he commenced interrogating Woodard at approximately 4:00 A.M., and that Deputy Hebert Bordelon and Chief Paul Dubea were in the office.6 Henderson’s testimony with respect to what was told Woodard is as follows :

“A. Well no, I figured two intelligent college boys sitting by a telephone after they had that much explained to them they could use their own discretion as to what they wanted to do at the time. I thought we went at length in explaining their rights and especially that they didn’t have to talk or say anything.

“Q. Now getting back to the statement that you got from Mr. Woodard, did you write that out in your own handwriting ?

Defendant Hopper was interrogated by Major Henderson following the interrogation of Woodard, his interrogation being concluded before 8:30 A.M., April 19, 1964; Dr. Kaufman, Coroner, and Chief Paul Dubea were present. Henderson testified that Hopper appeared to be more intoxicated than Woodard and had a cut on his ear, but that he did not receive medical treatment before interrogation. Henderson said, “I told Mr. Hopper that he didn’t have to give a statement that he didn’t have to say anything, that he was entitled to an attorney, then if he did make a statement it could be used against him in a court of law.” He also said that he told Hopper practically the same thing that was told to Woodard, and, as stated supra, Hopper refused to sign the statement after it was read back to him.

Defendants’ testimony is to the effect that they were not mistreated before or during the interrogation. Their testimony is affirmative to the effect that they were not advised of any of their alleged rights before their interrogation. Woodard said that he was beginning to sober up before interrogation; Hopper stated that he did not feel well. Defendants’ testimony is in direct conflict with that of Major Henderson, insofar as the information given them before interrogation is concerned. Their testimony reflects that they had never been in previous trouble; they had never had any

association with police interrogation. Both defendants testified that the statements were not correct and they refused to sign them. They affirm Major Henderson with respect to the events that transpired after interrogation. Both defendants testified that after interrogation they were told that they could use the telephone, and they did thereupon call their parents.

Sheriff F. O. Didier testified that he had a brief talk with the defendants before the interrogation; he did not advise them of any of their alleged rights. He said that the defendants were booked with murder on the morning of April 19, 1964.

Dr. Henry J. Kaufman, Jr., Coroner for Avoyelles Parish, testified that he was present throughout the interrogation of Hopper. He said that Major Henderson told Hopper that what he said could be used against him. He confirmed that Hopper said he did not want to sign the statement— “until he was advised for it.” However, it was his opinion that Hopper did not deny what was in the statement. As far as he could see, the boys did not appear to be drunk.

Chief Dubea affirmed that he was present at the questioning of Woodard. He indicated that nothing was said to either of the defendants with respect to using the telephone until after his interrogation had been completed. He also indicated that they were not told anything with respect to their alleged right to call a lawyer before interrogation. He affirmed that Major Henderson informed them before interrogation that they did not have to make any statement, and that they did not have to answer any questions at all, having an absolute right not to answer questions; that they were also apprised that what they said would be used against them, and they did not have to sign the statements.

Deputy Hebert Bordelon of the Sheriff’s office testified that he recalled that Major Henderson took a statement from Woodard. He said that he thought the District Attorney told Woodard that he had a right to have a lawyer present while he was making his statement. He said he was present when Major Henderson gave Woodard the statement to read and when Woodard refused to sign it; that Woodard was advised by Major Henderson that he did not have to sign it.

The instant crime is alleged to have been committed on April 19, 1964. A true bill was returned by the Avoyelles Parish Grand Jury on May 22, 1964. On February 12, 1965, the trial of this cause was assigned for Monday, March 1, 1965, all preliminary pleadings or motions to be filed on or before February 16, 1965. On February 26, 1965, a motion for continuance filed on behalf of the defendants was granted. The Motion to Suppress Evidence was overruled on June 19, 1965. Trial began on June 21, 1965; the jury rendered its verdict on July 16, 1965, and sentence was imposed on August 19, 1965.

In Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, (argued April 29, 1964, decided June 22, 1964), the United States Supreme Court held:

On June 13, 1966, the United States Supreme Court rendered its decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, in which it held:

After Miranda, there followed the case of Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, decided June 20, 1966, in which the Court stated:

In overruling the Motion to Suppress Evidence in the instant case, the trial judge stated:

We find that the ruling of the trial judge was correct. As stated supra, this case was tried and concluded during 1965, at which time Miranda, supra, had not been decided. Escobedo applies. See, State v. Johnson, 249 La. 950, 192 So.2d 135; State v. Carter, 248 La. 730, 181 So.2d 763.

The evidence supra does not reflect that defendant ever requested counsel or the right to secure same; neither have they shown that their counsel were present during the interrogation and their services denied them. The evidence supra does not show that defendants requested the use of the telephone and were denied such use. Therefore, the rights afforded defendants with respect to booking, conferring with counsel, confinement, the use of the telephone, and messenger service, set forth in LSA-R.S. 15:77 (now Articles 228, 229, and

230 of the new Code of Criminal Procedure) and the decisions of the United States Supreme Court in 1965, were not violated.

The allegations with respect to violations of LSA-R.S. 15:80, 81, 82, booking and being taken before a committing magistrate, are without merit. Under the facts as shown supra, defendants were booked within twelve hours after their arrest; they were indicted by the Grand Jury of Avoyelles Parish on May 22,1964 and thereafter ordered to be held without bail. Their confinement was therefore at all times legal confinement. See, State v. Johnson, 249 La. 950, 192 So.2d 135.

Having concluded that the ruling of the trial judge was correct in denying the Motion to Suppress Evidence, we are also constrained to conclude that the unsigned oral statements of the defendants were admissible in evidence, as held by the trial judge, and that no constitutional rights of the defendants were violated by their admission. The jurisprudence relied on by counsel for the defendants is not apposite.

Bill of Exceptions No. 5 is without merit.

Bills of Exceptions Nos. 6 and 7 were reserved to the overruling of defendants’ motions for severance.

In his motion for severance, defendant Woodard contended that his defenses were antagonistic to, inconsistent and contradictory with those of John T. Hopper, his co-defendant. He alleged that his co-defendant made a statement outside of his presence which the State would use against him. Defendant Hopper made the same allegations with respect to his co-defendant Woodard.

Counsel contended that since the unsigned oral statements of the defendants, supra, were admitted in evidence, the severance should be granted. It was contended that in each statement one defendant implicated the other, and that a joint trial was not feasible.

The reasons set out by counsel for the defendants for the granting of severance were general. At the time the motions were filed, defendants did not show any particular reason for granting severance or that injury would result to either from a joint trial. They did not show with particularity that their defenses were antagonistic; they did not show that their testimony would be contradictory. See, State v. Progue, 243 La. 337, 144 So.2d 352. They did not meet the tests which would necessitate severance. See, LSA-R.S. 15:316-317.

We find no abuse of discretion by the trial judge. His charge to the jury adequately protected each defendant.8 We do not find (and it has not been shown) that either defendant was arbitrarily affected by

the ruling of the trial judge, or that either actually suffered any prejudice from the joint trial itself.

Bills of Exceptions Nos. 6 and 7 are without merit.

Bills of Exceptions Nos. 8 and 9 were reserved when the trial judge overruled defendants’ motions requesting that they have a private trial instead of a public one, and that the prospective petit jurors on their voir dire be questioned separately and out of the presence of each other.

The basis of defendants’ motions was that the alleged attitude of the community was to the effect that undoubtedly its good name had been besmirched, and that undoubtedly such attitude would not be conducive to a fair and impartial trial. Defendants also felt that a prospective juror might say one thing privately and another publicly.

A reading of the record discloses that defendants have not shown that they suffered prejudice from a public trial; neither does it reflect that any untruths were told by the prospective petit jurors on their voir dire. It does not appear that a motion for change of venue was filed. Under such circumstances, we do not find that the trial judge abused his discretion in directing that the trial of the defendants be public.

Bills of Exceptions Nos. 8 and 9 are without merit.

Bill of Exceptions No. 10 was reserved when the trial judge sustained the State’s challenge for cause of the prospective juror Rudolph Paul Gremillion.

We find that the ruling of the trial judge was correct; his per curiam clearly expresses his reasons as follows:

there was no harm or wrong done to the defendants by excusing this juror.”

Bill of Exceptions No. 10 is without merit.

Bill of Exceptions No. 11 was reserved when the trial judge denied the peremptory challenge of defendant Woodard to the prospective juror V. J. Rabalais, such challenge being his thirteenth peremptory challenge.

Counsel for defendants contend that at the time they were refused severance, it was impossible and impracticable for counsel to divorce themselves from either defendant; therefore, the same counsel represented both defendants. They argue that the peremptory challenges used by one defendant should have had no effect on the challenges used by the other defendant. They further argue that under the decisions of this Court, in State v. Breedlove, 199 La. 965, 7 So.2d 221, and in State v. Oliphant, 220 La. 489, 56 So.2d 846, the ruling of the trial judge in connection with the situation reflected by this Bill of Exceptions constitutes prejudicial and reversible error. They also rely on the case of State v. Sevin, 243 La. 1023, 150 So.2d 1, as sustaining their contention.

The trial judge in his per curiam to the instant bill stated:

LSA-R.S. 15:354 (now Art. 799 of the new Code of Criminal Procedure) provided :

LSA-R.S. 15:353 (now Art. 800 of the new Code of Criminal Procedure) provided :

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

that an erroneous ruling of the court which deprives a defendant of one of his peremptory challenges is a substantial violation of his constitutional right to a fair trial and requires reversal. * ”

In State v. Breedlove, supra, this Court held that where the trial judge erroneously refused to sustain defendant’s challenge to prospective juror for cause, and thereafter defendant exhausted his peremptory challenges, but made no showing that any occasion arose after exhaustion of peremptory challenges when defendant needed a peremptory challenge or would have used it against any of the remaining jurors of the panel, there was no reversible error.

In State v. Oliphant, supra, this Court held that when an accused, by an erroneous ruling of the trial judge, is deprived of one of his twelve peremptory challenges to prospective jurors, the ruling of the court constitutes a real and substantial violation of the constitutional or statutory rights of the defendant.

LSA-R.S. IS :354, supra (substantially the same in the new Code of Criminal Procedure), means that each defendant, though jointly tried, is entitled to challenge twelve jurors. State v. Sevin, supra. Herein, defendant Woodard exercised his twelve peremptory challenges before challenging Mr. Rabalais. In challenging Mr. Rabalais, Woodard’s counsel contended that he was objectionable and obnoxious. When the bill was reserved, counsel did not show how Mr. Rabalais was obnoxious; he does not show herein how he was obnoxious. Counsel does not show this Court where defendant Woodard suffered any prejudice from Mr. Rabalais’s serving on the jury which heard this prosecution. Under such circumstances, we cannot hold that defendant was forced to accept an obnoxious juror or suffered prejudice. Therefore, having exhausted his peremptory challenges, he was not entitled to exercise a thirteenth challenge with respect to Mr. Rabalais.

Bill of Exceptions No. 11 is without merit.

Bill of Exceptions No. 12 was reserved to the trial court’s overruling defendant’s objection to the peremptory challenge by the State of the prospective juror Alton Tassin.

Defense counsel contend that the ruling was a retraction by the court of a prior ruling on an agreement among defense counsel, the District Attorney, and the court. Counsel contend that the allowing of the challenge was irregular and should not have been allowed.

Although previous to the challenging of Mr. Tassin there had been an agreement among defense counsel, the District Attor: ney, and the court, indicating that once a prospective juror had been accepted by both the State and defense counsel, there would be no further questioning of the prospective juror’s qualifications, the action of the trial judge was in strict accordance with LSA-R.S. IS :359,9 which was mentioned in the agreement.

We find no abuse of discretion by the trial judge in allowing the peremptory challenge of this prospective juror;10 likewise, we find that defendants suffered no prejudice.

Bill of Exceptions No. *12* is without merit.

Bill of Exceptions No. 13 was reserved when the trial judge overruled defense counsel’s objection to the excusing of the prospective juror Alex Wyble, who had previously been accepted by both the State and the defendants.

This prospective juror testified on June 26, 1965 that he had never been arrested for anything so small as a traffic ticket, and he was accepted as a juror by both the State and the defendants. The court then informed counsel that it would take no action on this juror at that time, because it had been informed that he had previously been given an arrest ticket by the State Police. On June 28, 1965, the District Attorney informed the court that there was a traffic violation pending against Alex Wyble, and that an original bill had been signed by him that day. The trial court then excused this prospective juror.

We find that the actions of the District Attorney were irregular, but, despite this fact, the ruling of the trial judge was correct and in accordance with LSA-R.S. 15:172,11 which vests him with discretion in matters such as those presented in this bill.

Bill of Exceptions No. 13 is without merit.

Bill of Exceptions No. 14 was reserved to the ruling of the trial judge denying defendant Woodard’s challenge for cause of the prospective juror Alvin Coco.

Defendant Woodard, who had exhausted his peremptory challenges, contended that because the prospective juror had in the past engaged the services of the law firm of Roy and Roy, of which Chris Roy, associate counsel with the District Attorney herein, was a member, and because a close friendship existed between Chris Roy and the prospective juror, he could not render a fair and impartial verdict. See, LSA-R.S. 15:351.

This prospective juror testified that his relationship to the law firm of Roy and Roy, as well as his friendship with Chris Roy, would have no effect on his decision in the prosecution. Under these facts, we find no abuse of discretion by the trial judge in denying defendant Woodard’s challenge for cause.12

Bill of Exceptions No. 14 is without merit.

Bill of Exceptions No. 15 was reserved when the trial judge denied defense counsel’s challenge for cause of the prospective juror Michael Scanlon.

The prospective juror testified that he knew the mother of the victim, having been in her company four or five times, but that he had not seen her since her son’s death. He also testified that he knew the father of Gary Morrison, a witness for the State. Despite his relations with these two persons,

he was of the opinion that he could make a fair decision. He said, “I would say this, I don’t think it would have any influence on me but if I was the boys I don’t think I’d want me.”

We do not find that the trial judge abused his discretion in denying the challenge at the time he did. We note that later (after the challenge was denied and more testimony had been adduced), when counsel for the defendants excused the prospective juror Michael Scanlon, the trial court also excused him. The instant jury does not bear the name of Scanlon. Therefore, defendants suffered no prejudice; their constitutional rights were not violated, and the action of the trial judge was not arbitrary in any manner.

Bill of Exceptions No. 15 is without merit.

Bill of Exceptions No. 16 was reserved when the trial court denied defense counsel’s challenge for cause of the prospective juror Murkle Dupuy.

The prospective juror testified that he went to the Pelican Club quite regularly and had been there on the night of April 18, 1964, leaving around twelve o’clock. He had no definite recollection of seeing the defendants. He testified that despite his attendance at the Club, he could render a fair and impartial decision.in the prosecution.

Defense counsel contended that this prospective juror’s attendance at the Club could have a mental effect upon his decision, particularly if there were witnesses in the case who had also been in attendance.

We find no abuse of the trial court’s discretion in refusing to excuse the prospective juror for cause, but we also note that he was excused when defense counsel exercised a peremptory challenge for defendant Hopper. Under the circumstances, the defendants suffered no prejudice.

Bill of Exceptions No. 16 is without merit.

Bills of Exceptions Nos. 17, 18 and 19 were reserved to the refusal of the trial judge to order the State to furnish the defendants with certain desired particulars requested in motion and supplemental motion for particulars.

The record reveals that a motion for bill of particulars was filed by defense counsel, and that thereafter several supplemental motions were filed. In response to the motions, the trial court ordered that defendants be furnished certain information. They were given copies of Major Henderson’s notes taken during the oral interrogation of defendants, supra, and were given a statement made by Cyrus Frazier. They were told that, “the only confessions and/or statements and/or admissions made by defendants to various deputies and/or other persons, were oral and not recorded electronically; that the State does have notes written by Harold Henderson of the Avoyelles Parish Sheriff’s Department; that the defendants are not entitled to the names and addresses of persons to whom any such confessions, and/or statements and/or admissions were made, nor to the names and addresses of the witnesses to said confessions, and/or admissions and statements.” They were also told that no warrant had issued for their arrest; they were not given all information leading to their arrest; they were not given the names of witnesses to be called by the State; and they were not informed of the evidence presented to the grand jury which indicted them.

Defense counsel contend that by not being given all of the particulars requested, defendants suffered prejudice and were denied their constitutional rights.

LSA-R.S. 15:215 (now Articles 433-434 of the new Code of Criminal Procedure) provided that the sessions of the grand jury should be secret. Therefore, whatever information was submitted to the

grand jury which indicted the defendants is a matter of secrecy between the District Attorney and the grand jury. Defendants were not entitled to know what evidence was submitted to the grand jury which investigated the instant offense, nor were they entitled to know what evidence was in the possession of certain Parish or State officials and submitted to the investigating grand jury.

A reading of the motions for bill of particulars and the supplemental motions, as well as the State’s answers to such, constrains us to find that the State was not required to furnish any more information than it did with respect to the probable cause of defendants’ arrest. Present jurisprudence does not compel the State to reveal the sources of all information within its knowledge. McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62; State v. Hunter, 250 La. 295, 195 So.2d 273.

Defense counsel were not entitled to have a list of the State’s witnesses. State v. Jones, 249 La. 324, 186 So.2d 608. The fact that the defense might be surprised by the appearance of a particular witness does not mean that the name of such witness must be submitted to counsel prior to trial. We know of no law to the contrary.

The oral statements and other evidence within the State’s possession were not such as had to be revealed in answer to a motion for a bill of particulars. See, State v. Pailet, 246 La. 483, 165 So.2d 294. The function of the bill of particulars is to inform the accused concerning matters which are pertinent to the charge against him. The trial court in its discretion determines what is fair to the accused in ordering the State to reveal that which the defendant will need to defend himself. The accused, however, is not entitled to the evidence upon which the State relies to establish its case. State v. Bourg, 248 La. 844, 182 So.2d 510; State v. Barksdale, 247 La. 198, 170 So.2d 374, cert. denied, 382 U.S. 921, 86 S.Ct. 297, 15 L.Ed.2d 236.

We find that defendants suffered no prejudice in not being given all information they desired; their constitutional rights were not violated. They were furnished sufficient details for the preparation of their defense. The trial judge did not abuse his discretion and acted in all fairness to the rights of the accused.

Bills of Exceptions Nos. 17, 18 and 19 are without merit.

Bills of Exceptions Nos. 20, 21, 22, 23, 26, 40 and 48 were reserved to the trial court’s overruling defendants’ objection to the District Attorney testifying as a witness for the State.

The District Attorney’s testimony was with respect to the alleged statements given by the defendants, supra, the identification of certain State’s exhibits, and certain events which took place on the morning of April 19, 1964.

Defense counsel objected to the District Attorney testifying on the ground that it was improper and prejudicial to the rights of the accused for the District Attorney to be both the prosecutor and a material witness in the case. A minor objection was also made to the effect that the testimony of the District Attorney would impeach that of a State witness. Objection was also

made that a proper foundation had not been laid for the introduction of certain exhibits.

Under the facts of this prosecution as disclosed by the testimony attached to the bills of exceptions, it was necessary that the District Attorney testify. He had a peculiar knowledge of what took place on the morning the offense was committed. It was really necessary that he testify in order for the defendants to have a fair and impartial trial. A foundation was properly laid for the introduction of exhibits. We also find that the testimony of the District Attorney was explanatory rather than impeaching. With respect to Bill of Exceptions No. 48, we note that the trial judge explicitly told the jury to disregard completely certain testimony which was sought to be elicited in rebuttal.

We find that the trial judge had to exercise his discretion in this matter, and under its peculiar facts and circumstances he was constrained to permit the District Attorney to testify. We do not find that he abused his discretion. No authority which absolutely prohibits a district attorney from testifying in a prosecution which he is conducting has been pointed out to us. Counsel for the defendants have not shown that defendants suffered any prejudice from the testimony of the District Attorney. We find no reversible error.

Bills of Exceptions Nos. 20, 21, 22, 23, 26, 40 and 48 are without merit.

Bills of Exceptions Nos. 24 and 25 were reserved when the trial judge ruled that the proper foundation and predicate had been laid for the introduction in evidence of certain admissions, confessions, or statements allegedly made by the defendants and overruled defendants’ objections to their introduction in evidence.

During the trial of this case, the District Attorney informed the trial court and defense counsel that the State was laying the foundation to introduce the following:

After the State had laid its foundation for the introduction of the above in evidence and counsel for the defendants had voiced objection, the trial court ruled that from all of the evidence a necessary foundation had been laid for the introduction of four different statements or confessions made by the accused, namely; a statement by defendant Woodard to Chief Paul Du-bea ; defendant Hopper’s statement to Troopers Lemoine and Bordelon; defendant Woodard’s statement to Major Harold Henderson in the Sheriff’s office; and defendant Hopper’s statement to Major Harold Henderson.

Defendants contend that the admission of the statements, supra, was erroneous because they were obtained and made in violation of the statutory State and Federal Constitutional rights of the accused, particularly but not exclusively LSA-R.S. 15:59, 60, 66, 67, 70, 77, 78, 80, 81, 82 and 142; Art. I, Sec. 11, La.Const. of 1921; Art. I, Sec. 9, La.Const. of 1921; Art. I, Sec. 2, La. Const, of 1921; the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. They also submit the same arguments advanced in Bills of Exceptions Nos. 5, 17, 18 and 19. They also urge that all statements were not given to them in advance of trial, and that they were entitled to such in order to prepare their defense.

Counsel for the defendants had in their possession for inspection and preparation of their defense the statements given by the defendants to Major Henderson. The other statements were not written confessions, and counsel were told in advance of trial that the State did have certain oral statements which it would attempt to introduce in evidence.

A reading of the testimony attached to the instant bills constrains us to find that a proper foundation was laid for the introduction of the statements in evidence, and that their admission was proper after such foundation had been laid. No showing to the contrary has been made. Our reasoning in Bills of Exceptions Nos. 5, 17, 18 and 19 applies to these bills. No further discussion is necessary.

Bills of Exceptions Nos. 24 and 25 are without merit.

Bills of Exceptions Nos. 38 and 39 were reserved when the trial court ruled that the statements made by defendants could be submitted to the jury.

Defense counsel contended that the proper foundation and predicate for the statements had not been laid, and that their submission to the jury would violate defendants’ constitutional rights.

A review of the testimony attached to the instant bills discloses that Major Henderson testified that he had the notes or statements in his possession. He provided the court with the originals; his handwriting was identified. He read the statements to the jury and testified that he wrote down as accurately as he could what the defendants told him. He said he did not go beyond the responses of the defendants in the statements.

49, 81 L.Ed. 378. See, State v. Dierlamm, 189 La. 544, 180 So. 135,

Our discussion of Bill of Exceptions No. 5 also applies to these bills. Therefore having found that the Motion to Suppress Evidence was properly overruled by the trial judge, we conclude that his rulings permitting the State to submit the statements of the defendants to the jury were correct.

Bills of Exceptions Nos. 38 and 39 are without merit.

Bill of Exceptions No. 27 was reserved when the trial judge ruled that the State during trial could go into the actual contents of the statements made by the defendants to Major Henderson.

Counsel for defendants contended that a proper foundation had not been laid for the introduction of the statements, and that the corpus delicti had not been proved. Counsel urged that the trial judge’s ruling violated defendants’ constitutional rights.

The instant bill really presents nothing new for our consideration. Our discussion of Bills of Exceptions Nos. 5, 24, 25, 38 and 39 applies to this bill. No further discussion is necessary.

Bill of Exceptions No. 27 is without merit.

Bill of Exceptions No. 28 was reserved when the trial judge denied the request of defendants’ counsel for the sequestration of certain attorneys who had been subpoenaed by defense counsel.

Some of the attorneys represented Mrs. Althea Duncan, the mother of the victim of the instant crime, in her civil suit against the defendants and the father of defendant Woodard. One of the attorneys addressed the trial court and stated:

This attorney also stated that the District Attorney had no objection to the attorneys being in the courtroom.

A reading of the colloquy among the trial court, counsel in this case, and the attorneys discloses that when the trial judge permitted the attorneys to remain in the courtroom, he gave them proper admonition as to what they might discuss with other persons. Under LSA-R.S. 15:371, the trial judge was vested with discretion to order or refuse to order the sequestration of witnesses. Counsel for the defendants have not shown that defendants suffered any prejudice from the denial of sequestration by the trial judge. Under such circumstances, we do not find that the trial judge abused his discretion.

Bill of Exceptions No. 28 is without merit.

Bill of Exceptions No. 29 was reserved when the trial court allowed the State’s Exhibits 1-TB through and including 6-TB to be admitted and filed in evidence.

The testimony attached to the instant bill reflects that Dr. John Maxwell of Alexandria, a specialist in pathology, performed the autopsy on the instant victim on April 19, 1964, acting at the request of Dr. Henry J. Kaufman, Jr., Coroner of Avoyelles Parish. To better orient himself and for a diagnosis pertaining to the cause of death, Dr. Maxwell made pictures of the autopsy. He took color picture slides, which were later developed into photographs.

State’s Exhibits 1-TB through 6-TB consist of: 1) a picture slide of a full face view of Joseph Ralph Beeson; 2) a picture slide of the right side of the head of Joseph Ralph Beeson; 3) a picture of the left side of the head of Joseph Ralph Beeson; 4) a picture slide of the under side of the brain of Joseph Ralph Beeson; 5) a picture slide of the floor of the skull of Joseph Ralph Beeson; and 6) a picture slide of both lungs of Joseph Ralph Beeson.

Counsel for the defendants objected to the offering of the slides in evidence for these reasons:

The trial court viewed the slides and then permitted the jury to view them projected on a screen. The court stated:

A review of the evidence attached to the instant bill reflects that a proper foundation was laid for the introduction of the slides, and that a predicate was established for their offering. The slides were made on the day of death, not at a remote time, and were relevant to the prosecution. They were relevant to the theory of the State and to the admission of counsel for the defendants that the victim’s death resulted from trauma to the brain.

The objection that the slides were gruesome and would have the effect of prejudicing the minds of the jury has no merit. The slides were all associated with the cause of the victim’s death and reflected the injuries he allegedly received. State v. Dowdy, 217 La. 773, 47 So.2d 496. The fact that objects or photographs constitute or portray a repulsive spectacle and tend to prejudice the jury furnishes no valid ground for their exclusion where they are otherwise relevant. State v. Hamilton, 249 La. 392, 187 So.2d 417.

The trial judge correctly ruled that the slides were admissible to substantiate the testimony of the witness Dr. John Maxwell.

Bill of Exceptions No. 29 is without merit.

Bills of Exceptions Nos. 30 ond 31 were reserved when the trial court denied the request of defense counsel for the production in evidence and view by counsel of the photographs made from the slides

identified as State’s Exhibits 1-TB through 6-TB.

It goes without saying that before the photographs were produced (they were later produced), the slides from which they were made had to be introduced in evidence and testimony given with respect thereto. This was a phase of the prosecution when the trial court denied counsel’s request. The request of counsel was therefore premature. No prejudice has been shown, and defendants suffered no prejudice.

Bills of Exceptions Nos. 30 and 31 are without merit.

Bill of Exceptions No. 32 was reserved when the trial court permitted the photographic prints of the color slides, State Trial Exhibits 1-TB through 6-TB, to be admitted in evidence.

Defense counsel submitted as their objection to the admission of the photographic prints, the same reasons advanced in Bill of Exceptions No. 29 as objection to the admissibility of the color slides.

We have viewed the photographs submitted to this Court as a part of the evidence, and we do not find that they are gruesome, morbid, or of any other character as would prejudice the jury. State v. Fulghum, 242 La. 767, 138 So.2d 569. They are relevant to the prosecution of this case and are evidentiary to the alleged cause of death. Our discussion of Bill of Exceptions No. 29 applies to the instant bill.

Bill of Exceptions No. 32 is without merit.

Bills of Exceptions Nos. 33 and 34 were reserved when the trial court permitted the State to offer in evidence mug photographs of the defendants, State Trial Exhibits Nos. 3 and 4, and testimony concerning same.

Defense counsel contended that the ruling of the trial judge permitting the photographs to be offered in evidence and allowing Deputy Sheriff Allen Normand to testify with respect to same violated defendants’ statutory and constitutional rights.

Allen Normand was Chief Identification Officer in charge of records at the time of trial; his duties included fingerprinting, mugging, keeping records, and identifying evidence. He was also president of the Louisiana Association of Identification. The officer identified the pictures of the defendants, testifying that he mugged the defendants at the same time he fingerprinted them. He testified from notes as to the physical qualities of the defendants. We. find that he was well qualified to give the testimony that he did, and that such testimony was relevant to the instant prosecution.

We do not find that the trial judge abused his discretion by admitting the mug shots in evidence. They were relevant evidence and therefore admissible.

Bills of Exceptions Nos. 33 and 34 are without, merit.

Bills of Exceptions Nos. 35 and 36 were reserved when the trial judge allowed the State to introduce in evidence the shoes worn by the defendants on April 18th and 19th, 1964, State Trial Exhibits Nos. 5, 6, 7 and 8.

Defense counsel contended that the State had not laid the proper foundation and predicate for the introduction of the exhibits, and that they were irrelevant and immaterial and of no probative value. Counsel also objected for the same reasons advanced in Bills of Exceptions Nos. 33 and 34.

Deputy Allen Normand properly identified the shoes and testified that they had been in his possession, having been turned over to him by defendants at the time of fingerprinting. Under the circumstances, we find that the proper foundation was laid for the introduction of the shoes in evidence. They were relevant evidence and therefore admissible. State v. Aspara, 113 La. 940, 37 So. 883.

Bills of Exceptions Nos. 35 and 36 are without merit.

Bill of Exceptions No. 37 was reserved when the trial court allowed the State to introduce in evidence State Trial Exhibit No. 9, a picture of a Model R1205 Panel (Corvan) Truck.

Counsel for the defendants contended that the exhibit had not been properly identified, and that the proper foundation had not been laid for its introduction. They also contended that the witness Gary Morrison had not been properly qualified to give testimony to lay the predicate for the introduction of the exhibit. They further contended that the exhibit was irrelevant and immaterial evidence and of no probative value.

The prosecution alleged that at the time of the instant occurrence a truck was near the concrete slab, supra. Gary Morrison, a friend of the deceased who accompanied him to the Pelican Club on the night of April 18, 1964, testified as to the events which took place before the death of Joseph Ralph Beeson; he testified as to the physical surroundings outside of the Pelican Club. We find that it was proper for the State to ask him if the truck he had seen near the slab resembled that portrayed in the picture. The exhibit was relevant evidence.

A reading of the testimony attached to the instant bill reflects that a proper foundation was laid for the introduction of State Trial Exhibit No. 9.

Defendants have not shown that they suffered any prejudice from the admission of this exhibit. We find that it was admissible. State v. Page, 173 La. 279, 136 So. 609.

Bill of Exceptions No. 37 is without merit.

Bill of Exceptions No. 41 was reserved when the trial court permitted the State to introduce in evidence State Trial Exhibits Nos. 22, 23 and 24, color photographs of a cement slab on the side of the Pelican Club.

Defense counsel objected to the introduction of the color photographs on the ground that the offering was made without proper foundation and predicate having been laid. They contended that the photographs had not been identified in such a way as to permit them to have any probative value. Counsel contended further that the slab had been hosed down prior to the taking of the photographs and for that reason they did not actually reflect the area because of the crowd at the scene as testified to by witnesses. It was still further contended that the exhibits were not of any material or relevant value, “other than the deceased himself and the situation as reflected at the time that the photographs were taken.”

We find that the photographs were properly identified. They were identified by Deputy Sheriff Allen Normand who took the pictures. The reverse side of the photographs reflect that they were taken at 4:00 A.M., April 19, 1964. A proper foundation and predicate was therefore laid for the introduction of the exhibits in evidence.

Defendants have not shown that they suffered any prejudice from the introduc

tion of the exhibits. We find that the photographs were relevant evidence, but if not so, they served as secondary evidence. Cf., State v. Palmer, 227 La. 691, 80 So.2d 374.

Bill of Exceptions No. 41 is without merit.

Bill of Exceptions No. 42 was reserved when the trial court permitted the State to offer in evidence State Trial Exhibits Nos. 37, 37-A and 37-B, a paper bag and two drinking glasses.

Counsel for the defendants objected to the introduction of the exhibits on the grounds that the proper foundation had not been laid, proper identification had not been made, and the offering was irrelevant and immaterial and of no probative value.

M. J. Juneau testified that he had worked at the Pelican Club about one and one-half years prior to April 19, 1964; He identified the glasses as being similar to those used at the Club on April 19, 1964.

We find that a proper foundation was laid for the introduction of the exhibits. Defense counsel have not shown that the defendants were prejudiced by the introduction of the exhibits. They merely state that the State was obviously attempting to minimize the effect of Beeson's striking Hopper with a drinking glass by offering the instant exhibits. If this was so, it was the State’s privilege, and the evidence was relevant.

Bill of Exceptions No. 42 is without merit.

Bill of Exceptions No. 43 was reserved when the trial judge, outside of the presence of the jury, ruled that Mrs. Althea Duncan, mother of the victim, could testify in the presence of the jury with respect to a conversation she had with the defendant Hopper in the Sheriff’s office on April 19, 1964. She asked Hopper, “Why?” Hopper responded, “just drunk.”

Defense counsel contend that the trial judge committed error jn permitting Mrs. Duncan to testify as she did, because:

We do not find that the conversation testified to by Mrs. Duncan was intended as an oral admission. Counsel have not shown where the trial judge abused his discretion, and we do not find that he did. Likewise, counsel have not shown how the defendants suffered prejudice by Mrs. Duncan’s relating her conversation with the defendant Hopper.

Bill of Exceptions No. 43 is without merit.

Bills of Exceptions Nos. 44 and 45 were reserved when the trial court denied defendants’ motions for a mistrial.

Billy Frazier, age twenty-one at the time of trial, and a former college roommate of Joe Woodard, who was with the defendants on the night of the instant occurrence, was asked the following questions by the State in the interest of perjury during his testimony:

“Do you remember when you were subpoenaed to appear before this Avoyelles Parish Grand Jury last May of 1964, do you remember that?”

The witness responded that he wasn’t subpoenaed; that “a Policeman up at Tech come and told me to come down here.” The witness then said he remembered when he was subpoenaed. He did not answer the question as to the length of time he remained with the grand jury.

After defense counsel’s objection and colloquy between the court and counsel, Mr. Roy made the following statement:

Thereafter, the trial court ruled that the grand jury proceedings were secret, and that the witness did not have to answer the questions. It stated:

Previously, in the presence of the jury, Frazier was asked, “Mr. Frazier, are these the pants and shirts that Joe Woodard was wearing that night?” Counsel for the defendants objected to the question on the ground that the evidence had been excluded, and that there was an improper display of it. The State withdrew the evidence; the jury was retired; counsel for the defendants identified the evidence; colloquy followed; the trial judge denied the motion for a mistrial.

Defense counsel contend that despite the trial judge’s ruling, the rights of the defendants were prejudiced; they also contend that the defendants’ rights were prejudiced by the improper display of withdrawn evidence.

A reading of the testimony attached to the instant bills convinces us that the substantial rights of the accused were not prejudiced. The trial judge properly instructed the jury at the time the instant errors were committed and again instructed it in his general charge as follows: — “Any evidence as to which an objection was sustained by the Court, and any evidence ordered stricken by the Court, must be entirely disregarded by you.”

The jurisprudence is legion that generally instructions of the trial court at proper time nullify the prejudicial effect of an improper statement made by a prosecuting officer during the course of trial. State v. Dowdy, 217 La. 773, 47 So.2d 496; State v. Brazile, 234 La. 145, 99 So.2d 62; State v. Brossette, 229 La. 420, 86 So.2d 87; State v. Jackson, 227 La. 642, 80 So.2d 105.

Bills of Exceptions Nos. 44 and 45 are without merit.

Bill of Exceptions No. 46 was reserved when, outside of the presence of the jury, the trial judge ruled that Reverend John D. Bell, a Methodist Minister of the Gospel who visited the Avoyelles Parish Jail on the morning of April 20, 1964, could testify before the jury that during a conversation between the defendants and an unidentified third person be overheard defendant Woodard make the statement, “I wish to hell I had had time to stomp some more to death.”

’ Bill of Exceptions No. *47* was reserved when the trial judge ruled during trial and in the presence of the jury that Reverend Bell’s testimony that he overheard defendant Woodard say in a conversation between the defendants and an unidentified third person, “I wish to hell that I had had time to stomp another one to death,” was admissible.

Counsel for the defendants contend that the proper foundation and predicate were not laid for the testimony, and that it was prejudicial to the defendants, being fragmentary in nature.

We have read all of the testimony attached to the instant bills and find that proper foundation and predicate were laid for Reverend Bell’s statement. His extensive testimony outlines in detail his mission at the jail, his visibility of the defendants, and his position at the time defendant Woodard’s statement was overheard.

We do not find that the statement, supra, is incomplete. It expresses a complete thought. The unidentified person was Billy Frazier, and he testified that he did not hear Joe Woodard make a statement to the effect “I wish I had more time I’d of stomped — so I could stomp some others or another one to death.” The jury therefore had for consideration the testimony of Frazier and Reverend Bell, which was contradictory. Defense counsel have not specifically shown us how the defendants suffered such prejudice by the admission of the statement overheard by Reverend Bell as would warrant reversal. We do not find that the trial judge abused his discretion or committed reversible error by allowing the Reverend Bell to testify as he did.

Bills of Exceptions Nos. 46 and 47 are without merit.

Bill of Exceptions No. 49 was reserved when the trial court overruled defense counsel’s motion for a mistrial.

Lionel Bonstaff, Jailer for the Sheriff of Avoyelles Parish who was on duty April 19th and 20th, 1964, appeared as a witness for the defendants. On cross-examination, the following testimony was adduced:

Counsel for the defendants contended that the above testimony was grossly irrelevant, immaterial, improper examination, and an obvious attempt on the part of the State to try to impeach the credibility of a witness in a grossly improper manner.

The trial court stated, “The Court will instruct the Jury to disregard this question and this answer by the witness, and will deny the defense counsel’s request for a mistrial.”

Under the circumstances connected with the reserving of the instant bill, we do not find that the defendants suffered prejudice. The trial judge properly instructed the jury; he corrected any mistake made by the State in the cross-examination. Our discussion of Bills of Exceptions Nos. 44 and 45 applies to the instant bill. No further discussion is necessary.

Bill of Exceptions No. 49 is without merit.

Bill of Exceptions No. 50 was reserved when the trial judge refused to delete references to general criminal intent in his charge to the jury.

The statement objected to by counsel for the defendants recited, “General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender in the ordinary

course of human experience must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.”

Counsel for the defendants contend that a charge as to general criminal intent was not applicable to the case, but only specific intent, and, accordingly, when the trial court charged the jury with respect to what was not specific intent (evidently meaning general intent), the latter portion of the charge which followed the instruction as to specific intent was inapplicable and should not have been given. It is contended that the trial judge committed error.

We have read the trial judge’s charge to the jury and find that no reversible error was committed by the reference to general criminal intent. The statement objected to was included in a paragraph which also described specific criminal intent. The statement with respect to general criminal intent was a differentiation from specific criminal intent. The entire paragraph was therefore a definition of criminal intent, which was properly recited. LSA-R.S. 14:10.

Bill of Exceptions No. 50 is without merit.

Bill of Exceptions No. 51 was reserved when the trial judge denied and refused to give Special Charges Nos. 3, 5, 9, 10, 11, 12, 13, 16 and 21.

Defense counsel contend that the denial of the special charges by the trial court constituted prejudicial error. They further contend that a consideration by the jury of the law embodied in the special charges was essential in order to accord defendants a fair and impartial trial and due process under the federal and state constitutions.

Special Charge No. 3 treated of negligent homicide. Counsel requested that the trial judge instruct the jury with respect to the law of negligent homicide and criminal negligence.

We find that the trial judge was correct in refusing to give Special Charge No. 3. Negligent homicide was not a responsive verdict under the instant indictment. It is also a separate and distinct offense. See, LSA-R.S. 14:32 and 14:12.

Special Charges Nos. 5 and 21 treated of the credibility of witnesses and of the appreciation of the jury of the witnesses’ testimony.

We find that the trial judge covered the matter set forth in Special Charges Nos. 5 and 21 in his general charge. The trial judge is not required to give a special charge where matter contained in such charge has already been given in general charge. State v. Bickham, 239 La. 1094, 121 So.2d 207, cert. denied, 364 U.S. 874, 81 S.Ct. 123, 5 L.Ed.2d 98.

Special Charges Nos. 10, 11 and 12 treated in great part of arrest. This was a matter involving a question of law, addressed to the trial judge for decision. He properly refused to give the instant special charges to the jury.

Special Charges Nos. 9 and 13 treated of confessions, admissions, and statements. This matter was covered in detail in the trial judge’s general charge. LSA-R.S. 15:390.

Special Charge No. 16 concerned informers and the self-interest of witnesses. The same matter was practically covered in Special Charge No. 6, which was given to the jury.

We find no abuse of discretion by the trial judge in refusing to give Special Charges Nos. 3, 5, 9, 10, 11, 12, 13, 16 and 21. His per curiam sets forth the correctness of his ruling:

Bill of Exceptions No. 51 is without merit.

Bill of Exceptions No. 52 was reserved when the trial judge refused to grant defendants a mistrial on the ground that a remark made by the District Attorney in rebuttal argument on behalf of the State was improper and prejudicial to the defense.

During the course of rebuttal argument, the District Attorney stated:

After defense counsel objected to the above remark, we find from the record that the trial judge instructed the jury as follows :

We are of the opinion that the instruction of the trial court had the effect of erasing from the minds of the jury any prejudice that may have been produced by the District Attorney’s remark. The general rule is that instruction of the court at the proper time nullifies the prejudicial effect of an improper statement made by a prosecuting officer during the course of the trial. State v. Dowdy, 217 La. 773, 47 So.2d 496.

Bill of Exceptions No. 52 is without merit.

Bill of Exceptions No. 53 was reserved when the trial judge denied defendants’ motion to set aside the verdict and for a new trial.

The motion supra alleges that the trial judge committed error in his rulings on the bills of exceptions we have previously treated. No further discussion of these matters is necessary.

New errors advanced in Articles 33, 37 and 38 of the motion for a new trial are as follows:

feel certain. You don’t think they’d let them out?’

The record discloses that John C. Hopewell, Jr., a photographer employed by the Alexandria Daily Town Talk, testified to the effect that he made some photographs of a red panel truck, evidence involved in this prosecution. At the time he was giving his testimony, the truck itself was located outside of the courthouse. The following colloquy took place between counsel and the trial court:

you can call each others attention or whatever you saw and so on, but I want to explain that we can’t give testimony outside, we can’t ask questions outside, the Attorneys can’t make any speeches or even the Court — you understand. I shall accompany you all with the Sheriff, the Clerk and the Attorneys on both sides and we will go down and look at it, after which we will recess for the noon hour and you are under your same instructions.

We find that the trial judge’s per curiam to the instant bill, quoted hereinafter, fully answers defendants’ contentions with respect to the jury’s viewing the red panel truck and shows the incorrectness of said contentions. The trial judge specifically states that the defendants and other spectators looked through the windows of the courtroom and watched the examination of the truck on the parking lot downstairs. We conclude that the defendants’ looking through the windows was the equivalent of their being present at the examination.

After the examination of the truck, the court entertained a recess for lunch. Court later convened, and Lionel Bonstaff, Jailer with the Sheriff of Avoyelles Parish, gave his testimony with respect to jail conditions and the events which occurred in the jail itself. After the District Attorney questioned the witness, the following colloquy took place:

er, Your Honor, when the Jury does view something outside of the Courtroom.” (We presume that the jury had examined the jail cell at the time of counsel’s statement.)

A reading of the testimony of record discloses that the testimony of the witnesses was contradictory with respect to the security and physical conditions, appearance, appurtenances, and visibility of the jail cell occupied by the defendants on Monday, April 20, 1964.13

Defense counsel requested that the jury examine the jail cell, and counsel for the State was in accord. We gather that it was the purpose of counsel to let the jury see for itself the cell occupied by the defendants on April 20, 1964, and then make its own decision as to the credibility of the witnesses’ testimony with respect thereto.

Defendants were present when all testimony was adduced. Defendants heard Rev. Bell testify that they were visible to him. They heard other witnesses testify as to steel doors, grill work, and maximum security. Defendants themselves occupied the cell on April 20, 1964.

After requesting that the jury examine the jail cell, counsel for the defendants agreed to all conditions imposed by the trial judge. They did not ask that the defendants view the cell in the company of the jury.

Since the appearance of the jail cell and its viewing had to do with the credibility of the witnesses as to their recollection of the cell’s physical condition, we find that the defendants were not prejudiced by not being present at the inspection. The viewing of the cell had nothing to do with examining the scene of the commission of the crime or with evidence associated with the commission thereof. We conclude that the presence of defendants was not necessary, and that the rule that one who is tried for a felony must be personally present in court at every important stage of the trial from the moment of his arraignment to his sentence was not violated herein. Cf. State v. Futrell, 159 La. 1093, 106 So. 651; State v. Pepper, 189 La. 795, 180 So. 640; State v. Breedlove, 199 La. 965, 7 So.2d 221.

We do not find that the trial judge committed reversible error in denying the instant motion. His per curiam fully explains his reasons as follows:

meal, without returning to the Courtroom. It is the Court’s recollection that the defendants and other spectators looked through the windows of the Courtroom to watch the examination of the truck on the parking lot downstairs.

The authorities relied upon by counsel for defendants are not apposite.

Bill of Exceptions No. 53 is without merit.

For the reasons assigned, the conviction and sentence are affiimed.