author: SUMMERS, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Joseph Clayton SEPULVADO.
    No. 58471.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    Rehearing Denied March 2, 1977.

      James B. O’Neill, Zwolle, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., E. L. Edwards, Jr., Asst. Dist. Atty., for plaintiff-appellee.

       Caiogero, J., was of the opinion that a rehearing should be granted.

   SUMMERS, Justice.

In the early morning hours of June 28, 1975 two officers of the Bossier Parish Sheriff’s Department were parked alongside Highway 80. A Chevrolet went by at a slow rate of speed. The officers began to follow the car because their experience indicated that people going that slowly late at night were either drunk or lost.

After following for several miles, they observed the Chevrolet weaving from lane to lane so they ordered the driver, who was accompanied by his wife, to stop. The driver of the car, defendant, was asked to produce his driver’s license, but he stated that he did not have it with him. Defendant did not appear to be drunk, but the officers did detect the odor of alcohol on his breath and noticed a pistol in the front seat of the car. The gun was seized by the officers for their protection.

They then called for a report on the gun and learned that the gun was stolen. They also learned that defendant was driving with a revoked license. Defendant was then arrested and handcuffed. Search of his person produced bullets, money and a key to the trunk of the car. When defendant gave the officers permission to open the trunk of his car, he told them they would find two bodies there. A search of the trunk confirmed this fact and defendant and his wife were transported to the parish jail.

According to the State’s evidence the defendant, on the night that he was arrested, told sheriff’s deputies that earlier that day, June 27, 1975, he and his wife, Oneda, had accompanied James Michael Sepulvado, a cousin of the defendant, and Bonita Knigh-ton in their car, leaving Bossier City. The reason for the trip was to find a suitable, place in which to shoot tin cans with the guns they had in their possession.

Upon arrival at a junkyard near Stonewall in DeSoto Parish the couples began drinking beer and shooting tin cans. James Sepulvado, who was then shooting a .38 caliber pistol, turned his gun on the defendant, Joseph Sepulvado, in a menacing manner. The defendant reacted by kicking the gun out of James’ hand, and then shot him in the back with his .44 caliber rifle. Bonita reached for the pistol dropped by James, and the defendant then shot her. The incident occurred at about 6:00 p. m. Thereafter defendant hid the bodies in the bushes nearby and he and his wife returned to James’ car and drove around for several hours, drinking more beer. At approximately 10:00 p. m. that night, they returned to the junkyard and placed the two bodies in the trunk of the car. They were later apprehended in Bossier Parish.

An indictment by the grand jury of De-Soto Parish filed September 25, 1975 charged in two counts that Joseph Clayton Sepulvado committed first degree murder of James Michael Sepulvado and Bonita Knighton on June 27, 1975, a violation of Article 30 of the Criminal Code. After trial by jury a verdict of guilty was returned on both counts. Defendant was then sentenced to death on both counts.

In his opening statement the District Attorney advised the jury that the prosecution’s case was based upon Article 30(4) of the Criminal Code, requiring that the State prove the offender had a specific intent to kill or to inflict great bodily harm upon more than one person.

Assignment 1

Prior to arraignment defendant filed a motion to quash the indictment alleging that the indictment charged two crimes, contrary to the declaration in Article 493 of the Code of Criminal Procedure that “No indictment shall charge more than one offense . . . .” The motion further alleged that the indictment failed to comply with the formalities required for indictments set forth in Articles 462, 464 and 465 of the Code of Criminal Procedure in that the indictment failed to disclose the date of commencement of prosecution.

The trial judge denied the motion to quash. The defense assigns as error that 1) the indictment was fatally defective, for it failed to disclose the date of the commencement of the prosecution; and 2) it contained a joinder of offenses contrary to the procedural law in effect at the time of the offenses.

The claim that the indictment fails to disclose the date of commencement of the prosecution is without merit. The copy of the indictment in the record discloses that it was formally filed by the grand jury on September 25, 1975. A prosecution for an offense punishable by death can only be instituted by a grand jury indictment. La. Const, art. I, § 15; La.Code Crim.Pro. art. 382. The date of institution is the date the indictment is returned by the grand jury in open court. In this case, therefore, the date of commencement of prosecution is September 25, 1975, the filing date shown on the indictment.

To support the claim that the indictment is contrary to the procedural law defendant relies on Article 493 of the Code of Criminal Procedure in effect at the time of the offenses. On June 27, 1975, when this offense occurred, this article provided that “No indictment shall charge more than one offense . . . .” However, the article was amended by Act 528 of 1975 to provide that

“Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.”

Act 528 of 1975, amending Article 493, was signed by the Governor on July 17,1975 and became effective September 12, 1975. As previously noted, the indictment was returned on September 25, 1975, thirteen days after the effective date of the amendment. Because the amending act permitting multiple billing became effective after the date of the crime, the defense contends that to apply its provisions retroactively to him is contrary to the prohibition against ex post facto laws contained in Section 23 of Article I of the Louisiana Constitution of 1974 and Section 9 of Article I of the Constitution of the United States.

The amendment is an ex post facto law, according to the defense, because the amendment “alters the situation of the accused to his disadvantage”, a factor found to be characteristic of ex post facto laws in State v. Ferrie, 243 La. 416, 144 So.2d 380 (1962) and State v. Caldwell, 50 La.Ann. 666, 23 So. 869 (1898).

The State’s position is that the amended article is procedural in nature and not substantive. Procedural laws, as distinguished from substantive laws, the State contends, can have retroactive effect without offending the ex post facto provisions of the constitutions. And, the indictment having been returned on September 25, 1975, after the effective date of the amendment, the prosecution was properly instituted in accordance with the amendment.

Procedural laws relate exclusively to questions of remedy and, in criminal eases, pertain to the method prescribed for the conduct of the prosecution. Enactments of this nature may regulate the mode of prosecution after their effective date and not offend the prohibition against ex post facto laws, for no one has a vested right in a mere mode of procedure. Todd v. State, 228 Ga. 746, 187 S.E.2d 831 (1972). See also Fithian v. Centanni, 159 La. 831, 106 So. 321 (1925).

On the other hand, liability for criminal conduct attaches at the moment that the crime is committed. Therefore, laws passed after the offense may not work to either redefine or increase the severity of punishment for the crime. To do so would impair substantive rights. Such a law would violate the prohibition against ex post facto laws of the Louisiana and the United States Constitutions.

An ex post facto law, by definition, is one which is passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed. Black’s Law Dictionary 662 (Rev. 4th ed. 1968). See also La.Civil Code art. 8.

Certain criteria for determining if a law is ex post facto have been established. The ex post facto prohibition comes into effect when a law makes an act criminal which was innocent when done and punishes such action; or aggravates a crime or makes it greater than when committed; or changes the punishment and inflicts a greater punishment than the law in effect when the crime was committed; or alters the rules of evidence to receive less or different testimony that the law required at the time the offense was committed in order to convict. Galder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). A fifth category holds that any law is considered ex post facto which is enacted after the offense was committed and which alters the situation of the accused to his disadvantage. Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1882); Payne v. Nash, 327 F.2d 197 (8th Cir. 1964); State v. Ferrie, 243 La. 416, 144 So.2d 380 (1962); 16A C.J.S. Constitutional Law §§ 440-46 (1956).

The problem involved in deciding whether a procedural law is ex post facto was broadly stated by Mr. Justice Stone in Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925);

“Just what alterations of procedure will be held to be of sufficient moment to transgress the constitutional prohibition cannot be embraced within a formula or stated in a general proposition. The distinction is one of degree. But the constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation . and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance”.

As the issue is viewed in the context of this case the Court must decide whether the statute materially impairs the right of the accused to have the question of his guilt determined according to the law as it was when the offense was committed. At the same time, it must be recognized that the accused is not entitled of right to be tried in the exact mode, in all respects, that may be prescribed for the trial of criminal cases at the time of the commission of the offense for which he is charged. People v. Ward, 50 Cal.2d 702, 328 P.2d 777 (1958), cert. denied, 359 U.S. 945, 79 S.Ct. 730, 3 L.Ed.2d 678 (1959); Todd v. State, 228 Ga. 746, 187 S.E.2d 831 (1972).

In People v. Adams, 274 N.Y. 447, 9 N.E.2d 46 (1937) the New York Court of Appeals was presented with an identical situation. There defendants argued that a new law which permitted several counts within one indictment was an ex post facto law, in that the law in effect at the time of the commission of the offense required that each count appear on a separate indictment. The defendants asserted that they were materially disadvantaged by the cumulative effect of more than one count in the indictment.

Nevertheless, after noting the general definitions of ex post facto laws, the court concluded that:

“The changes involved in the case at bar were merely procedural. They do not make criminal any acts which previously were innocent; nor do they aggravate a crime and make it greater than it was when committed. Nor do they inflict a greater punishment; nor do they provide for conviction on less or different testimony or create presumptions against the defendant. The relators contend that a law is ex post facto if it makes or may make changes which are to the substantial disadvantage of the accused. Perhaps a statute by reason of working a substantial detriment to the accused may be deemed ex post facto although it does not come within the classification outlined in Calder v. Bull [3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798)], but that the statutes involved herein are not of such a nature cannot be doubted.”

In the case at bar the indictment was filed after the effective date of the amendment. Defendant was charged with the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm upon more than one person. La.Rev.Stat. 14:30(4). Thus, even under the prohibition against more than one count in an indictment, it would have been necessary to allege that the accused had the intent to kill another person, or did in fact do so. Charging the offense in two counts is essentially the same. In either case neither the substantive nor procedural rights of defendant would be affected. His defense would be the same. The rules of evidence are not changed and the penalty remains the same. State v. James, 339 So.2d 741 (La.1976).

Assignments 2 and 3

These assignments pertain to the identical ex post facto issue considered under Assignment 1. Our treatment of the issue there makes further consideration unnecessary.

Assignment 4

A similar indictment, also containing two counts alleging the killing of the same persons, returned by the same grand jury at the same time, charged defendant’s wife Oneda Pearl Sepulvado with second degree murder under Article 30.1 of the Criminal Code.

Defendant filed a motion to consolidate the charge against his wife for trial with the charge of first degree murder lodged against him. He argues that the same set of facts could not constitute the basis for two different indictments, one for first degree murder and the other for second degree murder. The lesser charge against his wife indicates, he says, that the grand jury and the district attorney were in possession of evidence favorable .to him which was being withheld. When the trial judge denied the motion to consolidate, this assignment of error was filed.

The inference drawn by the defendant from the different indictments returned does not necessarily follow. The grand jury’s right to consider mitigating circumstances and other factors permits them to return different indictments in these circumstances. Moreover, defendant has cited no authority which requires that these cases be consolidated for trial. This assignment has no merit.

Assignment 5

Defendant objected to the opening statement of the prosecutor and moved for a mistrial, stating that the extensive reference to the entire body of Article 30 of the Criminal Code and to other statutes, instead of confining that reference to Article 30(4), amounted to an enlargement of the elements of the crime and was argumentative. The trial judge denied the motion for mistrial and refused to admonish the jury.

While the State’s argument in this respect did appear to dwell excessively on articles of the Code and legal propositions not particularly relevant, the summary the prosecutor gave of the State’s position did clearly point out the nature of the charge and announce that the State was basing its case on the provisions of Article 30(4), the killing of a human being when the offender has a specific intent to kill more than one person. La.Code Crim.Pro. art. 766.

The ruling complained of was not erroneous.

Assignment 6

In his opening statement the prosecutor referred to the fact that defendant admitted he was driving without his driver’s license. Defense counsel objected that this was a reference to a confession or inculpatory statement, which was prohibited by Article 767 of the Code of Criminal Procedure. He moved for a mistrial.

Aside from the fact that the trial judge admonished the jury to disregard the prosecutor’s statement, defendant’s statement that he did not have his driver’s license was part of the res gestae. Defendant was, at the time, in the process of transporting the dead bodies of the victims who had recently been killed. Although he was not at the time in the act of killing, his actions were immediate concomitants of those killings— part of the same transaction. La.Rev.Stat. 15:448.

Assignment 7

This assignment protests that the opening statement made no reference to the State’s obligation to negate the fact that the killings may have been justified, or that the State must prove that there was a specific intent to kill more than one person.

An opening statement by the prosecutor is not required to explain all aspects of the law applicable to the case. Only the nature of the charge and a general statement of the nature of the evidence by which the State expects to prove the charge are required. La.Code Crim.Pro. art. 766. The defense demands would more appropriately be directed to a charge to the jury.

Assignment 8

Over defense objection the prosecutor produced evidence of oral inculpatory statements made by defendant to Officers Padgett and Breedlove. Previously, in answering questions on the predicate, Officer Padgett testified that they could not recall “everything” which was said on that occasion, and the statements which could not be recalled could “possibly” have been exculpatory or explanatory in nature.

In the absence of producing the defendant’s statements in their entirety, the defense complains, no part of the statements made on that occasion are admissible. The contention is based on the pronouncement in Section 450 of Title 15 of the Revised Statutes that “Every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.”

In the recent case of State v. Marmillion, 339 So.2d 788 (La.1976) this Court had occasion to pass upon a similar contention where the witness could not recall everything which was said at the time the inculpatory statement was made. There this Court held:

“It is true that Section 450 of Title 15 of the Revised Statutes mandates that every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.
“Nevertheless, in the absence of proof to the contrary, the fact that the purported statement of the accused as testified to by the investigating officer does not consist of a verbatim reiteration of the conversation between them, due to the witness’ inability to recall or other valid explanation, the rights of the accused under Section 450 are not violated. The law does not require the production of nonexistent portions of the confession or portions which cannot be recalled. State v. Domino, 234 La. 950, 102 So.2d 227 (1958). See also State v. Odom, 292 So.2d 189 (La.1974); State v. Bickham, 239 La. 1094, 121 So.2d 207 (1960); State v. Kennedy, 232 La. 755, 95 So.2d 301 (1957); State v. Desroches, 48 La.Ann. 428, 19 So. 250 (1896).”

The mere fact that exculpatory statements may “possibly” have been made will not suffice to warrant excluding the evidence of the confession or inculpatory statement in the absence of a showing of prejudice resulting from the officer’s inability to recall “everything” that was said.

Assignment 9

' Officer Gray of the Bossier Parish Sheriff’s department testified on direct examination that, responding to a call, he arrived at the scene of the arrest on Highway 80 at about 3:00 a.m. on June 28, 1975. This was after the arresting officers discovered the bodies in the trunk of the car. After reading the Miranda warnings to defendant, Officer Gray asked defendant to identify the bodies in the trunk of the car. Defendant then freely responded that the male was James Sepulvado, his distant cousin, but he was not sure about the girl’s name. Defendant then recited in detail how the killing occurred.

Officer Gray testified 'he again questioned defendant at the Bossier Parish Courthouse after advising him of his rights. In this interrogation defendant told Gray that after the victims were killed the bodies were concealed in the bushes nearby. He also recounted the events which, transpired before the arrests. Gray was then asked if defendants’ statements at the courthouse were in accord with what he said previously at the scene of the arrest on Highway 80. When Gray replied “more or less”, he was asked to point out the variations. Gray then replied, “He went into more detail about the location, where the murders had been committed.”

Defense counsel objected and requested that the court admonish the jury to ignore Gray’s characterization of the deaths as “murders”. Whereupon the trial judge admonished the jury to ignore the last remark, after which defense counsel moved for a mistrial, which was denied, and the defense objected to the ruling.

Article 771 of the Code of Criminal Procedure, which is applicable to prejudicial remarks of witnesses, grants authority to the judge to grant a mistrial in his discretion if he is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

Considering the fact that defendant had related the full details of the killings to Officer Gray, no undue prejudice resulted by referring to the killings as murders. The admonition to disregard the remark satisfied the trial judge that defendant would not be denied a fair trial on that account.

Assignment 10

Officer Gray testified that defendant’s wife’s clothes worn at the time of arrest were handed to him at the courthouse, and the defense objected that reference to the wife’s clothes was immaterial and irrelevant. The argument is also made that this was a tactic to impeach the wife’s testimony before she took the stand.

The clothing was relevant and material because the wife was present at the killing and her clothing was stained by the blood of the victims, according to a crime laboratory analysis. Insofar as the defense allegation that this was an attempt to impeach his wife’s testimony, it does not appear that she testified.

Assignments 11 and 12

After having testified on direct and cross-examination Officer Vol Dooley’s testimony was concluded. Another witness followed him to the witness stand, after which Dooley was recalled by the State. The prosecutor then referred to the fact that Dooley had been asked on cross-examination whether he asked defendant to take a lie detector test after he talked to him about the offense, and if Dooley knew whether lie detector tests were admissible as evidence in court.

Defense counsel objected to the materiality of the question, arguing that lie detector tests were useful in police investigations, and their admissibility in evidence was immaterial. He further objected that the answer required the opinion of a legal expert. In response the prosecutor argued that Dooley had been asked on cross-examination by defense counsel why he did not give defendant a lie detector test, and the purpose of the State’s question was to have the witness explain why the test was not given.

Further questioning of Dooley disclosed that he had been a law enforcement officer for 21 years, had been in court often, and had attended seminars, study sessions and lectures concerning the investigation of crimes. He then answered that lie detector tests were not admissible as evidence. This was followed by an explanation that he didn’t give the lie detector test because he did not think defendant lied when he said he had killed “these two people.” “What about the rest of it?”, he was asked. “I think he was lying about . . . .” His reply was interrupted by a defense objection.

On this record, no error is shown by this assignment. The witness was not testifying as a legal expert, but from experience, and his observations concerning the admission of lie detector tests. Cf. La.Rev.Stat. 15:464-67. He was also entitled to explain why he did not give defendant a lie detector test. La.Rev.Stat. 15:281.

Assignment 13

A blackboard was brought into the courtroom during the noon recess for use by the prosecutor in his closing argument. Sketches were drawn on it to illustrate his argument. Defense counsel objected to the use of the blackboard in argument and to the fact that it was prepared during a court recess outside the presence of the jury. He further requested an opportunity to photograph the blackboard for the record. When the judge would not delay the trial for this purpose, he introduced a sketch of the board into evidence.

In the assignment of error and in brief it is argued that the use of the blackboard was highly inflammatory, contained incorrect information designed to mislead the jury, and was overly theatrical.

According to a sketch made by defense counsel, the blackboard contained a reference to the elements of the crime the State must prove to obtain a conviction. In addition, the cloak of innocence which surrounds a person accused of crime is also referred to on the blackboard. This, together with the prosecutor’s closing argument in which he referred to the blackboard, contained nothing improper or unduly prejudicial.

Assignment 14

This special charge was requested by the defense for inclusion in the judge’s charge to the jury:

“That under the provisions of Article 30, Title 14, Louisiana Revised Statutes of 1950, as amended, which proscribes against the crime of First Degree Murder, the State of Louisiana must prove that the defendant had the specific intent to kill or inflict great bodily harm upon more than one person and that that intent must have existed at the time of the killing of the human being of which the state has so accused him.”

The special charge was denied, because it was included in the court’s general charge, was not wholly correct and would require explanation. On the question of intent, the court charged the jury as follows:

“I charge you further that an essential element of the offense of First degree murder and Second degree murder is the specific intent to kill or to inflict great bodily harm, and the State must prove beyond a reasonable doubt that the accused had this specific intent; otherwise the accused must be found not guilty of the offense of First degree murder and Second degree murder.
“Specific intent is defined by Louisiana Revised Statutes Title 14, Section 10, as follows:
‘Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.’
“Specific criminal intent cannot be presumed from the commission of an unlawful act. It is not requisite that it existed for any particular length of time. It is sufficient if it existed at the time of the act. You, the jury, are to decide whether the accused had the specific criminal intent mentioned above. You are entitled to consider all facts and circumstances in evidence in this case to aid you in determining whether the accused had the requisite specific criminal intent that I have already referred to.
“Intent may be proved by circumstantial evidence. Indeed, it can rarely be established by any other means. While witnesses may see and hear and so be able to give direct evidence of what a defendant does or fails to do, of course there can be no eyewitness account of the state of mind with which the acts were done or omitted. But what a defendant does, or fails to do, may indicate intent, or lack of intent, to commit the offense charged.”
The ruling of the trial judge was correct.

Assignments 15 and 16

These assignments were reserved by the defendant to the denial of a motion for new trial and a motion to arrest judgments. The motions were based upon the assignments of error already considered and were properly denied.

After the sentences were imposed in this case, the United States Supreme Court declared the mandatory death penalty prescribed by Article 30 of the Criminal Code unconstitutional in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). When the Roberts case was remanded to this Court for further consideration in light of, that holding, we construed the case to mean that the conviction could stand but a penalty less than death should be imposed. Accordingly, in a series of cases presenting similar issues we remanded to the trial court with instructions to impose a sentence of imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years. State v. Jenkins, La., 340 So.2d 157 (1976); State v. Davenport, La., 340 So.2d 251 (1976); State v. Skelton, La., 340 So.2d 256 (1976). The same issue is presented here.

Accordingly, for the reasons assigned, the convictions are affirmed, and the case is remanded to the trial court, and the trial court is ordered to sentence defendant Joseph Clayton Sepulvado on each count to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years.

DIXON, J., concurs, disagreeing with the treatment of Assignment No. 6, but agreeing with the result.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

On September 25, 1975 defendant Sepul-vado was charged with committing “the offense of FIRST DEGREE MURDER violating the provisions of LSA-RS 14:30 in that he committed first degree murder of James Michael Sepulvado” and in a second count with committing “the offense of FIRST DEGREE MURDER violating the provisions of LSA-RS 14:30 in that he committed first degree murder of Bonita Knighton.” Immediately thereafter defendant Sepulvado’s attorney filed bills of particular in which he attempted to discover which of the five different sections of the first degree murder statute Sepulvado was charged with committing. The state answered those questions six months later, in March of 1976, less than a month before trial, indicating that defendant’s charge was based on section four of that statute which makes unlawful the killing of a human being “[w]hen the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.” It is clear that the mere killing of two persons does not constitute first degree murder under this statute; the killing of two persons would constitute the commission of two second degree murders, violations of R.S. 14:30.1. It is the intent to kill or inflict great bodily harm on more than one person which transforms a killing into murder in the first degree.

The majority holds that the indictment was properly upheld by the trial court because the state’s charging of two offenses in one indictment was acceptable under the newly-amended Code of Criminal Procedure Article 493. I agree with the majority’s conclusion that the change in Article 493 was procedural and hence could be applied retroactively to crimes committed before the effective date of the change, without violation of the prohibition against ex post facto laws. However, I do not agree with the majority’s conclusion that “[cjharging the offense in two counts is essentially the same” as charging the offense in one count. See my dissent in State v. James, 339 So.2d 741 (La.1976). I believe that indictments charging a person with violating R.S. 14:30(4) must specify the single victim of the murder and allege that the killing was done while the accused had the specific intent to kill or to inflict great bodily harm upon more than one person. Here, although the indictment did not so specify, defendant was given notice of the details of the charge through the state’s answers to bills of particular. For this reason, I would find no error in what would otherwise have been a defective indictment even under the newly-amended joinder article. State v. James, 305 So.2d 514 (La.1974).

This problem with the indictment, however, is related to the second, and critical problem, in this case: the failure of the trial judge to correctly charge the jury as to intent.

In assignment number fourteen, defendant complains that the trial judge mistakenly and prejudicially failed to give this charge which he specifically requested:

“That under the provisions of Article 30, Title 14, Louisiana Revised Statutes of 1950, as amended, which proscribes against the crime of First Degree Murder, the State of Louisiana must prove that the defendant had the specific intent to kill or inflict great bodily harm upon more than one person and that that intent must have existed at the time of the killing of the human being of which the state has so accused him.”

Although the judge did read to the jury the definitions of first and second degree murder, his instructions, which are quoted in the majority opinion, do not distinguish between the intent necessary before finding a person guilty of second degree murder, i. e., “[w]hen the offender has a specific intent to kill or to inflict great bodily harm,” and the very much greater intent necessary for first degree murder, i. e., “[w]hen the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.” [emphasis added] The trial judge specifically instructed the jury that “an essential element of the offense of First degree murder and Second degree murder is the specific intent to kill or to inflict great bodily harm, and the State must prove beyond a reasonable doubt that the accused had this specific intent.” The judge’s instructions, therefore, did not explain the greatly increased intent necessary in order to be guilty of first degree murder. The judge’s refusal, therefore, to give the wholly pertinent and wholly correct instruction requested by defense counsel was clearly error.

Additionally, the error was extremely prejudicial to defendant under the particular facts of these killings. The incident arose as four friends, two of them cousins, were engaged in drinking beer and shooting at tin cans at a local junkyard. According to the defendant’s statement related in trial by the state’s witness, when the male victim turned his gun on defendant Joseph Sepulvado, Joseph shot and killed him. The victim James Sepulvado’s friend Bonita Knighton then reached for James’ gun, and Joseph Sepulvado shot and killed her also. Under these circumstances, unless the jury had been convinced that defendant had the specific intent to shoot or kill both victims before he shot the first, or as he shot the first, the jury as a matter of law would have had to have returned a verdict no greater than second degree murder. For this reason, the judge’s instructions to the jury as to the difference between the intent required for first degree murder as opposed to second degree was critical. The judge’s refusal to incorporate defendant’s suggested wholly pertinent and wholly correct charge into his instructions was therefore blatant error, thoroughly prejudicing defendant’s case.

For this reason, I dissent.


source: Caselaw Access Project

author:
TATE, Justice.
      SANDERS, Chief Justice SUMMERS, Justice,

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Charles WEEDON, Appellant.
    No. 58501.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    Rehearing Denied March 3, 1977.

      Jack Peebles, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Me-tairie, for plaintiff-appellee.
   TATE, Justice.

The defendant Weedon was charged with the murder of his wife, Charlene. La.R.S. 14:30.1. The jury found him guilty of manslaughter, La.R.S. 14:31, a responsive verdict. He appeals his conviction and 21-year sentence.

Weedon relies upon two principal specifications of error: (1) The admission of allegedly incriminatory information obtained from him during booking procedures, despite an understanding of the police officers with the defendant’s attorneys that he was not to be interrogated as to the crime outside of their presence; (2) The admission of unreliable hearsay testimony from three of the deceased wife’s friends of her intention to separate from her husband.

The defendant is entitled to reversal if there is merit in either specification. The state’s case for the apparently motiveless killing of his wife by the defendant businessman depended entirely upon inferences from circumstantial evidence. Any evidence tending to prove an admission or motive on his part could not be harmless under the circumstances shown.

Facts

On Tuesday, September 9, the sheriff’s office received a telephoned request from Weedon’s attorneys to meet them at the Weedon home. Two detectives went there, and, with permission of Weedon and his attorneys, searched his home and an automobile parked there.

In the trunk of the vehicle they found the body of Weedon’s wife. Subsequent medical examination showed that she had been killed by two shots to the head and had been dead for from 36 to 48 hours. The state’s theory is that she was killed in her home on the morning of Sunday, September 7.

The detectives then arrested Weedon and read him his Miranda rights. These require (if not waived) the presence of counsel at any custodial interrogation. Weedon was crying, red in the face, and obviously emotionally disturbed at the time.

In accordance with the specific information given to Weedon that he had a right to have his attorney present with him during any questioning, his lawyers then specifically instructed the detectives in Weedon’s presence that he was not to be questioned “with any aspect of the investigation” (in the detective’s words).

The detectives then asked the lawyers if Weedon could answer questions for the arrest register. The detective fully admitted that, when the attorneys gave them permission to have Weedon complete the arrest register, they were also instructed not to question him about anything pertaining to the crime. Their own testimony indicates agreement with the attorneys that Weedon would complete only data on the arrest register pertaining to personal data.

Relying upon this agreement, the attorneys did not accompany Weedon down to the station for booking. We may say, at this point, that Weedon was also entitled to rely upon the indicated advice of his attorneys that he could without prejudice to himself answer questions in order to complete his arrest register at the time of his booking.

(1)

Despite this agreement, the booking officer, a homicide detective, did not restrict his questioning of the accused to the personal information requested for the “arrestee data” (name, age, etc.). He also asked Weedon for certain information on another portion of the form, entitled “offense data”. He secured from the defendant information as to the date and time of the offense, completed by the officer as: “7 September” and “10:00 A.M. Sunday” respectively.

Over strenuous objection, the state introduced testimony of this booking procedure as an admission by the defendant that he had killed his wife at 10:00 A.M. in the morning two days before the booking.

The state contends that the booking statement, taken in violation of the agreement with Weedon’s attorneys, is nevertheless admissible because: (1) it was voluntarily made; (2) the homicide detective (allegedly) had not been informed of the limited interrogation to be permitted without the accused’s attorneys present; and (3) a voluntary election to waive Miranda rights resulted from the circumstance that the booking detective had ascertained from Weedon that the latter had retained attorneys and had been informed he did not have to talk without their presence.

As stated in Miranda v. Arizona, 348 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966): “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” (Italics ours.)

Under the circumstances shown, there was no knowing waiver by the accused of his right to presence of counsel and of his right against self-incrimination. He answered questions asked by him at his booking in reliance upon his attorneys’ advice. This advice was properly based upon the assurance by state officers that Weedon would only be asked, to furnish the usual personal data at the time of booking (“name, rank, and serial number”, as the attorney stated).

The accused’s constitutional rights against self-incrimination and to the effective assistance of counsel cannot be prejudiced by the state’s failure to honor its agreement not to question the accused about the crime unless his attorneys are present. The claimed ignorance by one state officer of the agreement by other state officers cannot convert into an intelligent and knowing waiver uncounselled responses of the accused made by him perfunctorily as a result of the agreement that he would be asked only non-incriminatory statements.

The extremely prejudicial admission was unconstitutionally obtained. It was reversible error to admit it over the defendant’s objection.

In State v. Jackson, 303 So.2d 734 (La.1974), we similarly reversed a conviction where, by misleading an accused as to the availability of counsel, damaging statements were obtained from her. We noted, 303 So.2d 737: “The essential reasons for the constitutional right of access to counsel lie in principles of fundamental fairness safeguarding the rights of an individual against potential governmental abuse, as well as in protecting the integrity of the truth-finding process * *

As noted by Miranda v. Arizona, 384 U.S. 436, 466, 86 S.Ct. 1602, 1623-4, 16 L.Ed.2d 694 (1966): “That counsel is present when statements are taken from an individual during interrogation obviously enhances the integrity of the fact-finding processes in court. The presence of an attorney, and the warnings delivered to the individual, enable the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogation process.”

The Louisiana constitution expressly protects the rights of an arrested person to be advised of his right to remain silent and of his right to the assistance of counsel, Louisiana Constitution of 1974, Article 1, Section 13. We hold that, due to state action, the accused was involuntarily induced to make the alleged admission secured by the booking sergeant and that this admission was taken in violation of his cited rights accorded him by our state constitution.

The conviction must be reversed.

(2)

Nevertheless, since the issue may arise in a retrial, we must also pass upon another specification of erroneous admission of evidence.

To prove motive in this otherwise unexplained killing of Charlene Weedon, the state called three friends of hers to testify as to marital discord, including a short separation some three months before the killing. No objection to this general testimony was made.

However, over defense objection, the state elicited from three friends that, on three different occasions, Charlene had told them that she intended to leave Weedon again.

The defense objection was that these declarations by the decedent were hearsay. Hearsay is an out of court assertion introduced to prove the truth of its content; as such, it is inadmissible, with certain exceptions, because of its historic unreliability and unfairness to an accused in that he cannot test the truth of the unsworn out of court declaration. State v. Thompson, 331 So.2d 848 (La.1976).

Admitting that motive cannot be proved by hearsay, the state nevertheless contends that these out-of-court declarations were admissible to prove the existing state of mind of the declarant, a traditional exception to the hearsay rule. 6 Wigmore on Evidence, Sections 1714 et seq. (Chadbourn rev., 1976); 4 Weinstein’s Evidence, Section 803 (1976); McCormick on Evidence, Sections 294-296 (2d ed. 1972). This exception includes within its scope such declarations to do an act, introduced to prove that the declarant subsequently did the act. Wigmore, Section 1725; Weinstein, Section 803(3)(04); McCormick, Section 295.

Upon this principle, two leading American decisions permitted admission of hearsay to prove that, shortly before his death, a decedent intended to go with a certain person (now suspected of killing him), a fact otherwise unproved by the evidence. Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892); People v. Alcalde, 24 Cal.2d 177, 148 P.2d 627 (1944). In each instance, the ultimate fact sought to be proved was that, if the victim had carried out his intention, them it was possible that the suspected person had killed the victim because then the suspect was near the victim at the time of his death.

Commentators have suggested that, under such circumstances, the reliability of the hearsay is decreased, because it involves not only an inference that the declarant carried out his intention but also that the declarant’s hearsay-identified companion (i.e., the suspect) had also carried out an intention proved only by another’s hearsay declaration. McCormick, pp. 698-99; Weinstein, p. 803-104. The effect of the admission of the hearsay is not only to prove that the declarant acted on his intention, but also that a nondeclarant likewise completed an intent ascribed to him by the out-of-court declarant upon some unknown basis.

Our leading Louisiana decision to the same effect is State v. Raymond, 258 La. 1, 245 So.2d 335 (1971). There, the victim’s out-of court declaration of revulsion to his suspected killer (because of the latter’s homosexual advances) was admitted as non-hearsay circumstantial evidence of the victim’s state of mind concerning the suspect, with whom the victim rode off shortly af-terwards, never again to be seen alive. Professor Pugh has noted that the decision is questionable, since the relevant issue was the accused’s not the victim’s state of mind. 32 La.L.Rev. 353-55 (1972).

Essentially, if justifiable, admission of the out-of-court declaration of the victim (who by reason of his death cannot testify) in Raymond is based upon the expedient rule sometimes relied upon in homicide eases that “conduct or declarations of the decedent shortly before his killing may sometimes be admissible as tending to show the immediately antecedent circumstances explanatory of the killing and connecting the accused with it.” State v. Raymond, 245 So.2d 342 (concurring opinion).

Even under this principle, however, the hearsay declarations by the deceased wife are inadmissible in the present case.

Two of them, made three and five weeks before the wife’s death, plainly do not fall within the Raymond rule. Aside from their inadmissibility as hearsay, the fact sought to be proved by them (that the wife at some date in the past intended to leave her husband, but did not do so) is not probative of her state of mind at the time of her death.

The third declaration presents a more troublesome issue. Here, Karen Armstrong was permitted to testify that the deceased wife had called her at 3:00 P.M. on the afternoon (Saturday) preceding the morning of her presumed death (Sunday). Over objection, the witness was permitted to testify that the wife told her she intended to leave her husband the following morning, after he left on a trip, and would call her at noon to get directions so as to stay with Ms. Armstrong. The witness’s testimony is quite positive, however, that the wife did not intend to tell her husband of her intention and that she planned to leave secretly. Tr. 205-06, 210.

The fact that the wife intended to leave her husband is irrelevant, unless her husband knew of her intention. If the wife had told her friend she intended to tell her husband of her intention to leave him the following morning, her out-of-court declaration might have been admissible under Raymond as tending to show immediately antecedent circumstances explanatory of the killing.

Here, however, the wife’s declaration was exactly the opposite. Her intention to leave her husband that morning, uncommu-nicated to him, does not probatively tend to permit an inference of any reaction by her husband to her undisclosed intention.

That is, the hearsay admitted allegedly to prove the wife’s state of mind or intention is probative only if we infer (a) that the wife did some act the next morning in accordance with her declared intent or state of mind, (b) evidenced such state of mind or intention to her husband, and (c) the husband reacted to it.

In Raymond, arguably (a) and (b) were implied by the victim’s declaration, permitting the jury to infer (c). Here, however, for the trier of fact to infer that the husband reacted to the wife’s intention (i. e., the (c) condition), it must also infer that, contrary to her declaration, she communicated to her husband her intention of leaving him (i. e., the (b) condition), a necessary prerequisite for her state of mind to be relevant to an issue in the case.

Accordingly, we find that this third (Armstrong) declaration also is inadmissible. In effect, its introduction attempted to prove a motive for the killing, by hearsay inadmissible for that purpose: That the defendant killed his wife Sunday because she intended to leave him that morning. Admission of hearsay for such purpose is not permitted, because of its historic unreliability-

Since the hearsay was far more probative of motive, prohibited by our jurisprudence, than of the wife’s state of mind (assuming the latter, uncommunicated to her husband, to be relevant, cf. 32 La.L.Rev. 355), its prejudicial effect far outweighed its probative value as to the wife’s state of mind or intention. The declaration is thus inadmissible on that ground also, insofar as offered to prove the wife’s state of mind. Pugh, Louisiana Evidence Law 418-20 (1974).

We find merit in this specification of error also.

Decree

For the reasons assigned, we reverse the conviction and sentence, and we remand for a new trial in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., dissented and filed an opinion.

SUMMERS, J., dissented and assigned reasons.

MARCUS, J., dissented.

SANDERS, Chief Justice

(dissenting).

As a result of a homicide report, Jefferson Parish officers met with the defendant and his two attorneys on September 9,1975. The officers arrested defendant and advised him of his rights as required by Miranda v. Arizona, 348 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The attorneys instructed the officers, in defendant’s presence, that the defendant was not to speak to a law enforcement officer concerning the crime, but that he could be questioned for booking purposes only. The same day, the defendant was brought to Deputy Walter Gorman for booking. Prior to asking defendant any of the questions on the arrest register, Deputy Gorman asked the defendant whether he had been advised of his rights. He responded that he had been so advised and that his attorneys had been present at the time. The deputy then proceeded to ask defendant the questions appearing on the arrest register, one of which was the approximate time of the crime. Defendant supplied this information. The record discloses no suggestion of coercion, intimidation, or even an objection. The booking officer was unaware of the attorneys’ instructions.

The majority reverses the conviction on the ground that the booking information relating to the time of the crime was inadmissible. In my opinion, the holding is in conflict with the principles announced in two of our recent decisions: State v. Cotton, La., 341 So.2d 355 (1977); State v. Peevy, La., 321 So.2d 324 (1975). These cases hold that a defendant may waive his right against self-incrimination and to the presence of an attorney, even though he has previously advised law enforcement officers that he does not desire to make a statement.

The case of State v. Jackson, La., 303 So.2d 734 (1974), relied on by the majority, is distinguishable. There, the personnel of the Sheriff’s office withheld from the defendant information that her family had retained an attorney and that he had instructed the police not to interrogate her.

The privilege against self-incrimination is personal to the defendant. See Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951); McAlister v. Henkel, 201 U.S. 90, 26 S.Ct. 385, 50 L.Ed. 671 (1906); State v. Wallace, La., 321 So.2d 349 (1975). He may waive it, if he so desires, even contrary to the instructions of his attorney. The defendant may likewise waive the presence of his attorney. In my opinion, the record establishes that defendant’s limited waiver was voluntarily, knowingly, and intelligently made. Hence, the statement as to the time of the crime was admissible.

I express no opinion at this time on the hearsay question treated in the majority opinion.

For the reasons assigned, I respectfully dissent.

SUMMERS, Justice,

dissenting.

I dissent for the reasons assigned by the Chief Justice.

      . The only non-circumstantial evidence was the testimony of a trustee of the parish prison that the accused had fully admitted to him that he had shot his wife. This trustee, a convict admitting to 21 convictions had on at least two previous occasions procured alleged admissions from fellow prisoners for use in evidence against them in felony trials, in return for which he had received lenient treatment on his own charges for which held. Another occupant of the cell, imprisoned 10 days for a traffic violation but otherwise without criminal record, testified that no such conversations took place and that the prisoners distrusted the trustee, a professional criminal.

      . In answer to a question “What is the arrest register?”, the detective replied: “That is the information about the accused, such as his name and address and his date of birth and his Social Security Number and his driver’s license form, and it is a form that is used when a person is charged with a crime.”

      . See interrogation of the detective by defense counsel:
      “Q. And when we talked about this, and you asked if you could have his name and birthday and address, what did Mr. Masinter tell you?
      “A. He advised us that it was all right as long as it didn’t pertain to the actual crime and its investigation.
      “Q. Did he also not tell you all that Mr. Weedon could tell you his name, rank and serial number, to coin a phrase, isn’t that the phrase he used on that particular morning?
      “A. I remember him saying that he could not answer any questions concerning the crime.
      “Q. Well, the date and time of the crime pertains to the crime, does it not?
      “A. Yes, sir.
      “Q. And you understood that we didn’t want you asking any questions pertaining to the crime, including the date and time and place, is that correct?
      “A. Yes, sir.
      “Q. And we specifically told you that we didn’t want any questions asked of Mr. Wee-don pertaining to any part of the crime, which included the time and date and place, was that your understanding?
      “A. Yes, sir.”

      .We do not dwell upon, as immaterial to our holding, a less-incriminatory discrepancy shown between the computerized retrieval of this data and the belatedly discovered original in the homicide detective’s handwriting.

      . We note that the latest federal expression also is in accord that a taking of a statement under less blatant circumstances similarly violates the federal constitution. Williams v. Brewer, 509 F.2d 227 (CA 8, 1974), certiorari granted 423 U.S. 1031, 96 S.Ct. 561, 46 L.Ed.2d 404 (1975).

      . See Weinstein, p. 803-105: “In the abstract, the proposition that intent is usually acted upon can be shown to be psychologically doubtful.”

      . This conclusion is re-enforced under the present facts, where after the declarations, the wife accompanied her husband to California and returned with him to Louisiana.


author: MARCUS, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Larry EVERFIELD.
    No. 58308.
    Supreme Court of Louisiana.
    Jan. 24, 1977.

      George F. Fox, Jr., Lake Providence, for defendant-relator.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John T. Seale, Dist. Atty., Thomas F. Wade, Asst. Dist. Atty., for plaintiff-respondent.
   MARCUS, Justice.

This matter involves an attack on the constitutionality of La.R.S. 13:1571.1 which provides for the transfer of certain juveniles who have allegedly committed criminal offenses from the jurisdiction of the juvenile court to be tried as adults in the appropriate court exercising criminal jurisdiction. We granted certiorari to consider the constitutionality of this statute pursuant to which Larry Everfield, a juvenile sixteen years of age at the time of the alleged conduct, was transferred to the district court to be prosecuted for having allegedly committed the crime of armed robbery in violation of La.R.S. Mr&b

It should be noted at the outset that Louisiana is by no means unique in allowing certain juveniles charged with criminal offenses to be transferred to district court for trial as adults. In Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the Supreme Court recognized that:

[Tjhere appears to be widely shared agreement that not all juveniles can benefit from the special features and programs of the juvenile court system and that a procedure for transfer to an adult court should be available, [citation omitted.] This general agreement is reflected in the fact that an overwhelming majority of jurisdictions permits transfer in certain circumstances. As might be expected, statutory provisions differ in numerous details. Whatever their differences, however, such transfer provisions represent an attempt to impart to the juvenile court system the flexibility needed to deal with youthful offenders who cannot benefit from the specialized guidance and treatment contemplated by the system.

Prior to 1974, Louisiana law made no provision for juvenile transfer proceedings. The 1974 Louisiana Constitution, however, specifically authorized the enactment of such transfer procedures in article 5, § 19, which provides as follows:

Except for a person fifteen years of age or older who is alleged to have committed a capital offense or attempted aggravated rape, the determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be exclusively pursuant to special juvenile procedures which shall be provided by law. However, by law enacted by two-thirds of the elected members of each house, the legislature may (1) lower the maximum ages of persons to whom juvenile procedures would apply and (2) establish a procedure by which the court of original jurisdiction may waive such special juvenile procedures in order that adult procedures would apply in individual cases. [Emphasis added.]

In response to this constitutional authorization, the legislature subsequently enacted La.R.S. 13:1571.1 which outlines the following criteria and procedure for transfer of certain juveniles for trial in an adult court:

A. Effective January 1, 1975, after a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense by the statutes of the United States, of this state, or by ordinance of local political subdivisions exercising general governmental functions, the court, before hearing the petition on its merits, may transfer the alleged offender for prosecution to the appropriate court exercising criminal jurisdiction if the district attorney, the alleged offender, or the court on its own motion, files a transfer petition and the following conditions are met:
(1) The child has attained the age of fifteen years or more at the time of the alleged conduct;
(2) A hearing on whether the transfer should be made is held in conformity with R.S. 13:1571.2;
(3) Notice in writing of the time, place and purpose of the hearing is given to the child and his parents, tutor, or other custodian at least ten days before the hearing; and
(4) The court finds that there are reasonable grounds to believe that the child is not amenable to treatment or rehabilitation through facilities available to the juvenile court.
(5) The child has previously been adjudicated a delinquent by the commission of any of the following offenses: second degree murder, manslaughter, negligent homicide, simple rape, armed robbery, aggravated battery, aggravated burglary, aggravated arson and aggravated kidnapping-
B. The transfer terminates the jurisdiction of the juvenile court over the child with respect to the delinquent acts alleged in the petition.
C. No child, either before or after attaining the age of seventeen shall be prosecuted in criminal court for an offense which was allegedly committed by the child who had not then attained the age of seventeen unless the case has been transferred to criminal court as provided herein, or except as otherwise provided by law.

In 1975, the statute was amended to add the following provision:

D. Notwithstanding any provision of law to the contrary when an offender fifteen years of age or older is charged with armed robbery or a crime punishable by life imprisonment, and a petition is filed in the juvenile court requesting the transfer of the offender to a district court of general criminal jurisdiction in accordance with R.S. 13:1571.1 et seq., should the juvenile court approve the petition for transfer the juvenile court shall order such transfer without a previous adjudication of delinquency and the provisions of Paragraph 5 of Subsection A of this Section shall not be applicable in such instance.

Defendant attacks the constitutionality of La.R.S. 13:1571.1 on several grounds. He argues: (1) that the statute exceeds the authorization contained in La.Const. art. 5, § 19; (2) that it contravenes the separation of powers doctrine embodied in La.Const. art. 2, § 2; and (3) that it violates his rights to equal protection and due process of law as guaranteed by the state and federal constitutions. We do not agree.

Defendant’s first contention is that La.Const. art. 5, § 19 does not authorize a statute contemplating a transfer of jurisdiction to the district court. He claims that art. 5, § 19 envisions only a waiver in certain cases of the procedural rules for pleading and practice ordinarily used in the juvenile court. This argument is totally without merit. The term “procedures” as used in the provisions clearly comprehends the whole system for dealing with juvenile lawbreakers. Therefore, the provision authorizing the legislature to establish a procedure by which the court of original jurisdiction (juvenile court) may “waive such special juvenile procedures in order that adult procedures would apply in individual cases” addresses itself to the transfer of jurisdiction and not an alternative set of rules for pleading and practice. Accordingly, La.R.S. 13:1571.1 establishing a procedure for transfer of certain juveniles for trial as adults in the appropriate court exercising criminal jurisdiction falls squarely within the authorization of La.Const. art. 5, § 19.

The next issue presented for our consideration is whether the vesting of authority in a juvenile court judge to determine when the statutory conditions for transfer are met constitutes an improper delegation of legislative power in violation of the separation of powers doctrine embodied in La.Const. art. 2, § 2. Defendant contends that the juvenile transfer procedure effectively permits the juvenile court judge to determine what acts constitute crimes, a purely legislative function which cannot be delegated to the judiciary. This argument is founded on an erroneous appreciation of the nature of transfer proceedings. Nowhere in La.R.S. 13:1571.1 is the juvenile court judge empowered to determine the elements of a crime or who shall be punished as a criminal. All criminal acts for which transfer is permissible are defined by laws enacted by the legislative branch of government. La.R.S. 13:1571.1 merely outlines a procedure for determining whether certain juveniles who commit legislatively-defined criminal acts shall be handled in a juvenile court or tried as an adult in the appropriate court exercising criminal jurisdiction. The legislature has prescribed fixed conditions which must exist before a transfer of jurisdiction may be ordered; the juvenile court judge is charged only with the duty of determining when these conditions have been satisfied. This court has recognized that the legislature may properly make the operation of a statute contingent on the existence of certain conditions and may delegate the power to determine when those conditions exist to another branch of government. Schwegmann Bros. Giant Supermarkets v. McCrory, 237 La. 768, 112 So.2d 606 (1959). Accordingly, we find no violation of the separation of powers doctrine implicit in the operation of Louisiana’s transfer statute.

Defendant next argues that La.R.S. 13:1571.1 is unconstitutional in that it deprives him of equal protection under the law. He contends that, pursuant to the transfer procedure, juveniles who have committed the same offense may receive different treatment.

Generally stated, the guarantee of equal protection of the laws is that all individuals similarly situated be treated equally. State v. Ross, 304 So.2d 354 (La.1974). It is fundamental that a statutory enactment of the legislature is presumed to be constitutional. State v. Devall, 302 So.2d 909 (La.1974). Where, as here, there is no involvement of a “suspect classification” or “fundamental right” traditional equal protection analysis sustains a classification if it is not arbitrary and bears a rational relationship to a legitimate state interest. Chabert v. Louisiana High School Athletic Ass’n, 323 So.2d 774 (La.1975). Moreover, the burden is upon the party claiming the unconstitutionality to show that the classification inherent in the statute has no rational basis. State v. Brown, 288 So.2d 339 (La.1974).

Beyond his mere assertion that some juveniles are treated differently than others, defendant in the instant case makes no showing that these differences in treatment constitute a denial of equal protection. To the contrary, we are satisfied that the state has a legitimate interest in distinguishing between youths who may be rehabilitated and those who will derive no benefit from the more lenient treatment afforded in the juvenile system. By limiting transfer to juveniles over the age of fifteen at the time of the alleged conduct, who (except in the case of armed robbery or a crime punishable by life imprisonment) have previously been adjudicated delinquent for commission of any of certain specified serious offenses, and who are shown at a hearing to be “not amenable to treatment or rehabilitation,” the legislature has devised a statute rationally related to that legitimate interest. Hence, we find no merit in defendant’s allegation that the dual classification of youthful lawbreakers contemplated by the transfer procedure is invidious, arbitrary or irrational.

Nor do we find merit in defendant’s contention that the 1975 addition to La.R.S. 13:1571.1 of paragraph “D” is violative of equal protection or due process. A reading of the statute as a whole reveals that all but one of the preconditions to transfer incorporated in La.R.S. 13:1571.1 apply to the transfer of a juvenile who has been charged with armed robbery or a crime punishable by life imprisonment for trial pursuant to paragraph “D.” Only the requirement for a previous adjudication of delinquency is omitted. We cannot agree that it is a violation of due process or equal protection to make a distinction in procedure where the alleged offense is armed robbery or a crime punishable by life imprisonment in view of the legislature’s evaluation of the gravity of these types of crimes and their threat to public safety as demonstrated by their respective prescribed penalties of life imprisonment or, in the case of armed robbery, ninety-nine years at hard labor without benefit of parole, probation or suspension of sentence.

Defendant next argues that the transfer statute itself is unconstitutional in that it denies juveniles due process of law. In Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the United States Supreme Court reviewed the procedures used in waiving juvenile court jurisdiction under a statute much broader in scope than our own. The Court found that, although not specifically provided for in the statute, the District Court of Columbia transfer procedure assumed “procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness . ..” These requirements were held to include: (1) a hearing with effective assistance of counsel; (2) access by defense counsel to all social, probation and other reports relevant to the issue of transfer or considered by the court in making its determination; and (3) a statement setting forth the reasons for the juvenile court’s ruling with sufficient specificity to permit meaningful review. In most respects, the provisions for transfer in Louisiana comply with and go beyond the due process standards outlined in Kent. La.R.S. 13:1571.2 provides for a hearing held after ten days written notice as mandated by La.R.S. 13:1571.1A(3). The juvenile is entitled to present evidence in his own behalf and to cross-examine witnesses against him. Also, he shall not be required to be a witness against himself or to otherwise give evidence against himself. La.R.S. 13:1571.4. A juvenile must be represented by an attorney at the transfer hearing and provision is made for appointment of counsel for indigent juveniles. La.R.S. 13:1571.-3. Full proceedings will be recorded at the request of the juvenile, his parents, attorney, or on motion of the court. La.R.S. 13:1571.2. Although our statute makes no specific provision for access by counsel to the juvenile’s records or for a statement of reasons for judgment by the juvenile judge, neither does it contravene in any way these due process requirements announced in Kent We therefore find it unnecessary to rule our transfer statute unconstitutional. Instead, we assume that the statute was intended to be subject to constitutional standards of procedural due process and consider them implicitly embodied in the statute as did the United States Supreme Court in Kent with respect to the District of Columbia statute there in question.

Defendant, nevertheless, contends that the absence of standards to guide a judge in determining which juveniles are transfer-rable for trial in district court in practice abridges his right to equal protection and due process of law. He claims that the transfer requirement embodied in La.R.S. 13:1571.1A(4) is impermissibly vague, thereby rendering the statute unconstitutional.

Unlike the transfer statutes enacted in many states which allow a judge broad discretion to transfer juveniles for trial as an adult, Louisiana permits a waiver of juvenile jurisdiction in only one limited circumstance. La.R.S. 13:1571.1 authorizes juvenile transfers only when the specific statutory conditions are met and

[t]he court finds that there are reasonable grounds to believe that the child is not amenable to treatment or rehabilitation through facilities available to the juvenile court.

We interpret this phrase to sanction transfer of only those youths for whom there is no hope of treatment or rehabilitation in the types of facilities utilized by juvenile courts. While this criteria necessarily calls for evaluation and judgment by the juvenile court judge, it is not unconstitutionally vague; it is couched in language within common usage and is sufficiently clear to enable a person of ordinary intelligence to comprehend its import. The numerous conditions which must be satisfied before a juvenile transfer is appropriate manifest the legislative intent that non-criminal treatment of juveniles is to be favored. Furthermore, La.R.S. 13:1592 specifically articulates the general policy and purpose of the juvenile court system to insure a child’s welfare by providing him with care as nearly equivalent as possible to that he would receive in a home environment. These manifestations of legislative intent effectively limit and guide the juvenile court judge’s discretion. Juvenile court judges of this state must recognize, as did the United States Supreme Court in Kent, that the decision to transfer a child for trial as an adult is a critically important one accompanied by tremendous consequences. Accordingly, the decision that juvenile is not amenable to treatment or rehabilitation should be based on a careful review of relevant considerations such as the age, maturity and sophistication of the juvenile; the nature and seriousness of the offense charged; prior acts of delinquency, if any, and their nature and seriousness; past efforts at rehabilitation and treatment and the juvenile’s response thereto; whether the juvenile’s behavior might be related to physical or mental problems; and the techniques, programs, personnel and facilities available to the juvenile court system which might be competent to deal with the problems of the particular juvenile whose transfer is being considered. We do not mean to suggest that these are the only relevant considerations. The juvenile court judge must evaluate each case on its own merits. There are no specific standards mandated by either the state or federal constitutions. In Breed v. Jones, supra, the Supreme Court noted that, although certain procedural due process rights set forth in Kent must be afforded at a transfer hearing,

. the Court has never attempted to prescribe criteria for, or the nature and quantum of evidence that must support, a decision to transfer a juvenile for trial in adult court.

In the final analysis, whether or not a youth is amenable to treatment of rehabilitation is a matter within the sound discretion of the juvenile court judge who has the opportunity to hear the evidence and to observe the juvenile. The exercise of this discretion must, of course, be principled. It must reflect the policy in favor of non-criminal treatment of children under seventeen years of age and the types of considerations set forth hereinabove. Moreover, there is the additional safeguard that the juvenile court judge must state his reasons for judgment with sufficient particularity to insure meaningful review by this court. Thus, we are satisfied that an adequate guide exists for the limited discretion vested in the juvenile court judge by La. R.S. 13:1571.1A(4).

Inasmuch as the decision to transfer Larry Everfield for trial as an adult was made without benefit of the principles articulated in this opinion, we deem it in the best interest of justice to remand the case for a new transfer hearing to be held and ruled on in accordance with the views expressed herein. Accordingly, we do not review the merits of the transfer at this time, recognizing that both defendant and the state will have a right to seek review by writ of certiorari at the conclusion of the second transfer hearing.

We note that defendant in this case also applied for relief from the juvenile court’s transfer order by way of appeal. La.R.S. 13:1571.4B provides that the decision of the juvenile court to transfer or not to transfer the case to the court exercising criminal jurisdiction is only an “interlocutory” judgment which either the child or the state, or both, have the right to have “reviewed” summarily by this court by preference. We are satisfied that such review is by writ of certiorari under our general supervisory jurisdiction. La.Const. art. 5, § 5(A) (1974). Accordingly, we dismiss defendant’s appeal which was based on the same grounds and prayed for the same relief.

DECREE

For the reasons assigned, defendant’s appeal is dismissed; the transfer order is annulled and set aside; and the case is remanded to the juvenile court for the Parish of East Carroll for a new transfer hearing in accordance with the law and the views expressed in this opinion.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I wholly concur in the decree and substantially all of the opinion of the Court. However, in order to more surely guide the trial judges in this case and others we should rule specifically on each of the issues presented.

The State’s failure to give the juvenile’s parents notice in writing of the purpose of the hearing in accordance with La.R.S. 13:1571.1(A)(3) constituted a substantial violation of the juvenile’s statutory and constitutional rights, resulting in a probable miscarriage of justice and, consequently, reversible error. La.C.Cr.P. art. 921. See, In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527, 549 (1967) (“Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must ‘set forth the alleged misconduct with particularity.’ ”) (Emphasis supplied.) If the parents had been apprised of the extremely serious nature of the proceedings rather than being informed merely that a petition had been filed alleging that he was a “delinquent child,” perhaps they would have employed counsel and subpoenaed expert witnesses in an effort to rebut the State’s evidence. Instead, the juvenile received a perfunctory defense, to describe it generously, and was unable to call any witnesses in his behalf. Only after the transfer hearing and the disastrous events that followed did the juvenile obtain the services of his present attorney and commence to vigorously assert his rights.

The United States Supreme Court observed in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) that:

“From these six cases it is apparent that:
“1. Some of the constitutional requirements attendant upon the state criminal trial have equal application to that part of the state juvenile proceeding that is adjudicative in nature. Among these are the rights to appropriate notice, to counsel, to confrontation and to cross-examination, and the privilege against self-incrimination. Included, also, is the standard of proof beyond a reasonable doubt.
“2. The Court, however, has not yet said that all rights constitutionally assured to an adult accused of crime also are to be enforced or made available to the juvenile in his delinquency proceeding. Indeed, the Court specifically has refrained from going that far:
“ ‘We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.’ Kent, 383 U.S. at 562, 86 S.Ct. at 1057 [16 L.Ed.2d at 97, 98]; Gault, 387 U.S. at 30, 87 S.Ct. at 1445 [18 L.Ed.2d at 548].” 403 U.S. at 534, 91 S.Ct. at 1980. (Emphasis supplied.)

Because a transfer proceeding is a “juvenile proceeding that is adjudicative in nature” and the requirement of proof beyond a reasonable doubt is one of the “essentials of due process and fair treatment,” I think a Louisiana juvenile judge must find beyond a reasonable doubt “that the child is not amenable to treatment or rehabilitation through facilities available to the juvenile court” and that the other requirements of La.R.S. 13:1571.1(A) have been met, before a juvenile may be transferred to the criminal court for prosecution.

The majority opinion may have inadvertently indicated that Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) casts doubt on this conclusion. However, the basic holding in Breed was that the transfer and trial of a juvenile as an adult after his trial in juvenile court for the same offense violated the double jeopardy clause. In dicta, the Court said:

“ * * * [C]ourts should be reluctant to impose on the juvenile court system any additional requirements which could so strain its resources as to endanger its unique functions. However, the burdens that petitioner envisions appear to us neither qualitatively nor quantitatively sufficient to justify a departure in this context from the fundamental prohibition against double jeopardy.
“A requirement that transfer hearings be held prior to adjudicatory hearings affects not at all the nature of the latter proceedings. More significant, such a requirement need not affect the quality of decisionmaking at transfer hearings themselves. In Kent v. United States, 383 U.S., at 562, 86 S.Ct. at 1057, the Court held that hearings under the statute there involved ‘must measure up to the essentials of due process and fair treatment.’ However, the Court has never attempted to prescribe criteria for, or the nature and quantum of evidence that must support, a decision to transfer a juvenile for trial in adult court. We require only that, whatever the relevant criteria, and whatever the evidence demanded, a State determine whether it wants to treat a juvenile within the juvenile court system before entering upon a proceeding that may result in an adjudication that he has violated a criminal law and in a substantial deprivation of liberty, rather than subject him to the expense, delay, strain, and embarrassment of two such proceedings.[18]
it * * *
“[Footnote 18] We note that nothing decided today forecloses States from requiring, as a prerequisite to the transfer of a juvenile, substantial evidence that he committed the offense charged, so long as the showing required is not made in an adjudicatory proceeding. See Collins v. Loisel, 262 U.S. 426, 429, 43 S.Ct. 618, 625, 67 L.Ed. 1062 (1923); Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). The instant case is not one in which the judicial determination was simply a finding of, e.g., probable cause. Rather, it was an adjudication that respondent had violated a criminal statute.” 95 S.Ct. at 1789-90.

As I read this passage, the Court did not intend to relieve the states of the burden of proof beyond a reasonable doubt in juvenile transfer cases, which it seemed to recognize as intrinsic to a due process transfer in Kent, as elaborated upon by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and McKeiver, supra. Instead, the dicta was designed to assure that no change of procedure is demanded of those states which require, as a prerequisite to a juvenile transfer, a showing of probable cause or substantial evidence that the juvenile committed the offense. Obviously, such a prerequisite showing, which is not required by Kent or Louisiana law, need not be made beyond a reasonable doubt. However, after the Court’s pronouncements in Kent, Gault and Winship, I cannot believe that it intended by such dicta to relieve the State of a high standard of proof on the central issue of the juvenile’s amenability to treatment or rehabilitation. Before a child may be taken from a juvenile detention center and transferred to jail along with adults, afterwards to be exposed to the possibility of a 99-year penitentiary sentence without the possibility of parole instead of treatment or training in a juvenile institution, his incorrigibility must be proven by more than a mere preponderance of evidence. Compare, for example, the United States Supreme Court’s rejection of the preponderance standard in deportation proceedings, where it held the government must support its allegations with “clear, unequivocal, and convincing evidence.” Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 285, 87 S.Ct. 483, 17 L.Ed.2d 362, 369 (1966). Although the Court ruled in Wood-by that deportation is not tantamount to a criminal conviction, it found that since it could lead to “drastic deprivations,” it is impermissible for a person to be “banished from this country upon no higher degree of proof than applies in a negligence case.” 385 U.S. at 285, 87 S.Ct. at 487, 17 L.Ed.2d at 368. •-

In Winship, supra, the Court plainly stated:

“Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” 397 U.S. at 364, 90 S.Ct. at 1073.

In State v. Searle, 339 So.2d 1194, 1202 (La.1976) we concluded that the same obligation is imposed by our state constitution. Of course, Winship involved the adjudication of a criminal charge against a juvenile instead of a juvenile transfer proceeding. However, its rationale is fully apt here. Although not included within the statutory definition of a crime, the fact that a child is unsuitable for juvenile treatment or rehabilitation is one which the state must prove in order to transfer and convict him of a crime as an adult. For this reason alone, it is arguable that due process requires the state to prove this essential fact beyond a reasonable doubt. More importantly, however, the same reasons for exacting proof beyond a reasonable doubt in criminal cases exist in juvenile transfer proceedings.

Justice Harlan, concurring in Winship, persuasively stated:

“ * * * In a civil suit between two private parties for money damages, for example, we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor. A preponderance of the evidence standard therefore seems peculiarly appropriate for, as explained most sensibly, it simply requires the trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact’s existence.’
“In a criminal case, on the other hand, we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty. As Mr. Justice Brennan wrote for the Court in Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 2 L.Ed.2d 1460, 1472 (1958):
“ ‘There is always in litigation a margin of error, representing error in fact finding, which both parties must take into account. Where one party has at stake an interest of transcending value— as a criminal defendant his liberty — this margin of error is reduced as to him by the process of placing on the other party the burden * * * of persuading the fact-finder at the conclusion of the trial of his guilt beyond a reasonable doubt.’
ti * * *
“When one assesses the consequences of an erroneous factual determination in a juvenile delinquency proceeding in which a youth is accused of a crime, I think it must be concluded that, while the consequences are not identical to those in a criminal case, the differences will not support a distinction in the standard of proof. First, and of paramount importance, a factual error here, as in a criminal case, exposes the accused to a complete loss of his personal liberty through a state-imposed confinement away from his home, family, and friends. And, second, a delinquency determination, to some extent at least, stigmatizes a youth in that it is by definition bottomed on a finding that the accused committed a crime. Although there are no doubt costs to society (and possibly even to the youth himself) in letting a guilty youth go free, I think here, as in a criminal case, it is far worse to declare an innocent youth a delinquent. I therefore agree that a juvenile court judge should be no less convinced of the factual conclusion that the accused committed the criminal act with which he is charge than would be required in a criminal trial.” 397 U.S. at 371-74, 90 S.Ct. at 1076. (Footnotes omitted.)

I find his words equally convincing when applied to a juvenile transfer proceeding. The consequences of an erroneous factual determination in such a proceeding, viz., that a child amenable to treatment or rehabilitation would be subjected to adult jails and criminal prosecution, are not identical to those suffered by an innocent juvenile or adult convicted of a crime. But the differences will not support a distinction in the standard of proof. Although there are no doubt costs to society in mistakenly allowing an incorrigible youth to remain in the juvenile system, it would be far worse to erroneously transfer a reformable child to the adult criminal system.

The juvenile in the instant case squarely raised the issue of whether the transfer was adequately supported by the evidence. In my view it was not. Larry Everfield was born August 6, 1959 and had his first contact with the juvenile justice system in 1971, while he was in elementary school; he was charged with shoplifting cookies worth thirty cents and placed on supervised probation. Thereafter, he was involved in several fighting incidents at school; and in January of 1975 he was suspended from Downs-ville High School for “continuous misbehavior” and “arrogant attitude, ” a suspension which was considered a probation violation. Nevertheless, he was allowed to remain on supervised probation. His parents were divorced, and he resided alternately with his father in Monroe and his mother in Downs-ville. On May 29,1975 he was charged with theft of a purse, placed in a detention home in Monroe, Louisiana and later transferred to the Louisiana Training Institute. On about January 22, 1976, he escaped from LTI and on January 26, 1976 allegedly committed the armed robbery at issue here, by demanding two hamburgers at a fast food restaurant while holding a pistol on the attendant. At this time Everfield was sixteen years old.

At the transfer hearing two juvenile correctional officers testified. One expressed his opinion that Larry was not amenable to rehabilitation. The other officer said, “I couldn’t just say that he was completely a lost cause.” The record reflects that Larry was sent by his mother to two hospitals for a psychological evaluation but was soon discharged because he “would not cooperate.” Consequently, the court was unenlightened by any medical, psychiatric or psychological opinion of Larry’s possible mental or emotional problems or their susceptibility to correction. Nor does there appear to have been any investigation to determine if the child could be evaluated, treated or trained at other available institutions.

Based on the evidence presented I am of the opinion the juvenile judge fell into error in finding that Everfield was not amenable to rehabilitation or treatment through facilities available to the juvenile court. However, as the majority opinion observes, the juvenile judge was forced to make this determination without benefit of the principles articulated in this case. Accordingly, I concur in remanding the case to the juvenile court for further proceedings consistent with the views expressed by this Court.

      . Subsequent to the decision transferring him to district court for trial as an adult, Larry Everfield pleaded guilty to the charge of armed robbery as well as to two charges of simple burglary. He was sentenced to serve a total of sixty-one years at hard labor. Defendant’s newly appointed counsel moved for a new trial. Due to defendant’s youth, the trial judge granted the motion. Defendant is currently awaiting a new trial in district court pending the outcome of this application for a writ of certiorari. It is generally conceded that it was improper to transfer Everfield for prosecution for the burglary charges inasmuch as he had not been previously adjudicated a delinquent of any of the offenses listed in La.R.S. 13:1571.1A(5).

      . Similar equal protection attacks on the statutes of other states have routinely been held to lack merit. State ex rel. Indiana Youth Center v. Howard Juv. Court, 344 N.E.2d 842 (Ind. 1976); In re Welfare of I.Q.S., 244 N.W.2d 30 (Minn.1976); State v. Lemon, 110 Ariz. 568, 521 P.2d 1000 (1974); State v. Rutledge, 321 Mo. 1090, 13 S.W.2d 1061 (1929).

      . The disputed transfer in Kent was ordered pursuant to the following District of Columbia statute:
      If a child sixteen years of age or older is charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is punishable by death or life imprisonment, the judge may, after full investigation, waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such other court may exercise the powers conferred upon the juvenile court in this subchapter in conducting and disposing of such cases.

      . Although the decision in Kent indicated that its scope was limited to the interpretation of a state statute, subsequent references to Kent in In re Gault, 387 U.S. 1, 12, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) suggest that the due process requirements articulated in Kent are of constitutional dimension. The weight of authority is now to that effect. Powell v. Hooker, 453 F.2d 652 (9th Cir. 1971); United States ex rel. Turner v. Rundle, 438 F.2d 839 (3rd Cir. 1971) and cases cited therein. Schornhorst, The Waiver of Juvenile Court Jurisdiction: Kent Revisited, 43 Ind.L.J. 583, 585-88 (1968).

      .La.R.S. 13:1571.1A(3) provides that notice in writing of the time, place and purpose of the transfer hearing be given to the child and his parents, tutor or other custodian at least ten days before the hearing. The record indicates that Larry Everfield and his parents were given notice of a hearing to be held pursuant to a petition alleging that Larry Everfield is a “delinquent child.” It does not appear that they were informed that the hearing might also result in a transfer of the juvenile to district court. This defect in the proceedings was not raised at the transfer hearing. In view of our disposition of the case, we find it unnecessary to rule on whether this omission was fatal to the proceedings.

      . The Supreme Court did not hold that the District of Columbia statute was unconstitutional but remanded the case for a hearing de novo on waiver of juvenile jurisdiction to be held in compliance with the statute as supplemented by the requirements of procedural due process.

      . A survey of the transfer procedures employed in other states reveals that the various statutes frequently provide either no criteria for transfer whatsoever or provide several broad criteria for transfer which vest the judge with greater discretion than does the Louisiana procedure. These statutes with rare exceptions have been upheld as constitutional. Examples of the discretionary criteria incorporated in other statutes include “the community attitude toward the specific offense,” “the interests of the public demanding trial as an adult,” and “the best interest of public security.” S. Davis, Rights of Juveniles: The Juvenile Justice System 105-21 (1974).

      .Many jurisdictions have responded to claims that their transfer statutes vest unbridled discretion in the juvenile court judge by holding that the general purpose clauses in their statutes favoring non-criminal treatment of juveniles provide sufficient guidelines for the exercise of discretion. State in Interest of Salas, 520 P.2d 874 (Utah 1974); State v. Williams, 473 S.W.2d 382 (Mo.1971); Lewis v. State, 86 Nev. 889, 478 P.2d 168 (1970); People v. Shipp, 59 Cal.2d 845, 31 Cal.Rptr. 457, 382 P.2d 577 (1963); State v. Doyal, 59 N.M. 454, 286 P.2d 306 (1955).

      . In Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the Court attached to its decision a policy memorandum issued by the District of Columbia Juvenile Court listing the following standards relevant to a determination of whether or not a juvenile should be transferred for trial as an adult:
      1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver.
      2. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner.
      3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted.
      4. The prosecutive merit of the complaint, i. e., whether there is evidence upon which a Grand Jury may be expected to return an indictment (to be determined by consultation with the United States Attorney).
      5. The desirability of trial and disposition of the entire offense in one court when the juvenile’s associates in the alleged offense are adults who will be charged with a crime in the U. S. District Court for the District of Columbia.
      6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.
      7. The record and previous history of the juvenile, including previous contacts with the Youth Aid Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions.
      8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the Juvenile Court.
      The Supreme Court did not express an opinion concerning these standards. It should be noted that they were formulated for use in connection with a statute providing no criteria whatsoever for a determination to waive juvenile jurisdiction. (See footnote 3 of this opinion for the text of the statute.) Inasmuch as our transfer statute permits transfer only in the limited circumstance that a juvenile is “not amenable to treatment or rehabilitation,” several of the eight considerations listed above are inapplicable. Factors four and five, for instance, would expand rather than restrict the occasions justifying a waiver of juvenile jurisdiction under our statute. We decline, therefore, to adopt these standards in toto but instead suggest only those considerations relevant to our own statutory criteria for waiver.

      . Defendant’s appeal No. 58,464 was consolidated with his writ application granted in No. 58,308.

        [Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948); Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); DeBacker v. Brainard, 396 U.S. 28, 90 S.Ct. 163, 24 L.Ed.2d 148 (1969); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).]