#### STATE of Louisiana v. Manuel COSIE and Simon Duplessis.

No. 53672.

Supreme Court of Louisiana.

Oct. 29, 1973.

On Rehearing April 29, 1974.

Anthony R. Messina, Metairie, Clyde D. Merritt, New Orleans, Orleans Indigent Defender Program, H. W. O’Brien, Jr., New Orleans, for defendants-appellants.

William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Barbara Rutledge, Asst. Attys. Gen., Jim Garrison, Harry F. Connick, Dist. Attys., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

*166DIXON, Justice.

Defendants were tried under a bill of information charging them with armed robbery. R.S. 14:64. Defendants were convicted after a trial by jury and were sentenced to twelve years at hard labor.

Defendants appeal, relying on eleven bills of exceptions which were reserved and perfected. Five of these bills were not argued (Nos. 2, 6, 7, 8 and 11); therefore they will be presumed to be abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

The remaining bills of exceptions were reserved to the overruling of objections made by defense counsel to the introduction of evidence of other crimes to show intent and system. The crime for which defendants were prosecuted was the armed robbery of a man and a woman which took place about 8:30 p. m. March 26, 1972, in the French Quarter. Defendants allegedly approached the victims on foot from the rear, placed a .22 caliber Derringer at the man’s back and demanded money. After-wards, they fled on foot to a car several blocks away. The evidence introduced to show system or intent consisted of acts denominated by the State as an attempted armed robbery. Defendant Duplessis and a companion entered a food store on Chef Menteur Highway about one o’clock in the morning of April 11, 1972, over two weeks later. After making a small purchase, defendant remained for a few minutes in the store. Both men left the store when the proprietor noticed a gun in defendant’s waistband. This gun was different from that used in the earlier armed robbery. Defendant and his companion left in a car with Manuel Cosie and another man. The store owner hailed a police car which pursued the defendants and subsequently effected their arrest. The car which the defendants were in matched the description of the car used in the March 26 robbery and a gun similar to that used in the prior robbery was found in the car. A .38 caliber pistol was also found in the car and subsequently introduced into evidence at this trial although connected only with the second incident.

Wharton’s Criminal Evidence, under the heading Conduct of the Defendant Upon and After Arrest, provides:

> *“It is relevant to shorn the facts and circumstances attending the arrest of the accused when they logically tend> in any degree, to connect him with the perpetration of the crime.*Thus, it is relevant to show the conduct and declarations of the accused at the time of arrest, after arrest and while in detention awaiting trial. It is open to the accused to offer evidence explaining his conduct upon and after arrest.” (Emphasis added). 1 Wharton’s Criminal Evidence, § 210 (Torcia Ed. 1972).

See also State v. St. Amand, 274 So.2d 179 (La.1973). In the present case facts attendant to the arrest — the car, similar gun —did tend to connect the defendants with the March 26 robbery and thus evidence of the arrest was relevant and properly admitted into evidence.

However, the evidence concerning the incident at the grocery store is not attendant to the arrest and an independent basis for its admissibility must be found.

In State v. Moore, 278 So.2d 781 (La.1973), we held that the two basic requisites for the admissibility of evidence of other crimes are that the evidence be relevant to an issue in the case and that the probative value of the evidence must outweigh the prejudicial effect.

In its opening statement the State indicated the purpose of the introduction of the evidence was to prove intent and system. Presumably, the State was attempting to show system or similar acts which would be probative of intent. R.S. 15:445, 15:446. The necessity of proving intent with this kind of evidence is questionable; however, we need not rest our decision on *167this ground. Cf. State v. Jordan, 276 So. 2d 277 (La.1973).

 Under the proper circumstances, evidence of other crimes may be admissible to prove system where system is probative. R.S. 15:446; State v. Jordan, supra; State v. Spencer, 257 La. 672, 243 So.2d 793 (1971). However, in the present case there is no evidence of a system, a design, a plan or modus operandi. The two offenses bear no relationship to each other. The evidence of the April 11 incident tends only to prove the bad character of the defendants. It simply was not relevant to an issue in the case. State v. Moore, supra. Admission of the evidence was prejudicial error.

The convictions and sentences are reversed and the case is remanded for a new trial.

SANDERS, C. J., dissents and assigns written reasons.

SUMMERS, J., dissents for reasons assigned.

MARCUS, J., dissents.

SANDERS, Chief Justice

(dissenting).

The defendants were convicted of an armed robbery perpetrated in the New Orleans French Quarter on March 26, 1972. They were arrested about two weeks later, following an attempted armed robbery of a foodstore. The automobile used in the flight from the foodstore was similar to that used in the first robbery and a similar pistol was found in the car.

Because evidence was admitted of the arrest and the circumstances surrounding it, including the attempted armed robbery, the majority reverses the conviction.

In my opinion, the majority has erred for two reasons:

> (1) The evidence of the attempted armed robbery was admissible to prove intent ; and

> (2) The evidence of the attempted armed robbery was admissible to show the circumstances surrounding the arrest and discovery of the automobile and pistol connecting the defendants to the first robbery.

An essential element of armed robbery is a specific intent to deprive the owner permanently of the property taken. LSA-R.S. 14:64; LSA-R.S. 14:67; State v. Montegut, 257 La. 665, 243 So.2d 791 (1971).

LSA-R.S. 15 :445 provides:

> “In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”

Quite clearly, the attempted commission of another armed robbery within a few weeks of the one charged is probative of the essential intent. It has an independent relevance, which justifies its admission in evidence. State v. Carney, 260 La. 995, 257 So.2d 687 (1972); State v. Morris, 259 La. 1001, 254 So.2d 444 (1971), cert. den. 406 U.S. 959, 92 S.Ct. 2066, 32 L.Ed.2d 346; State v. Hurst, 257 La. 595, 243 So.2d 269 (1971); State v. Montegut, supra; State v. Spencer, 257 La. 672, 243 So.2d 793 (1971).

In State v. Hurst, supra, an armed robbery prosecution, this Court upheld the admission of evidence of other armed robberies, stating:

> “Counsel is in error in his primary premise, for intent is an essential element of the crime of armed robbery, and the evidence he seeks to exclude under this contention was clearly admissible for the purpose of showing that intent.”

It is impermissible for this Court to say that the evidence of the attempted robbery was unnecessary. The burden is upon the State to prove every element of the offense, including intent, beyond a reasonable doubt and to the satisfaction of the jury. *168As we held in State v. St. Amand, La., 274 So.2d 179 (1973), once admissibility has been determined, the Court should not undertake to control the order or manner of the State’s proof.

The evidence of the attempted robbery was also admissible to show the circumstances surrounding the arrest. It was in the arrest that the weapon similar to that used in the first robbery was seized and the automobile identified as being similar to the one used in the robbery.

As an evidentiary matter, the pursuit of the automobile, because of the attempted robbery, was inseparable from the arrest.

For the reasons assigned, I respectfully dissent.

SUMMERS, Justice

(dissenting).

I join with the Chief Justice in the reasons he assigns for dissent.

ON REHEARING

PER CURIAM.

On original hearing, we reversed the conviction of these defendants because the State presented evidence of another crime and we found that it was not relevant to any matter properly before the Court.

We granted rehearing because of the possibility that the evidence of that incident was not actually evidence of a crime and while irrelevant, perhaps nondamaging.

Upon reconsideration we conclude that our original opinion was not in error. The proven conduct was at least evidence of the crime of carrying a concealed weapon' (R.S. 14:95), and it was presented by the State in an effort to prove an attempted armed robbery, for the State labeled the conduct as such in opening argument, (Transcript p. 80) and in closing argument (Transcript p. 309).

Evidence of other crimes is not admissible in a criminal prosecution where it is not relevant to show system, intent or knowledge. State v. Prieur, 277 So.2d 126 (La. 1973). In this case, it was not relevant and it was prejudicial.

We therefore reinstate our original decree. The convictions and sentences are reversed and the case is remanded for a new trial.

Original decree reinstated.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent.