author: DIXON, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. Thomas CARTER, Jr.
    No. 56594.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Dissenting Opinion Dee. 23, 1975.
    Rehearing Denied Feb. 20, 1976.

      R. Judge Eames, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Roy, James E. Boren, Asst. Dist. Attys., for plaintiff-appellee.
   DIXON, Justice.

Thomas Carter, Jr., was charged with armed robbery (R.S. 14:64) and tried jointly with Mac Brown. The bill of information had originally charged Mac Brown and Ralph Sterling with the robbery; the name of Sterling was later struck out and Carter’s name was added (Sterling’s whereabouts at the time of the trial were apparently unknown). The jury found the defendants guilty. Appellant Brown’s sentence was deferred for five years, and he was remanded to the parish prison.

Assignments of Errors Nos. 3, 4, 5, 6, 22 and 27 were argued together by defendant. All involve the application of the conspiracy statutes (R.S. 14:26 and R.S. 15:455). Over defendant’s objections, the prosecutor was allowed to argue the law concerning conspiracy to the jury in the opening statement and in the closing statement, and the trial judge instructed the jury on the law of conspiracy.

The substance of the prosecution’s evidence was as follows:

Diane L.*Johnson testified that she was the owner of a 1973 two-door, gold Toyota stationwagon. On the morning of November 5, 1973 Ralph Sterling asked to borrow Miss Johnson’s automobile. She loaded her laundry in it at her home and picked up Ralph Sterling a few blocks away. Sterling drove to the laundry, picked up Mac Brown and dropped Miss Johnson off at the laundry at Nicholson Drive and West McKinley at about 10:45 a. m. Sterling was to have returned to pick up Diane at 12:00 o’clock, but, when he arrived at 12:15, accompanied by Brown and the defendant Carter, she was not quite ready. At her request, Sterling and the other two men went to a restaurant and returned with a hamburger for Diane, having taken fifteen or twenty minutes for the errand. They then helped Diane load the clothes, took her home, and left in her automobile. Diane did not thereafter see Mac Brown or the defendant, but within ten or fifteen minutes Sterling returned and requested Diane to take him to the unemployment office for a 1:00 or 1:30 p. m. appointment. Enroute, they were arrested and a gun was found in the car pocket — a gun about which Diane testified she knew nothing. She never saw Ralph Sterling again.

The victim of the robbery was Mary Ann Armstrong, who was employed in her husband’s grocery at 2755 69th Avenue. She testified that after 12:00 o’clock, probably while the noon news was on television, two women and a child and two black men were in the store. When the women and child left, the two men, armed with guns, robbed her. She identified Mac Brown as the taller of the two, who were in the store, she said, approximately five minutes. Although the taller one held a bandanna to his face, she got a better look at him than at the shorter one. Mrs. Armstrong was told to lie on the floor. She did, and “a minute or two” later the “cookie man,” Mr. Lambert, came in. When Mrs. Armstrong told Lambert about the robbery, he went outside and notified Mr. Armstrong, who called the police. The police arrived ten or fifteen minutes later.

On July 8, 1974 the defendant Carter was included in one of three line-ups viewed by Mrs. Armstrong. She identified another person, not charged, as one of the robbers. She failed to identify Carter. At the trial Mrs. Armstrong stated that the defendant Carter did not look like the second man in the robbery.

A. M. Lambert, the cookie distributor, testified he arrived at the store around 1:00 p. m., on his regular route. He did not know the time but was on schedule. Mrs. Armstrong jumped up when Lambert entered the store and told him she had been robbed. Lambert had seen no one leave the store, but had seen a “little light colored foreign car pull off and turn to the left at the corner . . . about a block and a half or 160 yards away.” Lambert could not tell the number of occupants in the vehicle.

E. L. Pritchard, a deputy sheriff, was transporting a prisoner on November 5, 1973 and between 11:00 and 12:00 o’clock (or perhaps between 10:30 and 12:30), heard a police radio bulletin about an armed robbery in Scotlandville. The bulletin identified the car used in the robbery as a light colored foreign stationwagon. About five minutes or so after hearing the bulletin, while Pritchard was on I — 10, he noticed an orange colored Toyota sta-tionwagon pass his vehicle. Pritchard then radioed the license number to headquarters. He observed that the vehicle wás occupied by three black males.

Gregory Nettles, who was fifteen years old at the time, noticed on November 5, 1973 two black men either coming from the Armstrong store or going toward it. He described them as being dressed “in a green coat” and testified that he saw a little gold colored stationwagon parked around the corner from the store.

Deputy Knight received a call at 12:20 concerning the robbery, and arrived at the store at 12:30. Deputy Lee was already at the store. Knight obtained a description of the car from Mrs. Armstrong (who had not seen the car but who had talked to Lambert). Police headquarters was already broadcasting a bulletin about the robbery and the involvement of a light colored foreign stationwagon before Knight obtained the description of the automobile from Mrs. Armstrong. Knight later learned that Deputy Littlefield had apprehended the automobile identified on the Interstate by Deputy Pritchard. The record does not disclose why Carter became a suspect, but it does disclose that Knight attempted to intercept Carter at Carter’s sister’s house on the evening of the robbery, though Carter did not come in.

Deputy Littlefield testified that he arrested Sterling and Diane Johnson in the original Toyota stationwagon at approximately 1:30 p. m. on November 5, and recovered a revolver from the glove compartment.

Rosa Carter Lunkin, the defendant’s sister, had lived with her mother, her two daughters and the defendant for about one year. The defendant did not return to the house on November 5. The witness was unaware of the defendant’s intention to absent himself. His personal belongings remained at the house. Carter telephoned her once or twice but the witness testified she did not know where the calls came from.

The prosecution relied strongly upon the statutory effect given to acts or declarations of a conspirator, arguing, in effect, that the law attributes to one conspirator responsibility for the conduct and the acts of the other conspirators “even if they weren’t present.” The trial judge, in his instruction, read to the jury R.S. IS :455:

“Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to 'have this effect a prima facie case of conspiracy must have been established.”

Defendant complains that there was no evidence of conspiracy — that, in fact, the only evidence to connect him with the offense was that he was in an automobile at about the time of the robbery, several miles from the scene, which was occupied by one person identified later as a robber and by another person subsequently arrested in the car, which had a gun in the glove compartment.

The prosecution, on the other hand, argues that State v. Skinner, 251 La. 300, 204 So.2d 370 (1967), required that the jury be instructed on the law of conspiracy for the sole reason that the crime charged had been committed by two or more persons. (The State’s brief argues extensively from the original opinion in State v. Kaufman, 278 So.2d 86 (La.1973). That opinion was reversed on rehearing, with a caveat at the conclusion concerning reliance on State v. Skinner, supra, “without necessarily establishing a prima facie case of conspiracy as required by La.R.S. 15:455.” State v. Kaufman, La., 278 So.2d 86, 99).

It is true, as stated in Skinner, that the existence of a conspiracy is a jury question. But the effect of conspiratorial acts and statements is never properly before the jury unless the trial court is satisfied that a prima facie showing of conspiracy has been made. The Skinner opinion did not hold otherwise. It cited with approval the statement that, “While it is error to submit the question of conspiracy if there is no evidence thereof, where there is evidence that the defendants had entered into a conspiracy to commit the crime alleged, an instruction on the law of conspiracy is proper, . . .” (204 So.2d 370, 393).

Skinner was criticized in 29 La.L.Rev. 299, 307:

“For the purposes stated above, it would appear that a conspiracy charge will be appropriate in some cases where several defendants are jointly tried for the basic offense, but have not been charged with the separate crime of criminal conspiracy. However, the Skinner opinion should be construed with care and not unduly extended. There are some unduly broad dicta statements in the various opinions of the Supreme Court Justices, such as Justice Hawthorne’s statement that ‘it was the duty of the court to charge the jury fully as to the law of conspiracy in this case, as the defendant is jointly charged with murder, and the indictment necessarily involves conspiracy.’ Similarly, Justice Hamlin broadly states, in his majority opinion on a rehearing, ‘it has been held under the jurisprudence of this court that where an indictment charges that the crime was committed by two or more persons, such an indictment necessarily involves a conspiracy,’ and concurring Justice McCaleb declares that it ‘is well settled that the judge is obliged to give a charge on conspiracy in prosecutions for a crime committed by two or more persons.’ These statements, when read in the light of the facts of Skinner and the opinion as a whole, assume much less sweeping proportions.
“Actually, trial judges would be wise to be more specific and not phrase their conspiracy instructions in the broad fashion that was employed by the trial judge in Skinner. In general, it would be much clearer to phrase instructions in terms of the principal article of the Criminal Code, and when the special evidence rule is to be invoked the instruction should follow the pattern of that rule. In any event, the instruction should make it clear that the defendants were not being charged with the separate crime of criminal conspiracy.”

R.S. 15:455 is express in making a prima facie showing essential to its applicability; in its final sentence the legislature made its intentions clear: “But to have this effect a prima facie case of conspiracy must have been established.”

Where the State seeks to introduce evidence of the acts or declarations of one coconspirator against another, the existence of a conspiracy between them is a mixed question of law and fact. The trial court must determine whether a' prima facie showing has been made in order to determine whether a defendant will be charged with responsibility for the acts and declarations of another. After such initial determination, the existence of the conspiracy becomes a question of fact for the jury. The two functions are not to be confused.

Where the United States Supreme Court has discussed the issue of the admissibility of declarations by one coconspirator against others, it has held that such are admissible notwithstanding the hearsay objection if the trial judge finds that there is substantial, independent evidence of the conspiracy.

In Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941), the Supreme Court stated the issue as follows:

“Glasser contends that such statements constituted inadmissible hearsay as to him . . . The Government attacks this argument as unsound, and, relying on the doctrine that the declarations of one conspirator in furtherance of the objects of the conspiracy made to a third party are admissible against his co-conspirators, Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429, contends that the declarations of Kretske were admissible against Glasser . . .” 315 U.S. 60, 73, 74, 62 S.Ct. 457, 467.
And the court held:
“. . . However, such declarations are admissible over the objection of an alleged co-conspirator, who was not present when they were made, only if there is proof aliunde that he is connected with the conspiracy. Minner v. United States (CCA 10th) 57 F.2d 506; and see Nudd v. Burrows, 91 U.S. 426, 23 L.Ed. 286. Otherwise hearsay would lift itself by its own boot straps to the level of competent evidence.” 315 U.S. 60, 74-75, 62 S.Ct. 457, 467. (Emphasis added).

In Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949), a majority of the United States Supreme Court reversed defendant’s conviction, which had resulted from his fourth trial on a charge of violation of the Mann Act, by holding that statements made after the completion of the conspiracy did not come within the coconspirator exception to the hearsay exclusionary rule. In his concurring opinion, Justice Jackson issued what has come to be known as the Krule-witch warning. In this opinion, in which Justices Frankfurter and Murphy joined, Justice Jackson cited the resounding implications of the charge of conspiracy:

“The crime comes down to us wrapped in vague but unpleasant connotations. It sounds historical undertones of treachery, secret plotting and violence on a scale that menaces social stability and the security of the state itself. ‘Privy conspiracy’ ranks with sedition and rebellion in the Litany’s prayer for deliverance. Conspiratorial movements do indeed lie back of the political assassina-nation, the coup d’etat, the putsch, the revolution, and seizures of power in modern times, as they have in all history.” 336 U.S. 440, 448, 69 S.Ct. 716, 720.

He recognized the difficulty experienced by the jury in cases involving conspiracy:

“When the trial starts, the accused feels the full impact of the conspiracy strategy. Strictly, the prosecution should first establish prima facie the conspiracy and identify the conspirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. But' the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. . . .” 336 U.S. 440, 453, 69 S.Ct. 716, 723.

Justice Jackson further noted the precarious position occupied by the defendant charged with conspiracy:

“A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. If he is silent, he is taken to admit it and if, as often happens, co-defendants can be prodded into accusing or contradicting each other, they convict each other. There are many practical difficulties in defending against a charge of conspiracy which I will not enumerate.” 336 U.S. 440, 454, 69 S.Ct. 716, 723.

In United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), a unanimous opinion with one justice not participating, the Supreme Court discussed the admissibility of statements by one co-conspirator against others:

“. . . The hearsay rule does not automatically bar all out-of-court statements by a defendant in a criminal case. Declarations by one defendant may also be admissible against other defendants upon a sufficient showing, by independent evidence, of a conspiracy among one or more other defendants and the declarant and if the declarations at issue were in furtherance of that conspiracy. .

These formulations, though written in terms of evidentiary rules, acquire basic constitutional overtones when the effect is considered of a rule which would make acts or declarations admissible against a defendant who had nether committed nor authorized them.

In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the Supreme Court held that the Confrontation Clause of the Constitution of the United States and the exclusionary rules of hearsay are not co-extensive. However, the court was express in holding that there is an area of overlap:

“Given the similarity of the values protected, however, the modification of a State’s hearsay rules to create new exceptions for the admission of evidence against a defendant, will often raise questions of compatibility with the defendant’s constitutional right to confrontation. Such questions require attention to the reasons for, and the basic scope of, the protections offered by the Confrontation Clause.” 90 S.Ct. 1930, 1934.

Because of the salutary mandate of R.S. 15:455, we are not compelled to decide whether the rule requiring a prima facie showing of conspiracy prerequisite to admitting evidence of the acts or declarations of one coconspirator against another is a constitutional requirement. Since there was no evidence of a conspiracy, the trial court erred in ruling that the determination whether there was a conspiracy between defendants Brown and Carter was a question solely for the jury.

State v. Cryer, 262 La. 575, 263 So.2d 895 (1972), involved the admissibility of testimony by an officer that one jointly charged but not on trial told th'e officer he obtained the contraband from the defendants. State v. Skinner, supra, was cited for the proposition that the existence of a conspiracy is a question of fact for the jury.

We hold that when the only showing of a conspiracy is that two people committed a crime, and there is no showing that defendant either committed or conspired to commit the criminal act, no prima facie case of conspiracy has been established. We further hold that the fact, alone, that two or more have committed the crime charged is not sufficient to establish a prima facie case of conspiracy.

The conviction and sentence are reversed, and the case is remanded to the district court for a new trial.

SANDERS, C. J., dissents and will assign written reasons.

SUMMERS, J., dissents.

MARCUS, J., dissents.

BOLIN, J., concurs. There was no evidence of conspira'cy.

SANDERS, Chief Justice

(dissenting).

Thomas Carter, Jr. and Mac Brown were jointly charged and tried for armed robbery. The trial judge instructed the jury as to the law of conspiracy. See LSA-R.S. IS :455. The majority now reverses the conviction of Carter, because it finds insufficient evidence of conspiracy.

The holding is as follows:

“We hold that when the only showing of a conspiracy is that two people committed a crime, and there is no showing that defendant either committed or conspired to commit the criminal act, no prima facie case of conspiracy has been established. We further hold that the fact, alone, that two or more have committed the crime charged is not sufficient to establish a prima facie case of conspiracy.”

The holding is contrary to the holdings of this Court in State v. Dundas, 168 La. 95, 121 So. 586 (1929); State v. Cryer, 262 La. 575, 263 So.2d 895 (1972); and State v. Brown, La., 326 So.2d 839 involving the co-defendant, handed down on December 8, 1975.

In State v. Cryer, supra, this Court held:

“The defendants assert that the statute provides that the State must prove a prima facie case of conspiracy before any statement or act of a co-conspirator can be introduced in evidence. They further contend that the trial judge erred in admitting the evidence of Falcon’s acts and declarations before the State had established a prima facie case of conspiracy.
“We do not so construe the statute. The statute deals with the effect of the acts and declarations of one conspirator on the other conspirators. It does not purport to regulate the order of proof.
“The question of whether a conspiracy has been established is one of fact for the jury. State v. Skinner, 251 La. 300, 204 So.2d 370 (1967). The jury determines the existence of the conspiracy and the weight to be given the acts and declarations of the parties during the course of the conspiracy.
“The order of proof of the conspiracy, the acts, and declarations rest within the sound discretion of the trial judge. When two or more defendants are charged with the same crime, the trial judge may receive evidence of acts and declarations of one of them before the evidence of a conspiracy has been offered. See State v. Courtney, 170 La. 314, 127 So. 735 (1930); State v. Dundas, 168 La. 95 121 So. 586 (1929); State v. Fernandez, 157 La. 149, 102 So. 186 (1924); State v. Lebleu, 137 La. 1007, 69 So. 808 (1915); State v. Gebbia, 121 La. 1083, 47 So. 32 (1908); State v. Bolden, 109 La. 484, 33 So. 571 (1903).”

In State v. Dundas, .supra, this Court stated:

“[T]he bill of indictment charges both Picou and defendant jointly with having stolen the cattle, alleged to have been stolen in this case. As the larceny is charged as being their joint act, the indictment charges a conspiracy. State-v. Ford, 37 La.Ann. 443, 459; State v. Gebbia, 121 La. 1083, 1104, 47 So. 32. The acts and declarations of one conspirator within the scope of the conspiracy and in furtherance thereof is admissible against all coconspirators, and the trial judge need not pass upon the question of conspiracy in the first instance, but may receive the evidence of the acts and declarations of the alleged conspirators, leaving it to the jury to give effect to them against all engaged in the conspiracy in the event the jury should find the conspiracy established. Marr’s Crim. Juris. (2d Ed.) § 552, p. 847.”

In State v. Brown, supra, we held:

“Therefore, we hold that if any evidence of conspiracy has been introduced during trial, the district attorney may refer to, and the court may charge the jury, as to the law of conspiracy. Because we find there was circumstantial evidence of a conspiracy in this case, we hold that the comments during argument and the trial court’s charge were proper.”

The holding of these cases is that if there is any evidence of conspiracy, circumstantial or direct, an instruction as to conspiracy is proper so that the jury can determine whether the acts and declarations of each conspirator can be charged against all defendants under LSA-R.S. 15:455.

The crime in the present case was the armed robbery of a small grocery store. Two men, both armed, entered the store. Three were observed in the get-away car. Carter was identified as one of the three in the car shortly after the robbery.

Quite clearly, there is a circumstantial evidence that the three acted jointly in the furtherance of a “common enterprise.” It is difficult to conceive how three persons could have decided spontaneously to rob a store and executed the robbery in the manner shown here without prior consultation. In any event, in my opinion, the existence of a conspiracy was a question of fact for the jury.

For the reasons assigned, I respectfully dissent.

      . See A. Goldstein, The Krulewitch Warning: Guilt by Association, 54 Geo.L.J. 133 (1965) ; Derby & Orfield, Cases on Criminal Law and Procedure, 64 (1950).

      “14. As a preliminary matter, there must he substantial, independent evidence of the conspiracy, at least enough to take the question to the jury. United States v. Vaught, 485 F.2d 320, 323 (CA 4 1973); United States v. Hoffa, 349 F.2d 20, 41-42 (CA 6 1965), aff’d on other grounds, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); United States v. Santos, 385 F.2d 43, 45 (CA 7 1967), cert. denied, 390 U.S. 954, 88 S.Ct. 1048, 19 L.Ed.2d 1148 (1968); United States v. Morton, 483 F.2d 573, 576 (CA 8 1973); United States v. Spanos, 462 F.2d 1012, 1014 (CA 9 1972); Carbo v. United States, 314 F.2d 718, 737 (CA 9 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1626, 12 L.Ed.2d 498 (1964). Whether the standard has been satisfied is a question of admissibility of evidence to be decided by the trial judge.” 94 S.Ct. 3090, 3104. (Emphasis added).

      . There is no majority opinion, Three members of the Court subscribe to a plurality opinion and one concurs.


source: Caselaw Access Project

author: MARCUS, Justice. TATE, Justice

license: Public Domain

text:
    John R. NASH v. L. J. WHITTEN.
    No. 56525.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Rehearing Denied Feb. 20, 1976.

      W. Charles Brown, Mansfield, for plaintiff-applicant.
    Claude R. Sledge, Mansfield, for defendant-respondent.
   MARCUS, Justice.

Plaintiff, the owner of a tract of land in De Soto Parish, filed suit against defendant, the owner of the estate that adjoins his to the west, seeking the removal from his property of a natural gas pipeline that defendant owns and maintains. The pipeline, approximately 1,800 feet in length, connects a producing gas well located east of plaintiffs property with defendant’s residence, which it serves and supplies with natural gas. The line is mostly above-ground and visible, and partly below the surface. It was stipulated at trial that the pipeline has been in place in excess of ten years and that it was originally laid on the property with the consent of one of plaintiff’s ancestors in title. Defendant, however, admits that he had no written title authorizing the laying of the pipeline across plaintiff’s land. His defense to the suit is that the pipeline in question constitutes a continuous and apparent servitude that he has acquired through ten years’ possession. La.Civil Code art. 765 (1870). The trial court held that the gas pipeline was a continuous and apparent servitude, which defendant had acquired by possession of more than ten years. The court of appeal affirmed. 312 So.2d 679 (La.App. 2d Cir. 1975). Noting possible conflict with Gilfoil v. Greenspon, 216 So.2d 829 (La.App. 2d Cir. 1968), and Armstrong v. Red River, Atchafalaya & Bayou Bouef Levee Board, 261 So.2d 298 (La.App. 3d Cir. 1972), aff’d, 278 So.2d 496 (La. 1973), which stated that a natural gas pipeline constitutes a discontinuous servitude, we granted certiorari, upon plaintiff’s application, to resolve any inconsistency in the jurisprudence. 317 So.2d 624 (La.1975). The issue presented is one of first impression in this court.

Predial servitudes are classified in the Civil Code as continuous or discontinuous, and as apparent or non-apparent. Articles 727 and 728, which are derived from articles 688 and 689 of the French Code civil, define these classifications as follows:

Art. 727:
Servitudes are either continuous or discontinuous.
Continuous servitudes are those whose use is or may be continual without the act of man.
Such are aqueducts, drain, view and the like.
Discontinuous servitudes are such as need the act of man to be exercised.
Such are the rights of passage, of drawing water, pasture and the like.
Art. 728:
Again, servitudes are either visible and apparent or non-apparent.
Apparent servitudes are such as are to be perceivable by exterior works; such as a door, a window, an aqueduct.
Non-apparent servitudes are such as have no exterior sign of their existence; such, for instance, as the prohibition of building on an estate, or of building above a particular height.

These classifications have practical significance. Servitudes that are both continuous and’apparent can be acquired by prescription as well as by a title. La.Civil Code arts. 765, 3504 (1870). In contrast, continuous non-apparent servitudes, and discontinuous servitudes, whether apparent or not, can be established only by a title. La.Civil Code art. 766 (1870).

Plaintiff does not dispute the fact that the pipeline, which is perceivable by an exterior work, is apparent. He does contend, however, that the courts below erroneously held it to be continuous, i. e., that its use is, or may be, continual without the act of man. At trial, he called as a witness O. F. Woodfin, a retired gasoline wholesaler, who, visited producing natural gas wells about 500 times and on these occasions had the opportunity to observe the operations at the well sites. He testified that constant pressure must be applied and maintained at the well site in order to transmit the natural gas through the pipeline. He further stated that the Hunter Oil Company, which operates the producing gas well that serves defendant’s pipeline, had recently been forced to install two new pumps because the pressure had become so low that gas was not being transmitted through the line. Mr. Woodfin was the only person testifying at trial who was knowledgeable regarding the operation of natural gas pipelines. Since defendant offered no evidence tending to countervail his testimony, we must regard it as established in this case that the transmission of gas through defendant’s pipeline requires human activity in the form of the maintenance of adequate pressure.

The court of appeal rejected plaintiff’s argument that this human activity at the well site constitutes an “act of man” rendering the servitude discontinuous. Because the examples of discontinuous servi-tudes given in article 727 happen to require that the owner of the dominant estate perform some act on the servient estate to use the servitude, the court reasoned inductively that a servitude is rendered discontinuous only when the owner of the dominant estate or his agent must physically come onto the servient estate in order to use the servitude. Since plaintiff offered no evidence that defendant or his agents performed any act on plaintiffs land to exercise the use of the servitude, the court concluded that the gas pipeline must be classified as continuous.

In determining whether a servitude is continuous or discontinuous, some earlier court of appeal decisions have similarly ignored human activity necessary for the exercise of the servitude that takes place off the servient estate. Acadia-Vermilion Rice Irrigating Co. v. Broussard, 175 So.2d 856 (La.App.3d Cir. 1965), noted in 40 Tul. L.Rev. 397 (1966), involved the classification of an irrigation canal as a continuous or discontinuous servitude. The owner of the servitude in Broussard conceded that it pumped water from the bayou into the main irrigation canal. At the' junction of the main canal and the lateral canal at issue in the case a gate was located. When the gate was opened water flowed from the main canal onto the lateral canal by means of gravity, and was then diverted to rice lands. After discussing the “act-of-man” test set forth in article 727, the Broussard court, employing reasoning similar to that used by the court below in the case at bar, held that a continuous servitude is one that “continues to be exercised after the owner of the dominant estate ceases to occupy or be on the servient estate.” Consequently, the irrigation canal servitude was held to be continuous. Broussard’s interpretation of article 727 was restated in Wild v. LeBlanc, 191 So.2d 146 (La.App. 3d Cir. 1966), critically noted in 28 La.L.Rev. 134 (1967). An earlier case, Fuller v. Washington, 19, So.2d 730 (La.App. 2d Cir. 1944), held that a sewer line was a continuous servitude. Unlike the Brouusard court, the Fuller court did not discuss the “act-of-man” test. Rather, the court likened the sewer line to aqueducts and drains, which are listed in article 727 as illustrative examples of continuous servitudes. Blanda v. Rivers, 210 So.2d 161 (La.App. 4th Cir. 1968), held that water, gas, and sewer pipes, as well as gas heater flues, were continuous servitudes. Like the Fuller court, the court in Blanda did not mention the “act-of-man” test for classifying servitudes as continuous or discontinuous. Instead, it relied on the fact that the water or gas in the pipes was continuously “ready for use.”

We are of the opinion that these aforesaid cases have formulated criteria for classifying servitudes as continuous or discontinuous that depart from the test clearly set forth in the Civil Code. A predial servitude is defined as a charge laid on an estate for the use and utility of another estate belonging to another owner. La. Civil Code art. 647 (1870). Continuous servi-tudes are those whose use (by the dominant estate) is, or may be, continual without the act of man. Id. art. 727. If man’s intervention is needed in order for the dominant estate to exercise the servitude, the servitude must be classified as discontinuous. Id. Employing this applicable legal test, can we say that the gas pipeline in this case constitutes a continuous servitude? We must conclude that it does not.

In reaching this conclusion, we have not considered the fact that the gas pipeline was laid by an act of man. A servitude is not rendered discontinuous because an act of man created the servitude. The servitudes of aqueduct, drain, and view, which are given as examples of continuous servitudes in article 727, may be established through man-made constructions. In classifying a servitude as continuous or discontinuous, the determinative factor is whether the use or exercise of the servitude is, or may be, continual without man’s intervention. 4 T. Hue, Com-mentaire théorique et pratique du code civil, • no. 409, at 503 (1893). As Planiol has stated:

[T]he exercise of the continuous servitude grows out of a factual state of affairs. It may be natural or artificial, but it is permanently established. And it may be said that, when once the premises have been arranged as contemplated, the servitude operates of itself, without the owner’s intervention. The water flows in the aqueduct, the window lets ih the light, etc.

1 M. Planiol, Traité élémentaire de droit civil, no. 2894, at 703 (12 éd.La.State L. Inst.Transl. 1959). To the same effect see G. Marty et P. Raynaud, 2 Droit civil: les biens, no. 146, at 167 (1967). Accord, Roy v. Roy, 5 La.Ann. 590 (1850); Hale v. Hulin, 130 So.2d 519 (La.App. 3d Cir. 1961).

Nor have we taken into account defendant’s failure to show that gas has been transmitted unceasingly for a length of time in excess of the prescriptive period. For continuous servitudes need not actually be used without interruption; it suffices that their use may be continual without the act of man. Likewise, discontinuous servi-tudes are not defined as those that are used without interruption, but rather as those whose exercise needs an act of man. La.Civil Code art. 727 (1870). The servitude of the drain of rain water, for example, does not flow uninterruptedly, but only when it rains; yet it is a continuous servitude, since, when the water flows, it flows without human intervention. Planiol,- supra, no. 2896; A. Weill, Droit civil: les biens, no. 631, at 520 (1970). Similarly, the servitude of drip is a continuous servitude, although in dry periods no use is made of it. 2 H. L. & J. Mazeaud, Legons de droit civil, no. 1713 (4 éd. 1971). The test is therefore not uninterrupted activity, but the intervention or absence of intervention of man. Mazeaud, supra.

Finally, we have not been influenced by the existence of valves at the well site by which the flow of gas can be turned on or off. Acts of man by which the use of the servitude can be regulated do not render it discontinuous. For example, the flow of water in a servitude of aqueduct is often controlled through the use of sluices, or flood-gates. The servitude remains continuous, however, if the water, once the gate is raised, will flow by gravity without human intervention. See Cass, civ., Nov. 5, 1956, Gaz.Pal.1957.U82; Cass, req., Nov. 23, 1898, D. 1899.1.37; Cass, civ., Oct. 25, 1887, D.1888.1.106. The lifting of the gate is the removal of a man-made obstacle to the natural flow of the water, rather than an act of man necessary for the exercise of the servitude. 8 F. Laurent, Principes de droit civil fran-gais,' no. 127, at 159 (4 éd. 1887).

What has led us to classify the gas pipeline as a discontinuous servitude is the fact that the gas can be transmitted through the pipeline only with the assistance of pumps at the well site. Just as the use by the dominant estate of a servitude of aqueduct or drain consist of the flow of water, so the use of the servitude in this case consists of the transmission of natural gas through the pipeline. Without the man-operated pumps that maintain adequate pressure, gas will not be transmitted through the pipeline, and no use can be made of the servitude. The gas pipeline servitude is consequently discontinuous, since it needs the act of man for its exercise.

The conclusion that we have reached is dictated by the text of article 727. In addition, it is in accord with French jurisprudence, which, construing an article of the Code civil almost identical to our own (C. civ. art. 688), has consistently held that a servitude is discontinuous if an act of man, either on or off the servient estate, is needed for its exercise. See, e. g., Cass, req., Feb. 17, 1875, D.1876.1.504; S.l'877.1.-74; Aix-en-Provence, Jan. 28, 1969, Gaz. Pal.1969.1.somm. 24; Pau, Jan. 29, 1890, D. 1891.2.132. See also Yiannopoulos, Predial Servitudes: General Principles; Louisiana and Comparative Law, 29 La.L.Rev. 1, 31-37 (1968); 28 La.L.Rev. 134 (1967); 40 Tul.L.Rev. 397 (1966). It is further supported by the views of a number of French commentators, including Aubry and Rau, Duranton, Laurent, and Planiol. 3 C. Au-bry et C. Rau, Cours de droit civil fran-gais, § 248, at 119 n. 9 (5 éd. 1900); S.-1838.2.347, note by M. Duranton; Laurent, supra, no. 132, at 165; Planiol, supra, nos. 2895-96, at 703-04.

Defendant nevertheless contends that we should interpret article 727 according to what he alleges is its spirit, and hold that human intervention, necessary for a servitude’s use, that occurs off the servient estate will not affect its classification. Article 727, however, draws no distinction between human activity occurring on and off the servient estate. It defines discontinuous servitudes as “such as need the act of man to be exercised.” It does not define discontinuous servitudes as those that need the act of man to be exercised on the servient estate. The article’s meaning is entirely free from any ambiguity. We are free to consider the spirit of the law only “when its expressions are dubious.” La. Civil Code art. 18 (1870). On the other hand, when a law is clear and free from all ambiguity, as is article 727, its letter is not to be disregarded, under the pretext of pursuing its spirit. Id. art. 13.

Accordingly, we hold that acts of man that are necessary for a servitude’s exercise after its establishment, whether those acts occur on the servient estate or elsewhere, render such a servitude discontinuous and incapable of being acquired by prescription. Because defendant’s gas pipeline constitutes a discontinuous servitude, the courts below erred in holding that he had acquired it by prescription. Plaintiff is entitled to the removal of this encumbrance upon his property, as prayed for in his petition.

DECREE

For the reasons assigned, the judgments of the trial court and the court of appeal are reversed, at defendant’s cost; and it is hereby ordered that defendant remove the gas pipeline at his expense.

TATE, J., dissents and assigns written reasons.

DENNIS, J., recused because of participation in decision of the case below.

TATE, Justice

(dissenting).

We order the defendant Whitten to remove a natural gas pipeline which has served his home for some twenty-odd years. It lies partially above the surface of the land and was apparent to the defendant Nash when he bought his property, across which the pipeline crosses.

We do so because our scholarly majority opinion characterizes the servitude as “discontinuous”, for essentially semantical reasons. We thus adopt an interpretation of Civil Code Article 727 which, founded on semantical and non-functional reasons, overrules an equally permissible interpretation favored by our Louisiana scholars and which has previously been adopted by our Louisiana courts and which has much more desirable practical consequences.

Endangered by this decision are many types of servitudes previously recognized as continuous, such as the irrigation servi-tudes (at least formerly so essential to the cultivation of rice). See, e. g., Acadia-Vermilion Rice Irrigating Co. v. Broussard, 175 So.2d 856 (La.App. 3d Cir. 1965). The Louisiana interpretation of the code article, although favored by only a minority of the French commentators as to the equivalent French article, is preferable for our New World conditions and is equally permissible by legal reasoning. We should not depart from it for dictionary reasons, disregarding the functional values at issue.

It is conceded that the pipeline is “apparent”, above the ground in part.

The legal issue is whether the servitude is “continuous” or “discontinuous”. Civil Code Article 727. If “continuous”, the servitude may be acquired by prescription. Civil Code Articles 765, 3504. If discontinuous, it can be acquired only by a title. Civil Code Article 766.

This issue hinges upon an interpretation of the requirement that a continuous servitude is one “whose use is or may be continual without the act of man.” Civil Code Article 727. To understand what functionally is there meant, however, it is necessary to examine the code article in whole, having in mind that the chief practical distinction between a continuous and discontinuous apparent servitude is that the former may be created and acquired by prescription, while the latter may be acquired only by a title, usually a writing.

Civil Code Article 727 provides:

“Servitudes are either continuous or discontinuous.
“Continuous servitudes are those whose use is or may be continual without the act of man.
“Such are aqueducts, drain, view and the like.
“Discontinuous servitudes are such as need the act of man to be exercised.
“Such are the rights of passage, of drawing water, pasture and the like.”

The semantical issue is whether the pipeline which transported natural gas across the defendant Whitten’s land without any “act of man” upon Whitten’s land, is nevertheless discontinuous because — at the well-site, off the premises — an act of man was needed to start and keep the natural gas flowing.

If one looks at the code-article examples of ' continuous servitudes — “aqueducts, drain, view” — , at least the first two of these, I submit, are of the same nature as the present servitude. An act of man off the premises may activate the flow of water; but, insofar as the servient estate across which the water flows, no act of man occurs on that estate.

If one looks at the example of discontinuous servitudes given in the code article— “rights of passage, of drawing water, pasture”, then, I submit, the examples are of servitudes where the owner of the apparent servitude must also do some act on the servient estate so as to evidence its use.

The reason for using an act of man test to distinguish between a continuous and a discontinuous apparent servitude makes sense if we understand its functional purpose in permitting or prohibiting acquisition of title by prescription.

A masterful and comprehensive statement of the Louisiana law of predial servi-tudes is contained in Professor Yiannopou-los’ article, “Predial Servitudes; General Principles: Louisiana and Comparative Law”, 29 La.L.Rev. 1 (1968). His analy-ses of the principles applicable to continuous and discontinuous servitudes is contained at 29 La.L.Rev. 31-41.

Having in mind that prescriptive acquisition applies only to apparent servitudes (and only if they are continuous), the .scholar notes that “Discontinuous servi-tudes confer on the owner of the dominant estate the right to do certain material acts on the servient estate” 29 La.L.Rev. 36. On the other hand, “continuous servitudes involve the maintenance of a certain state of affairs [on the servient estate] which is beneficial for the dominant estate”, as contrasted with “discontinuous servitudes [which] require for their use of preservation successive acts of man”, 29 La.L.Rev. 32.

Professor Yiannopoulos suggests that the uniform Louisiana view that an apparent servitude is continuous even though requiring off-premise human activity — that is for the servitude to be ¿«continuous the “successive acts of man” must take place on the servient premises — is a preferable interpretation because of its more sound practical results, even though only a minority of French commentators favor it. 29 La.L.Rev. 33.

From the point of view of prescriptive acquisition of an apparent servitude, those who own or acquire a servient estate are fully on notice of a type of servitude usage of his property which by its nature involves a permanent service of his estate to the other (dominant) estate. This sort of permanent usage is to be contrasted with a type of usage which depends on the dominant owner coming onto his (servient) estate to do some act at different times of the day, season, or year — a discontinuous relationship, not as readily observable as a fixed relationship between the two estates.

In Louisiana, such obvious (apparent) permanent relationships of one estate to another have, since our earliest days, been permitted to be established by prescription, rather than by requiring a title in every case. This probably should be understood as a natural development of a New World frontier-sort of society, relatively lawyer-less. Without going to the courthouse town and finding a lawyer (if there), two neighbors could establish by agreement a use of one estate for the permanent benefit of another estate; and long-established usage, with mutual consent, was sufficient to create the servitude.

A similar discussion of the French views and of the Louisiana decisions on the issue is contained at Note, 40 Tul.L.Rev. 397 (1966). The writer likewise concludes, based in part on the reasons of the minority French view and in part on the practical consequences, that the prior Louisiana view is preferable:

“The language of article 727 does not clearly demand either the interpretation of the French courts or the Louisiana-Demo-lombe view. It is submitted that the Louisiana court adopted the preferable interpretation. First, Louisiana courts which apply the Broussard interpretation of the act-of-man test of article 727 should nearly always reach a result consistent with the examples given in article 727; thus article 727 is rendered more internally consistent than under the French view. Second, in confining the scope of the test of continuity to acts occurring on the estate, the Broussard holding is more consistent with the usual justification for limiting the acquisition of servitudes by prescription, that is, only usage which is adverse to the interests of the owner of the servient estate should vest rights by acquisitive prescription; to look beyond the acts occurring on the servient estate in deciding whether the servitude is adverse seems pointless.”

I might not as strongly dissent if the majority offered some functional or practical view why, at this late date, we should reject the Louisiana interpretation of Article 727 which has worked so well for Louisiana conditions. After all, the majority view is a respectable interpretation adopted (for French conditions) by a majority of French commentators.

However, the Louisiana interpretation is equally respectable and equally available. To discard it for dictionary reasons, without weighing the functional or practical values, seems to me (to exaggerate, for the moment) an abdication of the judicial function in favor of blind application of “rules” without regard to their purpose or reason.

For these reasons, therefore, I respectfully dissent.

      . It should be noted that the facts as set forth in the opinion do not reveal whether or not this pumping operation was regularly necessary to maintain the flow of water into the lateral canal.

      . The court of appeal in JBroussa/rd reversed and remanded the case to the trial court. The court of appeal thereafter, on a second appeal, 185 So.2d 908 (La.App. 3d Cir. 1966), reversed the trial court’s granting of a motion for summary judgment and remanded.

      . Laurent, supra, no. 127.

      . The term “act of man” comprehends his operation of machines necessary for the servitude’s exercise. Cf. Mazeaud, supra, no. 1713.

      . We believe that the gas pipeline is similar in character to the flow of water from a quarry or mine, which Planiol gives as an example of a discontinuous servitude:
      [T]he flow of water from a quarry or mine, whose discharge pipe works day and night, and all the year without interruption is a discontinuous servitude. It is so classed because its exercise requires man’s intervention. If the engineer in charge did not operate his machine, the water would cease flowing. The flow of water may thus be continual or very infrequent, without this circumstance having any bearing upon the continuous or discontinuous nature of the servitude. This nature depends exclusively upon man’s abstention in the exercise of the servitude. It is just as Cepolla said in the XV century: ‘Licet non exerceatur semper, tamen semper apta est exereeri sine facto hominis.’

        Planiol, supra, no. 2896. See also Cass, civ., Oct. 8, 1957, Gaz.Pal.- 1957.2.324; Mazeaud, supra, no. 1713.

      .For example, although the servitude of drain is listed as an example of a continuous servitude in both the French and Louisiana Civil Codes, French jurisprudence has classified the servitude of the drain of household or industrial water as a discontinuous servitude, since its exercise requires the deposit of water into the pipes (off the servient estate) by an act of man. Aubry and Rau commented approvingly on this jurisprudence as follows:
      The existence of works destined to transmit to the neighboring estate household or industrial water, such as a sink with descending pipes, does not impress the servitude with which we are concerned with the characteristic of continuity. It is true that once placed in the sink, the water will flow without the further act of man; but since this flowing transmits to the servient estate only the waters placed in the sink by the proprietor of the dominant estate, we are truly obliged to recognize that the servitude will be exercised only by acts succeeding the last, and that consequently it is discontinuous.

        Aubry et Rau, supra, § 248, at 119 n. 9 (emphasis in original).

      . If it were buried beneath the ground and thus “non-apparent”, see Yiannopoulos, cited in text at 29 La.LRev. 41, then — as with discontinuous servitudes — it could only be acquired by a title, not by mere possession. Civil Code Article 766.

      . See Civil Code Article 726: “Pasturage is the right of grazing one’s cattle on the estate of another.

      . In fact, to facilitate acquisition of such servitudes, the articles in the servitudes portion of our Louisiana civil codes pertaining to acquisition by prescriptive possession shortened the prescriptive period from thirty years in 1808, to ten years if present and twenty if absent in 1825, to ten years in 1870. See Art. 765, La.C.C.Comp.Ed. in 16 West’s LSA-C.C. pp. 459-60 (1972).


author: SANDERS, Chief Justice. SANDERS, Chief Justice.

text:
    William Jonathan GOLZ and Pamela Marie Fortier Golz v. CHILDREN’S BUREAU OF NEW ORLEANS, INC.
    No. 57373.
    Supreme Court of Louisiana.
    Jan. 29, 1976.
    Reasons for Judgment given Feb. 12, 1976.
    Rehearing Denied Feb. 20, 1976.

      Thompson & Perrin, Michael F. Thompson, Lafayette, for plaintiffs-applicants.
    Baldwin, Haspel, Molony, Rainold & Meyer, Robert R. Rainold, New Orleans, for defendant-respondent.
   SANDERS, Chief Justice.

Because of the exigencies of this case, requiring prompt disposition, we hand down our decision, the reasons for which will follow in due course.

The judgment of the Civil District Court for the Parish of Orleans, rejecting petitioners’ demand, is affirmed.

SUMMERS, J., dissents.

Reasons for the judgment handed down, herein on January 29, 1976.

SANDERS, Chief Justice.

The primary issue in this habeas corpus proceeding is whether or not a notarial act of surrender by parents of a child to a licensed adoption agency is valid and irrevocable. We hold that it is.

Petitioners, William Jonathan Golz and Pamela Marie Fortier Golz, are married and residents of Lafayette. On December 9, 1974, when Mrs. Golz was seven months pregnant, she came to New Orleans with the knowledge of her husband in order to arrange for the delivery of the baby at the New Orleans Charity Hospital and to initiate placement of the child for adoption. While in New Orleans, Mrs. Golz contacted the Children’s Bureau of New Orleans, Inc., a state-licensed adoption agency. Mrs. Frances Keating, the intake supervisor, granted her an appointment on the same day. She conducted an intake interview, securing basic information concerning the family. She advised Mrs. Golz that placement would require the formal consent of both parents in an act of surrender and that once the surrender had been signed, it was irrevocable. After the mother inquired how soon the surrender could be signed, the intake supervisor advised her that it could be executed after the child was born.

The intake supervisor arranged for the assignment of Diane Lambly, a caseworker, to the adoption so that Mrs. Golz would be able to confer with her on her hospital visit scheduled for the following week. Mrs. Golz cancelled her trip to New Orleans the following week and advis'ed the adoption agency that she would notify it when she returned.

From December 9, 1974, to February 12, 1975, Mrs. Golz had several telephone and written communications with Diane Lam-bly, the caseworker. During this period, she informed the agency that she had decided to have the baby delivered in Lafayette, instead of New Orleans. She expressed a desire to continue the adoption plan, and the caseworker assured her that it could be done, despite the change in the place of delivery.

The child, Joshua Golz, was born on Thursday, February 13, 1975. The following day, Mr. Golz called the caseworker by telephone, advised her of the birth of the child, and made arrangements to bring the child for adoption on the weekend. The caseworker again explained that for placement both parents had to he present to execute a notarial act of surrender. She cautioned that when the notarial instrument was signed, they could no longer change their minds concerning the adoption. Ultimately, after a series of telephone conversations, the father telephoned that he and his wife had changed their minds about adoption. The Children’s Bureau then closed the case.

On April 9, 1975, Mrs. Golz came to the Children’s Bureau with the child and asked the caseworker if the agency would provide foster care pending the signing of a surrender by herself and her husband. She informed the caseworker that her husband was out of the state, but that he was agreeable to signing a surrender for adoption. The caseworker explained to her that the agency did not accept children for long-term foster care, but that it would accept temporary custody under the circumstances.

When the caseworker failed to hear from the parents by April 15, she telephoned the father. He stated that they had changed their minds about adoption and would come and get the baby. On April 18, the parents secured the child, and the case was again closed.

On August 18, Mr. Golz again telephoned the caseworker, expressing a desire to place the child for adoption. He ultimately inquired whether an act of surrender could be signed the same day. The caseworker advised him that arrangements would have to be made with an attorney, but that she would call him back. A few minutes later, the caseworker telephoned the parents to inform them that arrangements had been made with the attorney to handle the surrender. The caseworker asked the parents to come to her office upon arrival in New Orleans.

After the parents arrived at the Children’s Bureau, the caseworker conferred with them a few minutes. During the brief conference, she informed them that after the Act of Surrender had been signed, it could not be “undone.”

They then walked about five blocks to a law office, where they were 'joined by the Casework Supervisor, Mrs. Virginia C. Jané.

The Attorney-Notary invited the group into the conference room, where he read aloud the Act of Surrender and explained that it could not be revoked after it had been signed. It was then executed by the parents and the Casework Supervisor for the Children’s Bureau in the presence of the Notary Public and two witnesses.

The following day, the parents telephoned the Children’s Bureau, requesting that the child be returned to them. The bureau officials advised them that the Act of Surrender was final and could not be revoked. On August 21, 1975, the bureau placed the child in the home of adoptive parents. This litigation followed.

The trial judge found that the parents freely and voluntarily executed the Act of Surrender with full knowledge of its legal consequences and held that the Act of Surrender, being to a licensed agency, could not be revoked under the statute, LSA-R.S. 9:402. We granted certiorari to review the judgment of the trial court. 325 So.2d 282 (1976).

In this Court, the petitioners advance various arguments, but they can be summarized from the assignments of error as follows:

(1) There was no valid consent by the parents to the Act of Surrender.

(2) Under the statute, the parents could and did revoke their consent.

(3) The statutory adoption procedure of LSA-R.S. 9:402 et seq. as applied here unconstitutionally deprives the parents and the child of due process of law.

Consent of the Parents

The consent of the parties is one of the requirements for an act of surrender. If consent is lacking, there is no valid surrender. LSA-R.S. 9:402; LSA-C.C. Arts. 1779, 1819; Cole v. Lumbermens Mutual Casualty Company, La.App., 160 So.2d 785 (1964); S. Litvinoff, 6 Louisiana Civil Law Treatise — Obligations (Book 1),. § 129, pp. 210-211 (1969).

As to consent, the trial judge found:

“There is no doubt in the Court’s mind that there has never been any pressure, undue influence or the like brought to bear on these plaintiffs by the Children’s Bureau. This is evident from the record and from December, 1974 up to the final act of surrender executed on August 18, 1975. It is also evident that these plaintiffs are mature individuals; not possessed of formal education beyond the ninth grade but by no means illiterate.”
"***
“The act of surrender executed in this case was not a rash, impulsive act on the part of the plaintiffs. It came after many months of careful and apparent continued thought and deliberation; during periods when these plaintiffs were thinking about surrendering their child, when the child was actually surrendered, when they had possession of their child and when they did not. . . . ”

The finding of the trial judge is entitled to great weight. Canter v. Koehring Company, La., 283 So.2d 716 (1973); Gin-lee v. Helg, 251 La. 261, 203 So.2d 714 (1967).

We concur in the finding. The record reflects that the decision to execute the Act of Surrender was reached after lengthy deliberation. Consummation of the surrender resulted from petitioners’ independent action in contacting the Children’s Bureau. Although petitioners had already been informed of the consequences of the Act of Surrender, the Attorney-Notary carefully read and explained the document to them before it was signed. It plainly stipulated:

“That appearers do hereby surrender the custody of said child unto CHILDREN’S BUREAU, an agency licensed by the Louisiana State Department of Public Welfare for the placement of children for adoption, represented herein by its Casework Supervisor, Mrs. Virginia C. Jané, here present and accepting said surrender, that with the execution of these presents, appearers give up and relinquish forever any legal claim to the said child, hereby transferring to the said Agency their authority over, and all of their rights and obligations to said child.
“Appearers further understand and consent that Children’s Bureau may place said child for adoption, act for said ap-pearers in any adoption proceeding, or provide such other care as shall be suitable, without consulting or informing ap-pearers.”

After the execution of the document, Mrs. Golz commented: “G’est fini” [all is over]. The Notary replied: “Yes, it is final.”

The petitioners, however, equate the Act of Surrender to a contract of adhesion, in which because of disparate bargaining ability and the absence of negotiation between attorneys for the respective parties, consent was not free.

Broadly defined, a contract of adhesion is a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party. Often in small print, these contracts sometimes raise a question as to whether or not the weaker party actually consented to the terms. See LSA-C.C. Arts. 1766, 1811; S. Litvinoff, 6 Louisiana Civil Law Treatise — Obligations (Book 1), § 194, pp. 346-349 (1969).

The Act of Surrender here raises no substantial question as to consent. It is a one-page, typewritten document, captioned Act of Surrender of Joshua Golz. Executed in strict conformity with the statute, it serves one purpose and one purpose only. It irrevocably transfers custody of the child to the adoption agency for placement in an adoptive home.

As we have noted, the parents were fully aware of the content and effect of the instrument before they signed it. We conclude, as did the trial judge, that the surrender represents a free and deliberate exercise of will. This being true, the law gives it legal effect.

Revocability of Consent

The petitioners assert, however, that under the statute consent can be revoked.

LSA-R.S. 9:402 provides:

“Any parent of a child, whether the child was born in wedlock or out of wedlock and whether the parent is over or under twenty-one years of age, may surrender the permanent custody of his child to an agency for the purpose of having the child adopted by appearing before a notary and two witnesses and declaring that all of his rights, authority, and obligations, except those pertaining to property, are transferred to the agency. This authentic act shall be signed by the agency and shall constitute a transfer of custody to the agency after which the agency shall act in lieu of the parent in subsequent adoption proceedings. No surrender of the custody of a child shall be valid unless it is executed according to the provisions of this Part.”

On its face, the statute is clear. It authorizes the surrender of “permanent custody” to a licensed agency and the transfer to that agency of all of the parents’ rights, authority, and obligations, excepting only those pertaining to property. Thereafter, the agency acts in lieu of the parents in adoption proceedings.

In the case of In re Amorello, 229 La. 304, 85 So.2d 883 (1956), dealing with the surrender of an illegitimate child under this statutory provision, this Court stated:

“The act of surrender in favor of an accepting agency gives the irrevocable control and custody of the child to that agency with the privilege of placing it for adoption.”

See also Ball v. Campbell, 219 La. 1076, 55 So.2d 250 (1951); Wadlington, Adoption of Persons under Seventeen in Louisiana, 36 Tul.L.Rev. 201, 214 (1962).

Petitioners argue, however, that LSA-R.S. 9:404 makes a distinction between the mother’s surrender of an illegitimate child and the parents’ surrender of a legitimate child. That section provides:

“A surrender by the mother of a child born out of wedlock who has not been formally acknowledged or legitimated by the father terminates all parental rights except those pertaining to property. The same shall be true as to a court order of abandonment. However, no surrender or court order of abandonment as to only one living parent of a legitimate child shall be binding upon the other living parent.”

Specifically, the petitioners argue that the section provides for termination of parental rights when an illegitimate child is surrendered by the mother but contains no such authority for the surrender of a legitimate child. Hence, petitioners reason that the mother’s surrender of an illegitimate child is irrevocable, while the parents’ surrender of a legitimate child may be revoked.

In our opinion, the section does not lend itself to such an interpretation. The section merely regulates the termination of rights when there are two living parents. The mother’s surrender of a chiid born out of wedlock, not formally acknowledged or legitimated by the father, terminates the rights of both parents. The same termination of the rights of both parents results from a court judgment of abandonment rendered against the mother of an illegitimate child. As to legitimate children, no surrender or court order of abandonment as to one parent is binding upon the other. An effective surrender of a legitimate child requires the concurrence of both living parents. Likewise, a judgment of abandonment as to both parents of a legitimate child requires that both parents be parties to the proceeding.

This construction is fortified by other provisions of the adoption statute. LSA-R.S. 9:425 dispenses with service of the adoption petition upon the living parents when the child has been legally surrendered to a licensed agency. LSA-R.S. 9:-427 dispenses with the requirement that the Welfare Department locate and consult the living parents when the child has been legally surrendered. LSA-R.S. 9:434 authorizes a final decree of adoption at the first hearing when the child has been placed by a licensed adoption agency.

Louisiana is not alone in providing for the irrevocability of an act of surrender to a licensed adoption agency. New Mexico, Nevada, Mississippi, Indiana, Illinois, Ohio, New Jersey, and the District of Columbia are among the jurisdictions which provide that such a surrender by a natural parent is irrevocable, in the absence of fraud or duress. See New Mexico Statutes Ann. § 22-2-27 (Supp.1975); Nev.Rev.Statutes § 127.080; Miss.Code of 1972 Ann. § 93-17-9; Ohio Revised Code Ann. § 3107.06 (B)(2); Dist. of Columbia § 16-304 and § 32-786; N.J.Statutes 9:2-16; Acedo v. Arizona Dept. of Public Welfare, 20 Ariz. App. 467, 513 P.2d 1350 (1973); Catholic Charities of the Diocese of Galveston, Inc. v. Harper, 161 Tex. 21, 337 S.W.2d 111 (1960); Gonzales v. Toma, 330 Mich. 35, 46 N.W.2d 453 (1951); Kozak v. Lutheran Children’s Aid Society, 164 Ohio 335, 130 N.E.2d 796 (1955); Adoption of Doe, 87 N. M. 253, 531 P.2d 1226 (1975).

We conclude that an act of surrender executed by both parents of a legitimate child to a licensed adoption agency in compliance with LSA-R.S. 9:402 is irrevocable.

Constitutionality of Statute

Finally, petitioners assert that the statutory procedure applied here is unconstitutional in that it deprives them and their child of due process of law. Specifically, petitioners contend that the statute is defective in that it provides for no hearing prior to the termination of parental rights and no notice or hearing prior to the granting of the adoption decree. Petitioners rely upon the. decision of the United States Supreme Court in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).

In Fuentes v. Shevin, supra, the Supreme Court of the United States held that the pre-judgment replevin statutes of Florida and Pennsylvania, giving a creditor the right to take immediate possession of movable property in the hands of the debtor, violated procedural due process under the Fourteenth Amendment to the United States Constitution. The Florida statute authorized repossession of the goods “without judicial order, approval or participation.” The Pennsylvania statute was considered to be essentially the same, except that it had no requirement that a hearing on the merits of conflicting claims ever be held. See Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).

The holding in Fuentes v. Shevin is inapplicable to the present statute. That case involved the involuntary dispossession, or seizure, of property in the possession of the debtor under the guise of state action. In the instant case, the parents voluntarily delivered possession of the child to the agency and surrendered their parental rights in a formal instrument. Such a voluntary contractual disposition is not re-probated by the Due Process Clause. Contrary to petitioners’ contention, due process does not require that a judicial hearing precede the execution of the contract.

The petitioners, of course, had the right to consult legal counsel of their choice at any time during their relationship with the Children’s Bureau. The record does not reflect whether or not they did. If they did not do so, as they now allege, the absence of such legal consultation does not make the surrender infirm or unenforceable. See LSA-C.C. Art. 1779. The petitioners have cited no constitutional authority requiring that parties be represented by legal counsel in the confection of contracts of this type, and we know of none.

Petitioners also complain that the statute precludes notice to the parents and an opportunity for hearing in the adoption proceeding subsequent to the surrender. We find no deprivation of due process here. Once the rights of the parents have been surrendered to the agency, the parents no longer have an interest to be protected in the adoption proceeding. The agency becomes the real party in interest and, as the statute provides, acts in lieu of the parents in subsequent adoption proceedings. It is well established that the Due Process Clause applies only when a person is subject to deprivation of “life, liberty, or property” by state action. See Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948).

We hold that the statute as applied in the instant case is constitutional.

With these reasons for judgment, we repeat the decree handed down in this matter on January 29, 1976: The judgment of the Civil District Court for the Parish of Orleans, rejecting petitioners’ demand, is affirmed.

SUMMERS, J., dissents.

      . The New Cassell’s French Dictionary, verbo fini, p. 348 (1971).


author: TATE, Justice. BARHAM, Justice DIXON, Justice. MARCUS, Justice SUMMERS, Justice

text:
    STATE of Louisiana, Appellee, v. Pamela Ann LIESK, Appellant.
    No. 55586.
    Supreme Court of Louisiana.
    March 31, 1975.
    On Rehearing Jan. 19, 1976.
    Dissenting Opinion Feb. 20, 1976.
    Rehearing Denied Feb. 20, 1976.

      Robert Glass, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant, Mrs. Pamela Liesk, was convicted of attempted armed robbery, La. R.S. 14:27, 14:64, and sentenced to eight years at hard labor. She bases her appeal to this court on four assignments of error.

Assignment No. 1 (Bill of Exceptions No. 1)

After her arrest, the defendant was interrogated by the police. She dictated a statement, which was typed by the interrogating officer. However, after discussing -the matter with her father, she refused to sign it.

She now contends that the proper preparation of her defense was prejudiced by the trial court’s erroneous denial of her motions for oyer to obtain access to this written but unsigned statement. This assignment presents a very close issue as to whether prejudicial error was committed.

The defendant is correct in the following contentions:

1. Her motions for oyer should have been granted. The defendant is entitled to pre-trial inspection of her written confessions or statements. State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945). For the same reasons of fairness in affording a defendant a proper opportunity to prepare a defense, the accused is also entitled to pre-trial inspection of electronically recorded statements, State v. Bendo, 281 So.2d 106 (La.1973), and of videotape recordings of a confession, State v. Hall, 253 La. 425, 218 So.2d 320 (1969). The present recordings are admissible in the same manner as is a written confession, for they possess the same accuracy and the same qualities of being “reliable, tangible evidence”, State v. Hall, 218 So.2d at 323. For these reasons, the defendant is entitled to pre-trial inspection of a statement of the nature here involved (which, moreover, is admissible in evidence in the same manner as if it had been signed, see State v. Dierlamm, 189 La. 544, 180 So.2d 135 (1938)).

2. By a later ruling, the trial court suppressed the statement on the defendant’s motion. This ruling was based on the failure of the interrogating officers to assure effective Miranda warnings before the interrogation. As the transcribed ruling made at the time shows, the trial court rejected the defendant’s further contention that his statement was, involuntary by reason of the defendant’s mental condition. Thus, as the defendant contends, even though the statement itself was not admissible as part of the state’s case, nevertheless, under Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), it might have been used in cross-examination to impeach her credibility.

Relying upon the above (1 and 2) reasons, the defendant contends that the failure to afford her pre-trial inspection of her statement irreparably prejudiced her defense. Because of her mental condition, she herself did not know the contents of the statement. Her sole defense of insanity at the time of the offense might, her counsel argues, have been prejudiced had she taken the stand and her credibility have been injured by use of the statement typed by the police officers but not seen or signed by her. Thus, it is contended, her constitutional right to take the stand was inhibited, Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), by this wrongful denial to her of pre-trial inspection of her statement.

However, the defendant’s right to take the stand was not, in fact, inhibited by the denial of oyer to her of the statement.

The state had not notified her, prior to trial, of any intent to use the confession or inculpatory statement, as required by La. C.Cr.P. art 768. Had the state attempted to use her typed but unsigned statement without giving such advance notice, even if only by way of impeachment, the trial court was required upon objection to deny such attempt: The failure to give notice to the defendant, as required by law, caused a prejudicial change of the position by defendant ; she took the stand, in reliance upon the state’s intent not to use the statement. State v. Jackson, 260 La. 561, 256 So.2d 627 (1972).

The issue is not free from doubt. Despite the probability of reversal upon appeal if the trial court incorrectly permitted use of the unsigned statement by way of impeachment, the defendant may properly have wished to rely upon evidence justifying an acquittal by reason of insanity (instead of subjecting herself to conviction by injection of such statement into the trial issues, if she indeed took the stand). The closeness of the issue once more illustrates the risk the State takes when it resists reasonable requests for pre-trial inspection alleged to be needed by the defense in the preparation of its case.

Nevertheless, on balance, for the reasons stated we are not persuaded that the present record illustrates that actual prejudice was caused the accused’s defense under the circumstances here presented. This assignment of error does not, therefore, present under the record before us any reversible error.

Assignment No. 2 (Bill No. 5)

The defendant moved to quash the petit jury venire on the contention that the trial judge had, by asking for volunteers from the veniremen 'present, converted it into a self-selected group. Because of this self-selection, it is alleged, the venire was not a cross-section of the community.

The contention is based on the following circumstances:

La.C.Cr.P. art. 418 provides that the Orleans Parish Jury Commission shall draw indiscriminately not less than 75 veniremen for service during each monthly session of each criminal court section. One hundred twenty-five veniremen were selected for service that month, of whom 120 individuals appeared. The maximum seating capacity of the courtroom is 55.

The trial court initially accepted the 49 veniremen who had volunteered for service that month. It then interviewed the remaining 71 veniremen as to their excuses. The trial court excused immediately any prospective juror with a valid medical excuse or who did not qualify, but it reserved decision as to other preferred excuses until all interviews had been completed.

At the conclusion of the interviews, the court excused those veniremen advancing the most serious reasons (age, work, vacation, illness in the family).

It refused to excuse eight others of those interviewed. The remaining petit jury venire thus comprised these eight plus the initial 49 prospective jurors who had not sought to be excused.

The defendant makes no showing, other than the above, that the trial court excused jurors arbitrarily or so as to deprive her of representation on the venire of any identifiable component of the population. Factually, there is no showing that the ve-nire as finally constituted did not reflect a cross-section of the community as much as did the original venire indiscriminately selected from the randomly chosen general venire.

A petit jury venire shall not be set aside in the absence of fraud or some shown injury to the defendant. La.C.Cr.P. art. 419. The discretion of the trial court under La.C.Cr.P. art. 783 to excuse jurors from service will not be disturbed, in the absence of shown collusive material injury to the defendant. State v. Witherspoon, 292 So.2d 499 (La.1974). We find none here.

Assignment No. 3 (Bill No. 4)

The defendant re-urges her contention that she, a female defendant, was deprived of her constitutional right to jury trial by the effective exclusion of women from the jury venire under the Louisiana law in effect prior to January 1, 1975. The defendant was tried and convicted in 1973.

The United States Supreme Court has indeed held that juries selected under pre-1975 Louisiana law were constitutionally deficient because of the effective exclusion of women from the venires. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). However, it subsequently held that Taylor was not retroactive and did not apply to “convictions obtained by juries empanelled prior to the date of that decision.” Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 705, 42 L.Ed.2d 790 (1974). Subsequently, despite the theoretic difference in contention when urged by a female defendant (as contrasted with the male defendants in Taylor and Daniel), the United States Supreme Court has denied certiorari as to the similar contention raised by a Louisiana female defendant. Devall v. Louisiana, 420 U.S. 903, 95 S.Ct. 820, 42 L.Ed.2d 832 (1974).

The assignment is therefore without reversible merit.

Assignment No. 4 (Bill No. 6)

Prior to final argument, the defendant filed a request for special charges to the jury instructing it as to the mandatory maximum and minimum penalties for the armed robbery charge and as to the effect of a verdict of not guilty by reason of insanity.

The defendant correctly contends that the trial court had the discretion to so charge the jury. According to the trial judge’s per curiam, however, the trial court deliberately exercised its discretion not to do so, since such instructions might confuse the jury and also since it felt, under the facts, the real issue before the jury was the defendant’s mental condition at the time of the offense, the offense itself being admitted. The trial judge did, however, permit counsel to argue to the jury the effect of a verdict of not guilty by reason of insanity, i. e., that this would commit the accused to a mental institution and not set her free upon the streets.

A majority of this court has held that the trial court is not required to charge the jury as to the sentence-effects of verdicts, State v. Blackwell, 298 So.2d 798 (La.1974), nor as to the consequences of an acquittal on the ground of insanity, State v. Babin, 319 So.2d 367 (La.1975) (decided February 24, 1975).

Nor do we find, under the circumstances, any prejudicial abuse of the discretion of the trial court’s failure to so charge, even though it did permit counsel to argue the effect of the insanity acquittal to the jury. Nothing in the instructions to the jury derogated from the argument of counsel based upon the effect of a verdict of not guilty by reason of insanity. The trial court’s exercise of its discretion to permit this argument was favorable to the accused, and there is no showing that the failure to further instruct the jury as to this issue was prejudicial to the accused.

Accordingly, we do not find reversible merit to this assignment of error.

Decree

For the reasons assigned, we affirm the conviction and sentence.

Affirmed.

DIXON and CALOGERO, JJ., dissent.

BARHAM, Justice

(dissenting).

The disposition of assignment of errors Nos. 1 and 4 are erroneous.

ON REHEARING

DIXON, Justice.

Defendant was convicted of the armed robbery of Rex Willet. From this conviction she appeals, perfecting four assignments of error. Because we find merit in one, we limit our discussion to that assignment.

During trial defense counsel timely requested the trial court to instruct the jury as to the effects of the verdict of not guilty by reason of insanity. Counsel sought to have the court read C.Cr.P. 654-658 in his charge to the jury.

The trial court ruled that he was not required to instruct the jury on the law governing the consequences of a verdict of not guilty by reason of insanity. At that time there were no decisions by this court determining whether C.Cr.P. 803 required such an instruction.

In our original opinion in the case before us we held that the trial court did not err in refusing the requested charge. This holding was based on our original decision in State v. Babin, 319 So.2d 367 (La.1975), and the observation that “nothing in the instructions to the jury derogated from the argument of counsel based upon the effect of a verdict of not guilty by reason of insanity.”

We granted a rehearing to decide whether the trial court erred in refusing to give the requested charge even though he allowed defense counsel to include the law of insanity in his closing argument. Upon reconsideration, we reverse our original opinion and hold that where the defendant properly pleads not guilty and not guilty by reason of insanity, upon a proper request the law pertaining to the consequences of a verdict of not guilty by reason of insanity must be included in the charge to the jury.

Defendant did not refute the State’s evidence that she had participated in the armed robbery. Her defense was that she was unable to discern right from wrong at the time she committed the armed robbery. Both the State and the defense presented testimony of medical experts on this issue. In order that the jury would not improvidently assume that to return a verdict of not guilty by reason of insanity would be to return the defendant to freedom, defendant requested the trial court to include C.Cr.P. 654-658, governing the effects of such a verdict, in his charge to the jury.

For the reasons expressed in State v. Babin, supra, on rehearing, we hold that the trial court erred in refusing the requested charge.

On July 25, 1975 this court held on rehearing in State v. Babin, supra, that upon request by defendant or by the jurors the trial court must instruct the jury on the effect of the verdict of not guilty by reason of insanity. That decision was based on the legislative mandate of C.Cr.P. 803 and the need to prevent a “possible miscarriage of justice flowing from the imprisonment of one who should be hospitalized, because the jury does not understand the effects of its insanity verdict.” Precisely these reasons compel our holding in the case before us.

On September 5, 1975 application for a second rehearing in State v. Babin was denied, hence the judgment in that case became final, and this defendant’s timely application for a rehearing was granted. We are not confronted with the question whether State v. Babin is to be applied retroactively. The case before us stands on its own merit.

However, we note that, even under the apparent principles of retroactivity applied in the area of new found constitutional righ.ts, the same result is reached. The opinions of the United States Supreme Court have developed no clear test or analysis governing the retroactivity of new found constitutional rights (see State v. Rester, 309 So.2d 321 (La.1975)), nor do these opinions control in the case before us. Nonetheless, the action we take is in accordance with opinions of that court providing that except where the so-called new rule goes to the very integrity of the fact-finding process, Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), a retroactive application of the new rule is not compelled. It is not clear what the term “retroactive application” includes. And where the so-called new rule does not go tó the very integrity of the fact-finding process, the applicable test involves a balancing of considerations announced in Linkletter v. Walker, supra, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 2d 1199 (1967).

Because our decision in Babin was to prevent the jury from refusing to return an insanity verdict for fear it .would thereby necessarily return defendant to freedom, it is clear that the rule of Babin goes to the very integrity of the fact-finding process.

It is further contended that any error was cured by the trial court’s allowing defense counsel to include the law relative to insanity verdicts in his closing argument to the jury. We are not impressed with this argument. The typical jury charge informs the jury that it is duty bound to take the law as instructed by the court, and that the arguments of counsel do not amount to law in the case. Indeed, C.Cr.P. 802 requires such a charge. It further provides that the court, rather than counsel, shall charge the jury as to the law applicable in the case.

For these reasons, the conviction and sentence are reversed and set aside and the case is remanded for a new trial. Harris, 258 La. 720, 247 So.2d 847 (1971); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967); State v. Green, 244 La. 80, 150 So.2d 571 (1963); State v. Morris, 222 La. 480, 62 So.2d 649 (1952); Gambrell v. State, 238 Miss. 892, 120 So.2d 758 (1960); State v. Garrett, 391 S.W.2d 235 (Mo.1965); State v. Hood, 123 Vt. 273, 187 A.2d 499 (1963); Ann. 11 A.L.R.3rd 737; 11 A.L.R.3rd 732.

SANDERS, C. J., dissents. See my dissent in State v. Babin, 319 So.2d 367 (La., 1975).

SUMMERS, J., dissents and assigns reasons.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I dissented in State v. Babin, 319 So.2d 367 (La.1975). My dissent in Babin was based upon this court’s rationale in State v. Blackwell, 298 So.2d 798 (La.1974). For the same reason, I respectfully dissent in this case. Moreover, I do not consider that retroactive application of the rule of Babin is compelled. In my view, Babin should not be applied retroactively to trials conducted prior to the date that decision became final.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned in the dissenting opinion of the Chief Justice in State v. Babin, 319 So.2d 383 (La.1975), and my dissent in State v. Blackwell, 298 So.2d 798 (La.1973). See also State v. Lewis, 296 So.2d 824 (La.1974); State v.

      . In State v. Hall, the state contended (as it does here) that the recorded statement was not subject to pre-trial inspection under the rule that oral statements are not. In rejecting the analogy and instead analogizing recorded statements as more similar to written statements, the court noted that such an oral statement can only be established by parole evidence. 253 La. 425, 218 So.2d 322. Whatever tlie merits of the reasons for refusing to extend pre-trial discovery to oral statements, see State v. Watson, 301 So.2d 653 (La. 1974), they do not here apply.

      . “ . . .
      “When a defendant has specially pleaded insanity in accordance with Article 552, the court shall charge the jury with respect to the law applicable thereto.” (C.Cr.P. 803).

      . “A. Within fourteen days of rendition of the judgment of the supreme court, in term time or out, a party may apply to the supreme court for a rehearing. The court may act upon the application at any time.
      “B. A judgment rendered by the supreme court becomes final when the delay for applying for a rehearing has expired and no application therefor has been made.
      “C. In appellate courts other than the supreme court, the provisions of this article shall apply except that the delay for applying for a rehearing shall be five days.
      “D. If an application for a rehearing has been made timely, a judgment of the appellate court becomes final when the application is denied.” (C.Cr.P. 922).

      . Compare Linkletter v. Walker, supra, and Tehan v. U. S. ex ret. Shott, 382 U.S. 407, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), with Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L.Ed.2d 882 (1966). See also Justice Harlan’s dissenting opinion in U. S. v. Mackey, 401 U.S. 667, 91 S.Ct. 1160, 28 L. Ed.2d 404 (1971).

      . “The court shall charge the jury:
      “(1) As to the law applicable to the case;
      “(2) That the jury is the judge of the law and of the facts on the question of guilt or innocence, but that it has the duty to accept and to apply the law as given by the court; and
      “(3) That the jury alone shall determine the weight and credibility of the evidence.” (C. Cr.P. 802).


author: PRICE, Judge.

text:
    Marilyn Elizabeth HUGHES, Plaintiff-Appellee, v. Clifford Carey HUGHES, Defendant-Appellant.
    No. 12826.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.

      Martin S. Sanders, Jr., Winnfield, for defendant-appellant.
    Charles B. Bice, Winnfield, for plaintiff-appellee.
    Before PRICE, HALL and BOLIN, JJ.
   PRICE, Judge.

This appeal concerns the sufficiency of evidence presented to sustain a finding by the trial court that the defendant, Clifford Carey Hughes, was guilty of cruel treatment toward his wife, Marilyn Elizabeth Hughes, to entitle her to a separation from bed and board.

Mrs. Hughes filed this action in April 1974, alleging in her original and amended pleadings that defendant had treated her coldly and indifferently, was habitually intemperate, and that on an occasion in December 1971, he had ordered her from the family home and threatened to do her bodily harm. She further alleges they separated after this incident until November of 1972, at which time she returned to the domicile on defendant’s promises to correct his behavior. Further allegations are made that after approximately one month, defendant returned to his general course of abusive treatment of plaintiff, including cursing and physical threats toward her making it necessary that she again separate from defendant on December 18, 1973, and file this suit for a separation from bed and board.

Defendant denied plaintiff’s accusations and reconvened for a separation in his favor contending the action of plaintiff in leaving the domicile on December 18th was without cause and constituted an abandonment.

We consider it to be in the best interest of both parties to discuss in as little detail as possible their personal marital difficulties in this appellate opinion.

As we understand defendant’s argument on this appeal, he contends that although he was guilty of causing the initial separation in December 1971, the record does not contain any reliable proof of his having continued the course of cruel treatment after the reconciliation in November of 1972, and therefore plaintiff has not met her burden of proof.

In his reasons for judgment, the trial judge relied on the testimony of the only child of the marriage to resolve the conflicting testimony of the parties and to find plaintiff had proven her entitlement to a separation. This daughter who had married at the time of trial, was a college student during the troubled years of her parent’s marriage but was present in the home on a number of occasions when there was discord between her parents. Her testimony confirmed her mother’s allegations concerning the continuation of the cruel treatment by her father.

The trial judge construed her testimony to relate to the actions of defendant after the reconciliation in November 1972, and found the testimony sufficiently convincing to establish that defendant cursed his wife on many occasions and declared that he did not love either his wife or his daughter. The court found this conduct to constitute mental harassment sufficient to render the continued living together insupportable.

From our examination of the record, we find this conclusion to be supported by the evidence and to be in accord with the prior jurisprudence.

There are no ancillary issues involved for review. For these reasons the judgment appealed from is affirmed at appellant’s cost.


text:
    Leone Chandler CLARK, Plaintiff-Appellant, v. Benjamin F. VAUGHAN et al., Defendants-Appellees.
    No. 12819.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.
    Mecom, Scott & Woods by B. J. Woods, Shreveport, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by William Timothy Allen, III, Shreveport, for defendants-appellees.
    Before PRICE, SMITH and BOLIN, JJ-
   PRICE, Judge.

Plaintiff-appellant, Leone Chandler Clark, neither appeared nor filed a brief in this matter prior to the time the case was called for oral argument. Pursuant to Rule 7, Section 5(b), Uniform Rules, Courts of Appeal, this appeal is considered abandoned, and is hereby dismissed at appellant’s cost.

Appeal dismissed.


author: STOULIG, Judge.

text:
    L. D. BRINKMAN & CO. v. BINKS CARPET SALES, INC., and Binks A. Graval.
    No. 7231.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.

      Satterlee & Mestayer, Henry F. Mestayer, New Orleans, for plaintiff-appellant.
    Pres Kabacoff, New Orleans, for defendants-appellees.
    Before SAMUEL, STOULIG and BOU-' TALL, JJ.
   STOULIG, Judge.

Plaintiff, L. D. Brinkman & Co., filed suit against the defendants, Binks Carpet Sales, Inc., and Binks A. Graval, for $15,437.54 past due on an open account. The liability of the corporation (now insolvent) for the debt is admitted. What is at issue is the personal liability of Graval.

Plaintiff bases its claim of individual liability on a personal guaranty executed by Graval in 1969 when it first extended credit to Binks Carpet Sales, an individual proprietorship. In July 1971, Graval discontinued this form of business operation and converted to a corporate entity, known as Binks Carpet Sales, Inc. It was stipulated that all the merchandise for which payment is claimed was delivered after Graval began operating his business as a corporation. The trial court, noting in its reasons for judgment a contract of personal guaranty must be strictly construed and cannot be expanded beyond its terms, refused to render a judgment against Graval individually because the “ * * * guaranty given by Binks Graval was given as to the obligations of the proprietorship and not those of the corporation.”

We affirm. Graval personally guaranteed the debts of Binks Carpet Sales in a document executed October 27, 1969. When the business was incorporated in July, 1971, Graval claims all his creditors were notified by letter of the change of entity. Plaintiff’s representative denied receiving the letter but admits he learned of the corporate status in late 1972 or early 1973. The trial judge resolved this conflicting factual situation against the plaintiff and concluded that it knowingly extended credit to the corporation before the merchandise was delivered. This finding is supported by the admission of Wayne Harris, plaintiff’s representative, that an attempt was made to obtain a personal guaranty from Graval on the corporate debts “late in ’72 or early in ’73.”

Absent a finding of manifest error in the conclusion the plaintiff knowingly extended credit to Binks Carpet Sales, Inc., as a corporation, there is no basis for reversing the judgment.

For the reasons assigned, the judgment appealed from is affirmed; all costs to be borne by appellant.

Affirmed.

      . Texaco, Inc. v. State Hot Mix Corporation, 276 So.2d 383 (La.App.2d Cir.1973).

      . The continuing guaranty agreement does not contain a provision that would extend the guarantor’s liability to the successor or assigns of Binks Carpet Sales.