We granted a rehearing in this criminal prosecution because of the State's forceful allegations that our decision was erroneous and as grounded would seriously hamper law enforcement. On rehearing the district Counsels throughout the State joined in a scholarly brief seeking modification of the holding that requires disclosure of the identity of the confidential informant.

The facts may be briefly summarized. On November 22 1969 Lt. O. G. Bolton of the Bossier City Police Department received a telephone call from a confidential informant known to be reliable that the occupants of a green automobile traveling from Shreveport to Bossier City possessed narcotics.

Lt. Bolton proceeded to the Shreveport-Barksdale Bridge on the travel route and called for additional police vehicles. When the automobile crossed the bridge Lt. Bolton and other officers stopped the car and arrested Dan E. Dotson the defendant and the driver for the possession of narcotics.

Lt. Bolton took Dotson and the driver to the Bossier City Police Headquarters. Another officer brought the automobile to the headquarters.

With the consent of the driver the police searched the automobile but found no narcotics. The driver however was booked with having a defective muffler on his vehicle.

Lt. Bolton asked Dotson whether he would consent to a search of his person. The defendant however refused to give his consent. The officers then secured a search warrant from the Court of the City Court of Bossier City. Lt. Bolton then searched the clothing of defendant and seized a matchbox allegedly containing marijuana.

On original hearing we upheld the trial court's ruling rejecting the motion to suppress the evidence taken from defendant's person. We reaffirm that ruling.

We reversed the conviction on the following grounds:

1. Failure of Court to require Lt. Bolton the arresting officer to disclose the name of the confidential informant. (Bill of Exceptions No. 2).

2. The erroneous admission into evidence of the matchbox and the substances contained in it. (Bill of Exceptions No. 3).

3. The admission in evidence of Lt. Bolton's testimony "that he had arrested defendant for possession of marijuana on a previous occasion." (Bill of Exceptions No. 4).

4. Communication of a juror with the State's witness Lt. Bolton as they sat at the same restaurant table for lunch. (Bill of Exceptions No. 5).

The legal questions surrounding each of these holdings are complicated and difficult. In order to give these questions adequate treatment we reconsider the bills of exceptions seriatim.

BILL OF EXCEPTIONS NO. 2:

Disclosure of the Identity of the Confidential Informant.

At the trial the State called Lt. O. G. Bolton of the Bossier City Police Department as its first witness. He testified to the receipt of the telephone call from the confidential informant the arrest of defendant Dotson and the seizure of the matchbox containing marijuana from his trousers pocket.

During the early stages of cross-examination defense Counsel asked the law enforcement officer the name of the confidential informant. When the officer withheld the name defense Counsel requested Court to instruct the witness to answer the question stating in part:

"The defendant will allege that the stuff that was found on him marijuana was planted there by the informant. And as a direct part of his defense it will be necessary to place this informer on the stand and attack his credibility and attack whether or not he did in fact plant the stuff on him. I think this is an exception to the disclosure rule."

The trial Court declined to order the disclosure of the informant's name. The defendant reserved a bill of exceptions and the trial proceeded. The State completed its case. The defense began the introduction of its evidence. It called as witnesses Luther Dotson defendant's father; the defendant; Lamar Graham the driver of the vehicle; and Phil Sage a friend of the defendant. The gist of defendant's testimony was that the officers took the marijuana from his coat pocket rather than his pants pocket as they had testified that he had never seen the matchbox before and that he did not know where the box came from.

Near the end of the defense testimony defendant called Lt. Bolton as his own witness. Once again he asked for the name of the confidential informant. The District Counsel objected. At this time defense Counsel made the following argument to Court:

"If it please Court Your Honor I originally asked for the informers name. At that time Court may have had reason to enforce the rule that you do not disclose the informers name. However we have presented a defense in which we have alleged that this match box was not on Danny Dotson intentionally. That he did not know how it got there. And there is really only two possibilities. Either Lt. Bolton put it in his pocket and he drew it out or the informer put it in his pocket and called Lt. Bolton up on the telephone and told him he had it. Therefore I think it is directly related to the defense in this case."

The District Counsel replied:

"If Court please I must respectfully contradict Counsel's assertion that there has been any evidence from the mouth of any witness even indicating that an informant placed anything upon the person of this man. If the court will recall in the defendant's own testimony was that he had no idea where it came from. That he was with certain people. But that he had no idea where the material came from."

Court sustained the objection and again refused to order the disclosure of the informant's name. The defendant again reserved a bill of exceptions. Apparently this bill has been combined with the first in formal Bill of Exceptions No. 2.

The informer privilege is the privilege of withholding the identity of an informant who supplies information to law enforcement officials concerning crime. The privilege is founded upon public policy and seeks to advance the public interest in effective law enforcement. Roviaro v. United States 353 U.S. 53 77 S.Ct. 623 1 L.Ed.2d 639 (1957); Scher v. United States 305 U.S. 251 59 S.Ct. 174 83 L.Ed. 151 (1938); 21 Am.Jur.2d Criminal Law SEC.332 pp. 359-360; Gutterman The Informer Privilege 58 J.Crim. L.C. & Pol.S. 32.

Because of its social importance courts zealously guard the privilege. They order disclosure of the name of a confidential informant only under exceptional circumstances for the prevention of an injustice. The burden is upon the defendant to show exceptional circumstances justifying disclosure. State v. Greenbaum 257 La. 917 244 So.2d 832; State v. Boles 246 N.C. 83 97 S.E.2d 476; State v. Driscoll 61 Wash.2d 533 379 P.2d 206; 21 Am.Jur.2d Criminal Law SEC. 332 p. 360. On the question of whether the circumstances warrant disclosure much discretion is vested in the trial court. Durham v. United States 403 F.2d 190 (9th Cir. 1968); Anno: Accused's Rights-Informer-Identity 76 A.L.R.2d 262 279.

Although no fixed rule exists Court-ordered disclosures relate to instances in which the prosecution's case shows that the informer cooperating with the police participated in the crime. When the prosecution's case shows that the informer participated in the crime the informer's identity should be disclosed to the defendant. In such cases the informer does more than furnish a tip that enables the police to make an arrest. While working with the police he takes part in the illegal transaction itself. See Roviaro v. United States supra; United States v. Barnett 418 F.2d 309 (6th Cir. 1969); United States v. Lloyd 400 F.2d 414 (6th Cir. 1968); Portomene v. United States 221 F.2d 582 (5th Cir. 1955); Lopez-Hernandez v. United States 394 F.2d 820 (9th Cir. 1968); Sorrentino v. United States 163 F.2d 627 (9th Cir. 1947).

In reversing the trial court and ordering disclosure this Court relied primarily on Roviaro v. United States supra. *fn1 In Roviaro v. United States the petitioner was arrested after the law enforcement officers had overheard him negotiating a sale of narcotics to a government informer and observed him transfer the narcotics to the informer. The indictment charged him with the sale of heroin to "John Doe" the informer as well as the fraudulent and knowing transportation of the narcotic after illegal importation. The prosecution's evidence covered the transaction with the informer. Over defense objection the name of the informer was withheld.

In setting aside the conviction the United States Supreme Court said:

"Three recent cases in the Courts of Appeals have involved the identical problem raised here -- the Government's right to withhold the identity of an informer who helped to set up the commission of the crime and who was present at its occurrence. Portomene v. United States 5 Cir. 221 F.2d 582; United States v. Conforti 7 Cir. 200 F.2d 365; Sorrentino v. United States 9 Cir. 163 F.2d 627. In each case it was stated that the identity of such an informer must be disclosed whenever the informer's testimony may be relevant and helpful to the accused's defense.

"We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case taking into consideration the crime charged the possible defenses the possible significance of the informer's testimony and other relevant factors.

"This is a case where the Government's informer was the sole participant other than the accused in the transaction charged. The informer was the only witness in a position to amplify or contradict the testimony of government witnesses. Moreover a government witness testified that Doe denied knowing petitioner or ever having seen him before. We conclude that under these circumstances the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure." (Footnotes omitted).

We now think we erred in applying Roviaro v. United States to the present case as a decision directly in point. Unlike Roviaro the prosecution's evidence here does not show that the informer set up and participated in the crime as an aid to the law enforcement officers or otherwise.

It is true that defendant denied any knowledge of the marijuana. It is also true that a conflict arose in the testimony as to whether the marijuana was found in defendant's "very tight" front pants pocket or in his coat pocket.

The State's witnesses Lt. Bolton and Sgt. Almond testified that they found the marijuana in defendant's pants pocket. Their testimony was corroborated by Officer Seaton a defense witness.

The main theme of defendant's testimony was that the marijuana was in his coat pocket and he didn't know how it got there. Graham the automobile driver also testified that the marijuana was taken from the coat pocket.

In his Per Curiam the trial Court states:

"There must be some act shown something more than speculation concerning frame or plant before an informant's identity should be revealed. Since there was no such showing in this case the defendant is not entitled to this information."

The trial Court obviously found the defense theory that the informer placed the marijuana in defendant's coat pocket lacked evidentiary support.

The closest case in point is Jones v. United States 326 F.2d 124 (9th Cir. 1963.) In that case a United States Customs Agent stopped Jones' car after being told by an informer that two individuals in a 1956 red and white Buick bearing California license number MXW707 had arranged to obtain a package of marijuana and would probably attempt to bring it into the United States. After Jones' arrest marijuana was found in the trunk of his car. At the trial Jones and his co-defendant requested Court to order disclosure of the informer's name asserting that they knew nothing about the marijuana and that someone had framed them in order to collect the government reward. The defendants put on evidence in an attempt to show how bulk marijuana was placed in the locked rear compartment of Jones' car by some unknown third person.

The United States Court of Appeals denied disclosure of the informer's identity quoting the trial court's decision as follows:

"As was said in the case of Roviaro v. United States 353 U.S. 53 [77 S.Ct. 623 1 L.Ed.2d 639] there is no fixed rule with respect to disclosure of the name of the informer. The problem is one which calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense.

"In the case before us the Government evidently intended to present its case without mention of the information which led to searching the car. It was only when it appeared likely that the search was illegal that the prosecution brought out evidence as to probable cause. Here we are not dealing with evidence regarding an informer whom the Government puts forth as an actual participant in a crime .

"In weighing the evidence adduced at the hearing on the motions it seems quite probable that Jones himself placed the marijuana in the car and that the name of the informer is not essential to his defense. It appears more likely that the name is sought in an effort to force a dismissal of the case since the Government announced it would not under any conditions disclose the identity of the informer.

"Following the test laid down in Roviaro v. United States we are of the opinion that defendants' request should be denied."

In the light of the evidence the trial Court was fully justified in finding that the showing was inadequate to require disclosure of the name. If a bare suggestion that the informer framed the defendant could effect a disclosure of the informer's name then the enforcement of our narcotics laws would be jeopardized. Effective law enforcement requires that the confidentiality of the names of crime informers be safeguarded. In supplying information to a defendant in a criminal proceeding this Court cannot sacrifice fairness to the public. Neither can it ignore the public's interest in effective law enforcement.

We conclude that the bill of exceptions lacks merit.

BILL OF EXCEPTIONS NO. 3:

The Admission of the Matchbox of Marijuana in Evidence.

Over defense objection that the foundation was insufficient the trial court admitted in evidence a matchbox allegedly containing marijuana. The question raised by the bill of exceptions is whether the foundation was adequate for the admission of the evidence.

To admit demonstrative evidence at a trial the law requires that the object be identified. The identification can be visual that is by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody that is by establishing the custody of the object from the time it was seized to the time it is offered in evidence.

The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient. State v. Coleman 254 La. 264 223 So.2d 402; State v. Martin 250 La. 705 198 So.2d 897; State v. Bertrand 247 La. 232 170 So.2d 386.

The lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately connexity of physical evidence is a factual matter for determination by the jury. State v. Wright 254 La. 521 225 So.2d 201; State v. Whitfield 253 La. 679 219 So.2d 493; State v. Progue 243 La. 337 144 So.2d 352; 2 Wharton's Criminal Evidence (12th ed.) SEC.673 p. 617.

The record reflects that a small Red Ball Safety Match box containing vegetable material and several small tablets was taken from defendant's pants pocket. Sgt. David M. Almond of the Bossier City Police Department present at the search took possession of the box. On the same day he photographed the box and its contents. The photograph was admitted in evidence without objection by the defense. *fn2 Sgt. Almond placed the box in a locked evidence room of the Police Department. Sgt. Almond kept the key. Two days later Sgt. Almond withdrew the box and carried it to the Louisiana State Crime Laboratory in Baton Rouge. There he delivered the box to Ray Herd Supervisor of the State Crime Laboratory. Mr. Herd wrote on the box the laboratory number SP-7397-69. He then gave the Sergeant a receipt bearing the laboratory number and containing a brief description of the box and contents. Both Mr. Herd and Sgt. Almond signed the receipt. This receipt was admitted in evidence without objection. *fn3

At the State Crime Laboratory the standard procedure is to place the laboratory item in an evidence locker under lock and key. It is withdrawn only by criminologists in the laboratory for testing.

The first criminologist who tested the contents made a written report. On the day of trial Mr. Herd assigned the numbered box to a second criminologist Paul L. Cobb Jr. for testing. Mr. Cobb tested the vegetable material and found it to be marijuana. Bringing the box and the written report of the first criminologist he then appeared at the trial. He identified the box as the same one delivered to him by Supervisor Herd and identified the number on it as the laboratory number. Although he referred in his testimony to the written report of the first criminologist that report was not offered in evidence.

The question presented is whether the State's failure to produce the testimony of Supervisor Ray Herd and the other criminologist rendered the foundation fatally defective and the matchbox containing the vegetable material inadmissible at the trial. After reconsideration we think it does not.

The photograph of the matchbox and its contents is in evidence. The crime laboratory receipt signed by Ray Herd Supervisor of the State Crime Laboratory and Sgt. Almond is also in evidence. The disputed matchbox bears number SP-7397-69. The number adequately identifies it for admission purposes as the same box delivered to the laboratory by Sgt. Almond.

It is true a possibility exists that one of the criminologists at the laboratory changed the material in the box when it was tested. The law however does not require the foundation to negate every possibility of tampering.

In State v. Coleman supra the nurse who stored a marked vial of blood was not called to testify. In sustaining the admission of the vial this Court stated:

"Since a question of fact is presented here and we have invariably accorded a wide discretion to the fact-finder in such matters we will not upset this conviction. Our decision is predicated upon the chain of circumstances established by the State's evidence in its effort to show continuous custody control and supervision and particularly upon the expert opinion of Dr. Butler supported by his long experience that the blood in the vial had not been tampered with. The law makes no requirement that the proof be absolute or positive. A clear preponderance of the evidence on a question of admissibility is sufficient. This requirement is satisfied here."

In the present case in addition to the testimony concerning the chain of possession the trial Court had before him an admittedly genuine photograph of the matchbox and vegetable material taken from defendant. With the photograph the evidence still falls short of positive identification. The lack of positive identification however goes to the weight of the evidence rather than its admissibility. In our opinion the foundation is adequate for the admission of the evidence.

BILL OF EXCEPTIONS NO. 4:

Evidence of Prior Arrest.

During cross-examination of defendant Dotson the District Counsel asked him if he had used marijuana on previous occasions. He replied that he had not.

Later the District Counsel asked him the location of a certain residence. Defense Counsel objected to this question. The District Counsel announced that the question was intended to serve as a basis for rebuttal evidence that defendant had in fact used marijuana.

In response to a question of defense Counsel the District Counsel stated he had no intention of introducing evidence of a prior arrest or conviction.

The trial Court overruled the objection the cross-examination was pursued and the defendant persisted in his testimony that he had never used marijuana before.

Lt. O. G. Bolton was later called as a defense witness. On cross-examination the District Counsel propounded a question and received an answer as follows:

"Q. On the 22nd of November. He has testified you have had previous contact with him. Is this correct?

"A. Yes sir I have. When I arrested him --"

The defendant objected. Whereupon the District Counsel announced that he was not trying to show a prior arrest. With this assurance he was allowed to resume cross-examination and produce testimony tending to show that defendant had previously used marijuana.

Defense Counsel moved for a mistrial but it was denied. He later perfected the following Bill of Exceptions:

"Defense Counsel objected to the State asking questions to the defendant concerning prior arrest and made a part hereof is the trial transcript pages 86 88 and 90. Also defendant objected to police officer Buddy Bolton testifying concerning prior arrest on pages 119 and 121 and a mistrial was requested on pages 120-121 of the transcript which motions were overruled and defendant then and there excepted."

On original hearing we held that Lt. Bolton's testimony that he had arrested defendant for possession of marijuana on a previous occasion was reversible error. In so holding we now think we erred.

On rehearing the State asserts that Lt. Bolton's mention of arrest ("When I arrested him --") refers to the arrest for the present offense on November 22 1969. The defense on the other hand asserts that it refers to a prior arrest. The fragmentary sentence is ambiguous. We find it unnecessary however to resolve the conflict.

The record reflects that the testimony of Lt. Bolton referring to the arrest came after the District Counsel had announced that he would offer no testimony of a prior arrest or conviction. It was unresponsive to the question directed to the officer. The question was whether he had any previous contact with defendant. The question merely called for an affirmance or denial of prior contact already referred to by the defendant while under redirect examination by his own Counsel. The reference to arrest was unsolicited.

It is well established that unsolicited and unresponsive testimony cannot be charged against the State to provide a ground for reversal. State v. Sinclair 258 La. 84 245 So.2d 365; State v. Callihan 257 La. 298 242 So.2d 521; State v. Arena 254 La. 358 223 So.2d 832; State v. Simpson 216 La. 212 43 So.2d 585 cert. denied 339 U.S. 929 70 S.Ct. 625 94 L.Ed. 1350.

This rule has greater force in the present case since the witness who volunteered the information was testifying as a defense witness. Hence the witness's reference to an arrest is not reversible error.

The evidence tending to show that defendant had previously used marijuana was admissible. Although the prior conduct was criminal it had an independent relevance to guilty knowledge an essential element of the crime charged. LSA-R.S. 15:445 446; State v. Harris 232 La. 911 95 So.2d 496; State v. Wagner 229 La. 223 85 So.2d 272; Comment Admissibility of Evidence of Prior Arrests in Louisiana Criminal Trials 19 La.L.Rev. 684 690. On the issue of guilty knowledge or intent the defendant denied prior use of marijuana. Hence the State had the right to contradict this testimony. At the trial as noted in the original opinion the District Counsel referred to the testimony as "impeaching." The term impeaching is a misnomer. Technically the testimony should be designated as rebutting or contradicting. In State v. Monroe 205 La. 285 17 So.2d 331 we stated:

"Rebutting evidence is that which is offered to explain repel counteract or disprove facts given in evidence by the adverse party. State v. Hemler 157 La. 902 103 So. 257.

"It is rebuttal not impeaching to show that the statement of the witnesses as to what occurred is not true. State v. Foster 150 La. 971 91 So. 411. And contradiction is one of the means of rebutting the testimony of a witness produced by the defendant in a criminal prosecution as the State can not contradict the testimony of a witness for the defendant until the testimony is offered in defendant's behalf on the trial of the case. State v. Blount 124 La. 202 50 So. 12."

See also State v. Poe 214 La. 606 38 So.2d 359 (on rehearing); Marr's Criminal Jurisprudence of Louisiana SEC.633 pp. 966-967 (1923).

The evidence of prior use of marijuana was properly admitted to rebut or contradict the defendant's testimony on an essential issue. We discern no error in the rulings of the trial Court.

The bill of exceptions lacks merit.

BILL OF EXCEPTIONS NO. 5:

Contact of Juror with Lt. Bolton.

As authorized by Article 791 of the Louisiana Code of Criminal Procedure the jury in the present case was unsequestered prior to Court's charge. During the noon recess Court released the jurors to get lunch. After the recess defense Counsel moved for a mistrial on the ground that one of the jurors had communicated with Lt. Bolton a state witness during lunch. *fn4 To support the motion defense Counsel testified. He related that he observed the juror seated at the same table with Lt. Bolton and two other persons during lunch. As they dined the four conversed among themselves. In response to questions from Court defense Counsel declined to charge that the diners had discussed the case.

The District Counsel then sought to call the juror to explain the incident. Defense Counsel objected and Court sustained the objection.

In appraising the situation the trial Court commented:

"Court is aware of the fact that we have in this community very limited facilities for lunches as you know. We have just the one small restaurant. And the jury has not been sequestered at this time. Now unless there is some evidence of some improper communication to the jury I can't see that I can entertain your motion for a mistrial."

The trial Court overruled the motion for a mistrial.

In Turner v. Louisiana 379 U.S. 466 85 S.Ct. 546 13 L.Ed.2d 424 the United States Supreme Court reversed a state conviction because of the "close and continual association" of two major state witnesses with the jury in their charge. The Supreme Court held:

"The two principal witnesses for the prosecution at the trial were Vincent Rispone and Hulon Simmons. Both were deputy sheriffs of Tangipahoa Parish.

"The members of the jury were sequestered in accordance with Louisiana law during the course of the trial and were 'placed in charge of the Sheriff' by the trial Court. In practice this meant that the jurors were continuously in the company of deputy sheriffs of Tangipahoa Parish during the three days that the trial lasted. The deputies drove the jurors to a restaurant for each meal and to their lodgings each night. The deputies ate with them conversed with them and did errands for them.

"Two of the deputy sheriffs who were in this close and continual association with the jurors were Vincent Rispone and Hulon Simmons. Turner's Counsel moved for a mistrial when Rispone testified as a witness for the prosecution and made the same motion when Simmons testified.

"It would have undermined the basic guarantees of trial by jury to permit this kind of an association between the jurors and two key prosecution witnesses who were not deputy sheriffs. But the role that Simmons and Rispone played as deputies made the association even more prejudicial. For the relationship was one which could not but foster the jurors' confidence in those who were their official guardians during the entire period of the trial. And Turner's fate depended upon how much confidence the jury placed in these two witnesses." (Footnotes omitted).

There the jury was sequestered. The two principal state witnesses both deputy sheriffs were placed in charge of the jury. For three days these deputies had close and continual association with the jurors eating with them conversing with them and doing errands for them. The case deals with the constitutional problems raised when a prosecution witness has charge of a sequestered jury.

That decision is inapplicable to casual communications between a prosecution witness and an unsequestered juror. In such a situation other principles come into operation. The majority rule is that communication between a juror and a witness in a criminal trial without a showing that the defendant was prejudiced furnishes no ground for upsetting a conviction. State v. Nails 255 La. 1070 234 So.2d 184; State v. Johnson 149 La. 922 90 So. 257; States v. Miles (Mo.) 364 S.W.2d 532 9 A.L.R.3d 1266; Annot. Jurors-Communications with Witnesses 9 A.L.R.3d 1275 1280-1282.

In State v. Johnson supra this Court aligned itself with the majority rule and upheld the conviction after a juror had eaten lunch with a State witness. Court found no prejudice holding:

"Defendant also alleges in his motion for a new trial that the said juror Chapman on the second day of the trial left Courthouse arm in arm with one Ware who appeared as a witness for the prosecution and who was very active against defendant in the trial of the case and that the said Ware and the said Chapman were in close conversation as they left Courthouse and went together to the Cosmopolitan restaurant in the city of Shreveport and to a secluded part of the restaurant.

"Defendant called A. N. Adcock H. I. Moore and Guy Armstrong on this part of the case as witnesses. Neither of these witnesses testified to anything that was said by Ware and Chapman to each other. They merely saw them together and in conversation which was proven by Chapman and Ware to be about Chapman's fast driving to get to court in time. It is established beyond dispute that Chapman and Ware went to the restaurant accompanied by Barry and Linsey all of whom dined together and not one word was said about the case against Johnson. As these four men lived at Mooringsport and were acquainted with each other is was a very natural thing for them to dine together. There was nothing suspicious about it."

In the present case the testimony establishes only a conversation among four people including the juror seated at a restaurant table. There is no showing that the juror or other diners discussed the case.

In his Per Curiam the trial Court states:

"The jury had not yet been sequestered and defendant did not charge that the witness had discussed the case with the juror or had sought to influence him in any manner. The mere fact that the witness and the juror ate lunch at the same table in the only restaurant in Benton is not grounds for a mistrial."

The ruling of the trial Court as to the misconduct of a juror is entitled to great weight. See State v. Fike 129 La. 663 56 So. 630; Marr's Criminal Jurisprudence of Louisiana SEC. 467 p. 714 (1923).

Under the circumstances this Court cannot presume prejudice. See LSA-C.Cr.P. Art. 921; State v. Nails supra. While innocent contact of a juror with a witness is to be avoided when such contact does occur it does not always vitiate the conviction. In our opinion the trial Court correctly denied the mistrial. The conviction should stand.

For the reasons assigned the conviction and sentence are affirmed.

TATE J. dissents for the reasons assigned in our original opinion.

DIXON J. dissents for the reasons expressed in our original opinion.

Dissenting: BARHAM

I am of the opinion that Bill of Exceptions No. 5 presents reversible error and I pretermit a discussion of the other bills.

The majority attempts to distinguish Turner v. Louisiana 379 U.S. 466 85 S.Ct. 546 13 L.Ed.2d 424 by finding that in the Turner case "the jury was sequestered". This distinction has no validity. Physical sequestration of a jury is only one method for insuring that jurors are not tampered with do not discuss the case and are not subjected to outside influence so that they may reach their verdict as said in Turner "upon the evidence developed at the trial". All courts in this state before permitting jurors to separate or even to leave Courtroom as a group admonish them not to discuss the case form any opinion or read or listen to anything about the case. The redactors of the Code of Criminal Procedure according to the comment under Article 791 found it unnecessary in the face of this uniform practice even to include a procedural guide for such instructions. Whether the jurors separate or whether they are physically sequestered the standard of conduct of others toward them and of the jurors toward others is the same.

In Turner it was the close association between the jurors and two deputy sheriffs who were key prosecution witnesses which was found to be constitutionally impermissible. The United States Supreme Court pointed out that this association during the period of the trial could not but foster the jurors' confidence in these two men not only as keepers but also as witnesses. Here just before the case was submitted to the jury just before argument by Counsel and the Court's charge Lieutenant Bolton the principal State's witness lunched with a juror. There is no need to establish what they discussed or whether they discussed the case. Bolton's association with the juror "could not but foster" that juror's confidence in him as a witness in the trial. In my opinion the association here was of the same nature as that which the Supreme Court said in Turner "undermined the basic guarantees of trial by jury." The conviction and sentence should be reversed.

I respectfully dissent.