# State v. Barnes > Supreme Court of Louisiana · February 24, 1971 · 257 La. 1017 URL: https://www.frixlaw.com/law-library/cases/9679233 ## Case - **Full name:** STATE of Louisiana v. Kevin B. BARNES - **Court:** Supreme Court of Louisiana - **Decided:** February 24, 1971 - **Citations:** 257 La. 1017; 245 So. 2d 159 - **Precedential status:** Published - **Opinion:** On rehearing by McCALEB - **Judges:** Sanders, McCaleb, Tate, Dixon, Barham - **Cited by:** 24 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9679233 ## Opinion text ON REHEARING McCALEB, Chief Justice. On the original hearing we affirmed the conviction and sentence of Kevin Barnes, appellant herein, for possession of marijuana, in violation of LRS 40 :962. In the opinion we considered fourteen bills of exceptions on which the accused was relying to obtain a reversal of his conviction and sentence, finding that several could not be considered and that others were without merit. In his application for a rehearing, which was granted, defendant complained of our ruling in regard to only five of the bills— Nos. 6, 7, 14, 16 and 17. Consequently our present consideration is limited to those bills. *1037 Imprimis, we direct our attention to Bill of Exceptions No. 17 for it was primarily because we entertained some doubt as to our original ruling on this bill that the rehearing was granted. The bill was reserved under the following circumstances. At the conclusion of the trial, counsel for the accused presented to the court several special charges to be given the jury, No. 6 being that “guilty knowledge” is an essential element of the crime of possession of marijuana. The trial judge refused all of them, and in his per curiam to this bill he explains (in part) that he did so because the substance of the special charges “was covered in the general charge already prepared.” To which ruling defense counsel objected and reserved Bill of Exceptions No. 17. 1 Bill of Exceptions No. 17 does not recite that the general charge did-not cover the substance of the requested special charge No. 6. But on the original hearing here appellant urged that it did not, and on this rehearing he asserts that we erred in the holding that “Although the phraseology of the general charge is subject to improvement, we are of the opinion that the instruction as to intent fairly included the concept of knowledge or scienter.” We consider it unnecessary, however, to rest our decision on this determination because, in reaching this conclusion, we necessarily adverted to the contents of the general charge. On further examination of the case, we now find that we were without authority to consider whether the requested charge was covered by the general charge since defense counsel did not make the general charge, by attachment or otherwise, a part of Bill of Exceptions No. 17. It is well settled that the judge’s charge to the jury is not a part of the record on a criminal appeal, although physically incorporated therein. State v. Daleo, 179 La. 516 , 154 So. 437 ; State v. Stracner, 190 La. 457 , 182 So. 571 ; State v. Bickham, 236 La. 244 , 107 So.2d 458 ; and State v. Martin, 250 La. 705 , 198 So.2d 897 . Consequently, it cannot be considered by this Court unless it is attached to or made part of the formal bill of exceptions. That was not done in the instant case. Under these circumstances we must accept the trial court’s ruling that the instruction was not necessary because the substance thereof was contained in the general charge. 2 Bills of Exceptions No. 6, 14 and 16 presently present the same issue, although the *1039 bills themselves present somewhat different issues. ' On our former hearing we held, as to each of these bills, that there was nothing for us to consider inasmuch as the various portions of the evidence on which they were based were not contained in or made part of the formal bills of exceptions. The defendant contends that we erred in holding that the evidence must be made part of or attached to the bill, and that the cases cited in support of the holding are not applicable to this case for the reason that in none of them was there both, a perfected bill of exceptions relative to the alleged error and a transcript of the entire testimony physically in the record. Conceding that counsel’s statement relative to these cases is correct, this circumstance is immaterial, because the same rule has been applied by this Court in numerous cases where the transcript did contain the perfected bill as well as the physical presence of the testimony. In them, we have squarely held that this Court can iook only to what is contained in the formal bills of exceptions for the reason that evidence, to be considered by us, must be contained in a bill of exceptions, attached thereto, or incorporated in such bill by reference. See State v. James, 106 La. 462 , 31 So. 44 ; State v. Gaines, 223 La. 711 , 66 So.2d 618 ; State v. Lee, 247 La. 553 , 172 So.2d 678 ; State v. Watson, 247 La. 102 , 170 So.2d 107 ; and State v. Callihan, 257 La. 298 , 242 So.2d 521 . Likewise the rationale of the Court in State v. Cloud, 246 La. 658 , 166 So.2d 263 , supports the conclusion. Appellant urges that revisions in the new Code of Criminal Procedure have effected a change in this rule, he particularly relying on certain changes or omissions from the old codal articles, as they presently appear in the new Code of Criminal Procedure in Articles 841-845. A reading of these articles themselves, as well as the comments of the redactors, clearly indicate that any changes or omissions were merely to effect “stylistic revisions” of the source articles when they were considered redundant or repetitious. Moreover, the principal statutory basis for our earlier rulings, now appearing as Article 844, still contains the specific declaration that: “A. The appellate court shall consider only formal bills of exceptions which have been signed by the trial judge in conformity with Article 845. * * * “B. A formal bill of exceptions shall contain only the evidence necessary to form a basis for the bill, and must show the circumstances and the evidence upon which the ruling was based. When the same evidence has been made part of another bill of exceptions, the evidence may be incorporated by reference to the other bill. * * * ” (Emphasis ours) *1041 Nor do we find that the provisions of Articles 917 and 918 relieve the appellant from the obligation of properly preparing his bills of exceptions as required in Article 844, as is urged by the accused here. They relate simply to the duty of the district court clerk to prepare and deliver to the appellate court the record as ultimately completed. The provisions of Article 917 are the same as the former Code (Article 547). Article 918 is new but it is specifically observed in the “Official Revision Comment” that: “ * * * (b) The recordation and transcription of evidence are not provided for in this Code, but are governed by laws retained in Titles 13 and 15 of the Revised Statutes. See Comment (d) under Art. 844.” Besides, Article 920 specifically stipulates that: “The following matters and no others shall be considered on appeal: “(1) Formal bills of exceptions that have been submitted to and signed by the ' trial court in accordance with Article 845, whether or not the bills of exceptions were made a ground for a motion for a new trial; and “(2) Any error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” A somewhat similar- argument was made in the recent case of State v. Garner, 255 La. 115 , 229 So.2d 719 , regarding the consideration of evidence not included in a perfected bill. However, we adhered to our firmly established rule that evidence not made part of or attached to a bill of exceptions cannot be considered by this Court, and that the “defendant in a criminal case has the burden of preparing his bills so as, to enable this Court to say whether the. trial judge erred in his rulings.” It is suggested by the defendant herein that our ruling in Garner was relaxed by this Court in the case of State v. Johnson, 256 La. 592 , 237 So.2d 389 . But that case did not present the same issue involved' here and in Garner. The latter case was not even mentioned in the opinion. In’ Johnson, the defendant had perfected no bills, within the time allowed following the granting of an appeal. Whereupon the district judge ordered the court reporter to' “send the record as is to the Supreme Court.” The record filed here contained' no bills of exceptions and no transcript of the testimony. It was the contention of defendant’s counsel, on the appeal, that he could not properly prepare and perfect his bills without a copy of the transcript, which had been denied to him. (There" is no contention made here that this accused was not able to obtain all or the necessary parts of the transcript to prepare properly his bills of exceptions.) *1043 Our holding in that case was that (being from Orleans Parish) when the appeal was taken LRS 13:1373 made it incumbent on the court stenographer to transcribe the testimony and to deliver three copies to the clerk of the court; and that, upon this being done, counsel for defendant would then be entitled to obtain a copy thereof, or the portions necessary, to perfect his bills of exceptions. We remanded the case so that the procedure outlined in the cited statute should be followed. Nothing whatsoever was said in the opinion as to how the bills of exceptions should be prepared or by whom, whether they should contain the evidence necessary for us to resolve the errors complained of, or whose duty it is to have the proper evidence included in the bill. 3 . [20] Defense counsel also directs our attention to the fact that at the top of the pages on which the various bills of exceptions appear in the record, there is a number which refers to the pages of the transcript of the testimony (which is physically in the record) where the evidence necessary for a consideration of the bill can be found. And he argues that this amounts to an incorporation of such testimony into the bill. We do not agree. The page number referred to, at the top of the page on which each bill of exceptions appears, is simply that placed there by the clerk for the convenience of this Court, in accordance with the requirements of our Rule I, Sec. 13. Besides, in this transcript none of them refers to page numbers where the evidence taken in connection with the bill is to be found, but only to the page where the bill of exceptions was noted. No mention whatsoever is made in the bills of exceptions themselves of the evidence which forms the basis for them. We conclude, therefore, that we were correct in our original opinion when we stated that we could not consider the evidence merely placed physically in the record, because it had not been attached to or made a part of the formal bills of exceptions. Bill of Exceptions No. 7 was reserved to the court’s overruling of defendant’s “Motion to Quash”. It appears that prior to the filing of this motion the court, following a hearing, had overruled a motion to *1045 suppress certain evidence. The ruling was based on Article 225 of the Code of Criminal Procedure which authorizes an arresting officer to take from the person arrested all weapons and incriminating articles on his person. Thereafter, the defendant filed the “Motion to Quash” based on the alleged unconstitutionality of Article 225. On the original hearing in this Court we held that “A motion to quash the indictment is not a proper remedy for an unconstitutional search and seizure,” and that “The motion to suppress is, of course, the proper vehicle to raise the unconstitutionality of the search and seizure.” In his brief filed here in connection with his application for rehearing (Bill of Exceptions No. 7 is not argued in the brief submitted on the rehearing) the accused argues that: “ * * * At the time of the filing of the Motion to Quash, the Motion to Suppress had already been disposed of by the Court. It would have been vain and futile to file another Motion to Suppress. In addition thereto, Article 531 of the Louisiana Code of Criminal Procedure provides as follows: “ ‘All pleas or defenses raised before trial, other than mental and capacity to proceed, or pleas of “not guilty” and of “not guilty and not guilty by reason of insanity” shall be urged by a Motion to Quash.’ ” “This is the only procedural device that the new Louisiana Code of Criminal Procedure provides in order to attack the constitutionality of a statute.” ' Counsel is mistaken as to his appreciation of the function of Article 531. That article relates to the quashing of the indictment and the “pleas” referred to therein are those which involve matters which, if valid, would defeat the prosecution, such as former jeopardy, prescription, etc. Prior to the enactment of the code each of these defenses was raised by a special plea. Now all can be raised in one pleading referred to as the Motion to Quash and, if they are sound, they (or any one of them) will result in quashing the indictment or information. The motion is in no way intended to be used as a vehicle for suppressing evidence. Thus the “Official Revision Comments” contains the pertinent observation that “Motions which do not constitute ‘pleas or defenses’ are governed by other Titles of this Code. Examples of such other motions are motions for a bill of particulars, for change of venue, for a continuance, or for recusation of the trial judge.” And we might add — a motion to suppress evidence. In such a motion the accused could have raised the constitutionality of Article 225 under the authority of which the officers conducted their search of defendant’s person following his arrest. *1047 In any event, we find no merit in the attack on the constitutionality of Article 225. In the motion appellant asserts that the article “exceeds the scope of a permissible search and seizure allowed by both Constitutions, as interpreted by recent Court decisions, especially Sibron v. New York, 392 U.S. 40 [ 88 S.Ct. 1889 ], 20 L.Ed.2d 917 .” We find no cases which have held such statutes invalid, per se. The right of arresting officers to search the arrestee and seize evidence of crime found in his possession has always been recognized. The test as to whether the constitutional provisions referred to have been violated is whether the search is a reasonable one, under the circumstances. This, of course, depends on the facts of each particular ■case, but has no bearing on the validity of .a statute authorizing a search and seizure such as this one. The courts have even permitted searches and seizures without an arrest (see Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 ) where it was determined that the officer had reasonable cause to have interfered with the arrestee’s personal security and that the search and seizure was not unreasonable under the circumstances. In Sibron v. New York, supra, the constitutionality of a “stop and frisk” law was at issue. The court observed: “The parties on both sides of these two cases have urged that the principal issue before us is the constitutionality of § 180-a 'on its face.’ We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of § 180-a next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.” Accordingly, the court declared that it would not pronounce judgment on the words of the statute but would “confine [its] review instead to the [un] reasonableness of the searches and seizures which underlie these two convictions.” For the foregoing reasons, our original opinion and decree, affirming the conviction and sentence, are reinstated as the final judgment of this Court. . We do not find in the record a perfected bill of exceptions based on the sufficiency of the general charge. . By this ruling we do not intend to infer that our original conclusion, that the general charge “fairly included the concept of knowledge or scienter”, was incorrect. . Counsel also cites the ease of State v. Lopez, 256 La. 108 , 235 So.2d 394 , as indicative of this Court’s desire to relax its long standing procedural rule. That case was decided on certain circumstances peculiar to it which are not present here. Nothing that was said there was intended to overrule the established jurisprudence as recognized in the provisions of the new Code of Criminal Procedure heretofore cited in the opinion. Indeed, the rule was very recently stated and applied by this Court in State v. Callihan, 257 La. 298 , 242 So.2d 521 , wherein the accused was appealing from a conviction of manslaughter. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9679233. Public record. Not legal advice.