State v. James

SANDERS, Justice

(dissenting).

We have before us a narcotic addict convicted of possessing a morphine tablet and sentenced to ten years in the penitentiary, as a multiple offender. Blighted as his life is, his personal cause evokes no ardent support. The constitutional question that he raises, however, is of grave import to all citizens. At issue is the security of the home.

The essential facts may be restated briefly: The defendant, James, left his home at 2013 Camp Street on the morning of June 19, 1961. Two officers of the New Orleans Police Department followed him. At that time, they intended only to observe his movements. They had no cause to arrest him. The officers lost sight of him after he turned on Jackson Avenue. When they again saw him, he was in a moving automobile with another man. Intending to question him, they forced the automobile to the curb. When he swallowed what appeared to be a white tablet and ran, the officers arrested him. The point of arrest was more than two blocks from and out of sight of the James’ home. The officers returned him to his home, broke in the front *1099 door, and entered without a search warrant. Six officers intensively searched the house and its contents for several hours. During the wall-to-wall rummage, they found, in a chest of drawers, the morphine tablet on which this prosecution is based.

For impelling reasons, perhaps too briefly stated in the original opinion, I hold that the intrusion into the James’ home without a search warrant violated his rights under the federal and state constitutions.

The Fourth Amendment 1 and the specific mandate of the Louisiana Constitution 2 guarantee immunity from unreasonable searches and seizures by the police. The right protected is that of privacy, which has been described as “one of the unique values of our civilization.” 3 The keystone of protection is the search warrant, which requires judicial endorsement of the need to invade private premises.

In Mapp v. Ohio, 4 the Supreme Court of the United States held that evidence obtained by ttnlawful searches and seizures was inadmissible in state criminal prosecutions. The Mapp decision established no uniform code of search and seizure for the states. Hence, the state rules of search and seizure need not be identical with those followed in the federal courts. A state, however, cannot fall below the standard of the Fourth Amendment in fashioning these rules. The constitutional standard of reasonableness is the same in federal and state courts. 5

As early as 1914, the United States Supreme Court recognized the right of law enforcement officers to search the person arrested. 6 Such a right arises from the necessity of protecting the arresting officers, preventing the escape of the prisoner, and safeguarding the fruits and implements of the crime. The practice may have been a surviving incident of the ancient hue and cry in Anglo-Saxon law. 7 The expansion of this doctrine from a search of the person *1101 arrested to a search of the person and the place of arrest can be traced in the decisions. 8

The decisions of the United States Supreme Court have limited the incidental search of a private residence to those instances in which the arrest is made on the premises. In Weeks v. United States, 9 the Court condemned a search of the defendant’s room without a warrant after he was arrested at his place of employment. Silverthorne Lumber Company v. United States 10 likewise condemned a search of the defendant’s office after his arrest at home. In Agnello v. United States, 11 the officers arrested the defendant, Frank Agnello, in the residence of a co-defendant for a sale of narcotics there and searched Agnello’s residence “several” 12 blocks away, from which he had emerged shortly before the narcotics sale and arrest. The Court rejected the government’s contention that the search was incidental to the arrest because the building was in the immediate vicinity and formed part of the scene of the crime, stating:

“While the question has never been directly decided by this court, it has always been assumed that one’s house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein. Boyd v. United States, 116 U.S. 616, 624 , et seq., 630, 6 S.Ct. 524 , 29 L.Ed. 746 ; Weeks v. United States, supra, 393 ; Silverthorne Lumber Co. v. United States, supra, 391 ; Gouled v. United States, 255 U.S. 298, 308 , 41 S.Ct. 261 , 65 L.Ed. 647 . The protection of the Fourth Amendment extends to all equally — to those justly suspected or accused, as well as to the innocent. The search of a private dwelling without- a warrant is in itself unreasonable and abhorrent to our laws.” (Italics mine). 46 S.Ct. at 6.

The Court adheres to its position in the Agnello case, having cited it with approval in its two recent decisions on search and seizure. See Stoner v. California, 376 U.S. 483 , 84 S.Ct. 889 , 11 L.Ed.2d 856 and Pres *1103 ton v. United States, 376 U.S. 364 , 84 S.Ct. 881 , 11 L.Ed.2d 777 .

The best reasoned decisions of the lower federal courts sustain the view that a search of a private dwelling without a search warrant, following an arrest away from the premises, violates constitutional guarantees.

In Page v. United States, 282 F.2d 807 , the officers arrested the defendant in front of his dwelling house after he emerged from it and started to enter a taxicab. They then searched the house and found a sawed-off shotgun, which gave rise to the prosecution. The Eighth Circuit Court of Appeals held that the search was outside the bounds of an incidental search.

In Papani v. United States, 9 Cir., 84 F.2d 160 , a government investigator had a private residence under surveillance. The subject left the residence with untaxed alcohol in his automobile. He was followed and arrested at a considerable distance from the residence. The officers then returned to the residence and searched it. In holding the search unlawful, the Court stated:

“Summarizing the above rules, it would seem that a search is not incidental to the arrest, unless the search is made at the place of arrest, contemporaneously with the arrest.”

In Drayton v. United States, 5 Cir., 205 F.2d 35 , the officers arrested the defendant in a downstairs bedroom of a rooming house and searched a closed room on the second floor. In reversing the conviction, the Court stated:

“In Harris v. United States, 331 U.S. 145 , 67 S.Ct. 1098 , 91 L.Ed. 1399 , the Supreme Court approved a search, without a warrant, but incidental to a lawful arrest, extending throughout a four-room apartment consisting of a living room, bedroom, bathroom and kitchen, all under the control of the defendant who was arrested in the living room.

“The search here involved transcends even the doctrine of the Harris case, which appears to be the apogee of the Supreme Court decisions on search of a dwelling without a warrant. In the Harris case the other rooms of the apartment were open, readily accessible, and contiguous to the situs of the arrest. Here, room No. 5, in which the contraband was found, was wholly unconnected with the room in which the arrest was made. It was on another floor, and in another part of the building. To reach it from the room where the arrest was made, it was necessary for the officers to go through the downstairs hall, up the stairway to the second floor, and down that hall until room No. 5 was reached. It was then necessary to unlock No. 5 with the key which the officers had demanded that the defendant produce, and which the defendant yielded involuntarily.

*1105 “To sanction this search, even as an incident to a lawful arrest, would extend the doctrine of the Harris case too far. We have been directed to no authoritative case holding such a search reasonable.” 205 F.2d at 37 .

In United States v. Scott, D.C., 149 F.Supp. 837 , the officers arrested the defendant on the street near his apartment. They then brought him . to the apartment and searched it. In condemning the search, Judge Youngdahl declared:

“Though it is clear that a search of the defendant’s apartment without a warrant would have been lawful had he been arrested there, United States v. Rabinowitz, 339 U.S. 56 , 70 S.Ct. 430 , 94 L.Ed. 653 , the mere fact that a suspect has been arrested elsewhere does not give rise to the right to search his apartment, Agnello v. United States, 269 U.S. 20 , 46 S.Ct. 4 , 70 L.Ed. 145 . Nor can a seizure which would not be legal except as ‘incident to an arrest’ be made legal by returning a person already under arrest to his apartment prior to taking him to a police station. Cf. McKnight v. United States, 87 U.S.App.D.C. 151 , 183 F.2d 977 . That the distance which the defendant was returned is not great in this case seems irrelevant. The Court is not inclined to prescribe an area of yards or blocks surrounding a man’s home, and state that he may be arrested anywhere within that area and returned home for the purpose of permitting a search without a warrant.” 149 F.Supp. at 840 .

In United States v. Coffman, D.C., 50 F.Supp. 823 , the officers arrested the defendant on his ranch about a quarter of a mile from his ranch house. In condemning the search of the dwelling without a warrant, the Court stated:

“A search at a location distant from the place of arrest, after the arrest has . been completed, and where the entry of the place is not made prior to, or at the time of the arrest, but after, is illegal.

“ * * * In language of unmistakable clarity, the Courts have thus spoken to federal law enforcement officers and . admonished them that searches of one’s premises, without a warrant, after an arrest is completed, are violative of the right guaranteed by the Fourth Amendment to the Constitution of the United States. The facts here, which are beyond dispute, show a direct violation of this right. The purpose of the entry, of the house, over the objection of the defendant, could not have been ‘to. make an arrest’, for the arrest had already been made and the defendant was in the custody of the officers, a quarter of a mile from the dwelling house.” 50 F.Supp. at 825 .

*1107 See also United States v. Rabinowitz, 339 U.S. 56 , 70 S.Ct. 430 , 94 L.Ed. 653 ; Carlo v. United States, 2 Cir., 286 F.2d 841 ; United States v. Garnes, 2 Cir., 258 F.2d 530 ; McKnight v. United States, 87 U.S.App.D.C. 151 , 183 F.2d 977 ; United States v. Steck, 3 Cir., 19 F.2d 161 ; Poulos v. United States, 6 Cir., 8 F.2d 120 ; United States v. Fowler, 9 Cir., 17 F.R.D. 499 ; United States v. Hamm, D.C., 163 F.Supp. 4 ; United States v. Alberti, D.C., 120 F. Supp. 171 ; United States v. Johnson, D.C., 113 F.Supp. 359 ; Machen, The Law of Search and Seizure (1950), § 13, p. 72; and Paulsen, Safeguards in the Law of Search and Seizure, 52 Northwestern University Law Review 65, 67.

The great weight of state authority likewise supports the rule that a search of a private residence can be made only as an incident to an arrest on the premises. When the arrest is made elsewhere, a search of a private residence without a warrant violates constitutional rights. See Fowler v. State, 114 Tex.Cr.R. 645 , 22 S.W.2d 935 ; Warwick v. State, 104 Fla. 393 , 140 So. 219 ; Riddle v. State, 73 Okl.Cr. 419 , 121 P.2d 1014 ; Wallace v. State, 42 Okl.Cr. 143 , 275 P. 354 ; People v. Heidman, 11 Ill.2d 501 , 144 N.E.2d 580 ; People v. King, 60 Cal.2d 308 , 32 Cal.Rptr. 825 , 384 P.2d 153 ; Castaneda v. Superior Court, 58 Cal.2d 439 , 30 Cal.Rptr. 1 , 380 P.2d 641 ; Tomkins v. Superior Court, 59 Cal.2d 65 , 27 Cal.Rptr. 889 , 378 P.2d 113 ; Hernandez v. Superior Court, 143 Cal.App.2d 313 , 299 P.2d 678 ; People v. Gorg, 45 Cal.2d 776 , 291 P.2d 469 ; 47 Am.Jur., Searches and Seizures, § 19, p. 515; 79 C.J.S. Searches and Seizures § 67, pp. 843-844; and Machen, The Law of Search and Seizure (1950), § 13, pp. 72-73.

In Fowler v. State, supra, the officers arrested the defendant adjacent to his residence, which had a separate bathroom. They searched the closed bathroom, located several yards from the point of arrest. In holding the search unlawful, the Texas court described the following principle as well settled:

“If the arrest is made outside the home or rooming place of the arrested party the officer has no right to go to the place where he resides and make a search for incriminating evidence.”

In the Hernandez case, supra, the officers made the arrest on the public street near the residence. In rejecting the evidence obtained in the house-search, the California court stated:

“In the present case the search of the home of petitioner and Taverez was not an incident to Taverez’ arrest. He was in his automobile on a public street when the arrest was made, and when he was there taken into custody his arrest was completed. The fact that it turned out that Taverez’ home was but 95 feet away from the place of his arrest does not change the com *1109 plexion of this matter. His arrest was on a public street, not upon any part of the premises in which the apartment in which he lived was situated; and if we were to uphold a search of his home without a warrant because his home was but 95 feet from the place on the public street where he was arrested, we would necessarily have to uphold it if it were 95 blocks distant.

“Inasmuch as the officers did not have the right to enter and search the home of Taverez, their arrest of him certainly cannot justify the search of petitioner’s home.” 299 P.2d at 681 .

Insofar as I can determine, only two states, Illinois and Delaware, have codified the law of incidental search. The statute of neither state permits the search of the interior of a residence when the arrest is made elsewhere than on the premises. The Delaware statute authorizes the search only when “The arrest is made on the premises * * Title 11, § 2303, Delaware Code Annotated. Adopted in 1963, the Illinois Code of Criminal Procedure fixes the scope of the arrest-search as “the area within such person’s immediate presence * * S.H.A. Ch. 38, § 108-1.

Aside from cases supporting general principles of search and seizure, the majority relies chiefly upon the decision of the California Court of Appeal in People v. Aleria, 193 Cal.App.2d 352 , 14 Cal.Rptr. 162 . In that case, the police arrested the defendant, who was under the influence of narcotics, in the hotel lobby. They took the room key, which he held in his hand, and returned him to his room, up one flight of stairs and 20 to 30 feet down the hall. After the defendant invited them to search, the officers found narcotics. These facts differ materially from those in the present case, and the decision may be distinguished on that ground. The decision, however, has been criticized as diverging from the federal standard and tending to abolish search warrants. See Manwaring, California and The Fourth Amendment, 16 Stanford Law Review 318, 336, 343.

To this point, I have emphasized only the rule applied: A private dwelling may not be constitutionally searched without a warrant as an incident of an arrest made elsewhere. I have deferred an examination, of the basis for the rule. The rule may be explained, of course, by simply stating that the “place of arrest,” as used in the decisions, means only the area immediately surrounding the prisoner as he stands when arrested. The real basis, however, is more than semantics. The jurisprudence suggests at least two reasons, intimately connected with the nature of the protected right and historical development of the incidental search, to support the rule.

The first of these reasons is common to all searches incidental to arrest. As we *1111 have observed, the arrest-search is rooted in necessity, that of seizing the weapons that might be used to assault an officer and preventing the destruction or loss of the fruits and implements of the crime. Desperation born of arrest is sometimes heedless of the strength of the law. The drawing of a revolver or the casting aside of narcotics may thwart the law enforcement effort at the time of the arrest. The danger-area is that immediately surrounding the prisoner. This critical area fixes the scope of the search incidental to the arrest. The same necessity that creates the ■search also limits its extent. From this practical viewpoint, the area of overriding necessity does not include the interior of a residence at any substantial distance from the point of arrest. When, as here, a person is brought into secure custody by arrest on a public street, the search area, even when liberally drawn, does not embrace a residence two blocks away.

The second reason underlying the rule is peculiar to the premises-search. Under appropriate circumstances, the entry of premises to make an arrest is authorized. When officers enter premises to make an arrest, the privacy is incidentally, but lawfully, breached by their presence. Once the privacy has thus been lawfully broken, a search of reasonable scope, concurrent with the arrest, may be made as a necessary-projection of the search of the person arrested. 13 This legal base, of course, does not support the search of a dwelling when the entry is made, not to make an arrest, but to search following an arrest elsewhere.

The arrest-on-the-premises rule has much to commend it from the standpoint of police administration. Law enforcement officers need workable standards. They need to know in advance the extent of their authority. While no search rule has absolute precision, the requirement that the arrest be made on the premises is reasonably clear and concrete. In contrast, the “time-distance rule” adopted by the majority creates much uncertainty for the law enforcement officer, who'must make prompt decisions as to his authority. How far from *1113 the residence can an arrest be made without loss of the rights of incidental search? What is the maximum time interval between the arrest and search? These questions only illustrate the desirability of a more specific rule for law enforcement. A case-by-case approach to these questions does not assist the law enforcement officer now.

The search of a home without a warrant is banned notwithstanding probable cause to believe that it contains contraband or other seizable articles. 14 Such a search, moreover, is not validated by what it brings to light. 15 The traditions of time immemorial sustain this firm constitutional policy protecting the privacy of the home 16 Additionally, full practical support for it is found in the fact that a house is immovable. Unlike an automobile, it cannot be moved from place to place, thereby defeating search warrant procedures.

The foregoing principles are particularly applicable in Louisiana. LSA-R.S. 15:68 authorizes arresting officers to “take from the person arrested, all offensive weapons or incriminating articles which he may have about his person * * LSA-R.S. 15 :72 authorizes arresting officers to enter a house “to make an arrest.” The statute, of course, does not apply if the arrest has already been made. Moreover, the Narcotics Law, LSA-R.S. 40:972, has announced a strong public policy against the invasion of a private residence without a warrant to search for narcotics. It provides:

“ * * * no house, room or apartment used as, or which apparently is, a bona fide residence, shall be subject to invasion and search, except by an officer designated in a search warrant issued by a competent court having the powers of a committing magistrate, upon the filing in said court of an affidavit by two reliable persons reciting that they have reasons to believe and do believe that said place of residence is being used as a cloak or cover for a violation of the provisions of this Sub-part, and setting forth the specific violation being committed therein, together with such additional corroborating evidence as the court may, in its discretion, require to establish the probable existence of the alleged violation of this Sub-part. *1115 Such warrant shall be directed to a duly authorized peace officer and the premises described in the warrant shall be searched and all narcotic drugs, containers, bottles, etc., or any property used or designed or intended to be used in the keeping for sale, or sale, of narcotic drugs on said premises, shall be seized by such officer and the keeper of such place, or the person to whom such narcotic drug or property belongs, shall be apprehended and brought before the court issuing the warrant, to abide the further orders of the court. The officer to whom the search warrant is directed shall make proper return thereon of the action taken thereunder, describing the narcotic drugs or property seized, if any; and any narcotic drugs or property so seized shall be held by such officer, without right of having the same released upon writ or claim.

“The court shall preserve in its records, subject to inspection at any time by the public, the affidavits herein-above referred to. If it should appear that the person or persons making said affidavit did so maliciously or without probable cause, and any house, room or apartment used as bona fide residence is searched by reason of the issuance of a search warrant based upon said affidavit, affiant or affiants making said affidavit shall be fined not more than five hundred dollars or imprisoned for not less than ten days nor more than sixty days, or both.”

In our recent decision in State v. Calascione, 243 La. 993 , 149 So.2d 417 (1963), we recognized this strong statutory policy and sustained the search for narcotics solely on the ground that the officers arrested the defendant in his residence after observing him make a sale of narcotics there. Quoting from United States v. Rabinowitz, we stated:

“ * * * It became accepted that the premises where the arrest was made, which premises were under the control of the person arrested and where the crime was being committed, were subject to search without a search warrant.” 243 La. at 999 , 149 So.2d at 419 .

The prosecution has urged this Court to adopt a liberal search rule because this state has been “forced to adopt the exclusionary doctrine” by the decision of the United States Supreme Court in Mapp v. Ohio. Although this plea has been adroitly presented, I find no merit in it.

The Mapp decision did not reduce the search authority of state law enforcement officers. Such searches as the one in the present case were violative of constitutional *1117 rights before Mapp. 17 The decision did add a sanction: It made the evidence from unconstitutional searches inadmissible in state criminal proceedings. At the time of the decision, over half the states had already adopted the exclusionary rule. 18 While this Court had rejected the exclusionary rule, it at one time had been divided on the question. 19

The main defect in the state’s argument, however, is that it confuses the exclusionary sanction, as to the worth of which there may be a divergence of view, with the substantive restriction against the invasion of private homes without a search warrant, which forms a sacred feature of our American heritage. Curtailing the substantive restriction not only renders Mapp v. Ohio an exercise in legal futility, but also impairs the protection of the right of privacy of all the homes in our state — those of both the just and unjust.

I respectfully dissent.

. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or tilings to be seized.”

. Art. I, Sect. 7: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no sncli search or seizure shall be made except upon warrant therefor issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

. McDonald v. United States, 335 U.S. 451 , 69 S.Ct. 191 , 93 L.Ed. 153 .

. 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961).

. See Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 ; Stoner v. California, 376 U.S. 483 , 84 S.Ct. 889 , 11 L.Ed.2d 856 ; and Ker v. California, 374 U.S. 23 , 83 S.Ct. 1623 , 10 L.Ed.2d 726 .

. Weeks v. United States, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 .

. People v. Chiagles, 237 N.Y. 193 , 142 N.E. 583 , 32 A.L.R. 676 .

.Weeks v. United States, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914); Agnello v. United States, 269 U.S. 20 , 46 S.Ct. 4 , 70 L.Ed. 145 (1925); Marron v. United States, 275 U.S. 192 , 48 S.Ct. 74 , 72 L.Ed. 231 (1927); Harris v. United States, 331 U.S. 145 , 67 S.Ct. 1098 , 91 L.Ed. 1399 (1947); United States v. Rabinowitz, 339 U.S. 56 , 70 S.Ct. 430 , 94 L.Ed. 653 (1950); Reynard, Freedom From Unreasonable Search and Seizure — A Second Class Constitutional Right?, 25 Indiana Law Journal 259; Way, Increasing Scope of Search Incident to Arrest, 1959 Washington University Law Quarterly 261; Macy, Search and Seizure Incident to Lawful Arrest, 10 Louisiana Law Review 546.

. 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 .

. 251 U.S. 385 , 40 S.Ct. 182 , 64 L.Ed. 319 .

. 269 U.S. 20 , 46 S.Ct. 4 , 70 L.Ed. 145 .

. Fixed at three blocks by one commentator. See 10 La.Law Review 546, 548.

. Harris v. United States, 331 U.S. 145, 153, 67 S.Ct. 1098, 1102 , 91 L.Ed. 1399, 1407 (“Here the agents entered the apartment under the authority of lawful warrants of arrest.”); United States v. Rabinowitz, 339 U.S. 56, 58 , 70 S.Ct. 430, 431 , 94 L.Ed. 653, 656 (“Armed with this valid warrant of arrest, the Government officers * * * went to respondent’s place of business, a one-room office open to the public.”); People v. Loria, 10 N.Y. 2d 368, 223 N.Y.S.2d 462 , 179 N.E.2d 478, 482 (“Thus, if the search follows a lawful entry to effect an arrest, then it is valid * * *”). See also Jones v. United States, 357 U.S. 493 , 78 S.Ct. 1253 , 2 L.Ed.2d 1514 (majority and dissenting opinions); Trupiano v. United States, 334 U.S. 699 , 68 S.Ct. 1229 , 92 L.Ed. 1663 (dissenting opinion); United States v. Coffman, D.C., 50 F.Supp. 823 ; and People v. Conway, 225 Mich. 152 , 195 N.W. 679 .

. Agnello v. United States, 269 U.S. 20 , 46 S.Ct. 4 , 70 L.Ed. 145 ; Jones v. United States, 357 U.S. 493 , 78 S.Ct. 1253 , 2 L.Ed.2d 1514 ; Chapman v. United States, 365 U.S. 610 , 81 S.Ct. 776 , 5 L.Ed.2d 828 ; Davis v. State, 113 Tex.Cr.R. 421 , 21 S.W.2d 509 .

. McDonald v. United States, 335 U.S. 451 , 69 S.Ct. 191 , 93 L.Ed. 153 ; Johnson v. United States, 333 U.S. 10 , 68 S.Ct. 367 , 92 L.Ed. 436 ; United States v. DiRe, 332 U.S. 581 , 68 S.Ct. 222 , 92 L.Ed. 210 ; Byars v. United States, 273 U.S. 28 , 47 S.Ct. 248 , 71 L.Ed. 520 ; People v. Brown, 45 Cal.2d 640 , 290 P.2d 528 ; People v. Loria, 10 N.Y.2d 368 , 223 N.Y.S.2d 462 , 179 N.E.2d 478 .

.Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937), p. 123.

. Wolf v. Colorado, 338 U.S. 25 , 69 S.Ct. 1359 , 93 L.Ed. 1782 ; Art. I, Sect. 7, Louisiana Constitution.

. See Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 ; Elkins v. United States, 364 U.S. 206 , 80 S.Ct. 1437 , 4 L.Ed.2d 1669 (Appendix).

.See State v. Shotts, 207 La. 898 , 22 So.2d 209 ; State v. Alvarez, 182 La. 908 , 162 So. 725 ; and State v. Eddins, 161 La. 240 , 108 So. 468 .