author: BARHAM, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Renate E. MOORCRAFT.
    No. 55852.
    Supreme Court of Louisiana.
    Sept. 5, 1975.

      Richard L. Muller, Massony & Muller, Covington, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Patrick J. Berrigan, Asst. Dist. Atty., for plaintiff-respondent.
   BARHAM, Justice.

A bill of information charging relator with failure to stop at a stop sign, a violation of La.R.S. 32:123, and a second bill of information, charging the crime of resisting an officer, a violation of La.R.S. 14:108(a), formed the basis for the prosecutions which we review. The relator was convicted of both offenses and sentenced in each instance to pay a fine and costs, in default of which jail sentences of varying lengths must be served. We granted writs to review various rulings of the trial court of which relator complained. 307 So.2d 636 (La.1975). Finding merit in relator’s specification concerning the trial court’s refusal to hear defense counsel’s closing argument, we reverse the convictions and sentences.

After all the evidence had been adduced and both sides had rested, relator’s counsel requested an opportunity to present relator’s side of the case. The trial court responded that it did not wish to hear argument; the transcript indicates that defense counsel attempted to respond to the court but was cut off by the court. In so doing, the judge stated that he would entertain any statement which counsel might wish to make for some reason other than closing argument. Defense counsel thereupon requested that the court state for the record, when announcing its verdict, its finding of whether relator attempted to flee the scene of the arrest. This request was denied and the court proceeded to render verdicts of guilty in both cases and pronounce sentence thereon.

Relator argues that the trial court committed reversible error in refusing to hear closing argument. In support of this position, she cites State v. Hollingsworth, 160 La. 26, 106 So. 662 (1925). In that case it was held that a trial judge who refused to hear closing argument from defense counsel committed reversible error. The Court stated,

“ * * * Counsel should have been allowed a reasonable time in which to present the case from the standpoint of the accused, and the refusal of the trial judge to grant him any time at all was the denial of a constitutional right to be heard.” 106 So. at 667.

Before announcing its holding, the Court noted that " * * * when the trial judge or jury disposes finally of the matter without right of appeal, as the judge and jury do in criminal cases on questions of fact, the defendant is entitled to a hearing before he is condemned. * * * ” 106 So. at 667.

This holding of the Hollingsworth case is still applicable; in the fifty years since Hollingsworth was decided, there has never arisen any case in which it was overruled or its soundness criticized. The reasons for the Hollingsworth holding are just as valid today, if not more so. In conformity with Hollingsworth, we therefore hold that the trial court erred in the present case.

There exists a further compelling reason for holding that the trial court’s refusal of closing argument constitutes reversible error. In Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), the United States Supreme Court held that total denial of the opportunity to present final argument in a criminal trial before a judge, as well as in a jury trial, is violative of a defendant’s rights under the Sixth Amendment to the United States Constitution. Therefore, in addition to contravening a Louisiana defendant’s rights under Article I, § 13 of the Louisiana Constitution of 1974 and Article I, § 9 of the Louisiana Constitution of 1921, the denial of final argument violates the United States Constitution.

The State argues in brief that the relator failed to object to the trial court’s ruling denying him the right to present final argument and, consequently, failed to set forth the grounds for objection. This allegation of failure to object and give reasons therefor must be considered in light of La.C.Cr.P. art. 841, as amended by Act 297 of 1974, which reads in pertinent part:

“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. * * * It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
“ * * *.” (Emphasis supplied.)

A review of the verbatim transcript of relator’s request for opportunity to present final argument and the subsequent colloquy between relator’s attorney and the court clearly exhibits that relator’s attorney, at the time of the court’s ruling, made known to the court the action he desired the court to take; the code article expressly states that this “ * * * is sufficient * * *The requirement of making known “ * * * his obj ections to the action of the court, and the grounds therefor * * * ” is clearly stated in the alternative, as is evident from the comma appearing after the word “take,” and the use of the disjunctive “or,” following the comma. It is our opinion that the relator’s attorney exhibited, as clearly as he was able under the circumstances, that he desired the court to permit him to present final argument. The colloquy set forth in footnote 1 indicates that counsel was probably attempting to elaborate his request and the reasons therefor when the court effectively prevented further explanation or comment by interrupting the attorney’s remarks to reiterate its ruling on counsel’s request and to clarify its restriction. One is able to discern from that colloquy that any further pursuit of the right to argument might have been regarded as contemptuous conduct of the attorney. Defense counsel’s efforts were sufficient to preserve the error of which he complains; the complaint is properly the subject of our appellate review.

For the foregoing reasons, the relator’s convictions and sentences are reversed.

SUMMERS, Justice

(dissenting).

When all of the evidence was heard and the State and defense rested, defense counsel requested that he be granted the opportunity to present his side of the case, although the District Attorney did not argue for the State. The trial judge informed defense counsel that he did not want to hear argument, but advised that if he wanted to make a statement for some other reason he would be heard. Whereupon defense counsel requested that the judge record his findings on whether or not defendant attempted to flee the scene. This motion was denied, the judge ruling that he would only render a verdict of guilty or not guilty. He then proceeded to render his verdict and sentenced the defendant.

On this review counsel assigns error to the judge’s failure to hear his closing argument, relying on Article 765(6) of the Code of Criminal Procedure establishing the normal order of trial as follows :

“(1) The selection and swearing of the jury;
(2) The reading of the indictment;
. (3) The reading of the defendant’s plea on arraignment;
(4) The opening statements of the state and of the defendant;
(5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence prior to argument;
(6) The argument of the state, the defendant, and the state in rebuttal;
(7) The court’s charge;
(8) The announcement of the verdict or mistrial in jury cases, or of the judgment in nonjury cases; and
(9) The discharge of the jury in jury cases.”

This record reveals that a number of these steps were not taken in this trial. For instance, obviously no jury was selected; the indictment was not read; defendant’s plea on arraignment was not read; opening statements were not made; the state did not argue; the judge did not charge himself, and, of course, no jury was discharged.

Insofar as the steps which apply to bench trials are concerned, no objection was made by defense counsel that these steps were not taken. These variations from the requirements of Article 765 are common in bench trials for apparent and sensible reasons. To counsel and the judge it is redundant and a waste of time in some instances to insist on compliance with steps which are merely formalities, repeating matters with which they are entirely familiar, or which shed no light upon their knowledge of the case. It is for this reason that the law wisely does not insist that all steps be rigidly applied and recognizes that variations can occur if the defendant does not object. State v. Leslie, 244 La. 921, 155 So.2d 19 (1963); State v. Neal, 231 La. 1048, 93 So.2d 554 (1957); State v. Peyton, 194 La. 681, 194 So. 715 (1940); State v. Fuchs, 178 La. 1057, 152 So. 757 (1934).

Article 841 of the Code of Criminal Procedure, as amended by Act 297 of 1974, which governs this trial, plainly provides that

“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence . . It is sufficient that a party, at the time the ruling or order of court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor. . . .”

Thus, a contemporaneous objection is required, together with a statement of the reasons therefor. No grounds were given for the objection other than defense counsel’s statement that the trial judge should state the reasons for his verdict. When the trial judge advised that he would not do so, no further request was made by defense counsel, although defense counsel had ample opportunity to do so. A defendant may not wait until after conviction “with an anchor to windward” to urge his objection. The phrase “cannot be availed of after verdict” means that the failure to object amounts to a waiver of the irregularity. This is what I feel occurred in this case.

The ruling of the judge was understandable for several reasons: He had just heard the evidence in a short trial not involving complex factual or legal issues; defense counsel had waived a number of other steps in the trial, and the case was undoubtedly of a routine character to the judge and counsel. Argument in such a case by defense counsel would, in the words of Mr. Justice Jackson, be “likely to leave [a] judge where it found him.” Jackson, The Struggle for Judicial Supremacy at 301 (New York, Alfred A. Knopf, 1941).

Furthermore, the oral argument was waived at the hearing in this Court on joint motion of the State and the defense, indicating that it was not sacramental. Defense counsel did, however, submit a well-prepared and cogent brief to this Court. It can hardly be said that defendant was denied a constitutional right under these circumstances. The practical effect of denying argument in this case was close to nothing.

“A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice . . . . ” My reading of the testimony convinces me that this guilty verdict was not a miscarriage of justice, nor “prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.” La.Code Crim.Proc. art. 921. This defendant, a young woman, ran a stop light and while the arresting officer was writing her ticket she cursed and reviled him. For instance, “you mother-ing pigs.” “You Goddam son-of-a-bitches.” Further, while the officer was occupied she ran to her car and tried to drive off. When the officer took the key out of the car she struck at and cursed him again.

In my view the majority’s reliance upon the divided decision in Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L. Ed.2d 593 (1975), is misplaced. There a more serious offense was involved, in which the defendant waived trial by jury. The Herring Case was a three-day trial interrupted by an interval of more than two days — a period during which the judge’s memory may well have dimmed. Aside from these very significant distinctions, the Herring Court adopted the decision of the Maryland Court of Appeal which recognized the right of a defendant to be heard in summation, but acknowledged at the same time that this right could be waived, saying:

“The constitutional right of a defendant to be heard through counsel necessarily includes the right to have his counsel make a proper argument on the evidence and the applicable law in his favor, however, simple, clear, unimpeached, and conclusive the evidence may seem, unless he has waived his right to argument, or unless the argument is not within the issues in the case, and the trial court has no discretion to deny the accused such right.” (emphasis added). Yopps v. State, 228 Md. 204, 178 A.2d 879 (1962).

In summary, defense counsel gave no reasons for objecting to the ruling that arguments would not be heard; he was able to state his principal request that the judge find certain facts; and he did not appear in this Court to argue the case on review. I conclude, therefore, that an effective waiver occurred. Moreover, no prejudice resulted to this defendant from the absence of defense summation.

I respectfully dissent.

      . The following excerpt from the transcript reflects what transpired at the time of and subsequent to counsel’s request:
      “[Defense Counsel] :
      We rest.
      “[Prosecutor] :
      We rest, Your Honor.
      “[Defense Counsel]:
      May I have an opportunity to present our side of the case?
      “THE COURT:
      I don’t want to hear any argument, Mr. [defense counsel].
      “[Defense Counsel]:
      Your Honor, may it please the Court, she is—
      “THE COURT:
      Mr. [defense counsel], I just said I don’t want to hear the argument. If you want to make a statement for some other reason—
      “[Defense Counsel] :
      In the event that you hold against Mrs. Moorcraft I would ask that in giving your verdict or your judgment, that you include for the record a finding of whether or not she had attempted to flee the scene.
      “THE COURT:
      I deny your motion on that. * * * ”

      . Our view is further supported by the trial court’s action in response to relator’s motion for new trial. Immediately after ruling that it would not record a finding of whether or not relator’s flight had been proven, the court ordered relator to stand and asked her age. Upon her reply the court pronounced her guilty of violating La.R.S. 32:123 and without pause pronounced sentence. Again without pause, the court announced its finding that she was guilty of violating La.R.S. 14:108(a) and pronounced the second sentence. At tins point, the oral motion for a new trial was made. Immediately, the court denied the motion and relator’s counsel requested that he be allowed to argue the motion before a ruling by the court. This argument was likewise refused by the court, as appears from the following colloquy:
      “THE COURT:

      Stand up, Miss Moorcraft. How old are you, Miss Moorcraft?
      “MISS MOORCRAFT:
      Twenty.
      “THE COURT:
      Let the record show that the defendant having admitted in open court she is twenty years of age, the Court at this time finds her guilty of unlawfully operating a motor vehicle on a public highway by failing to stop said vehicle at a stop sign. The Court at this time fines her $25.00 and Court costs or serve fifteen days in the Parish Jail. On the other count, after having admitted in open Court she is twenty years of age,
      I find her guilty of unlawfully, intentionally and physically resisting Trooper Royce MeOhee, a member of Louisiana State Police. For this, I fine you $100.00 and costs or serve thirty days in Parish Jail.
      “[Defense Counsel] :
      I would ask for a new trial on the basis that a new trial would be on insufficiency of evidence to convict, and no evidence to support a conviction or to establish a simple element of crime.
      “THE COURT:
      Your motion is denied.
      “[Defense Counsel] :
      May I present for the record, please, Your Honor, under the law, I am obligated to present my argument. If overruled at the time, then we have the record for the Court. If I can’t make my argument, the Court when it gets on the appeal, will take the position that I should have made the argument.
      “THE COURT:
      You can argue before the Court of Appeals or the Supreme Court. Your rights aren’t going to prejudice the evidence. Your motion for a new trial is denied.
      “[Defense Counsel] :
      How can I have an appeal that there is no evidence in of the Court—
      “THE COURT:
      I am not going to listen to argument or review evidence; you had already stated that you filed a motion no insufficient evidence. Your motion was denied, Mr. [defense counsel].
      “[Defense Counsel] :
      Your Honor, at this time I would advise that I will take a writ in this matter.”
      While relator argues that the trial court likewise erred in refusing to entertain argument on the new trial motion, we do not reach the merits of this argument, since relator has failed to show that the motion was to have been tendered in proper form, in accordance with La.C.Cr.P. art. 852. The motion was defective for two reasons; first, the motion must be made prior to sentence (La.C.Cr.P. art. 853), and second, the motion must be in writing. Perhaps the untimeliness of the motion could not be used to foreclose relator’s rights since sentence was pronounced without warning by the court. Nevertheless, relator made no claim that she intended to ask for time within which to file a proper, written motion. Absent a showing in this regard, the motion was improper. (La.C. Cr.P. art. 852).


source: Caselaw Access Project

author: TATE, Justice.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Eddie BURKHALTER, Appellant.
    No. 56099.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Sept. 30, 1975.

      Robert A. Connell, Jackson, Stanley E. Branton, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., Cynthia P. Branton, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant, an inmate at the state penitentiary, is convicted of murdering McAllister, another inmate, on November 11, 1972. La.R.S. 14:30 (1950). He was sentenced to life imprisonment.

On his appeal, he urgues four principal errors. Although close issues are presented by two of them, we find no clearly erroneous abuse of the trial court’s discretion and no other reversible error. We therefore affirm.

I

The most serious issue arises from the trial court’s failure to allow evidence of a heated argument between the accused Burkhalter and the victim McAllister some five to ten minutes before the killing. The trial court held that evidence of prior threats could not be admitted because no overt act had been proved, as required by La.R.S. 15:482 (1952).

This enactment provides: “In the absence of hostile demonstration or of overt act on ^ Part °f the person slain or in-j tired, evidence of his dangerous character or his threats against the accused is not admissible.

The context facts are:

Shortly before the killing, McAllister wearing only shorts had gone into a closet washroom. He had a plastic bucket and some dirty clothes, which were found half washed after the killing. He had in fact nothing even resembling a weapon with him.

A guard heard a yell. He saw Burkhal-ter backing out of the washroom. Mc-Allister was holding Burkhalter’s left hand, which held a long dagger made of twisted wire. McAllister had been stabbed. After a short struggle, McAllister fell to the floor, dead (stabbed through the heart).

The defendant then called as his witness another inmate present at the time. Because no overt act had been proved, the trial court sustained the State’s objection to testimony of the violent argument five to ten minutes earlier, apparently to show that McAllister had then threatened Burk-halter. On this objection, the defense withdrew the question.

On resumed defense questioning of the inmate, this witness then stated that, seconds before the yell, McAllister had come out of the washroom as Burkhalter was walking in the hall. The inmate testified that McAllister held the wash bucket tilted, his hand inside it. Burkhalter then walked to McAllister and grabbed him, and the tussle started which resulted in Mc-Allister’s death.

The defense then once more commenced to introduce evidence of the prior threats by McAllister and of McAllister’s violent character.

The trial court held that, under all the circumstances, McAllister’s coming out of the closet with his hand in the bucket did not constitute an overt act or hostile demonstration. It therefore refused to permit introduction of evidence of the prior threats and of the prior argument just five-ten minutes previous.

We agree with counsel for the defendant that the issue is not whether, in fact, McAllister had a weapon in the bucket but, rather, in the light of threats just previously made by McAllister, Burkhalter was at the time in reasonable apprehension of attack by him. We are also inclined to agree with the defense contention that the argument and threats just a few minutes earlier were relevant evidence by which the jury could evaluate the reasonableness of Burkhalter’s belief.

Arguably, under the broad Louisiana interpretations of res gestae, evidence of the argument immediately preceding by some ten minutes the fatal encounter should have been admitted into evidence. See La.R.S. 15:448: “To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.” Presumably, if the State had sought to introduce this evidence in explanation of Burkhalter’s attack on McAllister, the issue would have been resolved in favor of admissibility.

Nevertheless, in the light of the entire record, we are not quite prepared to hold that the trial court’s finding that no overt hostile act occurred is so clearly erroneous as to warrant reversal of this conviction.

A man clad only in shorts who walks out of a washroom with his hand in a plastic bucket under usual circumstances does not constitute a hostile attack. Granted that the occurrence could take on a dangerous appearance in the context of a penitentiary corridor, nevertheless the uncontradicted evidence (most favorably to the defendant) is that McAllister simply walked out into the hall with the bucket, that Burkhalter (armed with a dagger) immediately approached him, grabbed him, and entered into a struggle in which the unarmed McAllister was stabbed to death.

Under these facts, we cannot say that the trial court clearly erred in holding that, whether or not the prior threats had in fact been made, Burkhalter could not reasonably have believed that McAllister’s entry into the hall from the wash closet, hand in bucket, constituted a hostile act entitling Burkhalter to use violence in self-defense.

Thus, we find no reversible error in this assignment. However, we do so with the caution that normally such evidence so closely connected in time and place may well be admissible as relevantly explaining the act for which the accused is charged.

II

During the voir dire examination of a prospective petit juror, the State discovered that the juror had a brother who was also an inmate at the penitentiary. The defendant objected to the State’s further questioning of this juror relative to his brother’s incarceration (in the same institution as the accused and the victim).

In meeting the defense objection and explaining this line of questioning, the district attorney (in the presence of already-sworn and prospective jurors) argued that the questioning was pertinent because the man’s brother might suffer retaliation if the jury (including the particular juror) returned a verdict of guilty. Thus, by implication the prospective juror might be unable to be impartial.

The defendant then moved for a mistrial. He argues that, as made in the presence of jurymen, the statement was highly prejudicial. Inter alia, it implied a violent and lawless character on the part of the accused. The defendant again urges that this highly prejudicial remark by the prosecutor tainted the jury and its verdict and denied him a fair trial. Assignment of Error No. 6.

The prosecutor’s remark in the presence of the jurymen was unfortunate. The argument should most probably have been made out of the hearing of the chosen and prospective jurors. In most circumstances, made in the presence of jurymen, the remark would constitute prejudice of a nature that a mere admonition to the jury to disregard it might not be sufficient.

The argument at the time of the motion and the trial court’s per curiam indicates that the possibility of retaliation was reasonably familiar to the prospective veniremen. They were from West Feliciana, the seat of the penitentiary, where violent crimes of inmates against other inmates are not infrequent. Further, the factual comment of the district attorney was brief and not inflammatory nor deliberately injective of prejudice. There is no showing of a recurrent pattern of prosecutorial comment of this nature before jurors. Under all of the circumstances, we are unwilling to hold that the trial court abused its discretion in strongly and explicitly admonishing the jury to disregard the prosecutor’s remark, rather than in granting a mistrial. La.C.Cr.P. art. 771.

Ill

The other contentions are without reversible merit and can be disposed of briefly:

(1) The trial jury was sworn and trial on the merits was had in October, 1974. The defendant attacks the jury ve-nires because women were effectively excluded, although in accord with state law at the time. Assignments of Error Nos. 1(A), 5. Subsequent to the present trial, these state provisions were held to violate federal constitutional guarantees affording jury trials to those accused of serious crime. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). We have held that the ruling does not apply to trial jury empanelled before Taylor. State v. Rester, 309 So.2d 321 (La.1975); see also Daniels v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1972).

(2) The defendant contends that the grand jury which indicted was improperly constituted in that it contained a nonresident of the parish, McMorris, in violation of La.C.Cr.P. art. 401. Assignments of Error 1(B) 5. The defendant also questions certain evidentiary rulings relative to denial of further cross-examination of McMorris along lines deemed irrelevant and to the admission of grand jury minutes, over objection. Assignments of Error 2, 3, 4. On the identical transcript (several defendants in different prosecutions joined in the motions to quash indictments on this ground), we rejected the contention that the grand juror was disqualified. State v. Brewer, La.,. 301 So.2d 630, 635 (1974) (syllabus 9). We are unwilling to hold that the trial court erred in its limitation of further questioning after extensive cross-examination as to the main facts at issue; nor can we say that the defendant was prejudiced by the admission of the grand jury minutes in the preliminary motion heard outside the presence of the jury.

Decree

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

Affirmed.

SUMMERS, J., concurs in decree.

BARHAM, J., dissents.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Freddie Lee CANN.
    No. 56266.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Mack J. Marsh, Davenport, Files & Kelly, Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiff-respondent.
   DIXON, Justice.

The defendant, Freddie Lee Cann, was charged by bill of information with the crime of possession of a controlled dangerous substance, marijuana, in violation of R.S. 40:966. He entered a plea of not guilty, and was tried and convicted of possession of marijuana on March 11, 1975. He was sentenced to pay a fine of $250.00 and court costs, or, in default thereof, to serve thirty days in the parish jail. We granted certiorari to review the correctness of the trial judge’s overruling of defendant’s motion for a directed verdict. We now reverse.

On May 28, 1974 members of the Ouach-ita-Morehouse Narcotics Strike Force raided an apartment in Monroe to execute a previously obtained search warrant. The officers encountered resistance at the door by one of the occupants and had to force their way into the apartment. The defendant was subsequently found in a bedroom, behind locked doors. The officers, after bringing all the persons present in the apartment to the living area, began to search the premises, which resulted in their finding a quantity of marijuana in the kitchen and some gleanings in the garbage outside the apartment. No marijuana was found on the defendant or in the bedroom where he was found. The State contends there was evidence of constructive possession, therefor the trial judge properly overruled the defendant’s motion for a directed verdict.

The Louisiana jurisprudence has established that one need not actually possess the controlled dangerous substance to violate the prohibition against possession thereof, constructive possession being sufficient. In State v. Smith, 257 La. 1109, 245 So.2d 327, 329 (1971), we held:

“A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Also, a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control of it.”

This statement of a legal principle, however, fails to explain, or illustrate what facts must exist before constructive possession can be proven.

First, the term “constructive possession” is a term of legal art, describing the situation in which a person, not in physical possession of a thing, can, nevertheless be considered to be in legal possession of the thing.

However, the mere presence of someone in the area where the controlled dangerous substance is found, or the mere fact that someone knows the person who is in actual possession of the controlled dangerous substance is insufficient to constitute constructive possession by that person. In United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973), the court said:

“ . . . By the same token, mere presence in the area where the narcotic if discovered or mere association with the person who does control the drug or the property where it is located, is insufficient to support a finding of possession. . . . ”

The United States Court of Appeals for the Third Circuit reached the same result in United States v. Davis, 461 F.2d 1026, 1036 (3d Cir. 1972):

“On the other hand mere proximity to the drug, or mere presence on the property where i't is located or mere association with the person who does control the drug or the property, is insufficient to support a finding of possession. See, e. g., United States v. Holland, 144 U.S. App.D.C. 225, 445 F.2d 701 (1971); Avellanes v. United States, 302 F.2d 603, 606 (9th Cir. 1962); United States v. Mills, 293 F.2d 609 (3d Cir. 1961).”

The same result should obtain in prosecutions under R.S. 40:966. In order to convict a person on the basis of constructive possession, something more than mere presence in the area where the drug is found or mere association with the person in actual custody of the drug must be shown. Our own jurisprudence guides us in this determination.

In State v. Knight, 298 So.2d 726 (La. 1974), the evidence showed that one Poole was approached by Chambley and asked if he would like to buy some marijuana. At this time, the defendant Knight was in a parked car belonging to Chambley. Poole contacted police, and a set up was arranged in the park. At this meeting, the defendant Knight arrived with Chambley and sat on a bench some feet away from the Poole-Chambley transaction. After preliminary negotiations, Chambley called Knight over, telling him to bring his “lunch,” whereupon Knight handed Cham-bley a brown bag containing the marijuana. Chambley and Knight then left in the same car and were apprehended together. In response to a motion for a directed verdict on the grounds that the State failed to prove guilty knowledge, this court held:

“From a reading of the record, we conclude there was some evidence that this defendant, Knight, had knowledge that the brown paper bag contained marijuana when he handed it to Chambley for the sale to Poole. Chambley and Knight were together when Chambley originally approached Poole; they were again together for the meeting in the park; Chambley called upon Knight to deliver to him the bag containing the marijuana for purpose of the sale; Knight handed Chambley the bag from which the marijuana was produced with Knight in close proximity; Knight and Chambley departed in the automobile together; they were also together when apprehended.” (298 So.2d 726, 728, 729).

In State v. Williams, 250 La. 64, 193 So.2d 787 (1967), the evidence showed that members of the New Orleans Police Department, after keeping the apartment of defendant Williams, a well-known drug addict, under surveillance for drug traffic, obtained a warrant to search the premises. When the officers knocked on the door announcing their presence, they observed one of the defendants, Hazel Jones, go immediately into the kitchen and return, at which time defendant Bartholomew opened the door to let the police officers in. They observed that Bartholomew appeared to be under the influence of drugs. Their search revealed heroin hidden in the living area and the kitchen, along with narcotics paraphernalia, such as hypodermic needles. Based on this evidence, a finding of constructive possession was upheld. The State had shown, inter alia, (1) this apartment was a frequent place for drug trafficking; (2) the defendants were found in an area where drugs were subsequently discovered; (3) one of the defendants appeared to be under the influence of drugs; (4) one of the defendants rushed into the kitchen when the police knocked, and drugs were subsequently found in the kitchen. Of further significance is the fact that Williams, the tenant of the apartment, was not present when the other three were arrested, leading to the inference, at least, that persons other than Williams had ready access to the apartment.

In State v. Porter, 296 So.2d 302 (La. 1974), the defendant was convicted of possession of marijuana, based on a finding of constructive possession. In that case, the evidence revealed that Porter and several others were standing by or seated in Porter’s parked car in a park at 2:15 a. m. When officers investigated, they found a paper bag about ten feet from the driver’s door containing four plastic bags of marijuana and a separate open plastic bag of marijuana lying on the ground near the area where Porter had been standing. In addition, a partially smoked marijuana cigarette was found on the ground next to the driver’s door and a butt was found in the area between the driver’s seat and the door panel. Finally, a Kleenex tissue containing a small amount of marijuana was found on the dashboard. The defendant claimed he had no knowledge of the drug’s presence in his car and that it was brought into his car by one of the other occupants without his knowledge. This court held:

“Applying these guidelines to the facts of the present case, we conclude that the record contains some evidence that Porter knowingly or intentionally constructively possessed the marijuana in question. The drug, although not found on his person, was discovered in areas under his direct control and dominion. We must bear in mind that Porter was the owner and driver of the vehicle. By his own testimony, he. parked his car in Clark’s Park only two or three minutes before the police officers arrived. In that short length of time, a paper bag containing four ‘lids’ of marijuana and an open plastic bag of marijuana were thrown to the ground in the area where Porter had been standing. Furthermore, a ‘joint’ was found next to the driver’s door and a ‘roach’ was discovered in the area between the driver’s seat and the door panel. Also, a toilet tissue or Kleenex containing the drug was found on the dashboard of the car. We consider these facts constitute not merely some evidence, but ample evidence to establish guilty knowledge on the part of Porter. Hence, since there is some evidence that Porter knowingly or intentionally possessed the marijuana, the verdict will not be disturbed.” (296 So.2d 302,304).

The federal courts have illustrated factual circumstances which support findings of constructive possession under federal narcotics statutes. In United States v. Davis, supra, Inez Davis was convicted of receiving and concealing narcotics and possession of narcotic drugs not in or from the original stamped package. Her defense was that the heroin was brought into the apartment by a visitor and that she had no knowledge that the substance found by the police was heroin. In upholding a verdict based on constructive possession, the court cited three factors: (1) the apartment in which the heroin was found was hers; (2) the heroin was found in plain view in the kitchen of her small three room apartment; (3) measuring spoons, mixing paraphernalia and a number of empty glassine bags were found on the kitchen table; (4) measured amounts of heroin had been placed in fifteen of the glassine bags; and (S) forty-six bagged heroin doses were found on the floor near her refrigerator. From this, the court concluded :

“ . . . Under the circumstances we think the jury could have inferred that she knowingly had the power to exercise and control the heroin mixture, either alone or together with her father.” (461 F.2d 1026, 1036).

Finally, see People v. Bedford, 223 N.E. 2d 290, 292 (1966), wherein the Illinois court held:

“In the instant case, according to the un-controverted evidence, defendant did not rent the apartment in which the narcotics were found; was only an infrequent visitor to the apartment; and did not have a key thereto. Additionally, the envelope containing the narcotics was marked ‘Barbara,’ and although Barbara Bedford was arrested as an addict, she was not charged as a possessor of narcotics. (It was her brother, an addict and an informer for the police in narcotics cases, who signed the complaint for the search warrant). Neither the receipts and bills found in the apartment nor defendant’s purported admissions that he lived therein are sufficient, in our opinion, to establish defendant’s guilt. . . . ”

We have reviewed these cases in order to learn, if we can, what facts will support findings of constructive possession. However, the cases are illustrative only. Each case, of necessity, must stand or fall on its own merits. In the instant case, we find that the State, in presenting its case against the defendant, proved (1) a quantity of marijuana was found in the kitchen and the outside garbage of an apartment rented by someone other than this defendant; (2) the officers encountered resistance at the front door by someone other than this defendant; (3) this defendant was found in the apartment, in a bedroom behind locked doors with a female person when the officers gained entrance to execute their warrant.

However, the State offered no evidence (1) that this defendant knew or had reason to know there was marijuana in the kitchen; (2) that this defendant had been in this apartment on other occasions; (3) how long this defendant had been in the apartment on this particular night; (4) that this apartment was frequented by drug users; (5) that anyone other than James Johnson, the tenant of the apartment, had access to the apartment and its contents; (6) that any drugs were found on the person of this defendant or in the area of the apartment where he was found; (7) that any partially smoked cigarettes or butts were found anywhere in the apartment; or (8) that this defendant in any way had any control over the marijuana that was found in the apartment.

This court has held that the trial judge’s ruling on a motion for a directed verdict will be reversed only if we find, as a matter of law, that there is “no evidence” of an essential element of the offense in the record. State v. Ford, 315 So.2d 276 (La. 1975); State v. Williams, 311 So.2d 850 (La.1975); State v. Douglas, 278 So.2d 485 (La.1973). Here we find that the State presented no .evidence of an essential element of the crime of possession of a controlled dangerous substance; there is no evidence that defendant either had or shared possession, dominion or control of contraband. The motion for a directed verdict should have been granted. State v. Bradley, 310 So.2d 582 (La.1975).

For the reasons assigned, the conviction and sentence are reversed and set aside, and the cause remanded to the trial court for proceedings consistent with this opinion.

      . Four persons were found in the apartment: James Johnson, the tenant, two female acquaintances, and the defendant.

      . The officers found some six bags of marijuana in plain view and a black cardboard box containing about a pound of marijuana and eight bags in a cabinet.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Willie CARNEY, Jr.
    No. 56032.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      Fred C. Jackson, St. Francisville, for defendant-appellant.
    William T. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., Cynthia Picou Bran-ton, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Willie Carney, Jr., was indicted by the grand jury of West Feliciana Parish for the second degree murder on August 11, 1973 of Irving Breaux in violation of Article 30.1 of the Criminal Code.

Insofar as it is pertinent to this case, Article 30.1 provides: “Second degree murder is the killing of a human being: (1)When the offender has a specific intent to kill or to inflict great bodily harm . . . .”

After trial by jury, Carney was found guilty and sentenced to imprisonment at hard labor for life, not eligible for parole, probation or suspension of sentence for twenty years.

One assignment of error is relied upon in support of this appeal. It is alleged that there is “insufficient evidence to justify a verdict of guilty.” Aside from the fact that the assignment of error sets forth “insufficiency of the evidence” as a basis for error, it is nowhere set forth in the assignment of error or in brief the particular element of the crime concerning which the evidence is wanting.

The jurisdiction of this court, in criminal cases, is confined to questions of law, and the question of the sufficiency of the evidence is one of fact, to which, therefore, that jurisdiction does not extend. La.Const. Art. VII, ¶ 10(7) (1921); State v. Singleton, 252 La. 976, 215 So.2d 512 (1968); State v. Steuer, 138 La. 303, 70 So. 233 (1915).

Even an allegation that there is complete lack of evidence to support the proof essential to a valid conviction without pointing out the particular element of the crime as to which the proof is wanting presents nothing for review by this court. La.Code Crim.P. arts. 852 & 858, State v. Collins, 306 So.2d 662 (La.1975); State v. Bueche, 243 La. 160, 142 So.2d 381 (1962).

Notwithstanding the failure to properly present the issue, the entire record has been carefully reviewed, and it is found that there is evidence of the essential elements of the crime. Since there is some evidence of the essential elements of the crime, determination of the weight, credibility and sufficiency of that evidence is a matter of fact bearing upon the guilt or innocence of the accused. It is not a question of law upon which this Court can pass. La.Const. art. VII, ffl0(7) (1921).

The killing occurred in a dormitory of the penitentiary at Angola. The victim’s death was verified by the coroner and the act of killing was witnessed by Davis Benoit a penitentiary employee. He testified that Carney and his brother stabbed the victim a number of times as the result of a fight in which they were engaged because of a verbal exchange between them'. The victim had no knife or other weapon. Although other eyewitnesses testified that the victim did have a knife and was the aggressor in the affray, they were prisoners whose credibility was questioned on cross-examination. The credibility of the testimony and the weight to be given to it is a question for the jury. Undoubtedly the jury accepted the witness Benoit’s testimony. This was their province and the numerous stab wounds furnished adequate evidence of the requisite “specific intent to kill or to inflict great bodily harm” as Article 30.1 requires, for “though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.” La.R.S. 15:445. See also La.R.S. 15:444.

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

DIXON and BARHAM, JJ., concur.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Earl Kennon BRUMFIELD and Donald Lynn Warren.
    No. 56431.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      Wilmon L. Richardson, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yokum, Sr., Dist. Atty., Calvin C. Fa-yard, Jr., Asst. Dist. Atty., for plaintiffs-appellees.
   SANDERS, Chief Justice.

The State charged defendants Earl Ken-non Brumfield and Donald Lynn Warren each with three counts of aggravated assault, violations of LSA-R.S. 14:37. The trial judge found them guilty as charged and sentenced each defendant to six months imprisonment in the parish jail. Defense counsel moved for an appeal, which the trial judge granted, setting the return date to the Supreme Court as April 25, 1975.

The record we have before us contains a pleading by defense counsel styled as both an appeal and a petition for a writ of cer-tiorari. The State objected to the appeal, and filed in the district court a written opposition thereto, which the trial court did not act upon in any way.

Our ■ threshold determination must be whether or not this Court has jurisdiction to hear an appeal in this case. A case is properly appealable to the Supreme Court only when a law or ordinance has been declared unconstitutional or when a defendant has been convicted of a felony, or a fine exceeding five hundred dollars or imprisonment exceeding six months actually has been imposed. La. Const. Art. V, § 5(D) (1974); LSA-C.Cr.P. Art. 912.1. Since the defendants were convicted of a misdemeanor and were sentenced to only six months imprisonment with no fine, this Court has no appellate jurisdiction in the case.

Nevertheless, under Rule I, § 10 of the Rules of the Supreme Court of Louisiana, this Court in its discretion may treat an appeal improperly before it as an application for supervisory writs. The record before us does contain a petition for a writ of certiorari, so we elect to consider the case as a writ application.

Defendants made four objections during their trial which were overruled by the trial judge; they reserved bills of exceptions to the judge’s rulings, though no longer required by Louisiana law. LSA-C.Cr.P. Art. 841. However, they perfected only one of the bills, nor did they comply with Article 844 of the Louisiana Code of Criminal Procedure by designating in writing those errors which are to be urged on appeal. Treating the case as a writ application, the defendants have not complied with Rule 12, § 5(3) of the Rules of the Supreme Court of Louisiana which requires an assignment of the errors complained of, separately briefing and arguing each.

The pleading contained in the record styled “petition for writ of certiorari” presents only a single question for this Court’s review: whether the State met its burden of proof on the issue of intent as to all the defendants. Additionally, defendants attached a perfected bill of exception complaining of the court’s overruling of their motion for a new trial which was also based on an alleged lack of evidence.

A review of the transcript convinces us that there is some evidence of all the essential elements of the crime for both defendants. This Court does not review questions of sufficiency of evidence so long as some evidence can be found in the record to support the verdict. State v. Douglas, La., 278 So.2d 485 (1973). Furthermore, it is well established in Louisiana jurisprudence that the refusal of a trial judge to grant a motion for a new trial which is based on an allegation that the verdict is contrary to the law and the evidence presents nothing for this Court’s review. See, e. g., State v. Lisenby, La., 306 So.2d 692, (1975); State v. Crockett, 262 La. 197, 263 So.2d 6 (1972); State v. Williams, 262 La. 160, 262 So.2d 507 (1972), and cases cited therein.

For the reasons assigned, the application of defendants for supervisory writs is denied.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. George WILLIAMS.
    No. 56432.
    Supreme Court of Louisiana.
    OCt. 1, 1975.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Connick, Dist.' Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

George Williams was charged by bill of information with distribution of heroin in violation of La.R.S. 40:966. He was tried by a jury on November 22, 1974 and found guilty as charged. Thereafter, he was sentenced to life imprisonment. His appeal to this court is predicated on a single assignment of error.

An objection was made at trial to the ruling of the trial judge that Detective Melvin Howard, a narcotics investigator employed by the New Orleans Police Department, was an expert in the identification of “track marks” made by needle punctures along the veins of heroin users.

Article 920 of the Code of Criminal Procedure sets forth the scope of appellate review :

The following matters and no others shall be considered on appeal:
(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

La.Code Crim.P. art. 920 (1966), as amended, La.Acts 1974, No. 207, § 1, effective July 31, 1974. The Official Revision Comment to this article states:

The 1974 amendment to clause (1) basically conforms the article to the assignment of errors procedure. For errors to be included in the assignment of errors reviewable on appeal, the requisite procedures must have been followed. See Arts. 841, 842, 844, 845, 851, 859.

Article 844 of the Louisiana Code of Criminal Procedure, as amended by Acts 1974, No. 207, § 1, provides:

The party appealing shall designate, in writing, those errors which are to be urged on appeal.
This assignment of errors shall be filed within the time specified by the trial judge.
The trial judge may submit such per curiam comments as he desires.

Defendant has not complied with the assignment of errors procedure. Specifically, he has failed to follow the provisions of article 844 requiring that the written designation of those errors that are to be urged on appeal be filed with the trial judge. Consequently, the alleged trial error of which defendant complains in his brief is not before us for review. State v. Donnell, 318 So.2d 3 (La.1975); State v. Shillow, 310 So.2d 103 (La.1975).

We have reviewed the record for errors discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence and have found none. La.Code Crim.P. art. 920(2) (1966), as amended, La.Acts 1974, No. 207, § 1, effective July 31, 1974.

DECREE

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

BARHAM, J., concurs.


text:
    STATE of Louisiana v. Larry D. FRANTON et al.
    No. 56381.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., John S. Stephens, Asst. Dist. Atty., for plaintiff-appellant.
    Roy L. Beard, Cady & Beard, Shreveport, for Joe McCrary, Steve Bailey, Jack Wynne and John Wynne.
    Harry D. Simmons, Shreveport, for C. Gary Mitchell and Herbert B. Johnson.
   SANDERS, Chief Justice.

The State charged Larry D. Franton, Herbert B. Johnson, Gary Mitchell, Joe McCrary, Eddie Scott, Steve Bailey, John Wynne, and Jack Wynne by bills of information with trespassing, in violation of LSA-R.S. 14:63. The defendants were arraigned on February 27, 1975, and pleaded not guilty. The cases were set for trial on March 27, 1975. On March 27, prior to trial, the district attorney informed the court that he wished to “nolle prosequi” the trespassing cases. Defense counsel objected and moved that the court dismiss the charges for failure to prosecute. The court granted defendants’ motion and dismissed the charges against all eight defendants for failure to prosecute.

The State appeals the court’s ruling dismissing the charges against the defendants, relying on one specification of error. The State argues that the court erred in failing to give effect to its nolle prosequi and granting the defendants’ motion to dismiss.

Article 691 of the Louisiana Code of Criminal Procedure provides:

“The district attorney has the power, in his discretion, to dismiss an indict- • ment or a count in an indictment, and in order to exercise that power it is not necessary that he obtain consent of the court. The dismissal may be made orally by the district attorney in open court, or by a written statement of the dismissal signed by the district attorney and filed with the clerk of court. The clerk of court shall cause the dismissal to be entered on the minutes of the court.”

In City of Lake Charles v. Anderson, 248 La. 787, 182 So.2d 70 (1966), we held that the entering of a nolle prosequi rests entirely within the discretion of the prosecuting attorney and leave of court is unnecessary. See also State v. Brackin, 113 La. 879, 37 So. 863 (1905); State v. Frazier, 52 La.Ann. 1305, 27 So. 799 (1900); State v. Moise, 48 La.Ann. 109, 18 So. 943 (1895); State v. Bugg, 6 Rob. 63 (1843); Marr’s Criminal Jurisprudence of Louisiana, Vol. 1, 2nd Edition, Section 11, p. 35; Wharton’s Criminal Law and Procedure (Anderson) Vol. 1, Section 14, p. 19; 22A C.J.S. Criminal Law § 457c, p. 5; 14 Am.Jur., Criminal Law, Section 296, p. 967.

The prevailing rule is set forth in Marr’s Criminal Jurisprudence of Louisiana (1906) “Nolle Prosequi,” Section 466, p. 804, as follows:

“In all stages of a criminal prosecution before a jury is impanelled the prosecuting attorney has an arbitrary control over his indictments, and may enter a nolle prosequi as to them, at pleasure, without the consent of the court or of accused. . . . ”

Defendants assert that since a nolle prosequi does not bar a subsequent prosecution (see LSA-C.Cr.P. Art. 693), the District Attorney’s power to nolle prosequi deprives them of their right to a speedy trial. Insofar as the present record discloses, the prosecution has not been reinsti-tuted. If and when the prosecution is reinstituted, the denial of a speedy trial may be properly raised in that proceeding. At present, such a contention is premature.

We hold that the nolle prosequi entered by the District Attorney was a valid disposition of the case. Hence, the trial judge erred in granting the defendants’ motion to dismiss for lack of prosecution.

For the reasons assigned, the ruling of the trial court granting the defendants’ motion to dismiss for failure to prosecute is reversed, and the nolle prosequi is recognized as a valid discharge of the bills of information according to law.


text:
    STATE of Louisiana v. Frankie Jean GUINN.
    No. 56288.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Leo A. Miller, Jr., McIntosh, Fox & Miller, Lake Providence, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen,, Barbara Rutledge, Asst. Atty. Gen., Thompson L. Clarke, Dist. Atty., C. R. Brackin, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant, Frankie Jean Guinn, was charged by bill of information dated November 6, 1974 with the crime of aggravated battery upon one Calvin Cole. She was convicted in a jury trial on March 3, 1975 and was sentenced to serve a term of three years in the State penitentiary for women. On appeal the defendant relies on two specifications of error, both relating to the charge to the jury. We find merit in Specification of Error No. 1.

Specification of Error No. 1

The defendant admitted stabbing Cole in the shoulder and chest on October 20, 1974 while the two were in a bar in Sondhei-mer, in East Carroll Parish. However, the defendant contended that Cole came at her with a knife, whereupon she drew her knife from her purse and stabbed him in self-defense. In his charge to the jury, the judge set out the applicable law as to self-defense as follows:

“The defendant has interposed the plea of self-defense.
“If the accused did not provoke the difficulty and entertained a reasonable belief on the surrounding circumstances that it was necessary to kill the deceased in order to save his own life or to prevent great bodily harm, then the killing would be justifiable homicide and the accused would not be guilty of murder or manslaughter. However, that reasonable belief must be based upon a hostile demonstration by the deceased or on a physical attack which would reasonably justify the accused in believing that his life was about to be taken or that he was about to receive great bodily harm.
“A .person who is the aggressor or who beings (sic) on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.”

This is an incorrect standard to be applied in this case, since no death in fact occurred. R.S. 14:19 sets out the standard to be applied in determining whether the use of force or violence on the person of another is justified, when such force or violence does not result in death:

“The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.”

Thus, for the force or violence to be justified, the use of such must have been reasonable (an objective standard) and apparently necessary (a subjective standard). Therefore, if a person believed force was necessary to protect himself against an offense against his person, and the force he used in protecting himself was reasonable under the circumstances, then his use of force is justified.

However, when the use of force or violence results in a homicide, the standard is stricter than “reasonable and apparently necessary” in determining if the force used was in fact justified. R.S. 14:20 states:

“A homicide is justifiable:
“(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger;”

Under this standard, the use of force or violence is justified In self-defense only if the person reasonably believed (objective) that he was in imminent danger of losing his life or receiving great bodily harm and that deadly force was necessary to save himself.

It is clear that the statutes contemplate two different standards for two different situations. In the instance where no homicide results, as is the case here, the use of force or violence in self-defense is justified when the amount used is reasonable and it is apparently necessary to use such force to protect oneself. On the other hand, when a homicide results from the use of force or violence, it is justified as self-defense only if the person reasonably believed he was in imminent danger of losing his life or receiving great bodily harm and that deadly force was necessary to save his life.

Applying what we have said to the facts of this case, we determine that the jury could have been misled by the judge’s erroneous charge. The jury might have been led to believe that the defendant’s plea of self-defense would avail only if she were in imminent danger of losing her life or suffering great bodily harm and only if stabbing Cole was necessary under the circumstances to save her life. Under a correct charge as to the applicable law, the jury could have determined she. acted in self-defense, if the use of force was apparently necessary, i. e., she believed she was in danger of being attacked, and the force she used was reasonable under the circumstances. It was not necessary that the defendant reasonably believe that she was in imminent danger of death or great bodily harm.

In the case of State v. Bailey, 261 La. 831, 261 So.2d 583, 587 (1972), we held:

“The purpose of charging the jury is to inform them of the law and, at the same time, give both the defendant and the State an appraisal of the law that is fair. Neither the State nor the defendant has a right to choose the particular language to be used in charging the jury. Their right is limited to having the jury properly charged on the law. . . . ”

By charging the jury as to the standards for self-defense applicable when a homicide is the result, the judge failed to give the defendant that fair appraisal of the law spoken of in Bailey. The defendant has the right to have the jury properly charged on the law applicable to his case. State v. Bailey, supra. Because the jury was not so charged, the defendant’s conviction cannot stand.

For the reasons assigned, the conviction and sentence are set aside and the case is remanded.

SUMMERS, J., dissents.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Richard Lee BROWN.
    No. 56363.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      C. Alvin Tyler, C. Alvin Tyler & Associates, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Aubert D. Talbot, Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Brown was convicted of armed robbery in Assumption Parish after a trial by jury in June, 1973. He was sentenced to ninety-nine years at hard labor under the provisions of La.R.S. 14:64. He assigns four errors which he contends require reversal of his conviction.

Assignment of Error Nos. 1 and 2.

Defendant contends that there was systematic exclusion of women from the jury which tried his case and that the jury’s composition was not in accordance with La.C.Cr.P. Art. 401 which allows persons in the eighteen to twenty-one age group to serve on juries. Defendant challenged the composition of the petit jury on these two bases orally on the morning of the trial. But his motions were never made in written form. Article 536 of the Code of Criminal Procedure requires that a motion to quash, which is the proper vehicle for challenging a jury, be made in writing. In any event, defendant was tried in 1973, before the United States Supreme Court held in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) that the Louisiana system of requiring women to register in order to serve on juries was unconstitutional. That Court held in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975) that the Taylor holding was not retroactive. In State v. Rester, 309 So.2d 321 (La., 1975), the Louisiana Supreme Court adopted the reasoning in Daniel v. Louisiana, supra, in holding that Taylor v. Louisiana, was not retroactive. The defendant’s challenge to the age group of the people who composed the petit jury is also without merit. To support such a challenge, defendant is required to make a showing that the state has not complied with the statutory procedures for composition of a petit jury ve-nire or has systematically excluded persons who were younger than twenty-one from juries. Had the defendant offered a prima facie case, of course, the burden would have shifted to the state to demonstrate proper procedures and lack of discrimination. Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970). But since the defendant made no showing at all to support his assertion that the jury members were not properly selected, he did not carry the burden of establishing a prima facie case.

This assignment of error lacks merit.

Assignment of Error No. 3.

Defendant Brown argues that the trial court erred in refusing to exclude certain evidence as hearsay during the state’s interrogation of Ronald Desire.

The following witness response is at issue :

“I got up Tuesday morning and me and Howard we went on the bridge and the night I talked to Richie he told me he was going to meet me on the bridge. Before I met Richie Brown I went across the store by myself and I bought a soda drink and I came back and as I was going down the lane Richie Brown called back to me and me and him started talking and he asked me did I talk to Howard, did I ask Howard about going in the store with us, and I said yes.”

At this point defense counsel interposed a hearsay objection which was overruled by the trial court.

It is unclear from the record whether counsel was objecting- to the recounting by the witness of the remark of the defendant or, as defendant argues in brief, of the recounting of the remark by Howard Mills. Clearly, repeating what the defendant said to the witness is not excluded as hearsay because it is considered an admission. State v. Butler, 302 So.2d 585 (La. 1974); McCormick on Evidence, §§ 144, 145 (Cleary Ed. 1972). If the defense was objecting to the witness’ testifying as to what was said by Howard Mills, that objection was groundless since the witness at no time repeated anything spoken by Mills.

The assignment of error has no merit.

Assignment of Error No. 4.

While defense counsel was questioning the defendant on the stand, the attorney turned to the prosecutor and asked, “Excuse me. Is it all right if I — ” Apparently the attorney was seeking the prosecutor’s permission to question the defendant about a tangential matter. The district attorney answered: “You can ask him anything you want the way he’s lying.” Defense counsel then took “exception to the district attorney’s comments” following which he moved for a mistrial.

The trial judge stated “I didn’t hear his comment but your objection is overruled; your motion for a mistrial is denied.” The defense counsel did not at any point request that the jury be admonished to disregard the prosecuting attorney’s comment. He did however reserve a bill to the court’s denying his motion for mistrial and asked'that the district attorney’s comment, the objection, and the ruling of the court be made part of the bill.

Under Article 770 of the Code of Criminal Procedure, a mistrial is required, when a remark or comment is made within hearing of the jury by the district attorney during trial or in argument, only when it refers directly or indirectly to:

“(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.”

The district attorney’s comment of which complaint is made in this case does not relate to any of these four matters. We construe the remark “ , . . he’s lying” as one which is “irrelevant and immaterial and of such nature that it might create prejudice against the defendant in the mind of the jury,” and, inasmuch as it is not within the scope of Art. 770, the court is not required to grant a mistrial (see Art. 771). While the district attorney’s assertion that the defendant while on the stand whs lying is not such conduct as we are disposed to condone, and while it is a rather obvious flirtation with reversible error, there are two reasons why we conclude that in this case the conviction should not be reversed.

First, it is not certain, from a review of the transcript that the jury overheard this comment. The district attorney was speaking to the defense attorney responding to his question, a question which was actually an aside. The judge for one stated that he had not heard the district attorney’s comment.

A second reason why we find the improper comment not reversible, assuming it was heard by the jury, is this.

The prejudice which may flow from the prosecutor’s calling defendant a liar is that the jury may conclude that the comment is based upon personal knowledge and facts outside the record. See State v. Kaufman, 304 So.2d 300 (1974). In the context in which the comment was made, following as it did a lengthy, complicated and sometimes argumentative exculpatory story by defendant, the logical conclusion is that the jurv viewed the comment as that of a partisan, perhaps combative, frustrated state’s advocate, rather than that of a public official alluding to facts known by him which are outside the record.

Although we do not condone the inappropriate comment of the prosecutor we do not find reversible error in these circumstances. Nor do we find improper the failure of the trial judge to admonish the jury to disregard a comment which he advised defense counsel he had not heard and which was not restated or read back to him so as to facilitate an informed ruling.

The assignment of error lacks merit.

For the reasons assigned the conviction is affirmed.

      . Ronald Desire and Richard Brown (sometimes called Richie) were indicted jointly for this crime. After pleading guilty, Desire testified at Brown’s trial and implicated Brown and a third person, Howard Mills, in the plan to rob the store.

      . The prosecutor’s instant retort to counsel’s motion for mistrial expressed prior to the court’s ruling on the motion was “And the comments will get worse, Your Honor, as soon as I cross-examine him.”


text:
    STATE of Louisiana v. Salvadore P. SOLETO, Jr.
    No. 56342.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    John F. Rau, Jr., Harvey, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Gretna, for plaintiff-appellee.
   SUMMERS, Justice.

Defendant, Salvadore P. Soleto, Jr., was charged on June 22, 1973 by a bill of information with having distributed marijuana on November 21, 1972. La.R.S. 40:966(A). He was tried by jury in Division D of the Twenty-fourth Judicial District Court in and for Jefferson Parish and convicted as charged. He was sentenced to imprisonment at hard labor for one year. On this appeal two errors are assigned to support the contention that the conviction and sentence should be reversed and a new trial granted.

ERROR NO. 1

During the impaneling of the petit jury, the venire for Division D was exhausted. The trial judge proposed to use the petit jury venire from Division F of the district to which counsel for the defendant objected. The ground for this objection was that, although Article 785 of the Code of Criminal Procedure provides that a parish having more than one section of criminal court (as in Orleans Parish) is permitted to do this, there is no statutory authority which permits such a procedure in the Twenty-fourth Judicial District Court of Jefferson Parish where the courts are in divisions. La.Const. Art. VII, § 83.

Article 785 of the Code of Criminal Procedure provides:

“A. In a parish having more than one section of criminal court, when a petit jury venire of one section is or is about to be exhausted before a trial jury is impaneled, the judge of that section, with the consent of the judge of a section that has not exhausted its petit jury ve-nire, shall order the petit jury venire of the latter section to report to his section to serve as tales jurors. The names of the petit jury veniremen so ordered to report shall be drawn as provided by Article 784 for examination as prospective trial jurors. Those who are impaneled as trial jurors shall serve as though regularly selected as tales jurors. Those who are not selected as trial jurors shall be ordered to report back to the section of court in which they were previously serving as petit jury veniremen.
If the judge cannot obtain the petit jury venire of another section, he may order the secretary of the jury commission or the clerk of court to draw indiscriminately and by lot such number of tales jurors from the general venire box as in the opinion of the judge may be necessary to complete the impaneling of the trial jury.
B. In other parishes, when the petit jury venire is or is about to be exhausted before a trial jury is impaneled, the judge may order the clerk of court to draw indiscriminately and by lot such number of tales jurors from the general venire box as in the opinion of the court may be necessary to complete the impaneling of the trial jury.
C. Immediately after the drawing of tales jurors, they shall be summoned to attend court at such time as the court may direct, and shall be subject to the same duties as petit jurors.
D. In parishes other than Orleans, the judge may order the summoning of tales jurors from among the bystanders or persons in or about the courthouse, in place of the drawing of tales jurors.
E. When called, tales jurors shall be selected for completion of the panel in accordance with Article 784.”

It may be true, as defense counsel argues, that Paragraph A of Article 785 was intended to apply only to the Criminal District Court for the Parish of Orleans and other courts where criminal sections exist. However, there is ample authority in Paragraph D of Article 785 for the trial judge to summon tales jurors from among petit jury venires of other divisions of the court with the permission of the judge of the other division. As a matter of fact, such a procedure would appear to be preferable to summoning bystanders or persons in or about the courthouse. We have so held in State v. Williams, 310 So.2d 528 (La.1975). What was said there is applicable here: “Defendant does not allege that the jury obtained by this system was unfair or biased. Nor does he attack the qualifications of any of the jurors chosen.” Moreover, “A general venire, grand jury venire, or petit jury venire shall not be set aside for any reason unless fraud has been practiced or some great wrong committed that would work irreparable injury to the defendant.” La.Code Crim.Proc. Art. 419. No such fraud or great wrong is asserted or demonstrated by this record.

This assignment has no merit.

ERROR NO. 2

During voir dire examination of prospective jurors, one juror was asked, “Is it your position that if it was proven beyond a reasonable doubt that you could not apply this particular law?”, to which the prospective juror replied: “I would but I feel kind of guilty about it because I don’t necessarily agree with it and I don’t necessarily disagree with it. It’s just the idea.” Previously this colloquy occurred:

“Q. How about the nature of the charge itself, that is, distribution of marijuana, does that predispose you in any way in this matter ?
A. I’m not sure . . . It’s so controversial, I wouldn’t be sure how to vote.
Q. Well, I’m not sure what you’re telling me .
A. Only that he is charged with distributing marijuana. A while back it was really a bad charge and now they’ve loosened up the law a little bit and now morally I feel I wouldn’t be able to give a fair verdict. . . . ”

After the examination was completed the prosecutor moved that the prospective juror be challenged for cause. When the motion was granted defense counsel objected and assigned this error.

The prospective juror’s ambivalent attitude satisfies the requirement of good cause for challenge on the part of the State that “The juror is biased against the enforcement of the statute charged to have La.Code Crim. been violated Proc. Art. 798.

This assignment has no merit.

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


author:
MARCUS, Justice.
      SUMMERS, Justice

text:
    STATE of Louisiana v. Charles GUIDRY.
    No. 56162.
    Supreme Court of Louisiana.
    Sept. 5, 1975.

      Herbert O’Niell, Thibodaux, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., Walter K. Naquin, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Charles Guidry was charged by bill of information with having distributed a controlled dangerous substance, to-wit: marijuana, on November 12, 1973, in violation of La.R.S. 40:966. After trial by jury, defendant was found guilty and was subsequently sentenced to six years at hard labor. Defendant appeals to this court, relying on four assignments of error for reversal of his conviction and sentence. Finding merit in Assignments of Errors Nos. 1 and 2, requiring reversal of the conviction and sentence, we need not consider the other assignments of error in our disposition of the cause.

FACTS

On November 12, 1973, Dale Albert, an undercover informant working for the Southeast Louisiana Regional Bureau of Drug Enforcement, contacted a narcotics agent with the same unit concerning the purchase of marijuana from Charles Guid-ry and others. The informant Albert obtained a ride from Thibodaux to Chack Bay with another individual. At the residence of Charles Guidry and David Clement, Albert was advised that the purchase of marijuana would have to take place at the residence of Shelby Himel. Guidry and Clement followed Albert to the Himel residence in Chack Bay, Louisiana, where Albert purchased six lids or about one hundred and thirty-one grams of marijuana for $72.00. The informant, Dale Albert, was not a commissioned police officer; in fact, he had a past criminal record for convictions of possession of marijuana and stolen goods.

ASSIGNMENTS OF ERRORS NOS. 1 AND 2

In accordance with the procedure prescribed in La.R.S. 15:492, defense counsel attempted to establish by the testimony of other witnesses that Dale Albert, a state witness, was biased and prejudiced against defendant.

Dale Albert, a paid informant who participated in the sale of the marijuana leading to the offense here charged, was asked on cross-examination whether he was biased against defendant, to which he replied that he was not. He was then asked if he had ever tried to hurt defendant, and he replied: “No, I never tried to hurt him.” Once again, Albert reiterated in response to questioning by the defense counsel that he was certain that he was not biased against the defendant.

During the presentation of defendant’s case, Charlene Dupont, the defendant’s girlfriend, testified that some two months prior to November 12, 1973 (date of the alleged offense), she had been the girlfriend of the informant, Dale Albert. She was then asked if she knew of any incident which occurred involving Charles Guidry, the defendant, and Dale Albert, to which she replied in the affirmative. Defense counsel then sought to elicit information relating to an alleged attempted murder perpetrated by Albert upon the defendant in April of 1974. The state objected on the ground of relevancy. Out of the presence of the jury, it was established by this witness (Charlene Dupont) that one night in April of 1974, some five months after the date of the offense charged (November 12, 1973), but prior to the trial of this matter (September 17, 1974), she was riding with defendant in his car. Dale Albert drove alongside and fired a shotgun at defendant without provocation. Defendant stopped his car when they realized what had happened. Albert passed them up and stopped his vehicle about fifty yards in front of them and emerged therefrom. The trial judge refused to allow this testimony before the jury, ruling it inadmissible. His reasoning was that, since the incident occurred some five months after the alleged act of distribution, it was not part of the res gestae nor relevant to the matter before the court.

Later, when defendant took the stand, he was asked: “Mr. Guidry, did Dale Albert attempt to murder you?” Objection by the state was again sustained by the court for the same reasons as above.

Defendant contends the testimony regarding the shooting of defendant by the informant Albert in April was admissible in order to show bias and prejudice of this state witness. The curtailment of this examination of the witness, Charlene Dupont, as well as that of defendant, after the foundation had been laid by the questioning of Albert who denied any bias or prejudice towards defendant or that he had ever tried to hurt him, is claimed as error.

La.R.S. 15:492 explicitly provides:

When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.

We are not concerned here with the curtailment of cross-examination of a prosecution witness by defendant to show bias and prejudice. Rather, the issue here involves the curtailment of the examination of other witnesses (Dupont and defendant) in reference to an incident showing bias and prejudice committed by a prosecution witness (Albert) against defendant. In accordance with La.R.S. 15:492 above quoted, defense counsel questioned Albert on cross-examination as to whether he had ever tried to hurt defendant, to which he replied that he had not. Albert also denied that he was biased against defendant. Hence, a proper foundation was laid for introduction of the testimony of other witnesses to establish the particular fact (shooting incident) showing that Albert was biased and prejudiced against defendant.

The failure to permit this evidence before the jury was clearly contrary to La. R.S. 15:492 and constitutes reversible error.

DECREE

For the reasons assigned, the conviction and sentence are reversed and set aside, and the case is remanded for a new trial.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

The issue in this case is did the defendant Charles Guidry sell marijuana on November 12,1973.

Dale Albert, the State’s witness, was not a commissioned police officer. He was, however, working with the Regional Narcotics Agency as a paid informer. He had previously been convicted of possession of marijuana and testified to this fact and to his past association with the defendant Guidry and others.

Detective Sergeant Keith Estevens testified that he observed the defendant on the night of November 12, 1973 and followed him from his house to Shelby Hymel’s house. By prearrangement the informer Albert was furnished with money by Es-tevens, and he was also followed to Hy-mel’s house where, having set up the deal with Guidry early that night, the purchase transaction was carried out. Estevens’ observation of the transaction, through binoculars, was from a distance of 300 to 500 yards. Soon thereafter he had a rende-vouz with Albert, who turned over the six lids of marijuana he had just purchased from Guidry.

Albert’s close association with the defendant and his friends existed during October, November and December 1973. It was during this time that Albert, working for the Regional Narcotics Agency, was able to make approximately 35 to 40 drug cases, including the defendants on November 12; 1973. However, in order to maintain a cloak of secrecy over the informer, defendant’s arrest and the arrests of the others, did not occur until April 1974 when a large roundup of all defendants took place. It was at this time that the alleged shooting by the informer took place.

At no time prior to April, however, does the record indicate any hostility between defendant and Albert the informer. The alleged shooting incident, according to defendant, occurred the day before his arrest in April; this was long after the case had been made against the defendant when the alleged hostility could have no bearing upon the informer’s version of the facts which had already been stated to the law enforcement authorities. With these facts firmly established in the record, the trial judge ruled that evidence of the shooting six months after the transaction for which defendant was being tried had no relevancy to the case.

As this Court said in State v. Howard, 230 La. 327, 88 So.2d 387 (1956), interpreting Section 492 of Title 15 of the Revised Statutes:

“If testimony of this character can be introduced to discredit a witness, the question then recurs: Where is the limit to the introduction of testimony on collateral facts for that purpose? If a quarrel or ill feeling between the parent of a witness and a parent of an accused can be relied on to discredit the testimony of the witness, family quarrels, disputes, and hostilities ad infinitum can be inquired into for the purpose of disqualifying a member of one of the families from giving impartial testimony against a member of the other family. This would result in no end of collateral issues in a criminal prosecution, and it would have a far reaching effect in impairing public confidence in the accuracy and impartiality of human testimony.”

In my view the proper interpretation of Section 492 requires that the testimony sought to establish bias must be actual and direct, State v. Cullens, 168 La. 976, 123 So. 645 (1929), in relation to the matter at issue. The testimony sought must also have a close relation in point of time to the offense at issue. State v. McFarlain, 41 La.Ann. 686, 6 So. 728 (1890).

I would not disturb the ruling of the trial judge in the exercise of what I consider to be a sound discretion and upset this jury verdict in a prosecution where the guilt of the defendant is established beyond a reasonable doubt to the satisfaction of the jury, and to my satisfaction also, when all the circumstances are taken into account.

I respectfully dissent.

      . See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Senegal, 316 So.2d 124 (La., 1975); State v. Lewis, 236 La. 473, 108 So.2d 93 (1959); State v. Elias, 229 La. 929, 87 So.2d 132 (1956); State v. Leahy, 175 La. 659, 144 So. 138 (1932).

      . There can be no question but that this error was prejudicial to the substantial rights of the accused and likewise constitutes a substantiál violation of his constitutional and statutory rights. La.Code Crim.P. art. 921 (1966). Albert was the sole state witness to the sale of the marijuana here involved. As a matter of fact, Himel testified that he sold the marijuana to Dale Albert and that defendant was not present at his residence at the time of the transaction. Hence, the credibility of Albert was crucial to this prosecution against defendant.


author: SUMMERS, Justice

text:
    Ludy YOUNG v. SENTRY INSURANCE COMPANY.
    No. 56752.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Sentry Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry, 315 So.2d 93.

Writ denied. On the facts found by the Court of Appeal, the result is correct.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting from the refusal to grant writs).

“The owner of an animal is answerable for the damage he has caused . . . .” La.Civil Code art. 2321.
“No person owning livestock shall knowingly, willfully or negligently permit his livestock to go at large upon the following public highways of this state: . . . U.S. 190 .. . .” La.R.S. 3:2803.

Conceding that these statutory standards are the basis for its decision, the Court of Appeal asserts that it is “well settled that when an automobile strikes a horse or cow on one of the aforementioned ‘stock law’ highways, the burden of proof rests upon the owner of the animal to exculpate himself from ‘even the slightest degree of negligence’.” Only opinions of the intermediate appellate courts are cited to support this conclusion. 315 So.2d 93 (La.1975).

Relying upon these decisions, the Court of Appeal concludes:

“Thus, a legal presumption of fault or negligence on the part of the animal’s owner is created in such cases. In order to rebut same the defendant must not only show that he has taken all reasonable and prudent measures and precautions to enclose his livestock, but must also explain the presence of the animal on the highway by showing when, where, and how the animal escaped from its enclosure, that is, his complete freedom from fault.” 315 So.2d at page 95.

In light of the statutes quoted, the conclusions of the Court of Appeal are erroneous. The proper standard to determine the animal owner’s liability is clearly set forth in Section 2803 of Title 3 of the Revised Statutes. It is a standard established as an implementation of the broader principle expressed in Article 2321 of the Civil Code. Taken together, these enactments require as a prerequisite to liability of the animal owner that he shall “knowingly, willfully or negligently” permit his livestock to go at large. This requirement is a far cry from the rule the Court of Appeal applies imposing the burden of proof upon the owner of the animal to exculpate himself from “even the slightest degree of negligence” instead of requiring, as in all other tort and civil cases, that the plaintiff establish by a preponderance of evidence that the animal owner has “knowingly, willfully or negligently” permitted his livestock to go at large.

When Section 2803 is read in its proper context “knowingly” and “willfully” impregnate the requirement of “negligently” with a meaning not ordinarily attributed to that word. In my view the words are used conjunctively to require that the negligence be above the ordinary — that is, the statute requires knowing and willful negligence.

Such a .conclusion is one which a legislature would reasonably and properly arrive at in view of the fact that the propensities of dumb animals cannot be subject to absolute control. And to impose liability as in this instance is to require a degree of care of stock owners which is beyond the bounds of reason; a degree of care which would impose an unnecessary deterrent upon agricultural endeavors at a time when this industry has assumed such vital proportions in society.

The rule invoked by the Court of Appeal moreover shifts the burden of proof to the animal owner. There is no justification for this onerous obligation. It is such an elementary proposition that the burden of establishing the material allegations relied on for recovery in a tort or other civil case is on plaintiff that an extensive citation of authority is unnecessary. La.Civil Code art. 2232; Wickers v. New Orleans Acid & Fertilizer Co., 128 La. 1011, 55 So. 657 (1911). And it is not sufficient for a party on whom the burden of proof rests to make out a probable case. He must show by legal testimony, with reasonable certainty, the existence and verity of his demands. Byrne Vance & Co. v. Grayson, 15 La.Ann. 457 (1860). The proof of negligence must be strong. Ranson v. Labranche, 16 La.Ann. 121 (1861). It is a legal axiom that in case of doubt and difficulty the conclusion ought to be in favor of the party who strives to avoid a loss rather than in favor of the party who seeks to secure a gain. Furlow v. Maison Blanche, 2 La.App. 351 (1925). In the instant case, therefore, the law charges that plaintiff must make out a prima facie case by a preponderance of the evidence that the animal owner has “knowingly, willfully or negligently” permitted his horse to go upon the public highway. Rose v. Shaw, 144 La. 571, 80 So. 727 (1919); Morris v. Fining, 49 So.2d 458 (La.App. 1950). Judged by this test, the Court of Appeal decision should not stand.

The refusal of this Court to recognize the implications of the Court of Appeal decision and its erroneous and over-liberal interpretation of clear and explicit statutory standards is palpable error of law. This action follows the reprehensible trend this Court adopted in Holland v. Buckley, 305 So.2d 113 (La. 1974), a decision which, by a narrow 4-3 margin, repudiated a long line of this Court’s decisions beginning in 1883 with Montgomery v. Koester, 35 La.Ann. 1091, decisions in which this Court and the Courts of Appeal had consistently rejected the contention that absolute liability should be imposed in these cases. To the contrary, throughout this State’s jurisprudence the courts adhered to the proposition that, except in a clear case where a statute imposed absolute liability, there would be no liability without fault. Shawhan v. Clarke, 24 La.Ann. 390 (1872).

By degrees, it may be supposed, upon this Court’s concept of a need for social change, strict liability is to be imposed on a step-by'-step basis, even as in this tort case where a different legislative standard has been ordained.

In my view the writ should be granted to correct this erroneous trend.