State v. Cleary

TATE, Justice.

The defendant appeals from his conviction of violating La.R.S. 26:160 and from his sentence to pay a fine of $350 and to serve sixty days in the parish prison.

The cited statute prohibits the refilling of an original container of alcoholic beverages with an alcoholic beverage or possessing such a refilled container. The State’s case sought to prove that the defendant bar-owner had re-filled with cheaper whiskey used bottles originally containing more expensive namebrands, for the obvious purpose of defrauding bar patrons.

We find no merit to the several contentions urged by the defendant in support of a reversal, for the following reasons:

1. The trial court did not abuse its discretion when it refused to let the defendant’s counsel file a belated generalized oral motion to suppress on the morning of the date of the trial, which had been fixed some ten months earlier. See La.C.Cr.P. Art. 703; State v. Richey, 258 La. 1094, 249 So.2d 143 (1971). Further, the defendant never explained what he wanted to suppress or why. Even on appeal, we are directed to no evidence introduced at the trial which the defendant was allegedly unable to challenge in the absence of a timely-filed motion to suppress.

2. In this non-jury trial, the State was not required to give advance notice under La.C.Cr.P. Art. 768 of its intent to use a confession and inculpatory statements of the defendant. State v. Himel, 260 La. 949, 257 So.2d 670 (1972). The trial court properly overruled the defendant’s objection to their introduction.

3. The other contentions are directed to the sufficiency of the proof. The trial court found the defendant guilty beyond a reasonable doubt of violating the statute. This finding was based upon the defendant’s confession and inculpatory statements during an investigation immediately prior to his arrest, and upon corroborating circumstances, such as filled bottles with much-stained (i. e., old) labels and new caps, one being in the storeroom adjacent to funnels and some empty bottles for cheap whiskey.

In criminal cases, our appellate review is constitutionally limited to questions of law; therefore, even in a trial by a judge without a jury, the alleged insufficiency of the evidence cannot be considered by us, if there is any evidence at all (as here) upon which the trier of fact could reasonably base its conviction. State v. Hochenedel, 253 La. 263, 217 So.2d 392 (1968).

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

Affirmed.