author: SUMMERS, Chief Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Johnnie A. JONES.
    No. 61799.
    Supreme Court of Louisiana.
    June 25, 1979.
    Rehearing Denied July 27, 1979.

    Leonard Führer, Alexandria, Chairman, Roland J. Achee, Shreveport, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, Alfred S. Landry, New Iberia, A. Russell Roberts, Metairie, John B. Scofield, Lake Charles, Thomas 0. Collins, Jr., New Orleans, Counsel, Louisiana State Bar Ass’n, Committee on Professional Responsibility for petitioner.
    Johnnie A. Jones, Baton Rouge, for respondent.

       Blanche, J., recused.

   DISCIPLINARY PROCEEDING

SUMMERS, Chief Justice.

The Louisiana State Bar Association, appearing through the Committee on Professional Responsibility, brings this action against respondent Johnnie A. Jones, a practicing attorney, seeking his suspension from the practice of law for professional misconduct.

Hearings were conducted on May 23,1977 and on October 4, 1977 by the Committee. Respondent appeared in his own behalf. Based upon its investigation and the evidence obtained the Committee on Professional Responsibility concluded that respondent had been guilty of professional misconduct “as to evidence a lack of fitness for the practice of law.”

On March 14, 1978 the Louisiana State Bar Association instituted disciplinary proceedings. This Court appointed a Commissioner to take evidence and to report his findings of fact and conclusions of law. The Commissioner conducted a hearing on August 1, 1978 at which respondent appeared and again represented himself.

As a result of the hearing the Commissioner found that on August 25, 1969 respondent was engaged by William Adams to represent him in the prosecution of a workmen’s compensation claim. After trial and appeal judgment was rendered in Adams’ favor for $19,492.22. The judgment was paid by the insurer, St. Paul Fire & Marine Insurance Company, in two drafts: the first dated February 13, 1973 for $10,-198.70 and the second dated November 7, 1973 for $9,293.52.

According to a receipt dated February 16, 1973, signed by Adams, respondent deducted $4,455.44 from the first draft as reimbursement for cash advances made by him pending the litigation. Another $2,500 was shown on the receipt as a deduction for attorney’s fees, and $3,253.26 was shown as having been remitted to Adams. Contrary to this receipt, the record shows that respondent issued his check for $1,000, dated February 16, 1973, to Adams and retained $2,253.26 in his “business account” at the bank. As of November 1973, $917.86 of the money due to Adams from the February 13, 1973 draft had not been delivered to him. Of this amount, $400 was remitted to Adams on November 27, 1973 and the remaining $517.86 was remitted on January 10, 1974.

During this time the balance in respondent’s account at the bank was $658.94 on February 28, 1973, $4.65 on March 8, 1973 and the account was overdrawn by $5.69 on April 5, 1973. In this same period respondent had a separate trust account in another local bank with a constant balance of $240.36. Obviously respondent had either commingled or used Adams’ money.

When the second draft for $9,293.52 was received on November 7, 1973, respondent deposited $4,000 in this trust account. That account was debited for $1,097.55 on December 12, 1973, leaving a balance of $3,130.95 and the account remained under $4,000 until January 11, 1974. On January 10, 1974 Adams received a check for $4,517.86 drawn on respondent’s trust account. The amount represented a final accounting of the proceeds from both drafts. The Commissioner found a strong inference from these facts that a portion of the proceeds of the second draft were commingled.

In June 1970 the Bar Association was contacted by an attorney acting for four individuals who had retained respondent to assert their claims for personal injuries sustained in a September 5, 1963 automobile accident. It was reported that the claims had been settled in March 1968 for $3,570 and claimants had not been paid. It was not until August 1970, after involvement of the Committee of the Bar Association that claimants received their money.

The Commissioner concluded that there were instances of misconduct relating to improper handling of respondent’s client’s funds. Moreover, the Commissioner found that “(overriding the cited instances of commingling is the respondent’s admission that he has as a matter of practice commingled clients’ funds in the past that he will continue to do so because it is the only way he can stay in business.”

Canon 9 of the Code of Professional Responsibility charges an attorney with the responsibility of maintaining his client’s funds separate from his own in an identifiable bank account and to promptly pay or deliver to the client as requested by the client all the funds the client is entitled to receive. Under Disciplinary Rule 9-102 the following guidelines for handling the funds of clients are provided:

(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(1) Funds reasonably sufficient to pay bank charges may be deposited therein.
(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
(B) A lawyer shall:
(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.”

At the October 4, 1977 hearing respondent testified: “In the words, the way you are using ‘commingling’ my answer to that is yes, because I’ve done all that kind of commingling; . . . ” “I don’t see how I can function without having some type of commingling . . . .” In brief addressed to this Court respondent submits that “if these factual situations as presented constitute intentional noncompliance with the canons by respondent, then in such event respondent has violated the canons.”

It is the duty of an attorney to uphold the integrity of the bar and to avoid even the appearance of impropriety. Louisiana State Bar Association v. Weysham, 307 So.2d 336 (La.1975). It is well-settled that since the primary objective of disciplinary proceedings is to protect the courts and the public, no greater penalty than that which would accomplish this purpose should be imposed. Louisiana State Bar Association v. Jacques, 260 La. 803, 257 So.2d 413 (1972); Louisiana State Bar Association v. Cox, 252 La. 978, 215 So.2d 513 (1968).

The record reflects respondent has had a pattern of commingling clients’ funds over a period of years and has been cautioned against this practice. He has admitted this and testified that he will continue this practice. A violation of the Code of Professional Responsibility occurred and disciplinary action is necessary.

For the reasons assigned it is ordered, adjudged and decreed that Johnnie A. Jones be suspended from the practice of law for a period of six months.

BLANCHE, J., recused.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    SOUTHERN SHIPBUILDING CORPORATION and Continental Insurance Company v. Jeri Lynn RICHARDSON, Individually and in her capacity as natural tutrix of her minor children, Shaine Marie Richardson and Brandi Lynn Richardson, Milton Brener, John Robbert and Garon, Brener & McNeely.
    No. 63662.
    Supreme Court of Louisiana.
    June 25, 1979.
    Rehearing Denied July 27, 1979.

      Barry R. Geraghty, New Orleans, for defendants-applicants Jeri Lynn Richardson, Ind. and in her capacity as Natural Tutrix of her minor children, Shaine Marie Richardson and Brandi Lynn Richardson.
    Milton E. Brener, New Orleans, for defendants-respondents John Robbert, Milton Brener and Garon, Brener & McNeely.

       DENNIS, J., would grant a rehearing.

   CALOGERO, Justice.

Mrs. Jeri Lynn Richardson individually and on behalf of her minor children Shaine Marie Richardson and Brandi Lynn Richardson had a claim against Southern Shipbuilding Corporation and its insurer arising out of the wrongful death of her husband Brand Richardson. Mrs. Richardson hired John Robbert, and his law firm, Garon, Brener & McNeely to represent her and her two children in connection with the claims. In due course the claims were settled prior to trial, for $275,000 ($91,000 for Mrs. Richardson and $92,000 for each of the two children). The dispute in this litigation concerns the amount of attorneys’ fees which is due.

The attorneys rely upon a contract signed by Mrs. Richardson at the outset of the representation by which she agreed to a one-third contingency fee in connection with the claims. The contract was executed without prior court authorization. In fact Mrs. Richardson did not qualify as tu-trix until settlement was agreed upon, at which time the insurer required that she do so and that she secure court authorization to settle the minors’ claims.

While Mrs. Richardson presents several contentions, including among others the fact that there was never a mutual understanding or meeting of minds between her and the attorneys concerning the fee, her principal contention, and the one which chiefly attracted our attention in the writ application, is that the contract which she entered into on behalf of her children before she qualified as natural tutrix was not binding upon the children because it was executed prior to her qualifying as natural tutrix and without prior court authorization.

Mrs. Richardson relies upon the Fourth Circuit Court of Appeal decision in Garden Hill Land Corp. v. Succession of Cambre, et al., 299 So.2d 403 (La.App. 4th Cir. 1974) and certain language of this Court in its review in the same case, 306 So.2d 718 (La.1975). In Garden Hill, where a parent who had by then been appointed tutrix executed a fifty percent attorney’s fee contract for representation of her child’s interest in a succession, the Fourth Circuit held that the tutrix was without authority to enter into that contract prior to securing court authorization. Of course, that Court of Appeal holding was not the concluding decision in that case for we granted writs. And in a decision in which we reversed the Court of Appeal and remanded for a determination of the reasonableness of the fee, we found it unnecessary to resolve that legal question. We did, however, state, in dicta, that “[s]urely a strong argument can be made for requiring such approval.” We further stated that “[t]he courts are charged with protecting and safeguarding the interests of minors. A contract disposing of an entire 50% interest of a minor’s sizeable estate, where there is no real risk of non-recovery (she was a forced heir) would seem on its fact to be unreasonable.” It is this language from our opinion in Garden Hill upon which respondents principally rely.

Our decision in Garden Hill is not disposi-tive of the issue presented here. We did not hold in that case that the tutrix was without authority to enter into a contingency fee contract without prior court authorization, and/or without first having qualified as tutrix. We merely alluded in dicta to the “strong argument” for requiring court approval of a contract disposing of an entire fifty percent interest of a minor’s succession claim where there was no real risk of non-recovery.

In any event we are here concerned with a one-third contingency fee contract in connection with a claim for damages for wrongful death. Contracts of this nature are not unreasonable but in fact more the accustomed contract for legal representation. Plaintiff at trial presented expert testimony indicating that the customary fee in actions for personal injuries and/or wrongful death in the metropolitan New Orleans area is one-third of the amount recovered. We find this testimony which is uncontroverted in the record consistent with our own experience. For cases in which the one-third contingency fee contract is discussed with approval see McCally v. Hartford & Indemnity Co., 247 F.Supp. 444 (D.C.1965); Lytle v. Liberty Mutual Insurance Co., 285 So.2d 293 (La.App. 3rd Cir. 1973).

•Respondent relies upon Articles 4061 and 4171 of the Code of Civil Procedure as the basis for a contention that she had no authority to sign the contract because it was not preceded by her qualifying as tu-trix.

The purpose of the requirement that a tutrix qualify (oath, inventory, legal mortgage, etc.) is to conserve a minor’s estate which might otherwise be dissipated. That consideration is not prevalent where the estate consists of a mere claim for damages. Protection of the minor’s estate in this situation can be accomplished by the tutrix’s qualification prior to or coincident with petitioning the court to approve settlement of the minor’s claims after a tentative settlement thereof has been agreed upon. As was stated in Cacibauda v. Gaiennie, 305 So.2d 572 (La.App. 4th Cir. 1975) “The spirit of this [Code Civ.Pro. art. 4061] and other laws governing the rights of minors have for their purpose the conservation of the minor’s estate and the establishment of a form of security from which he can be reimbursed if his assets have been dissipated before he attains majority.”

Furthermore even the parent who refuses to accept the tutorship of minor children is bound to fulfill the duties of the tutor until a tutor has been appointed. La.Civ.Code art. 253. One such duty would be the employment of counsel on reasonable terms and institution of timely suit for her children’s damages for wrongful death.

As the Court of Appeal in this case stated Mrs. Richardson’s obligation to conserve the minor’s estate should surely prevail over the technical requirements of the Code of Civil Procedure. Caruthers v. U. S. Safety Deposit & Savings Bank, 8 Orl.App. 93 (1910). Denying her the right to legally bind the estate of the minor children prior to qualification as natural tutrix could well impair performance of her obligation to recover on the damage claims for her children. As the court in Caeibauda stated “[the] obligation to [preserve the assets of the minor’s estate is due first as a mother and administratrix, and then as natural tutrix, should she choose to qualify.” It was for this reason that in Caeibauda it was held that prescription had not run on a minor’s claim instituted on behalf of the minor within one year of an accident by his mother who had not been qualified as tutrix.

At least as persuasive as the reasons set forth above, and relative more specifically to the necessity for prior court authorization, is the fact that this Court has, in an admittedly old case, ruled on the very legal issue. In Husk v. Blancand, 155 La. 816, 99 So. 610 (1924) where the mother of a minor child entered into a contingency fee contract (it was verbal) in connection with the wrongful death of her husband, this Court stated:

“It is urged that Mrs. Husk, though competent to make such a contract for herself individually, could not bind her minor son, and that the minor’s interest in the fund retained by the defendant should be recovered. It is true as a general rule that a tutor cannot, without the advice of a family meeting [the counterpart to our present requirement of court approval], make a contract that would be binding on the minor for an amount that would be in excess of the minor’s revenue, but that rule we think cannot be invoked in a case like the present one. The widow could not have recovered for the death of her husband without engaging the services of an attorney, and, in making a contract for herself individually, it became her duty at the same time to have her minor son represented. She unquestionably had the authority to employ counsel to represent her minor son, and having such authority, she was authorized to contract on behalf of her minor son for the fee to be paid contingent on recovery.”

We find that neither qualification as tu-trix nor prior court authorization is a legal prerequisite to plaintiff’s entering a legally binding contingency fee/attorney contract for the recovery of tort damages due her minor children for the wrongful death of their father. The only impediment to the binding nature of a contract entered before qualification of the tutrix and/or court authorization would be in the event that the contract were to be unreasonable. And in our opinion a one-third contingency fee contract in connection with a claim for damages for wrongful death whether for an adult or for a minor is not unreasonable. We therefore hold that the contract here at issue is legally binding.

Decree

For the foregoing reasons the judgment of the Court of Appeal is affirmed.

AFFIRMED.

DENNIS, J., concurs.

      .Not until the attorney had achieved a settlement (after suit but before trial), one which Mrs. Richardson found acceptable, did the dispute arise concerning the amount of attorneys’ fees. Southern Shipbuilding and its insurer later found it necessary to file a concursus petition in the Civil District Court in Orleans Parish and deposit the $275,000 in the registry of the court. By agreement between the parties, Mrs. Richardson was permitted to withdraw from the court’s registry $182,597, the balance of the fund being the amount in dispute.

      . Actually it was a letter written by Mr. Rob-bert setting forth that the representation would be on a one-third contingency basis, a copy of which Mrs. Richardson signed and returned to the attorney.

      . On this issue we agree with the Court of Appeal’s finding that despite whatever ambiguity there may have been in the letter which contained the contingency fee contract, Mrs. Richardson understood the substance of the agreement.

      . The issue concerning whether a tutrix was without authority to enter the contingency fee contract before securing court authorization was not reached because this Court on review found that the court authorization there, even had it preceded entry of the contract, did not explicitly authorize the fifty percent contingency contract there at issue.

      . Article 4061 of the Code of Civil Procedure provides:
      “Before a natural tutor enters upon the performance of his official duties, he must take an oath to discharge faithfully the duties of his office, cause an inventory to be taken, and cause a legal mortgage in favor of the minor to be inscribed, or furnish security, in the manner provided by law.”

      .Article 4171 of the Code of Civil Procedure provides:
      “Before the person appointed as tutor enters upon the performance of his official duties, he must take an oath to discharge faithfully the duties of his office. A natural tutor shall include in his oath a list of the parishes in which he owns immovable property.”


author: PER CURIAM.

text:
    STATE of Louisiana v. Samuel LEWIS.
    No. 62905.
    Supreme Court of Louisiana.
    July 5, 1979.
    Rehearing Denied Sept. 4, 1979.
    Robert R. Faucheux, Jr., Reserve, Victor E. Bradley, Jr., Norco, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Melvin Barre, Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The issue of whether the defendant was denied effective assistance of counsel is more properly raised by application for writ of habeas corpus. State v. Anthony, 347 So.2d 483 (La.1977); State v. Ross, 343 So.2d 722 (La.1977); State v. Mouton, 327 So.2d 413 (La.1976).

Finding no reversible error based on defendant’s assignments of error and the record before us on appeal, defendant’s conviction and sentence are affirmed.

SUMMERS, C. J., absent.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Willie SUDDS, Appellant.
    No. 64042.
    Supreme Court of Louisiana.
    Sept. 4, 1979.
    William J. O’Hara, III, Supervising Atty., New Orleans, David Kent Savoie, Student Practitioner, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Marvin Opotowsky, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant was convicted of attempted forcible rape, La.R.S. 14:27, 43.1, and sentenced, as a multiple offender, La.R.S. 15:529.1, to imprisonment at hard labor for thirty years.

The defendant argues four assignments of error. Although defendant’s arguments are forcefully made, they all concern issues governed by clearly applicable law (once the disputed factual basis is resolved against the accused) or else based on factual circumstances peculiar to the present case and not likely to recur.

We have found these assignments to be without reversible merit, for reasons set forth in an appendix to this opinion which shall not be published (as not contributing to the general law, for reasons noted above), but which shall remain a public record of this court.

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


author: TATE, Justice,

text:
    F & S OFFSHORE, INC. v. SERVICE MACHINE AND SHIPBUILDING CORPORATION et al.
    No. 65028.
    Supreme Court of Louisiana.
    Sept. 4, 1979.
   In re: Robert Thompson applying for Writ of Certiorari, First Circuit Court of Appeal, No. 12555, Parish of St. Mary.

Denied. We usually do not review denial of summary judgments under our supervisory jurisdiction.

DIXON, CALOGERO and BLANCHE, JJ., would grant the writ.

TATE, Justice,

concurs and assigns reasons.

An employee of a corporation is not individually responsible to a third person for his defective performance on behalf of the corporation of a duty owed by the corporation to the third person. He owes an employment duty to his master, but no contractual duty to the third person. Consequently, the trial court properly entered summary judgment dismissing the third persons’ suit (i. e., its third-party demand) against the employee. Nevertheless, this Court does not customarily'review on its merits an interlocutory ruling denying a summary judgment. Cf., La.C.C.P. Art. 968.


text:
    STATE of Louisiana v. Lee N. DAVIS.
    No. 64049.
    Supreme Court of Louisiana.
    Sept. 4, 1979.
    James H. Galloway, Jr., James & Galloway, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Lee N. Davis was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After a bench trial, defendant was found guilty as charged and sentenced to serve twenty years at hard labor. On appeal defendant relies on five assignments of error for reversal of his conviction and sentence.

We have reviewed the record and find no merit to defendant’s assignments of error. Accordingly, we affirm his conviction and sentence.

DECREE

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


author: DIXON, Justice. TATE, Justice,

text:
    TENNECO OIL COMPANY v. Fred L. HOUSTON et al.
    No. 63777.
    Supreme Court of Louisiana.
    June 25, 1979.
    Rehearing Denied July 27, 1979.
    Nesib Nader, Shreveport, for defendants-applicants Ellis Harp, Jr., Anether Harp Hall, Dorether Harp, Jimmy Ray Harp.
    Robert E. Plummer, Colvin, Hunter, Brown, Plummer & Means, Mansfield, for defendants-respondents Fred L. Houston & Eleanor H. Houston.
   DIXON, Justice.

This concursus proceeding was brought by Tenneco Oil Company to determine the ownership of a fourth of the oil and gas royalties under mineral leases. The royalties involved are modest in amount, and are attributable to a forty acre tract of land (SW/4 of SE/4 of Section 14, Township 15 North, Range 13 West) in DeSoto Parish which was unitized with other lands on which the producing well is located.

There was judgment in the district court in favor of Fred L. Houston and Eleanor H. Houston, which was affirmed by the Court of Appeal, 364 So.2d 1056 (La.App.1978). The Court of Appeal ruled that since the Houstons were the possessors of the forty acre tract, the Harp group (the only one of three groups of adverse claimants who preserved their rights by appeal and by application for writs to this court) were required, under C.C.P. 3654, to make out their title thereto.

The Court of Appeal further found that all the claimants traced their title back to a common author, Will Oliver. Relying on Pure Oil Co. v. Skinner, 294 So.2d 797 (La.1974), the Court of Appeal went on to hold that “proof of a more ancient title derived from a common author in title is not proof of ownership, that is, title good against the world, but merely proof of better title.” 364 So.2d at 1058.

We granted writs to consider the correctness of this holding.

An examination of the record, however, does not disclose a common author. The Harp group have failed to make out any title whatsoever.

Fred L. Houston and his wife Eleanor H. Houston bought the forty acres involved here, after having the title examined, by two purchases: the first, dated April 2, 1971, was from Will Oliver and conveyed a thirty acre tract; the second, on April 15, 1971, was from Jim and his wife Irene Armstrong Phillips, for a ten acre tract. The Phillips had bought their ten acres from Will Oliver the preceding February 10, 1971. At the time of the trial, Houston and his wife testified that they paid $7200 for the land and had occupied it for the past six and one-half years, farming, planting a pecan orchard and improving the buildings, an endeavor in which they had spent over $17,-000. There was no evidence of possession by any other person.

The Harp group claimed that they are the children of Lula Mae Harp, one of the children born to Everlina Scott and Andrew Green. Green died in 1916. Everlina Scott died January 25, 1968, and had been married to Will Oliver twice, in 1947 and in 1961.

The judgment of possession in the succession of Everlina Oliver recognized one-half interest in the forty acres involved here to be in Will Oliver, and placed Lula Mae Harp and Mary E. Jones in possession of the other undivided half of the forty acres. Mary Jones, in September of 1968, sold her one-fourth interest in the forty acres to Will Oliver, widower of Everlina. On November 20, 1970, Echo E. Ross, nee King, the wife of Preston Ross, sold her one-fourth interest in the forty acre tract to Will Oliver, reciting in the deed that she was the sole legitimate heir of Lula Mae Harp, her deceased mother. Lula Mae Harp had died February 4, 1969.

Echo Elizabeth Ross was born in 1927 to Lula Mae Harp and her husband Grander-son King, who had been married February 18, 1926, and who were never divorced. (Echo Elizabeth had been raised by Everli-na and Will Oliver). Granderson King separated (non-judicially) from Lula Mae shortly afterwards, moved to Texas, died in Houston and was buried there between 1973 and 1975.

Lula Mae Harp, although never divorced from Granderson King, married Ellis Harp March 6, 1957. The members of the Harp group are her children, born to her and Ellis between 1937 and 1952, but are illegitimate because of the undissolved marriage between Lula Mae and Grander-son King. Under C.C. 918, if a natural mother has lawful children, the rights of the natural children are reduced to alimony (like other illegitimates. C.C. 920). See Succession of Robins, 349 So.2d 276 (La.1977); Daigle, All in the Family: Equal Protection and the Illegitimate Child in Louisiana Succession Law, 38 La.L.Rev. 189 (1977). Therefore, the Harp group, children of Lula Mae Harp, but not the children of Granderson King, have exhibited no title to the mineral rights in dispute.

Since the legitimate children of Lula Mae King Harp inherited from her to the exclusion of either natural or illegitimate children, the Harp group have exhibited no title, and therefore no common author.

The judgments of the courts below are affirmed and reinstated, and costs are to be deducted from funds deposited by plaintiff.

SUMMERS, C. J., concurs. I would reverse Pure Oil v. Skinner, 294 So.2d 797.

TATE, J., dissents and assigns reasons.

CALOGERO, J., dissents for reasons assigned by Tate, J.

DENNIS, J., dissents for reasons assigned by Tate, J.

TATE, Justice,

dissenting.

I respectfully dissent.

The Harp claimants are excluded from the title on the ground that they are illegitimate children of Lula Mae Harp, an heir to the ownership of the property.

Mrs. Harp had been married to King in 1926 and had never been divorced. After King moved away following the birth of a child, the Harp claimants were born to Lula Mae as a result of her union (eventually blessed by marriage in 1957) with Ellis Harp.

True, the biological father of these children was Harp (not King, Lula Mae’s only lawful husband). Nevertheless, under well-settled principles of the Civil Code of 1870, in effect at all pertinent times (the statutory scheme .was amended in 1976), the Harp claimants are considered as legitimate children of Lula Mae Harp and her lawful husband, King, for purposes of inheritance from their estates. Under no prior deci-sional law, have they been disinherited as merely illegitimate children of their mother.

Article 184 of the Louisiana Civil Code of 1870 provided: “The law considers the husband of the mother as the father of all children conceived during the marriage.”

Under the jurisprudence interpreting this article, a child born during a lawful marriage is conclusively presumed to be an issue of the marriage — “the husband of the mother is presumed to be the father of her children” — , unless within a short statutory period an action is successfully brought by the father or his heirs to disavow its legitimacy on the narrowly limited grounds permitted.

See: Civil Code Articles 191, 192 (1870); Tannehill v. Tannehill, 261 La. 933, 261 So.2d 619 (1972); Williams v. Williams, 230 La. 1, 87 So.2d 707 (1956); Feazel v. Feazel, 222 La. 113, 62 So.2d 119 (1952); Kuhlman v. Kuhlman, 137 La. 263, 68 So. 604 (1915); Succession of Saloy, 44 La.Ann. 433, 10 So. 872 (1892).

Under the facts of the majority opinion, the Harp claimants are heirs of an owner of the property. They were never divested of their title by deed or prescription. Therefore, they are entitled to be recognized in their ownership.

The common author in title of the Hous-tons (possessors) and of the Harps is Will Oliver, who had purchased the property while living in community with his wife Everlina (grandmother of the Harp heirs). The Houstons had purchased the property in April 1971, after Everlina’s death, from Will Oliver and some of Everlina’s heirs to her undivided one-half interest.

We granted certiorari because the intermediate court had held that proof of title to the common author did not satisfy the requirement that, in a petitory action, the party out of possession (i. e., the Harp heirs) must “make out his title.” La.C.Giv.P. art. 3653. Jurisprudentially, we have shorthanded this term as a requirement that the party out of possession make out title against the world. Pure Oil Co. v. Skinner, 294 So.2d 797 (La.1974).

However, the jurisprudential interpretations of this provision (“make out his title”) in the former Codes of Practice (see, e. g., art. 44, Code of Practice of 1870), have found this requirement to be satisfied when the party out of possession makes out his title to a common ancestor, with the result that the party in possession has no title (i. e., derived from that common ancestor). The present intermediate court therefore was in error, and its holding in this regard should be overruled as contrary to the prior settled jurisprudence.

See, e. g., Voisin v. Luke, 341 So.2d 6 (La.App. 1st Cir. 1976), certiorari denied, and Clayton v. Langston, 311 So.2d 74 (La.App. 3d Cir. 1975).

I respectfully dissent.

      . “When the issue of ownership of immovable property or of a real right is presented in an action for a declaratory judgment, or in a con-cursus, expropriation, or similar proceeding, or the issue of the ownership of funds deposited in the registry of the court and which belong to the owner of the immovable property or of the real right is so presented, the court shall render judgment in favor of the party:
      (1) Who would be entitled to the possession of the immovable property or real right in a pos-sessory action, unless the adverse party makes out his title thereto; or
      (2) Who proves better title to the immovable property or real. right, when neither party would be entitled to the possession of the immovable property or real right in a possessory action.”

      . Regardless of whether the Harp claimants are considered to be the children of King (their mother’s husband), they are illegitimate adulterous children of Lula Mae and the code denies them inheritance. C.C. 920; Marshall v. Smedley, 166 La. 364, 117 So. 323 (1928); Succession of Peyran, 11 La.Ann. 694 (1856); Succession of Riley, 259 So.2d 406 (La.App.1972).

      . The European codes permit this result by express legislative test. Until the present decision of the intermediate court, our own Louisiana legislative text was so interpreted. To overrule the possible misinterpretation occasioned by the present holding of the intermediate court in this instance, the Louisiana Law Institute has proposed revisory legislation for adoption by the 1979 legislature.


text:
    Patricia C. RUE and Lloyd Rue, Jr. v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS.
    No. 63813.
    Supreme Court of Louisiana.
    June 25, 1979.
    Rehearing Denied July 27, 1979.
    Allen L. Smith, Jr., Plauche, Smith, Hebert & Nieset, Lake Charles, for plaintiffs-applicants.
    Robert R. Roche, State Dept, of Transp. and Development, Office of Highways, Baton Rouge, for defendant-respondent.
   CALOGERO, Justice.

This case presents the narrow legal issue of whether a motorist who inadvertently drives off a highway onto its shoulder and who loses control of her vehicle upon striking an admittedly dangerous rut in the shoulder is barred from recovery for her injuries by hér negligence in leaving the paved surface of the highway.

The uncontroverted facts of this case are that the Department of Highways was negligent in failing to maintain the shoulder of the highway in a safe condition and that plaintiff, who was presented no real or imagined emergency situation, drove her vehicle off the paved surface of the highway for no apparent reason. The trial court and the Court of Appeal, relying on Hopkins v. Department of Highways, 167 So.2d 441 (La.App. 1st Cir. 1964), writ refused, 246 La. 885, 168 So.2d 268 (1964), concluded that the Department of Highways was negligent, but that plaintiff’s conduct in leaving the highway, a legal cause of her injuries, was contributory negligence barring recovery.

In Hopkins the First Circuit held that in the absence of an emergency over which a motorist has no control and which is not of his own creation, “it constitutes negligence for a driver to permit his vehicle to leave the improved portion of a road or highway without reducing his speed and otherwise taking precautions to insure his retention of control thereof in the event he should encounter some unforeseen defect on the shoulder of the thoroughfare.” That court reasoned that but-for plaintiff’s inadvertence in allowing his vehicle to leave the paved surface, the accident would not have occurred, and because plaintiff’s own negligence was a proximate cause of the accident, his recovery was barred.

Without specifically overruling Hopkins the First Circuit in Watson v. Morrison, 340 So.2d 588 (La.App. 1st. 1976), writ denied 342 So.2d 218 (1977) determined that the standard by which to establish whether the driver who leaves the paved surface is negligent is whether that driver is faced with an apparent emergency. In that case the Court of Appeal found that a driver who left the surface of the highway in an attempt to avoid what appeared to her to be an oncoming vehicle’s encroaching over the center line was not negligent even though it was established that the other driver had not in fact crossed the center line. That Court found that a driver might reasonably leave the paved surface if he believed that he was faced with an emergency situation. See also, Robertson v. Handy, 354 So.2d 626 (La.App. 1st Cir. 1977).

This case presents a factual situation in which there was neither a real emergency (a Hopkins requirement) nor a perceived one (as in Watson). If the standard announced in Hopkins is applied, or even if minimally a perceived or seeming emergency as in Watson is required, plaintiff must be barred from recovery in this lawsuit. Assessing the opinion of the First Circuit Court of Appeal in Hopkins, that a motorist like plaintiff is negligent and proximately so in regard to the accident, requires that víe examine plaintiff s conduct and her ensuing injury in the context of a duty risk analysis.

Under a simple “but-for” analysis the accident would not have occurred had either the Highway Department not been negligent in failing to maintain the shoulder or the plaintiff not been negligent (and for present purposes we assume her inadvertent meandering was negligence) in moving the vehicle onto the shoulder. But this does not conclude the inquiry. Focusing on plaintiff’s “substandard” conduct the question is whether the risk of injury from striking an unexpected, negligently maintained highway shoulder was a risk reasonably related to plaintiff’s failure to drive entirely on the paved portion of the highway. We conclude that it was not. A motorist has a right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon, is maintained in a reasonably safe condition. Conversely the Highway Department’s duty to maintain a safe shoulder encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself travelling on, or partially on, the shoulder.

We conclude that plaintiff’s conduct if indeed it was substandard is no bar to her recovery of damages occasioned chiefly because the Highway Department negligently failed to maintain a safe highway shoulder. We therefore expressly overrule Hopkins v. Department of Highways, supra.

Because judgment below was for defendant, neither lower court reached the issue of the damages to which plaintiffs, Mrs. Rue and her husband, are entitled, although a record in this regard was made up in the trial court. Even though we have the entire case before us we deem it preferable to remand this case to the Court of Appeal for the purpose of assessing damages. See, Natal v. Phoenix Assurance Co. of New York, 305 So.2d 438 (La.1974); Jackson v. Gulf Insurance Company, 250 La. 819, 199 So.2d 886 (1967).

Decree

For the foregoing reasons the judgments of the district court and the Court of Appeal in favor of defendant are reversed and the case is remanded to the Court of Appeal for further proceedings consistent with this opinion.

JUDGMENT OF DISTRICT COURT AND COURT OF APPEAL REVERSED; REMANDED TO THE COURT OF APPEAL.

SUMMERS, C. J., dissents.

      . As the Court of Appeal noted:
      “The Department of Highways is charged by law with the duty of maintaining highways, or any parts thereof, in a safe condition. LSA-R.S. 48:1(11)(13), Pickering v. Washington, 260 So.2d 340 (La.App. 1st Cir. 1972), writs refused; 262 So.2d 43 (1972). The shoulders of a highway are a part of the highway system and therefore the duty of maintaining the shoulders of all state highways is likewise imposed on the Department. Hopkins v. State, Department of Highways, 167 So.2d 441 (La.App. 1st Cir. 1964), writ refused, 246 La. 885, 168 So.2d 268 (1964).
      “The Department of Highways was negligent in failing to correct the hazardous rut on the shoulder of Louisiana 733 despite its actual and constructive knowledge of the defect. Robertson v. Handy, 354 So.2d 626 (La.App. 1st Cir. 1978), Hopkins v. Department of Highways, supra. Mrs. Rue would not have lost control of her vehicle had it not been for the rut at the highway’s edge which constituted a hazard to the reasonably prudent driver.”

      . The facts as recited by the trial judge, including a finding that plaintiffs vehicle left the highway while she attempted to negotiate a curve to the left, were incorporated in the Court of Appeal opinion and are as follows:
      “Lloyd Rue, Jr. and his wife, Patricia C. Rue, filed this suit against the State Department of Highways for damages sustained in an automobile accident.
      “On the evening of May 9, 1976, an impromptu gathering of friends materialized at the home of Patricia and Lloyd Rue. During the course of the evening, at approximately 9:00 P.M., it became necessary for Mrs. Rue to make a trip to a grocery store for ice. Mrs. Rue was accompanied by Mrs. Theda Dugas, the middle front seat passenger; Lester Broussard, the right front seat passenger; Melisa Rue, the left back seat passenger; and Troy Rue, the right back seat passenger. She was driving a 1974, 4-wheel drive Blazer in a northerly direction on Louisiana Highway 733. Louisiana 733 is a five mile long, heavily travelled, two lane rural route connecting United States Highway 167 and Louisiana 92. It is blacktopped and divided by a middle lane.
      “As Mrs. Rue attempted to negotiate a curve to the left, the right tires of the Blazer left the paved portion of Louisiana 733. As she attempted to regain the paved portion of the highway, her right front wheel struck a deep rut adjacent to a ragged, eroded edge of Highway 733. Upon striking the edge of the highway, Mrs. Rue lost control of the Blazer, causing it to cross Highway 733 and flip over several times in a field on the west side of the highway.
      “The evidence does not indicate that Mrs. Rue was speeding on her approach of the unsuccessfully negotiated curve. The posted speed limit for the curve was 40 m. p. h. In her deposition, Mrs. Theda Dugas estimated Mrs. Rue’s speed at the time she reached the curve to be 25 m. p. h.
      “Neither Mrs. Rue nor Lester Broussard has recollection of the accident or events leading to it. The testimony of Melisa Rue, eleven years old, reveals that Mrs. Rue was driving normally when her right wheels went off the paved part of the highway. Melisa stated that she did not see any cars approaching or following their vehicle at the time of the accident nor did she hear talk about anything obstructing their negotiation of the curve. The deposition of Theda Dugas corroborates Melisa’s testimony.
      “Melisa testified that the adult passengers were talking light heartedly upon their approach of the curve. When asked at her deposition if ‘the vehicle just drifted off the road,’ Mrs. Dugas responded ‘yes’. She indicated that Mrs. Rue was looking straight ahead and through the windshield as she approached the curve.
      “Mrs. Dugas stated that Mrs. Rue did not appear to have had too much to drink. Mrs. Rue drank part of a small Miller’s beer at approximately 4:00 P.M. and a half a glass of wine shortly before leaving for the store.
      “Huey Clark, defendant’s parish superintendent, testified that Louisiana 733 was inspected within three (3) or four (4) days prior to the accident. Superintendent Huey also stated that the drop off at the curve in question was dangerous.
      “The accident occurred after dark.”

      . For a discussion of Prosser and the “but-for” test, see our recent decision in Lejeune v. Allstate Insurance Co., 365 So.2d 471, 477 (La.1978).


text:
    STATE of Louisiana v. Joseph V. DELATTE.
    No. 63279.
    Supreme Court of Louisiana.
    June 25, 1979.
    Otha Curtis Nelson, Sr., Simmons, Nelson & Dunn, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-respondent.
   SUMMERS, Chief Justice.

Joseph Delatte was charged with armed robbery. La.Rev.Stat. 14:64. He pled guilty on February 27, 1978 to an amended bill charging him as accessory after the fact to simple robbery. La.Rev.Stat. 14:25, 14:65. On May 4, 1978 he was given a suspended sentence of three and one-half years at hard labor and placed on five years active probation. No appeal was taken and defendant was then at liberty.

It came to the attention of the sentencing judge that defendant Delatte had previous felony convictions. This information made it apparent that the suspended sentence imposed upon Delatte was invalid because Article 893 of the Code of Criminal Procedure allows a suspended sentence and probation “for the first conviction only.” Whereupon, on August 4, 1978 the trial judge recalled the sentence of May 4, 1978, and to correct that illegal sentence he re-sentenced defendant to three and one-half years at hard labor and remanded him to prison. La.Code Crim.Pro. arts. 882, 916(3).

On August 18, 1978 defendant filed a petition for habeas corpus in the trial court alleging that he did not receive effective assistance of counsel in connection with the guilty plea of February 27, 1978 and the sentence of May 4, 1978. At that plea, he alleged, he was assured that he would not have to serve a jail or prison sentence. Further, it is alleged, the re-sentencing of August 4, 1978 to incarceration was contrary to the plea bargain entered into between defense counsel and the District Attorney in connection with the February 27, 1978 guilty plea which led to the May 4 sentence.

An evidentiary hearing was held on October 4, 1978 at which testimony was heard and evidence adduced by defendant in support of his application for habeas corpus. The writ was denied. Defense counsel objected to the ruling and announced his intention to apply to the Supreme Court for writs. In addition, defense counsel moved for an appeal from the second sentence of August 4, 1978. Certiorari was granted by this Court on defendant’s application.

Three issues are presented by defendant’s application: 1) whether defendant received effective assistance of counsel; 2) defendant’s claim that his attorney was denied the right to examine the presentence report during the hearing on the application for habeas corpus; and 3) whether the trial judge improperly denied defendant the right to appeal and to bail because defendant had also applied for certiorari to review the denial of his application for habeas corpus.

1) The question of effective assistance of counsel is based primarily upon defendant’s claim that his counsel assured him prior to the guilty plea of February 27, 1978 that he would not have to serve time in jail or prison. Defendant’s attorney testified at the hearing on the application for habeas corpus that he did not assure defendant that he would not be sentenced to imprisonment. He made no promises to defendant or guarantees of any kind.

At the February 27, 1978 guilty plea the trial judge advised defendant that the maximum sentence he could impose was imprisonment for three and one-half years at hard labor. Defendant also asserted that no promises of other sentences had been made and his counsel had so advised him. In addition the trial judge carefully advised defendant of his rights and those that he was waiving by the guilty plea. Defendant also signed a detailed written statement acknowledging the waiver of his constitutional rights and admitting his guilt in the premises.

The only contradiction to the overwhelming record evidence of the free and voluntary character of defendant’s February 1978 guilty plea was defendant’s testimony at the hearing on the application for habeas corpus in which he said that his attorney did promise him that he would not be sentenced to incarceration. This testimony standing alone was insufficient to convince the trial judge that defendant had béen misled in any manner, and the trial judge properly rejected defendant’s claim.

2) For the first time in this record at the hearing on the motion for habeas corpus defense counsel requested that the trial judge permit him to see the presentence report. The request was denied on the ground that it was irrelevant to the inquiry at that hearing which concerned whether defendant’s guilty plea was voluntary. Although not stated by the defense, the pre-sentence report could only help defendant if it disclosed whether the sentence was based upon materially incorrect information as a result of which defendant received an excessive sentence; or if it disclosed that the sentencing judge had relied solely on hearsay evidence in denying probation because defendant had prior felony convictions.

In the first instance, excessiveness of sentence must be raised by an assignment of error urged by a timely appeal. Article 914 of the Code of Criminal Procedure requires that the motion for appeal “must be made no later than fifteen days after rendition of the judgment [sentence] or ruling from which the appeal is taken.” No appeal was taken from the amended sentence of August 14,1978 until October 4, 1978. In the second instance, the defendant’s entitlement to access to a presentence report is dependent upon allegations of material inaccuracies. State v. Trahan, 367 So.2d 752 (La.1978); State v. Bosworth, 360 So.2d 173 (La.1978); State v. Segers, 357 So.2d 1 (La.1978). No such inaccuracies were alleged or claimed in the instant case.

3) The contention that the trial judge improperly denied defendant the right to appeal and entitlement to bail pending appeal is not well-founded. As noted above, the motion for appeal came two months after the sentence complained of and was therefore untimely. La.Code Crim.Pro. art. 914. Because defendant’s conviction and sentence were then final he ■was not entitled to bail.

Review of these proceedings establishes the free and voluntary character of defendant’s plea of guilty and repudiates the assertion that his counsel guaranteed him that he would not be sentenced to imprisonment.

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

DIXON, J., concurs.

DENNIS, J., dissents.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Louis C. COOK.
    No. 63724.
    Supreme Court of Louisiana.
    June 25, 1979.

      Walter L. Sentenn, Jr., Robert Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Marvin Opotowsky, G. Fred Ours, Asst. Dist. Attys., for plaintiff-appellee.
   MARCUS, Justice.

Louis C. Cook was charged in the same information with aggravated burglary in violation of La.R.S. 14:60 and simple burglary in violation of La.R.S. 14:62.

Pursuant to a plea bargain, defendant withdrew his former pleas of not guilty and entered pleas of guilty to violations of La. R.S. 14:60 (aggravated burglary) and La. R.S. 14:62.2 (simple burglary of an inhabited dwelling), conditioned on his right to obtain appellate review of the trial judge’s denial of his motion to quash the bill of information. The trial judge accepted defendant’s guilty pleas after determining that they were made voluntarily with understanding of the nature of the charges. The pleas were entered without amending the information or filing a new information. Defendant was then sentenced to serve three years at hard labor' for the aggravated burglary conviction and three years at hard labor, without benefit of parole, probation or suspension of sentence, for the simple burglary of an inhabited dwelling conviction. The trial judge expressly directed that the sentences be served concurrently. Defendant designated one assignment of error (denial of his motion to quash the information) to be urged on appeal.

In brief to this court, defendant contends that his guilty pleas are invalid in that he pled guilty, pursuant to a plea bargain, to aggravated burglary (La.R.S. 14:60) and simple burglary of an inhabited dwelling (La.R.S. 14:62.2) when, in fact, he was only charged in the bill of information with aggravated burglary (La.R.S. 14:60) and simple burglary (La.R.S. 14:62), a crime less serious than simple burglary of an inhabited dwelling (La.R.S. 14:62.2). Hence, he argues that his guilty pleas should be set aside.

In reviewing appeals from pleas of guilty, we may review jurisdictional defects which appear on the face of the pleadings and proceedings. State v. Crosby, 338 So.2d 584 (La.1976); State v. Spain, 329 So.2d 178 (La.1976).

La.Code Crim.P. art. 558 provides that the defendant, with the consent of the district attorney, may plead guilty to a lesser offense that is included in the offense charged in the indictment. In general, the lesser included offense must be of the same generic class and must not require proof of an element which is not found in the major crime charged. Official Revision Comment to La.Code Crim.P. art. 558; State v. Green, 263 La. 837, 269 So.2d 460 (1972).

In the instant case, defendant was charged in the second count of the information with the crime of simple burglary (La. R.S. 14:62): However, defendant entered a guilty plea to the crime of simple burglary of an inhabited dwelling (La.R.S. 14:62.2):

Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, other than as set forth in Section 60.
Whoever commits the crime of simple burglary shall be imprisoned, with or without hard labor, for not more than twelve years.
Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than as set forth in Article 60.
Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years, (emphasis added)

Since the crime of simple burglary of an inhabited dwelling requires proof of an essential element, i. e., inhabited dwelling, not found in the crime charged (simple burglary), simple burglary of an inhabited dwelling is not a lesser included offense of simple burglary.

La.Code Crim.P. art. 487, dealing with amendments by the state of defective indictments, provides in pertinent part:

B. Nothing contained herein shall be construed to prohibit the defendant from entering a plea of guilty to a crime non-responsive to the original indictment when such a plea is acceptable to the district attorney, and in such case, the district attorney shall not be required to file a new indictment to charge the crime to which the plea is offered, (emphasis added)

The aforesaid provision does not prohibit a defendant from entering a plea of guilty to a crime nonresponsive to the original indictment when such a plea is acceptable to the district attorney. In such a case, the district attorney need only amend the indictment; he is not required to file a new indictment to charge the crime to which the plea is offered.

In the instant case, defendant’s guilty plea to simple burglary of an inhabited dwelling was not a lesser included offense of the crime charged (simple burglary). Moreover, it was a plea of guilty to a crime nonresponsive to the original indictment. The district attorney neither amended the information nor filed a new information. Hence, the trial judge did not have jurisdiction to accept the guilty plea to this offense. Accordingly, the guilty plea is invalid and must be set aside.

Since this invalid guilty plea was part of a plea bargain in which defendant also pled guilty to aggravated burglary, we must likewise set aside defendant’s plea to that charge. On remand, the district attorney may elect to amend the information for simple burglary (La.R.S. 14:62) to simple burglary of an inhabited dwelling (La.R.S. 14:62.2). Whether he does or not, defendant has the option of either proceeding to trial on the crimes charged or entering guilty pleas thereto. In the event he decides to plead guilty to the crimes charged, he cannot be sentenced to serve more than three years at hard labor for the crimes of aggravated burglary (La.R.S. 14:60) and simple burglary (La.R.S. 14:62) and three years at hard labor, the first year being without benefit of parole, probation or suspension of sentence, for the crime of simple burglary of an inhabited dwelling and the sentences must be made to be served concurrently. This would be in accordance with the original plea bargain as corrected in connection with the sentence imposed for simple burglary of an inhabited dwelling. To do otherwise would penalize defendant for having successfully exercised his right to seek our review.

DECREE

For the reasons assigned, defendant’s convictions and sentences are reversed and the case is remanded to the district court for proceedings consistent with views herein expressed.

      . In view of our disposition of this case, we pretermit discussion of the assigned error.

      . La.Code Crim.P. art. 814 lists responsive verdicts which may be rendered where the indictment charges certain specified offenses. In Official Revision Comment (c) under said article, it is stated that, apart from the responsive verdicts listed in the above article, the courts have applied the following criteria to determine responsiveness:
      ‘First, all essential elements of the lesser offenses must be included in the indictment for the offense charged. Second, the generic offenses must be segregated from the non-generic offenses. To do this, the genus of the crime charged in the indictment is determined, and each of the lesser crimes compared with it. If the lesser crime is of the same generic class, it is responsive; if not, it is not responsive. If the lesser offense meets both of these tests it may be the subject of a valid and “responsive” verdict.’ Comment, 5 La.L.Rev. 603, 609 (1944). Those criteria are not codified in this Code because the language used has been effective without difficulty.
      See also La.Code Crim.P. art. 815.

      . Original sentence imposed for the conviction of simple burglary of an inhabited dwelling (La.R.S. 14:62.2) was three years at hard labor, without benefit of parole, probation or suspension of sentence. Penalty provision for this crime provides that “fwlhoever commits the crime of, simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years.” The prohibition against parole, probation and suspension of sentence applies only to the first year of the imposed sentence; not to the additional years of the sentence. Cf. La.R.S. 14:64: (“[w]hoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence”); La.R.S. 14:62.IB: (“[w]hoe-ver commits the crime of burglary of a pharmacy shall be imprisoned at hard labor for not less than one nor more than nine years without benefit of parole, probation or suspension of sentence”).


text:
    STATE of Louisiana, Appellee, v. James WATSON, III, Appellant.
    No. 63784.
    Supreme Court of Louisiana.
    June 25, 1979.

      George M. Strickler, Ann Woolhandler, Paul Henry Kidd, A Law Corp., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Tommy J. Adkins, Dist. Atty., Joseph A. Cusimano, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of two counts of distribution of marijuana, La.R.S. 40:966, and fined $5,000 on each count and sentenced to serve two six year terms of imprisonment at hard labor. The sentences were made consecutive rather than concurrent.

Excessiveness of Sentence

The principal issue of this appeal is raised by the defendant’s Assignment of Error No. 7. By this assignment, the defendant complains that the sentence is excessive, in that the defendant received consecutive sentences for two offenses arising out of the same course of conduct, which were committed within a short time of one another.

The offenses of which the defendant was convicted were committed on November 17, 1977 and December 16, 1977. On these dates, the defendant sold two pounds and one pound of marijuana, respectively, to the same undercover state police agent.

In the exercise of our constitutionally-imposed review of sentences for exces-siveness, La.Const. of 1974, Art. 1, Section 20, we have pointed out that, for an offender without prior felony record, ordinarily concurrent rather than consecutive sentences should be imposed, especially where the convictions arise out of the same course of conduct within a relatively short period. State v. Jacobs, 371 So.2d 727 (La.1979); State v. Cox, 369 So.2d 118 (La.1979); State v. Underwood, 353 So.2d 1013 (La.1977). However, we noted, consecutive sentences may be justified when, due to his past conduct or repeated criminality over an extended period, the offender poses an unusual risk to the safety of the public, similar to those posed by habitual or by dangerous offenders.

The defendant is a senior at Grambling College, twenty-five years of age.

In the present case, the trial court in setting forth its reasons for the sentence, see La.C.Cr.P. art. 894.1, relied upon (a) a prior misdemeanor conviction for possession of marijuana in October, 1976, (b) the amount (one and two pounds respectively) of marijuana sold in the present case, and (c) its appreciation of the evidence in the present case as establishing that the accused was an active dealer rather than a casual offender. In the brief sentencing remarks of the trial judge, he concluded that the three aggravating factors of La.C. Cr.P. art. 894.1(A) justified the imprisonment imposed.

The brief articulation, especially without consideration of the mitigating factors (or lack thereof), La.C.Cr.P. art. 894.1(B), does not constitute an adequate basis for us to review the excessiveness of the consecutive sentences, as it does not adequately state the factual basis therefor. Consequently, it does not constitute adequate compliance with the requirements of La.C.Cr.P. art. 894.1, and the sentences must be vacated and the case remanded to the trial court with instructions for it to consider pertinent sentencing guidelines and principles before imposing sentence. State v. Jacobs, 371 So.2d 727 (La.1979); State v. Touchet, 372 So.2d 1184 (La.1979); State v. Gist, 369 So.2d 1339 (La.1979); State v. Cox, 369 So.2d 118 (La.1979).

The Convictions

We affirm the convictions.

The only assignment of error (No. 4) argued for reversal complains of the admission into evidence of the marijuana purchased. Without extended discussion, we reject as without merit the grounds upon which the assignment is based:

1. We find no error in the determination of the trial court that a state witness, a laboratory technician, accepted as a qualified expert, La.R.S. 15:466, identified by microscopic and chemical tests the substance purchased from the accused as marijuana.

2. Nor are we persuaded that proof of the nature of the substance by such expert testimony amounts, as defendant alleges, to a denial of equal protection because of the more stringent safeguards required by La.R.S. 32:662-664 for chemical testing for alcoholic content of blood, breath, etc. before such tests may be admitted as presumptive proof of intoxication in prosecutions for driving while intoxicated. There is obviously a rational basis for the more stringent pre-test regulation of virtually on-the-spot testing, where the test-result may result in a presumption of guilt and where (unlike the present instance) due to the passage of time the accused will not be able to secure opposing expert examination and analysis.

Decree

Accordingly, we affirm the convictions, but we set aside the sentences and remand this case to the district court with instructions to the trial judge to sentence the defendant in accordance with law.

CONVICTION AFFIRMED; CASE REMANDED FOR RE-SENTENCING.

SUMMERS, C. J., agrees that the conviction should be affirmed, but dissents from the remand on the sentence.

      . At a post-conviction motion for bail pending appeal, the state indicated that it had evidence of a more extended course of criminal conduct than was instanced by the present sentencing hearing, not including the five other charges filed against the accused by the same narcotics agents which were closely connected with the present two offenses. In denying bail, the trial court did not consider these, for reasons of inadequate proof. Our remand is without prejudice to the state at the hearing for re-sentencing to make adequate showing of similar nature in order to attempt to justify consecutive sentences.


text:
    STATE of Louisiana, Appellee, v. Robert O’CONNOR, Appellant.
    No. 63809.
    Supreme Court of Louisiana.
    June 25, 1979.
    Robert Barnard, Chief Appeals Section, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Marvin Opotowsky, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant appeals his conviction of manslaughter, La.R.S. 14:31, which resulted in his sentence of fifteen years imprisonment at hard labor.

His two assignments of error present no reversible error:

Assignment One: After conviction and before sentence, the defendant’s counsel moved for the appointment of a lunacy commission. For reasons elaborated in an appendix to this opinion (which will not be published, but which will remain a public record of this court), we find no error in the trial court’s determination that the showing made (the testimony of two of his sisters) did not afford reasonable grounds to doubt the defendant’s mental capacity, so as to require the appointment of a lunacy commission.

Assignment Two : The motion for a new trial was properly denied. The motion was based on the contention that the verdict was contrary to the law and the evidence. The defendant admitted killing the victim, and there was evidence from which the jury could reasonably conclude the shooting was not in self-defense, as contended. On appellate review, we do not review the sufficiency of the evidence.

Finding no error, we affirm the conviction and sentence.

AFFIRMED.

DIXON, J., dissents.


text:
    STATE of Louisiana v. Raymond C. WEBB.
    No. 63,826.
    Supreme Court of Louisiana.
    June 25, 1979.
    Michael W. McKay, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., William R. Weatherford, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Raymond C. Webb was charged by bill of information with simple burglary, a violation of R.S. 14:62. After a jury trial he was found guilty of attempted simple burglary and was sentenced to three years at hard labor. That sentence was suspended and defendant was ordered to serve six months in parish jail and was placed on active probation for three years. Defendant now appeals his conviction and sentence relying on two assignments of error.

The testimony presented at trial established that defendant and his girlfriend drove just before dusk to a group of buildings on Millerville Road in Baton Rouge which had been vacant for about three years. The buildings were in disrepair; many of the windows were broken and the yard surrounding the buildings was overgrown. Defendant who entered the premises through an unlocked gate, went into one of the buildings, and once inside, began removing the fluorescent light fixtures from the-ceiling. When the owner of the building interrupted defendant with his shouts, defendant ran from the building, jumped into the car, and drove off.

At trial defendant did not dispute the state’s account of the events leading to his arrest. Defense counsel in his opening statement conceded that defendant entered the building intending to remove the light fixtures, and defendant himself testified that he was removing the fixtures when discovered by the owner of the property. The only defense presented was that when defendant entered the building he believed that it had been abandoned and that there was no objection on the part of anyone to his taking whatever salvageable materials he could find. Defense counsel argued that because of this belief, defendant lacked the requisite criminal intent to commit the crime charged.

To support this defense, defendant testified that when he was near the buildings on a previous occasion, he saw a group of people leaving the premises, one of whom stopped to talk to him. When defendant attempted to testify that the unidentified man had told him that the building was .soon to be demolished and that the owner had no objection to anyone taking whatever he wanted, the prosecutor objected that any testimony relating the substance of this conversation would be inadmissible as hearsay. Despite defense counsel’s insistence that the testimony was not offered for the truth of the matter asserted therein (that the owner had given permission) but only to show that the statement had been made to defendant and that he thus had no criminal intent when he entered the building, the trial court sustained the objection and excluded the testimony. The question of whether the trial court erroneously excluded defendant’s proffered testimony is the only issue on this appeal.

In State v. Martin, 356 So.2d 1370 (La.1978), we set forth the following definition of hearsay quoting McCormick’s treatise on evidence:

“Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” McCormick, Evidence, § 246 (Cleary ed. 1972).

Had defendant’s testimony been offered to prove that the owner of the property had in fact given permission for materials to be removed from the property defendant’s testimony would properly have been excluded as hearsay, that is, as an out-of-court assertion offered to show the truth of the matters asserted therein. However, in this case, defense counsel made it clear to the court that the testimony was being offered to show defendant’s state of mind when he entered the building and his consequent lack of criminal intent.

Considered in that light the proffered testimony was not hearsay. In a prosecution for simple burglary, the state is required to prove as an essential element of the crime that the defendant entered the premises with the specific intent to commit a felony or theft therein. R.S. 14:62; State v. Anderson, 343 So.2d 135 (La.1977); State v. Dadar, 353 So.2d 713 (La.1977). Defendant was entitled to present testimony showing that he lacked the requisite criminal intent. Relying upon the representations made in the conversation, defendant may have reasonably believed that the buildings were abandoned and that the owner had given permission for materials to be removed. The jury, as the trier of fact, should have been allowed to hear defendant’s testimony and to decide whether he was credible and had in fact relied upon the conversation.

We recently reversed a conviction on the basis of a similar evidentiary ruling. In State v. Ford, 368 So.2d 1074 (La.1979), the defendant was charged with aggravated battery. In support of a claim of self-defense, he attempted to testify that the victim had told a mutual friend that he, the victim, would kill the defendant for stealing money from him. The defendant was prepared to testify that the mutual friend had relayed the threat; the friend was not in court to testify. Upon objection by the prosecution, the testimony was excluded as hearsay. On appeal, this Court reversed the conviction, noting that if the defendant’s testimony had been offered to prove the reality of the threat, such testimony would have been hearsay. However, the defendant’s testimony was independently admissible to show a rational basis for defendant’s fear of harm at the hands of the victim, i. e., that defendant had been told of the victim’s threat. In that perspective, it mattered little whether or not the victim had ever made the threats. What mattered was that defendant thought the threats had been made.

In the case at hand, the question of whether the owner in fact had given permission for materials to be taken from the property was not the issue. What mattered was whether the defendant when he entered the property believed that the owner had. In erroneously excluding this testimony, the trial court deprived defendant of his only defense. Therefore defendant’s conviction and sentence must be reversed.

Decree

For the foregoing reasons the conviction and sentence of Raymond C. Webb are reversed and the case remanded to the district court for re-trial or such other action as is deemed appropriate.

REVERSED; REMANDED.

SUMMERS, C. J., dissents.

      . Because the prosecutor’s objection to his testimony was sustained, defendant was unable to relate the substance of his conversation with the unidentified man. However, defense counsel in his opening statement charted this course for defendant’s testimony and asserts in brief that had defendant been allowed to continue, this would have been the substance of his statement.

      . Both of defendant’s assignments of error relate to the exclusion of this testimony. In his first assignment defendant contends that the trial court erred in excluding the testimony and in his second that it erred in not granting a new trial because of that ruling.


text:
    STATE of Louisiana v. Jon F. HOGAN.
    No. 63833.
    Supreme Court of Louisiana.
    June 25, 1979.

      A. J. Boudreaux, Staff Appeals Counsel, 24th Judicial District Indigent Defender Bd., Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., G. Miachel Grosz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   MARCUS, Justice.

Jon F. Hogan was indicted by the grand jury for distribution of heroin in violation of La.R.S. 40:966A(1). After trial by jury, he was found guilty as charged and sentenced to life imprisonment at hard labor. On appeal, defendant relies on three assignments of error for reversal of his conviction and sentence. Finding merit in one of the assigned errors, we need not consider the others.

Defendant contends the trial judge erred in refusing to grant him a recess in order to secure the presence at trial of a key witness in his defense (Assignment of Error No. 1).

The record reflects that defendant was indicted by the grand jury for distribution of heroin on December 3, 1976. After several delays, trial was set for July 18, 1977.

Prior to trial, defendant filed a motion requesting the state to disclose the name and address of a third party (not a police officer) who participated in the crime charged. It was further alleged that this information was known to the police, favorable to defendant, and material and relevant to preparation of a defense on the merits. Thereafter, on May 3, 1977, defense counsel withdrew from the case and on June 29, 1977, the trial judge appointed new counsel to represent defendant.

On July 18, 1977, defense counsel moved for a continuance grounded on the claims that she had just been appointed counsel for defendant on June 29, 1977, that she had not had sufficient time to prepare a proper defense in that the record of the case had not been made available to her until July 14, 1977, and that there had been no hearing on defendant’s prayer for oyer and motion for a bill of particulars. The trial judge granted the continuance and fixed a new trial date for September 19, 1977. At the same hearing, defense counsel informed the judge that the state had not yet disclosed the name and address of the individual who had participated in the crime charged. In response, the district attorney conceded that defendant was entitled to such information, disclosed that the name of the individual was Olivia Steiner, and assured the court that he would provide defendant with Steiner’s out-of-state address from the police records.

On August 26, 1977, defendant filed a rule to show cause why the district attorney should not be held in contempt of court for his failure to disclose Steiner’s address after being ordered to do so and repeated defense requests. At the hearing on this ruling (September 1, 1977), the trial judge informed defendant that the name of this individual was Olivia Esenwein (not Steiner) and provided defendant with her address in Arlington County, Virginia.

Thereafter, on September 14, 1977, defendant filed a motion to obtain the witness, Olivia Esenwein, from Virginia and a motion for continuance based upon the contention that Esenwein’s testimony was necessary to establish a defense of entrapment. On September 19, 1977, the trial judge granted the continuance and reset the case for October 17, 1977. On September 28, 1977, the trial judge, pursuant to La.Code Crim.P. art. 741, issued a certificate to the court in Arlington County, Virginia, stating that Esenwein was a material witness in the prosecution of defendant pending in a court of record in this state and specifying that Esenwein would be required in this state for defendant’s trial from October 15, 1977, through the duration of trial.

On the day of trial (October 17, 1977), immediately after the jury was selected and sworn, defendant moved for a recess alleging that, although all the necessary procedures had been followed in order to obtain Esenwein from Virginia, defense counsel had been unable to determine whether Es-enwein was present for trial. In support of this allegation, defense counsel, under oath, testified that she had filed the trial judge’s order certifying Esenwein as a material witness in the criminal clerk’s office of the Twenty-Fourth Judicial District Court for the Parish of Jefferson, with instructions that it be presented to the proper authorities in Arlington County, Virginia. Thereafter, the clerk’s office informed defense counsel that the order had been sent to a sheriff in Arlington County, Virginia; however, upon contacting this sheriff, defense counsel learned that he had not received the order certifying Esenwein as a material witness in defendant’s prosecution. Defense counsel again contacted the clerk’s office and was reassured that the order had been sent to the proper authorities in Arlington County. Upon once again contacting the authorities in Arlington County, defense counsel was informed that the sheriff had personally spoken with Esenwein who indicated that she had every intention of testifying at defendant’s trial. Defense counsel emphasized to the court that Esen-wein’s testimony was essential to establish a defense of entrapment. The trial judge denied the motion for continuance and the trial proceeded.

At trial, Farrell Whithead, a Jefferson Parish sheriff’s deputy assigned to the narcotics division, testified that Olivia Esen-wein was a police informant who had previously been arrested in connection with a charge of distribution of heroin, but had agreed, in return for reduction of the charge, to cooperate with narcotics agents by introducing them to heroin distributors. According to Whithead, on August 24,1976, Esenwein informed him that defendant had contacted her in reference to heroin he had for sale and she told defendant that, although she did not want any, she had a friend (Whithead) who was interested in a purchase of heroin. Esenwein instructed Whithead to meet her in front of a food store. Thereafter, Whithead arrived at the food store and met Esenwein and defendant, who subsequently produced six packets of aluminum foil containing heroin which he handed and sold to Whithead for seventy-two dollars.

Defendant testified that he met Olivia Esenwein in June 1976 and that she thereafter first introduced him to the use of heroin. On August 24, 1976, Esenwein called him, explaining that she had a new boyfriend who was willing to help her “detox” herself from the use of heroin, and asked defendant to obtain some heroin for her from one of her friends. Although defendant maintained that he had not used heroin for approximately three weeks prior to Esenwein’s phone call, he agreed to obtain the heroin for her because, knowing the effects of withdrawal from the drug, he felt sorry for her. Defendant subsequently met Esenwein and Whithead (who was introduced to him as Esenwein’s new boyfriend) in front of the food store and handed the heroin to Esenwein (not Whithead) who paid him for the heroin.

The right of a person charged with a criminal offense to have compulsory process for obtaining witnesses in his favor is embodied both in the federal and state constitutions as well as in the statutory law of this state. U.S.Const. amend. 6; La.Const. art. 1, § 16; La.Code Crim.P. art. 731; see also State v. Mizell, 341 So.2d 385 (La.1976). A defendant is thus entitled to summon, at state expense, the attendance of witnesses from outside the state, provided he makes a prior showing that the testimony is relevant and material. State v. Barnes, 365 So.2d 1282 (La.1978); State v. Jenkins, 340 So.2d 157 (La.1976); State v. Chavers, 294 So.2d 489 (La.1974), cert. den., 419 U.S. 1111, 95 S.Ct. 786, 42 L.Ed.2d 808 (1975). La.Code Crim.P. art. 741 provides for obtaining a witness from another state and requires the trial judge to issue a certificate under the seal of court stating that a person in another state is a material witness in a prosecution pending in a court of record in this state and specifying the number of days the witness shall be required. This certificate shall be presented to a judge of a court of record in the county (parish) in which the witness is found. La.Code Crim.P. art. 741. Defendant is entitled to have the procedures set forth in this article complied with. However, this right is predicated on the exercise by the accused of due diligence.

In the instant case, defendant raised entrapment as a defense to the charge against him. Eisenwein, the absent witness, was a police informant who allegedly participated in the crime charged. Prior to trial, the trial judge certified the relevance and materiality of Esenwein’s testimony. At trial, critical differences developed between defendant’s and Whithead’s testimony concerning Esenwein’s role in the transaction. As such, the necessity for her presence at trial and the prejudice caused defendant by her absence are clear. In addition, defendant fully complied with the procedural requirements of article 741 and relied upon the assurances of the clerk’s office that the certificate of the trial judge would be presented to the proper authorities in Arlington County, Virginia. Although (for some undetermined reason) this certificate was apparently never presented to such authorities and defendant was unaware of the absence of the witness until the day of trial, we are unable to say that these occurrences resulted from a lack of due diligence on the part of defendant. In fact, the state’s unexplained failure to promptly provide defendant with Esenwein’s correct name or her address contributed substantially to the delays occasioned in this matter. Moreover, defendant made an adequate showing that Esenwein would have appeared to testify at trial had the proper procedures been followed.

Accordingly, under the circumstances of this case, we conclude the trial judge erred in refusing to grant defendant a recess.

DECREE

For the reasons assigned, the conviction and sentence are reversed and the case is remanded for a new trial in accordance with law.

SUMMERS, C. J., dissents.

      . At trial, defendant referred to his motion as one for a continuance. In as much as the trial had already begun with the calling of the first juror, as provided in La.Code Crim.P. art. 761, a continuance could no longer be granted. La. Code Crim.P. art. 708; State v. Washington, 272 So.2d 355 (La.1973). The motion then is more properly a motion for a recess, a temporary adjournment of a trial after it has commenced, which need not be in writing or comply with the formal requisites of a motion for a continuance. La.Code Crim.P. art. 708; State v. Mizell, 341 So.2d 385 (La.1976); State v. Hines, 311 So.2d 871 (La.1975). Nevertheless, the same standard is applicable to judge the propriety of the trial court’s ruling on a request for a recess. State v. Sharp, 321 So.2d 331 (La.1975). Accordingly, we treat the motion discussed herein as though it had been properly denominated by defendant.

      . In pertinent part, La.Code Crim.P, art. 741 provides:
      If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions or grand jury investigations commenced or about to commence in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness shall be required. This certificate shall be presented to a judge of a court of record in the county (parish) in which the witness is found.

      . In the memorandum in support of his motion to obtain a witness from another state, defendant, in compliance with the requirements of article 741, noted that Virginia had by its laws made provision for commanding persons within its borders to attend and testify in criminal prosecutions or grand jury investigations commenced or about to commence in this state. See Va.Code §§ 19.2-273 to 276.

      . As previously noted, defendant was forced eventually to file a rule to show cause why the district attorney should not be held in contempt of court for failure to disclose the name and address of Esenwein. This rt.le was filed more than a month after the district attorney conceded that defendant was entitled to such information and assured the court that he would provide it to defendant from police records.

      . If the certificate of the trial judge had been presented to a judge of a court of record in Arlington County, Virginia, there would have been the necessity for a judge of that county to hold a hearing to determine that the witness was material and necessary for the Louisiana proceeding, See Va.Code §§ 19.2-273 to 276. However, defendant established at trial that Esenwein was on probation at the time of trial, that her probation had previously been transferred from Louisiana to authorities in Virginia, and that a condition of such transfer was that she agree to return to Louisiana whenever so ordered.


author: DENNIS, Justice.

text:
    CITY OF BATON ROUGE v. James E. COPLEY.
    No. 63836.
    Supreme Court of Louisiana.
    June 25, 1979.
    James A. Wood, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-respondent.
   DENNIS, Justice.

Defendant, James E. Copley, was convicted by a judge of reckless operation of a vehicle, La.R.S. 14:99, and sentenced to pay a fine of $100 or spend four days in jail.

At approximately 1:45 a. m. on April 29, 1978, as the defendant Copley slept in a sitting position behind the steering wheel of his car, which was parked on the median of an interstate highway with its engine running and its lights on, an off-duty plainclothes deputy sheriff reached through the car’s open window and shook the defendant’s shoulder. The deputy testified that the defendant reacted by putting the car in gear and attempting to drive off. However, the deputy reached in, turned off the ignition and thus immobilized the vehicle before it had traveled twenty feet. The defendant’s undisputed testimony was that after he had been returned to his car parked on the median by a friend, he became ill, decided to cool himself with the car’s air conditioner and rest before driving home. After falling asleep, defendant testified, he was frightened by being awakened by the deputy sheriff, whom he did not know or recognize as a deputy sheriff. It was stipulated that the defendant’s blood alcohol test indicated .10%.

By his second argument the defendant maintains that there is no evidence in the record to support a finding that his operation of the vehicle was either reckless or criminally negligent. La.R.S. 14:99 provides:

“Reckless operation of a vehicle is the operation of any motor vehicle, aircraft, vessel, or other means of conveyance in a criminally negligent or reckless manner.
“Whoever commits the crime of reckless operation of a vehicle shall be fined not more than two hundred dollars, or imprisoned for not more than ninety days, or both.
“On a second or subsequent conviction the offender shall be fined not less than twenty-five nor more than five hundred dollars, or imprisoned for not less than ten days nor more than six months, or both.”

Criminal negligence is defined by La.R.S. 14:12 as follows:

“Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.”

An earlier reckless driving. statute, Act No. 188 of 1936, defined recklessness as follows:

“[0]perating any motor vehicle of any nature whatsoever upon any street or highway of this State carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or, without due caution and circumspection and at a speed or in a manner so as to endanger any person or property . . . .”

The 1936 definition was not carried forward, however, and it may be debated whether the legislature intended to incorporate its meaning in the present reckless operation statute. Conceivably, the legislature intended that “reckless” should be defined by common usage to connote merely carelessness or negligence. In this event, the conduct proscribed by the statute would include the failure to exercise the care that a prudent person usually exercises as well as wanton disregard of the rights or safety of others and criminal negligence.

However, we need not burden this opinion with the discussion required to decide which interpretation correctly expresses the legislative intention. Even under the broadest definition of simple carelessness or negligence, the defendant’s conduct did not amount to reckless operation of a vehicle. There is no evidence to support a finding that the defendant, who was awakened in an isolated spot in the middle of the night by a person dressed in plain clothes whom he did not know, did not fail to exercise the care that a prudent person usually exercises or engage in conduct creating an unreasonable risk of harm to others. Under different circumstances the operation of an automobile on a highway median or while under the influence of intoxicants could be a violation of the statute. But under the facts of the instant case the defendant’s conduct did not constitute reckless operation of a vehicle.

For the reasons assigned, the defendant’s conviction and sentence are reversed.

REVERSED.

SUMMERS, C. J., dissents.


text:
    STATE of Louisiana v. David JOHNSON.
    No. 63839.
    Supreme Court of Louisiana.
    June 25, 1979.
    Robert F. Barnard, L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Maurine A. Carroll, G. Fred Ours, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Defendant, David Johnson, was charged by grand jury indictment with three counts of armed robbery and one count of aggravated rape, violations of LSA-R.S. 14:64 and LSA-R.S. 14:42, respectively. Defendant was tried by a twelve-member jury, was found to be guilty of all of the charged offenses and was sentenced as a multiple offender under LSA-R.S. 15:529.1 to serve a term of ninety-nine years at hard labor on each of the three counts of armed robbery (297 years total), the above sentences to run consecutively and to be imposed under LSA-R.S. 15:571.3(C) without the possibility of diminution of sentence for good behavior. Defendant was additionally sentenced on the aggravated rape charge to serve the balance of his natural life at hard labor, this sentence to run consecutively with those imposed for the above armed robberies.

Defendant has assigned two errors as the basis for his appeal before this Court.

In the early morning hours of August 5, 1978, defendant and an accomplice, Michael Lankins, approached three employees of a Church’s Fried Chicken Restaurant who were leaving the store after closing. The two men were armed with pistols and demanded money. Making repeated threats to harm the employees, they forced one employee to reopen the restaurant and attempt to open the safe. Though the employee had the combination to the safe, because of the intensity of the threats on her life (“If you don’t open that safe, you are dead.”), she was unable to do so. A very short time later the police arrived. The two men refused to give themselves up and kept the three employees hostage for over three hours. During this time, the defendant made repeated threats to kill the employees, e. g., pointing his guns at the hostages and asking them why they should not be killed. Each employee in turn begged for his or her life. The acts of the defendant had so terrorized the victims that one employee urinated on himself. In order to make the police believe he would kill all of the hostages, he shot several times into a cardboard box, forced one of the victims to moan and complain of being hit and told the police he had shot one of the victims. The defendant also raped a twenty-one year old female employee at gunpoint. The rape occurred in the same room where the other employees were held, and they were told to turn their heads.

The two men were eventually arrested at the scene. The defendant was apprehended when he told police he would release the hostages, then went out himself, posing as a hostage. Defendant was identified by the restaurant manager as not being one of the employees.

Defendant neither briefed nor argued his first assignment of error and, therefore, we deem it abandoned.

We have carefully reviewed defendant’s second assignment of error and find it does not present reversible error, nor does it involve legal issues not governed by clearly established principles of law. We, therefore, find this assignment to be without merit.

DECREE

Accordingly, the conviction and sentence of the defendant are affirmed.

AFFIRMED.