While counsel for the defense claims that the procedure adopted by the state was improper, he fails to make any allegation as to how the state's omission to file a separate indictment prejudiced him. State v. St. Andre, 263 La. 48, 267 So.2d 190 (1972); State v. Williams, 263 La. 755, 269 So.2d 232 (1972); State v. Gardette, 352 So.2d 212 (La. 1977); State v. Sonnier, 379 So.2d 1336 (La. 1979). Defendant's second assignment lacks merit.
Finally, while counsel for defense claims that the procedure adopted by the State was improper, he fails to make any allegations as to how the procedure prejudiced the defendant. Justice Barham, concurring in State v. St. Andre, 263 La. 48, 267 So.2d 190 (1972), and dissenting in State v. Williams, 263 La. 755, 269 So.2d 232 (1972), argued that the State is required to file separate indictments whenever jointly indicted defendants are tried separately. However, a majority of this Court has not adopted that position.
The showing made does not warrant the exercise of this court's supervisory jurisdiction. The issues urged here were disposed of in State v. Williams, 263 La. 755, 269 So.2d 232 (1972).
It is fundamental that what occurs at the time and place of the commission of the crime is admissible in evidence as res gestae. State v. Henry, 309 So.2d 132 (La. 1975); State v. Batiste, 318 So.2d 27 (La. 1975); State v. Williams, 263 La. 755, 269 So.2d 232 (1972). For the reasons assigned, the convictions and sentences are affirmed.
Without evidence of the rape the complete story of the crime could not be told. The issue presented by this assignment has been decided by this Court in State v. Hatch, 305 So.2d 497 (La. 1975) and State v. Williams, 263 La. 755, 269 So.2d 232 (La. 1972). When evidence of other crimes from the one charged are so closely linked as to form part of the res gestae the evidence may be received under the authority of Sections 447 and 448 of Title 15 of the Revised Statutes.
Assignment No. 2: The defendant was indicted by a short-form indictment for a violation of La.R.S. 14:30(1) (1950): "Murder is the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm * * *." By this assignment of error, he contends (a) that by his bill of particulars he was entitled to certain specifics of evidentiary information (Bill No. 2), to which he is not entitled under present law, State v. Brown, 288 So.2d 339 (La. 1974), and (b) that no reference was permissible to a rape committed on the decedent by the defendant as part of the single continuous transaction culminating in the murder (Bill No. 93), again a contention rejected by the jurisprudence, State v. Curry, 263 La. 997, 270 So.2d 484 (1972), State v. Williams, 263 La. 755, 269 So.2d 232 (1972). Assignment No. 3: Despite the contrary contention by this assignment (Bill No. 3), the state met its burden of proving beyond a reasonable doubt that the written confession of the defendant was free and voluntary and not the product of coercion, force, inducement, or misrepresentation.
Numerous cases in our jurisprudence hold that evidence of other crimes is admissible during the trial of a case when that other crime was part of the res gestae of the case on trial. State v. Robinson, 302 So.2d 270 (La. 1974); State v. Williams, 263 La. 755, 269 So.2d 232 (1972). In this case the rape was part of the transaction in which the armed robbery took place.
The State argues that evidence of the rape is admissible as part of the res gestae, governed by LSA-R.S. 15:447, 15:448. In support of its contention, the State refers this Court to State v. Williams, 263 La. 755, 269 So.2d 232 (1972). We find no need to rely upon that argument, and we pretermit a discussion of the applicability of the res gestae statutes, for we think there is an independent reason for the admission of the evidence.
See La.R.S. 15:448: "To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction." See State v. Williams, 263 La. 755, 269 So.2d 232 (1972). (5)
For this additional reason I find the indictment invalid. See my concurrence in State v. St. Andre, 263 La. 48, 267 So.2d 190 (1972), and my dissent in State v. Williams, 263 La. 755, 269 So.2d 232 (1972). The indictment should be quashed, and both the conviction and the sentence should be set aside.