State v. Barnes

¶1(dissenting).

¶2I cannot agree with the majority’s disposition of Bill of Exception No. 17.

¶3The bill of information in this case charges that the defendant did “… wilfully and unlawfully possess and have under his control a narcotic drug, to-wit: marijuana, contrary to the provisions of R.S. 40:962 … ”. (All emphasis mine.) The judge’s instructions to the jury relative to the ingredients of the crime follow:

“The defendant in this case is charged with possession of a narcotic drug, marijuana. Other than certain exceptions provided by law and not involved in this case, it is unlawful for any person to manufacture, possess, have under his control, sell, give, deliver, transport, prescribe, administer, dispense, or compound any narcotic drug. ‘Narcotic drug’ includes marijuana.”

¶4The defendant requested the trial judge to give the following special charge to the jury: “Guilty knowledge is an essential ingredient of the crime of possession of narcotic drug.”

¶5Although the statute is silent as to scienter in defining this' crime, this court has repeatedly stated that an essential ingredient of the crime of possession of a narcotic drug is “guilty knowledge”. State v. Nicolosi, 228 La. 65, 81 So.2d 771; State v. Johnson (on rehearing), 228 La. 317, 82 So.2d 24; State v. Maney, 242 La. 223, 135 So.2d 473, 475; State v. Richard, 245 La. 465, 158 So.2d 828; State v. McIlvaine, 245 La. 649, 160 So.2d 566; State v. Clack, 254 La. 61, 222 So.2d 857. All’of these cases which stated that guilty ‘knowledge is-an essential ingredient of the crime of possession of narcotics did so as a basis for allowing the State to introduce evidence of the defendant’s prior‘or subsequent convictions or other similar acts or offenses from which could be inferred his guilty knowledge in connection with the crime for which he was being tried.

¶6The charge given here by the trial court failed to include and define a necessary in*1035gredient of the crime with which the defendant was charged. The definition of the crime contained in the charge is not even responsive to the crime charged in the bill of information. The special charge requested by the defendant was a totally correct statement of the law under the jurisprudence of this court. It was, in fact, literally lifted from the jurisprudence cited above. The proposed charge needed no further explanation. It used our very language “guilty knowledge”, which in my opinion is self-explanatory. The court has used the phrase so often without elucidation that it, too, must accept the language as fully expressive.

¶7The charge given by the trial court would have required any reasonable, fair-minded juror to convict the defendant simply because marijuana gleanings were found in his clothing, for the definition given in that charge makes mere possession a crime.* This is contrary to the legion of cases dealing with this point of law. Nothing could be clearer than the statement in State v. Johnson, supra, which has been adopted and approved repeatedly: “Therefore, guilty knowledge is an essential ingredient of the crime of possession of narcotic drugs. The crime of unlawful possession of narcotic drugs as denounced by law cannot exist without proof of guilty knowledge; for, such possession would not be a possession contemplated by the statute.”

¶8We commit grave error, I believe, to allow a conviction to stand where the charge to the jury has not correctly defined the crime and the correction of that definition offered as a requested special charge was rej ected by the trial court.

¶9I respectfully dissent.

¶11ON REHEARING

¶12On 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.

¶13In 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.

¶14*1037Imprimis, 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.

¶15At 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

¶16Bill 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.”

¶17We 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.

¶18It 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.

¶19Under 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

¶20Bills of Exceptions No. 6, 14 and 16 presently present the same issue, although the *1039bills 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.

¶21The 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.

¶22Conceding 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.

¶23Appellant 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)

¶24*1041Nor 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.”

¶25Besides, 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.”

¶26A 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.”

¶27It 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.)

¶28*1043Our 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

¶29. [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.

¶30We 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.

¶31We 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.

¶32Bill 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 *1045suppress 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.

¶33On 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.”

¶34In 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.”

¶35' 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.

¶36*1047In 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.

¶37In 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.”

¶38Accordingly, 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.”

¶39For the foregoing reasons, our original opinion and decree, affirming the conviction and sentence, are reinstated as the final judgment of this Court.

¶43(dissenting).

¶44I respectfully dissent. This conviction, and especially the judicial review of it, offends fundamental notions of fairness. The majority avoids facing the substantial contentions that may justify a reversal, through applying outmoded technicalities.

¶45*1049The defendant, Kevin Barnes, is convicted of the possession of minute traces1 of marijuana. He was sentenced to five years in the penitentiary. He was 17 years of age at the time of conviction.

¶46The infinitesimal traces of the drug were in the seam of a small envelope in the bottom of a pocket of some bluejean pants this teenager was wearing when arrested. He had spent the night with eleven other teenagers in a house rented by one of them, another college boy. There is no showing whatsoever in the evidence (a) that the bluejean pants belonged to young Barnes, (b)' that this boy knew of the small envelope in the bottom of one of the four pockets in these bluejean pants, (c) that this boy knew that there were any minute traces of a substance (analyzable only by microscope 2 in the laboratory) were in the bottom of the envelope, nor (d) that this boy knew any such minute traces in the envelope were marijuana. Nor was there any evidence from which this knowledge could be inferred as proved beyond a reasonable doubt.

¶47I.

¶48The principal alleged errors involve (a) the failure of the prosecution to introduce any evidence of “guilty knowledge” and (b) the failure of the trial court, despite objection, to charge the jury that guilty knowledge was required for conviction. Additionally, (c) it is strongly contended that the small envelope of marijuana was illegally and unconstitutionally seized and should not have been admitted in evidence.

¶49For one technicality or another, this court does not pass upon any of these contentions. In each instance, an objection was made properly in the trial court, *1051the hill of exception clearly urged the contention, and the entire transcript is available to us for review, with the bill of exception indicating where in the transcript the evidence may be found.

¶50It is in my view indefensible for an appellate court to avoid its function of review through the application of such court created technicalities — for it thus artificially to limit its own review of substantial contentions. In my view, an injustice has resulted here through the application of technicalities preventing consideration of substantial contentions. This I will attempt to show by more detailed discussion below.

¶51II.

¶52The Louisiana jurisprudence has firmly established the principle that guilty knowledge is an essential ingredient of the crime of possession of narcotic drugs, i. e., the knowing and intentional possession of a drug, knowingly subjecting the possessor to criminal liability. State v. Kreller, 255 La. 982, 233 So.2d 906 (1970), and many decisions cited therein, syllabus 1; Notes, 18 La.L.Rev. 340 (1958) and 17 La.L.Rev. 229 (1956). See also State v. Birdsell, 232 La. 725, 95 So.2d 290 (1957). So has every other jurisdiction similarly adopting the Uniform Narcotic Drug Act. Annotation, Narcotic — Possession—What Constitutes, 91 A.L.R.2d 810 (1963).

¶53It is conceded that the jury must be instructed that, for conviction, there must be proof not only of possession, but also of guilty knowledge, beyond a reasonable doubt.

¶54The defendant twice attempted to have the jury charged that guilty knowledge must be proved beyond a reasonable doubt, as well as possession. He presented a special charge to that effect, objecting and reserving a bill of exception when the court declined to do so. Tr. 263. Also, however, the defendant objected because the general charge did not refer to guilty knowledge as being an essential element of the crime, reserving a bill when that objection was overruled. Tr. 264.3

¶55In perfecting his formal bill of exception on this issue, Bill of Exception No. 17, Tr. 78, the defendant alleges that he “requested the court to charge the jury to the effect that 'guilty knowledge’ is an essential element of the crime of possession of marijuana.” Bill of Exception No. 17 contains the notation “See transcript page no. 264.” In my view, this sufficiently includes for review, the objection and the surround*1053ing transcript contents thereto referred to: specifically, the failure of the general charge of the court, or of any charge, to refer to guilty knowledge. (At Tr. 264, it is well to note, the charge of the court commences.)

¶56At least three judges of this court have expressed the view that this objection is well founded — that the general charge might reasonably indicate to the jury that mere possession of marijuana constituted commission of the felony. That is, the jury might have believed the only intent required for conviction was intent to possess the envelope in which the substance was contained, whether or not the possessor knew that the gleanings in the envelope were marijuana, for the possession of which he was punishable by years in the penitentiary.4

¶57Further, in our original opinion, the majority expressed some concern as to whether the general charge did fairly instruct the jury as to the guilty knowledge required to be proved; but, after considering the entire charge, the maj ority concluded that it could he so interpreted. However, we must note, all seven judges considered the general charge as being before this court for review. We granted rehearing primarily because of our doubt as to the correctness of the holding that the general charge fairly informed the jury of the guilty-knowledge requirement.

¶58The majority on rehearing, for the first time, interprets the hill of exception as not bringing the general charge before this court for review.

¶59When this court itself is so sharply divided as to whether the general charge fairly informed the jury that guilty knowledge was a prerequisite to conviction (despite the defendant’s repeated efforts to have the charge corrected to do so), can we really feel that laymen on the jury would deduce from the technical legal definitions of the charge that such guilty-knowing possession must be proved beyond a reasonable doubt?

¶60*1055When this court has differed so broadly in determining just what was brought up before us for review (with all seven judges at one time believing the entire general charge was available for the determination of the merits of the bill of exception), can we honestly conclude that this conscientious, diligent, and able counsel for this indigent boy really failed to do all necessary to bring the general charge before us for review ?

¶61If the judges of this court can differ so widely in their interpretation of the contents of the bills and of the criminal procedure statutes, should not we wonder whether or not our procedural rules in this regard fairly inform the accused of what he needs to do in order to assure at least consideration on the merits of errors urged? Do not such extremely technical interpretations raise- questions of due process, as resulting in unknowing waivers of constitutional rights and of substantive defenses (cf., Henry v. Mississippi, 379 U.S. 443, 1965, 85 S.Ct. 564, 13 L.Ed.2d 408) ?

¶62III.

¶63Without more showing of intentional and knowing possession of the prohibited drug 5, or without showing that the possessor should reasonably have known in the ordinary course of human experience of his illegal possession, La. R.S. 14:106, a conviction should be reversed, assuming the ground was suitably preserved for review.7

¶64Although the defendant clearly attempted to raise this ground for reversal, when he moved for a directed verdict at the close of the prosecution’s case (Bill of Exception No. 16), we fail to pass upon this contention at all in the present majority opinion. In our original majority opinion, we likewise failed to pass upon this contention because “no evidence is made part of the Bill.”8

¶65*1057The formal Bill of Exception No. 16, Tr. 75, urges as error that: “the defendant moved for a directed verdict in his favor on the grounds that the State has failed to prove the existence of any guilty knowledge on the part of the defendant in his alleged possession of the marijuana. The court denied the motion, and the defendant reserved this bill of exception to the ruling of the court.”

¶66At the top of this bill is found the notation “See Transcript Page Number 255”.

¶67At transcript page 255 is found the following:

Mr. Brown: The State rests.

Mr. Ryan: Your Honor at this time I move for a directed verdict of not guilty to be given to the jury when they return for the reason that the State has failed to prove the elements of guilty knowledge which is an essential ingredient of the crime of the possession of a narcotic drug.

By the Clerk: The motion for a directed verdict taken up and argued.

The Court: Let the defendant’s motion for a directed verdict be overruled.

Mr. Ryan: To the ruling of the Court I reserve bill of exception number 16.

The Court: Let the bill be reserved and all testimony attached thereto.

¶68La.C.Cr.P. Art. 843 provides that, “When a bill of exception is reserved, the clerk or the court stenographer shall immediately take down the objection, the ruling, and the facts upon which this objection is based. The matters, so taken down, … shall constitute the bill of exceptions, and shall be a basis for a formal bill of exceptions.”

¶69Here, of course, everything was transcribed, as is the modern practice in most districts of this state now. (Perhaps as short as ten years ago, many districts just called in the court stenographer to take down objected-to portions of the testimony.)

¶70La.C.Cr.P. Art. 844 provides that “A formal bill of exceptions shall contain only the evidence necessary to form a basis for the bill …

¶71To me, this statutory langitage does not command that the defendant and court reporter must again transcribe the testimony objected and the surrounding circumstances, whenever the modern practice of transcribing all the testimony is followed, as here. It simply means that, in the days and in areas where the free services of the criminal court reporter were or are not readily available, the only transcription required is of the objected-to testimony.9

¶72*1059In any event, however technically the statutory requirement of Article 844 is read, it seems to me that the present formal bill of exception noting “See transcript page 255”, should be regarded as incorporating the actual bill of exceptions taken, see Article 843, which includes not only the objection, the ruling, and the reservation of bill of exceptions, but also “all testimony”, pursuant to the trial judge’s order. La.C.Cr.P. Art. 843, quoted above.

¶73If we once look at the entire testimony produced by the State, then we see that the motion for directed verdict should have been sustained, since the State did not produce any evidence at all to prove guilty knowledge.10

¶74IV.

¶75The other substantial contention of error involves the alleged unconstitutional and illegal search of young Barnes’s person and the seizure of the small folded envelope containing infinitesimal traces of marijuana. It is conceded that, if this contention is upheld, the conviction should be reversed, since this is the only evidence whatsoever against this boy.

¶76A hearing was held on the motion to suppress this evidence. When the motion was denied, the defendant reserved his bill of exception to this ruling. His formal bill (No. 6) to this ruling notes that the bill was reserved to ruling of the court overruling the motion to suppress evidence.11

¶77The present majority opinion does not discuss this bill. The original majority opinion refused to look at the evidence educed at the hearing on the motion to suppress. The reason was that this evidence was not attached to the formal bill of exception raising this error.

¶78For the reasons previously noted, I believe we are in error in not considering this evidence. It is contained fully in the transcript; both the evidence involved and the ruling complained of are easily ascertainable from the record and the actual *1061bill of exception when reserved in the record.

¶79In the present instance, young Barnes had spent the night at a house where about ten other teenagers had gathered. The law enforcement officers suspected a “pot party” was in progress. About noon, Barnes had left the house in a white Dodge, and the officer tailing him had allegedly tried to tail his vehicle but lost sight of it due to its excessive speed.

¶80When Barnes returned three hours later, he was arrested. It is important to note that the only claim of right to arrest him was because of his speeding some three hours earlier, and his driving then without a driver’s license. (The great weight of the evidence shows that, on the return, Barnes’ companion was driving.)

¶81The police officers themselves so testified. Other excuses now alleged for the arrest are afterthoughts.

¶82The arrest without a warrant for these earlier traffic violations was illegal. La. Code Crim.P. Art. 213. The search of the boy’s person, again after the officers had previously patted down and assured themselves that this 125-pound boy was not armed, was illegal for lack of probable cause, cf. State v. Lawson, 256 La. 471, 236 So.2d 804 (1970), and it rather plainly violated federal Fourth Amendment guarantees against illegal searches of the person. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968).

¶83V.

¶84I should, finally, note the futility of avoiding judicial review of substantial claims through the application of extremely technical policies. In the first place, since the defendant had not had any of his substantial contentions reviewed on the merits, the majority’s opinion is not such a consideration of them as will bar post-conviction relief.

¶85In the second place, insofar as young Barnes alleges (correctly in my opinion) that his rights under the federal constitution have been denied him, neither the United States Supreme Court on direct review, Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), nor the lower federal courts on collateral review, are bound by our application of a narrow state policy, which serves no legitimate state aim but, instead, amounts to imposing on a defendant an involuntary waiver of rights guaranteed to him by our state and federal constitutions.

¶86If the defendant had been afforded his day in this appellate court — if his substantial contentions had been reviewed on their merits — , and if indeed on the merits a majority had concluded that an affirmance was required, then perhaps I would not have felt obliged to write so strongly and *1063at this length of my difference of view from my esteemed and sincere colleagues.

¶87However, the majority has utilized technicalities to avoid considering the defendant’s contentions on their merits. For that reason alone, I must strongly dissent from our affirmance of the sentence of this 17-year-old boy to five years in the penitentiary, aside from my personal conviction based on study of the record and the law that an injustice has resulted.

¶102(dissenting).

¶103Almost one year ago we granted a special fixing in this case in order to dispose of the appeal of a young man who had been convicted of possession of marijuana in violation of R.S. 40:962. In our first opinion, handed down on June 29, 1970, the majority of this court as then constituted affirmed his conviction. I alone dissented. We had before us at that time a full transcript of all proceedings below, including the evidence taken on the preliminary hearings and on the trial of the case and the charge given to the jury. Throughout that opinion the majority after reference to the per curiams of the trial court rejected many of the bills of exception, saying that the evidence had not been made part of the bills. However, most of the bills of exception referred to page numbers in the transcript. These page numbers directed this court to the testimony and evidence which was pertinent to those bills of exception. It cannot be said that this court could not have, with facility, properly reviewed the bills including the evidence in the transcript, for we reviewed 105 bills of exception in State v. Square, 257 La. 743, 244 So. 2d 200, decided January 18, 1971, where the record was prepared in an almost identical manner.

¶104Moreover, this court on that first hearing, including this dissenter, in reviewing Bill of Exception No. 17 did not restrict itself to the per curiam to that bill but examined the general charge to which the complaint was directed. Bill of Exception No. 17 was reserved when the trial judge refused the following requested special charge: "Guilty knowledge is an essential ingredient of the crime of possession of narcotic drug.” The majority found that the general charge, which it then considered to be before it, covered this special requested charge. I dissented, pointing out that the special charge was a correct statement of the law and was not included in the general charge, and that therefore an essential ingredient of the crime proposed to be charged was not in fact made a part of the instructions to the jury. The majority of the court voted for a rehearing on the basis of this dissent.

¶105*1069Unfortunately, the defendant remained in jail for many months before the application for rehearing was considered and granted. Unfortunately, he still languishes in jail after the case has been lodged with us for almost a year. Even more unfortunately, the majority of the court have now refused to examine the general charge to the jury (formerly considered) to determine whether the defendant was convicted under an instruction which included all of the necessary ingredients of the crime. All members of this court without •question looked at that charge on first hearing, apparently with the belief that such an examination was required of the court under our law. Now, after many months of delay, the majority have decided that the charge should never have been examined in the first place. On this technicality they affirm the conviction of a man under a charge of law which required a jury to convict even if an essential ingredient of the crime (guilty knowledge) had not been established. Not only has the court erred, but I believe that the court has committed a grave injustice and has reached a most inequitable result. Not decisive of the issue but at least persuasive is the fact that this young man has now been incarcerated for a period longer than the sentence which could be imposed under the new law concerning this offense adopted at the 1970 legislature.

¶106I repeat: This court, having on first hearing passed upon the merits of a bill of exception which the entire membership of the court considered to be before it, should not now on rehearing refuse to examine that bill. The long delay involved in this case and the grave injustice which results from the combination of circumstances were not deliberate action on the part of this court. Nevertheless, these constitute a miscarriage of justice which we could and should correct. Considering the action of the majority in this regard so erroneous and grievously inequitable, I pretermit a discussion of other possible error. I dissent.