author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Jacob BAKER.
    No. 61120.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.

      Billy H. Ezell, Levingston, Tynes, Liles & Ezell, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Adam L. Ortego, Jr., Asst. Dist. Atty., for plaintiff-appellee.

      . We find it unnecessary to consider the second and third assignments because of our resolution of assignment number one.

   CALOGERO, Justice.

Defendant Jacob Baker was convicted of violating Revised Statute 14:71 by issuing eleven worthless checks in the aggregate amount of $627.38. He was sentenced to ten years at hard labor in the custody of the Department of Corrections. On appeal he urges three assignments of error for reversal of his conviction.

ASSIGNMENT OF ERROR NO. 1

Defendant urges that the trial judge wrongly refused to grant his motion to quash based on the allegation that the section of R.S. 14:71 under which he was prosecuted was unconstitutionally vague.

Revised Statute 14:71 provides in full that:

Issuing worthless checks is the issuing, in exchange for anything of value, with intent to defraud, of any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time of the issuing that the offender has not sufficient credit with the bank, or other depository for the payment of such check, draft, or order in full upon its presentation.
The offender’s failure to pay such check, draft, or order within ten days after the receipt by him of written notice of its nonpayment upon presentation shall be presumptive evidence of his intent to defraud.
Whoever commits the crime of issuing worthless checks, when the amount of the check or checks is five hundred dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.
When the amount of the check or checks is one hundred dollars or more, but less than five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand Hollars, or both.
When the amount of the check or checks is less than one hundred dollars, the offender shall be imprisoned for not more than six months, or may be fined not more than five hundred dollars, or both. If the offender in such cases has been. convicted of issuing worthless checks two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than one thousand dollars, or both.
When the offender has issued two or more worthless checks, the aggregate of the amount of the worthless checks shall determine the grade of the offense, [emphasis added]

Defendant argues that the part of the act which allows the state to aggregate amounts of checks in order to determine the grade of the offense is unconstitutionally vague because it is uncertain in meaning and allows for arbitrary enforcement and unreasonable application, all in violation of his state and federal guarantee of due process of law. Defendant forcefully argues that the aggregation provision puts too much discretion in the hands of the state which can change the grade of the offense by the manner in which it aggregates the worthless checks. The state’s arbitrary decisions as to aggregation can transform a series of misdemeanors into a single felony, or multiple felonies, affecting the mode of trial, range of punishments and applicable prescription periods.

The state counters defendant’s arguments by relying on the language of the aggregation provision which is that “When the offender has issued two or more worthless checks, the aggregate amount of the worthless checks shall determine the grade of the offense.” The fact that the legislature used the word “shall” in the provision, the state urges, means that the state is required to aggregate the check amounts when an offender has written more than one worthless check. The state’s position is that it has no discretion as to aggregation. That position is severely undercut by the state’s actions in this very case. Asserting in brief that defendant was originally charged with issuing over fifty worthless checks, the state takes the position that it elected to consolidate those fifty charges into four bills of information.

The bill of information for which defendant has been tried and is now an appeal charges eleven worthless checks in an aggregate amount of $627.38 written between December 31, 1975 and January 15, 1976. The checks were issued in varying amounts ranging from $50.00 to $97.38 to three different business establishments. Another information, referred to here as the “second” information although it was filed the same day, charges eleven worthless checks in an aggregate amount of $502.45 written between December 31, 1975 and March 27, 1976. The checks were issued in amounts varying from $19.95 to $96.33 to five different business establishments. The “third” information, filed the same day as the others, charges twelve worthless checks amounting to $651.49 during the same time period, December 23, 1975 to January 15, 1976. The amounts vary from $9.68 to $75.60 and the payees are ten different business establishments. The “fourth” information charges thirteen bad checks amounting to $562.50 during the same time period December 23,1975 to January 15,1976. The checks range in amount from $14.17 to $91.76 and were written to six business establishments. Four months later the state filed a fifth information against defendant Baker for issuing $343.05 worth of checks to seven businesses between January 10, 1976 and April 3, 1976.

We make this rather detailed digression to illustrate several points which we deem important to resolution of the issue in the case. First we note the state divided forty-seven checks which were all written between December 23, 1975 and March 27, 1976 into four separate bills of information. The bills were not divided into rational time segments (such as by months) because all four bills include the period December 31, 1975 to January 15, 1976. Nor were the bills divided by payee: for example, bills one, two and four contain checks written to George Theriot’s; bills one and four reflect checks written to Kroger’s; bills three and five contain checks written to Wizard Enterprises, etc. And, of course the state did not aggregate all the bad checks that it might have charged against defendant into one prosecution, but rather opted to charge the crimes in four groups each totalling over $500.00 (and a fifth group totalling over $100.00) thereby exposing defendant to four ten year sentences and one two year sentence. In short, the state divided fifty-nine checks into five groups in an arbitrary manner and aggregated the sums of those checks into five different felony charges. Clearly the state’s action was not based on the language of the statute which it now claims is mandatory because if that were so all fifty-nine checks would have been aggregated into one crime, causing defendant to be exposed to only one ten year prison term.

Having noted that the state did not act in this case as if it were bound by the “clear mandatory provisions” of the statute, we turn to an examination of the statute itself in light of defendant Baker’s claim that it is unconstitutional.

The eleven checks in the first information which alone is here on appeal are seven checks for $50.00, three checks for $60.00, and one check for $97.38. If the checks could not be aggregated, the crimes would have been separate misdemeanors since no single check was for $100.00 or more. Had the checks not been totalled, one year prescription on commencement of trial would have applied and the offense grade of each charge would have been a misdemeanor, carrying a maximum punishment of six months in parish prison and a fine of $500.00. See C.Cr.P. art. 578. It was on the strength of the aggregation provision that the state chose to charge him with five felonies. Defendant Baker argues that the statute is unconstitutionally vague.

The rule that a criminal statute must fall if it is vague requires that the statutory language convey a sufficiently definite warning of the proscribed conduct that the public and law enforcement officials will be put on notice as to its meaning. A statute may not be so vague and indefinite as to be impossible of reasonable, fair and uniform operation. See Schwegmann Brothers Giant Supermarkets v. McCrory, 237 La. 768, 112 So.2d 606 (1959). If the language is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, then the statute violates due process. Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); Connally v. General Construction Co., 269 U.S. 385 (1926); Connick v. Lucky Pierre’s, 331 So.2d 431 (La.1976); State v. Dardar, 257 La. 191, 241 So.2d 905 (1970). That portion of a statute which pertains to the grade of an offense and defines the crime may be so vague that it offends due process. See United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948); State v. Billiot, 254 La. 988, 229 So.2d 72 (1969).

The provision in question was added to the worthless check statute in 1972. Before that time Louisiana, like most other states, did not allow the totalling or aggregating of the amounts of multiple worthless checks. Acts 1914, No. 209, §§ 1, 2; Acts 1952, No. 433, § 1; Acts 1954, No. 442, § 1; Acts 1956, No. 156, § 1. After Louisiana added the aggregation provision it was apparently one of only a few states which allowed a totalling of amounts to determine the grade of the offense. See 38 Missouri L.R. 432, 445-46 (1973). Of those states, Alabama has since amended its statute to excise the aggregation provision, see Ala.Stat. Tit. 13A, § 13 A-9-13 (1975); Oklahoma allows aggregation of only those checks which were written “in pursuance of a common scheme or plan to cheat and defraud,” Okla.Stat.Ann. Tit. 21, § 1541.3; Minnesota allows aggregation only when the transactions occurred within a six-month period, Minn.St. 609.52, subd. 2(3)(a); Utah repealed its aggregation provision in 1973, see Laws 1973, Ch. 196, § 76-10-1401; and the New Mexico totalling provision was struck down as unconstitutionally vague, see State v. Ferris, 80 N.M. 663, 459 P.2d 462 (Ct.App.1969).

In the Ferris case the court struck a totalling provision similar to ours as unconstitutionally vague after making the following analysis:

Under § 40-49-5(A), supra, a worthless check for more than $1.00 but less than $25.00 subjects the offender to a county jail term. So does the total amount of checks between those amounts. If the issuance of one check within this range is punishable, is the offender to be punished for each check issued within this range? Or, under the statutory language, may an offender issue any number of worthless checks and receive only one punishment so long as the amount is less than $25.00?
Under § 40-49-5(B), supra, a worthless check for $25.00 or more subjects the offender to a penitentiary term. Suppose the offender issues four worthless checks, each for $25.00. Under the statutory language is he to receive one or four punishments? What if he issues one worthless check for $25.00, one for $10.00 and one for $5.00? Under § 40-49-5, supra, is he subject to one penitentiary term, or a penitentiary term plus one or two county jail terms? If he issues an additional worthless check for $11.00, is he then subject to two penitentiary terms? Compare In re Dick, supra [64 Cal.2d 272, 49 Cal.Rptr. 673, 411 P.2d 561].
Just how are the penalty provisions to be applied in a “totaling” situation? The statute is uncertain. This uncertainty is compounded when § 40-49-4, supra, is considered because that section makes each worthless check a separate offense. Does the statute provide for only one punishment for multiple offenses? Compare Scott v. District of Columbia, 122 A.2d 579 (Mun.Ct.App.D.C.1956). Men of common intelligence must necessarily guess at the meaning of the statutory language. We agree with the trial court. The provisions of § 40-49-5, supra, concerning the “totaling” of checks, are so vague that they offend due process and are void. See N.M. Att’y Gen. Opinion 66-80 (June 22, 1966). 459 P.2d at 464-65.

We believe that a similar analysis can be made regarding uncertainty and arbitrariness under the Louisiana statute. First, the Louisiana statute, unlike some other states’ aggregation provisions, sets no time period within which the crimes must have been committed to be available for aggregation. If two bad checks are written eleven months apart, can or must they be coupled? What is the cutoff period? Is it to be one month, three months, six months, a year? What about a defendant who writes additional bad checks after arrest but before trial? Does arrest separate offenses so that the new offense remains a separate offense or must the state amend its charge to include the new offense? Second, under R.S. 14:71 a single worthless check represents a crime for which a person may be prosecuted. When a person has written three checks in the amounts of $110, $95, and $10 can he be charged only with the felony of writing three checks totaling $215, or can he be charged with two felonies, one for the $110 check- and one for the two others? The mandatory “shall” would indicate that the state could not so charge, and yet it has done so in this case. Third, we are concerned with single and multiple punishments under the statute. If trial is had on all three checks, can the convicted defendant receive a punishment for each check according to its value or only one punishment for the total?

This worthless check statute is not saved from uncertainty as is the theft provision which allows the grade of the offense to be determined by the aggregate taken, because the theft provision punishes “a misappropriation or taking by a number of distinct acts.” R.S. 14:67. The crime of theft is one crime (“a misappropriation or taking”) against a single victim through a series of separate actions. The legislature has made it one offense to pursue a certain course of conduct, viz., misappropriation of the property of another, even when that misappropriation takes place through a number of distinct acts. The legislature, however, has not by R.S. 14:71 made it one offense to issue worthless checks within a particular time frame, or against a single establishment, or with a common plan or scheme. Instead, the legislature has allowed aggregation of worthless checks by means of a statute which is so uncertain of application as to allow for arbitrary, nonuniform and unfair enforcement of the law and to require persons of common intelligence to guess at its meaning. Thus, the provision of R.S. 14:71 which states that “When the offender has issued two or more worthless checks, the aggregate of the amount of the worthless checks shall determine the grade of the offense” is so vague that it offends due process as a matter of state law and is consequently declared void.

We find that this sentence is severa-ble from the remainder of the statute. The aggregation clause was added to the worthless check law by Acts 1972, No. 655. Before that amendment the act had operated simply to proscribe the issuance of worthless checks. There was no reference to aggregation of worthless checks. When the legislature added the aggregation section, it specifically declared the provisions severa-ble. Because the act had existed so many years without an aggregation provision and because the act was specifically declared severable by the legislature, we have no difficulty in holding the aggregation provision severable from the rest of the statute.

Thus, we hold that the portion of Revised Statute 14:71 which provides for aggregation of amounts of worthless checks is unconstitutionally vague. The remainder of the statute is unaffected by our decision herein. The effect of our declaration herein is to excise from the statute the sentence which provides for the aggregation of amounts and the references in the three penalty paragraphs to more than one check. Our decision does not affect the legality of the remainder of the statute and does not bar reprosecution of this defendant in accordance with law for issuance of the worthless checks at issue in this appeal.

Decree

Accordingly, we grant defendant’s motion to quash made on the basis that the aggregation provision of Revised Statute 14:71 is unconstitutionally vague. We reverse defendant’s conviction and remand the case to the trial court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent.

      . No check charged in any of the other four informations was greater than the check for $97.38 charged in the first information.

      . The New Mexico statute declared unconstitutional in Ferns provided as follows:
      “A. When the amount of the check, draft or order, or the total amount of the checks, drafts or orders, are for more than one dollar ($1.00) but less than twenty-five dollars ($25.00), imprisonment in the county jail for a term of not more than thirty [30] days or a fine of not more than one hundred dollars ($100), or both such imprisonment and fine.
      “B. When the amount of the check, draft or order, or the total amount of the checks, drafts or orders, are for twenty-five dollars ($25.00) or more, imprisonment in the penitentiary for a term of not less than one [1] year nor more than three [3] years or the payment of a fine of not more than one thousand dollars ($1,000) or both such imprisonment and fine.” N.M.Stat.Ann. §§ 40-49-1 to -9.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Raymond WILLIAMS.
    No. 61130.
    Supreme Court of Louisiana.
    May 22, 1978.

      C. Prank Holthaus, Boren, Holthaus & Perez, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph Roy, Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Raymond Williams, was charged by bill of information with theft and receiving stolen things. La.R.S. 14:67 and 14:69. The defendant waived trial by jury and after a judge trial was convicted of receiving stolen things and sentenced to serve five years at hard labor. On this appeal, he relies upon four assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that Louisiana Code of Criminal Procedure Article 482, which allows the State to alternatively charge an accused with theft and receiving stolen tnings, is violative of the constitutional prohibition against placing an accused twice in jeopardy for the same offense. Article 482(A) provides:

“An indictment for theft may also contain a count for receiving stolen things, and the defendant may be convicted of either offense. Where two or more persons are jointly indicted for these offenses, any or all of the persons indicted may be found guilty of either of the offenses charged. The district attorney shall not be required to elect between the two offenses charged.”

The official revision comments to the article explain the situations in which use of the alternative charging procedure is contemplated:

“(a) This article, following Art. 246 of the 1928 Code of Criminal Procedure, provides for a situation where the state is frequently in justifiable doubt as to which crime will be established by the evidence adduced at the trial. A receiver of stolen things (R.S. 14:69) will be guilty of theft (R.S. 14:67), rather than receiving, if it develops that he procured or in any way participated in the stealing of the goods. This article authorizes the charging of these distinct crimes in separate counts. It is for the jury to determine which charge is supported by the evidence; therefore, the article expressly states that the prosecuting officer shall not be required to elect between the two offenses charged.”

The Fifth Amendment provisions prohibiting double jeopardy were made applicable to the states in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Further, the Louisiana Constitution of 1974 provides that no person shall be twice placed in jeopardy for the same offense. The United States Supreme Court, in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), stated that the guarantee against double jeopardy consists of three separate constitutional protections:

“[1] It protects against a second prosecution for the same offense after acquittal.
“[2] It protects against a second prosecution for the same offense after conviction.
“[3] And it protects against multiple punishments for the same offense.”

A reading of Article 482 in conjunction with the criteria set forth by the United States Supreme Court in Pearce readily demonstrates that the article does not violate any of the interests sought to be protected by the Fifth Amendment. Under the article, an accused may not be subjected to multiple prosecutions for the same offense, whether upon conviction or acquittal. In fact, the effect of the article is that there is to be a single prosecution resulting in an acquittal or a single conviction for theft or receiving stolen goods. Further, despite the assertions of defendant’s able counsel, the statute does not put an accused in danger of receiving multiple punishments for the same offense; the article is couched expressly in the alternative, and provides that the defendant may be found guilty of either offense — not both offenses.

Defendant’s first assignment of error is meritless.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that Louisiana Code of Criminal Procedure Article 482 is unconstitutional because, in order to rebut the statutory presumption of La.R.S. 15:432 that one in possession of recently stolen goods is presumed to be the thief, he had to incriminate himself as to the charge of re-eeiving stolen things. Since his only defense to the theft charge was the fact that he had taken the goods from the real thief, knowing them to be stolen, defendant contends that he “explained himself out of one conviction right into another.”

The State contends that defendant’s assertions are basically an attack on the presumption of La.R.S. 15:432, recently upheld by this Court in State v. Jamerson, 341 So.2d 1118 (La.1977). Further, it asserts that the issue of improper joinder of offenses is not properly raised for the first time in this Court, and that defendant’s failure to contemporaneously object to the procedure operated as a waiver of his objections.

Defendant relies upon our holding in the case of City of Baton Rouge v. Norman, 290 So.2d 865 (La.1974), for the proposition that the unconstitutionality of the statute upon which the prosecution is based is an error patent on the face of the record and is, thus, properly raised for the first time on appeal. That holding, however, is inappo-site to the case at bar; the instant prosecution is based not upon Article 482 but rather upon the substantive criminal statutes which the defendant is alleged to have violated: i. e., La.R.S. 14:67 and 14:69. Article 482 is a procedural statute styled by title in the Code of Criminal Procedure as “special joinder rules.” In State v. Mallett, 357 So.2d 1105 (La.1978), Nos. 60,923 and 60,924, this Court held that improper joinder must be raised at the trial level in order to be properly considered on appeal. Therefore, although our determination that the instant assignment is substantively without merit makes such a holding unnecessary, we express grave doubts as to the propriety of attempting to raise such an issue for the first time in this Court.

On the merits, our examination of the defendant’s arguments on the second assignment of error reveals that his objection to the proceeding is not that he is forced to incriminate himself. In fact, the defendant contends that he desires to incriminate himself on the charge of receiving stolen goods in order to exonerate himself of the theft charge. Defendant’s real complaint is that the joinder of the charges for trial allows the State to use more effectively evidence resulting from his election to incriminate himself than if the district attorney were required to elect between the two offenses charged. Since the joinder rule does not tend to compel the defendant to give evidence against himself, it does not violate the constitutional privileges against self-incrimination. U.S.Const., Fifth Amendment; La.Const.1974, Art. 1, §§ 13, 16.

Defendant also contends that the joint trial of these two offenses subjects him to double jeopardy. For the reasons assigned in connection with Assignment No. 1, we again find the argument unpersuasive.

This assignment of error is without error.

ASSIGNMENTS OF ERROR NOS. 5 and 6

Defendant assigns as error the trial court’s overruling of his motion for a directed verdict as to both charges. An allegation that there is a total lack of evidence of the crime or an essential element thereof presents a reviewable question of law for this Court. La.Const.1974, Art. 5, § 5(C); State v. Williams, 346 So.2d 181 (La.1977). However, our review of the record indicates that there was sufficient evidence to support rationally a finding beyond a reasonable doubt that defendant committed the offense of which he was convicted. Therefore, these assignments of error lack merit.

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

      . Article 1, Section 15.

      . See also, State v. Coleman, 358 So.2d 289 (La.1978). But see also, State v. Searle, 339 So.2d 1194 (La.1976) and State v. Coleman, supra (dissenting opinion).


author: CALOGERO, Justice. DIXON, Justice DENNIS, Justice,

text:
    Howard N. CRAWFORD, Jr. v. O. H. DESHOTELS, Jr., et al.
    No. 61159.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.

      Frank L. Maraist, Baton Rouge, O. H. Deshotels, III, Kaplan, for defendants-applicants.
    Silas B. Cooper, Jr., Cooper & Sonnier, Abbeville, for plaintiff-respondent.
   CALOGERO, Justice.

We granted writs in this case to review a decision of the Court of Appeal favorable to plaintiff, an independent landman.

The case concerns the validity of a contract whereby plaintiff acquired an undivided one-half interest in defendant McDaniel’s interest (one-sixth) in thirty-five acres of land, and the provision in that same instrument giving the consequent co-owners (plaintiff Crawford and defendant McDan-iels) each a right of first refusal should either thereafter desire to sell their respective interests. Involved also in the litigation is defendant Deshotels, who purchased McDaniel’s undivided half-interest, notwithstanding McDaniel’s failure to first offer the property to plaintiff Crawford at the same price.

Because we affirm the judgment of the Court of Appeal we will borrow liberally from its opinion which ably sets forth the facts and correctly resolves the legal issues:

The plaintiff, Howard N. Crawford, Jr., filed this suit to annul a sale by the defendant, Mrs. Frankie Boutte McDaniel, to the defendant, O. H. Deshotels, Jr., conveying all of vendor’s interest in 35 acres of land. Plaintiff contends that in a prior sale by Mrs. McDaniel to plaintiff of an undivided Vi2th interest in the land, Mrs. McDaniel granted plaintiff an option to purchase her remaining Vi2th interest at the bona fide price offered by any third party. It is plaintiff’s contention that the later sale by Mrs. McDaniel to Deshotels was in violation of the option agreement. Plaintiff prayed for the annulment of the sale from Mrs. McDaniel to Deshotels and for specific performance of the option by ordering Mrs. McDaniel to sell to plaintiff. From a judgment granting plaintiff the relief prayed for, the defendants have appealed.
The issues are: (1) Was the sale from Mrs. McDaniel to plaintiff and the option contained therein void on the basis that the consideration from Crawford, a non-lawyer, was an agreement to practice law and furnish legal services in violation of state statutes? (2) Was the option agreement between Mrs. McDaniel and Crawford invalid for want of a limited time within which to exercise the option?
* * * * * *
The general facts are that in about 1961 the plaintiff, an independent land man, was researching the title to the 35-acre tract of land formerly owned by Whitney Boutte in Vermilion Parish. Crawford discovered that the defendant, Mrs. Frankie Boutte McDaniel, was an adopted daughter of Whitney Boutte, who died leaving a will bequeathing his entire estate to other persons, thus, in effect, disinheriting his adopted daughter. Under these facts, Mrs. McDaniel was entitled to a legitime of one-third of Whitney Boutte’s one-half interest in the property, or a total of a one-sixth interest in the 35 acres.
Mr. Crawford located Mrs. McDaniel in California. He began to correspond with her regarding an agreement to undertake to correct her title to an interest in the property. [In 1961 Mrs. McDaniel signed an oil lease in favor of Mr. Crawford.] On May 31,1966, Mrs. McDaniel executed a contract whereby she agreed to convey to Crawford one-half of her interest in the 35 acres in consideration of certain services to be performed by him and described in the instrument as follows:
“That grantor enters into this agreement to grant unto grantee the said interest as a consideration in return for the services of and expense to grantee in undertaking the necessary work and expense in perfecting the title, of whatever undivided interest grantor may have legal claim to, into grantor and causing the said title to grantor interest to be properly reflected in the Conveyance Records of the Clerk of Court of the Parish of Vermilion.”
Thereafter, in June of 1967, Crawford obtained quitclaim deeds from several parties conveying an undivided one-sixth interest in the property to Mrs. McDaniel. It was not necessary for Mr. Crawford to employ an attorney or to file any proceedings in court to perfect Mrs. McDaniel’s title.
On July 16, 1967, in compliance with the contract of employment of Mr. Crawford, Mrs. McDaniel conveyed to Crawford one-half of her undivided one-sixth interest in the property. This conveyance contained the option agreement in question, which reads as follows:
“IT IS FURTHER UNDERSTOOD, that if ever a bona fide offer is made, and should either Frankie Boutte McDaniel or H. N. Crawford, Jr., desire to sell in whole, part or portion the herein described interest owned by each, the party desiring to sell shall be and is herein obligated to offer to the other party the first chance to buy same at the bona fide offer, such notice to be given to the hereinabove address of either by Registered Mail, and an answer be given the same within thirty days from date notice is received, or it shall be deemed that the option to purchase at the bona fide offer is rejected.”
Beginning in 1968, Mr. Crawford contacted Mrs. McDaniel several times suggesting that he might buy her interest in the property. Mrs. McDaniel was interested in selling and they corresponded during 1972 and 1973 regarding a price.
* * * * * *
Mrs. McDaniel gave no written notice by Registered Mail to Crawford of any bona fide offer by Mr. Deshotels or any other party. Nevertheless, on April 26, 1974, Mrs. McDaniel conveyed all of her right, title or interest in the 35 acres to 0. H. Deshotels, Jr. for a stated consideration of $3500 cash.
On February 25, 1976, Crawford filed the present suit to annul the sale from McDaniel to Deshotels and to seek performance of the option. Plaintiff later deposited the sum of $3500 in the Registry of the Court to reimburse Deshotels for the price he paid to Mrs. McDaniel. 351 So.2d 295, 296-97.

With respect to the first issue in the ease, the alleged illegal consideration for the sale from Mrs. McDaniel to Crawford, relator in brief vigorously contends that the consideration for the sale was the performance by Crawford of services which constitute the practice of law in violation of R.S. 37:213. That statute prohibits persons not licensed to practice law in Louisiana among other things, from practicing law, furnishing attorneys or counsel, rendering legal service and rendering or furnishing legal services or advice.

Our assessment of the record in this case and appreciation of the applicable law coincide with that of the Court of Appeal which relied heavily upon a recent decision of this Court, Placid Oil Company v. Taylor, 306 So.2d 664 (La.1975). We agree with the Court of Appeal which resolved this legal issue in the following manner:

As shown by the above quotation from the May 31, 1966 employment contract, Mr. Crawford agreed to undertake “the necessary work and expense in perfecting the title, of whatever undivided interest grantor may have legal title to, into grantor and causing the said title to grantor’s interest to be properly reflected in the Conveyance Records of the Parish of Vermilion.” The evidence shows that pursuant to this agreement Crawford obtained quitclaim deeds, which he personally prepared, conveying to Mrs. McDaniel an undivided one-sixth interest in the property. It was not necessary for Mr. Crawford to employ an attorney or to file any proceedings in court.
A very similar issue was presented in the recent case of Placid Oil Company v. Taylor, 306 So.2d 664 (La.S.Ct.1975) where a landman, a non-lawyer, agreed to furnish services to remove clouds from the titles of landowners in consideration of an interest in the property. The court found that regardless of whether the services to be performed by the landman under the contract constituted the practice of law, the evidence did not show that the services actually performed were prohibited legal services. The court stated:
“Nor can we say, for instance, that services performed by removing clouds from titles, such as locating heirs or having adverse claimants sign quitclaims prepared by lawyers, amount by themselves to the practice of law, so as to exclude non-lawyers from the useful functions historically performed by landmen.”
In its decision in Placid, the Supreme Court cited with approval the case of Strange v. Robinson, La.App., 189 So. 338 (1939) which involved facts very similar to the present case. The court in Robinson held that the services performed by the landman did not constitute the prohibited practice of law. 351 So.2d at 297-98.
Under these authorities, the services performed by Crawford in the present case clearly did not constitute the prohibited practice of law. 351 So.2d at 297-98.

The conclusion of the Court of Appeal as well as our own is an affirmance of the trial judge who held: “This Court finds that Mr. Crawford did nothing more than to perform the services historically rendered by land-man.”

Relator’s second contention is that, even if the agreement between McDaniel and Crawford is founded upon a valid consideration, the portion of that agreement here at issue, an option, is invalid on other grounds.

The clause of the contract or quitclaim is fully related hereinabove. Pertinently it provides:

“if ever a bona fide offer is made and should [McDaniel] desiring to sell . [she] is herein obligated to offer to [Crawford] the first chance to buy same at the bona fide offer.”

Relator contends that the agreement cannot be enforced because it is an option in perpetuity and contrary to the public policy of Louisiana as expressed in Article 2462 of the Civil Code. That article provides:

A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same.
One may purchase the right, or option to accept or reject, within a stipulated time, an offer or promise to sell, after the purchase of such option, for any consideration therein stipulated, such offer, or promise can not be withdrawn before the time agreed upon; and should it be accepted within the time stipulated, the contract or agreement to sell, evidenced by such-promise and acceptance, may be specifically enforced by either party, [emphasis provided]

This Court has applied Civil Code Article 2462, when pertinent, and held void an option for an indefinite time. Becker and Assoc., Inc. v. Lou-Ark Equipment Rental Co., Inc., 331 So.2d 474 (La.1976); Bristo v. Christine Oil & Gas Co., 139 La. 312, 71 So. 521 (1916); Clark v. Dixon, 254 So. 482 (La.App. 3d Cir. 1971).

The article and the jurisprudence on which relator relies, however, are not applicable here, for there is not here following “the purchase of such option” — or in this case entry of the contract — a continuing right or option to accept (or reject) an extant offer or promise to sell — as contemplated by Article 2462. Rather there is here what is more commonly described as a right of first refusal, or as the contract says, a right to be afforded a “first chance to buy” at a price equal to any bona fide offer which McDaniel should receive and be interested in accepting. Thus, the stipulated time requirement of Article 2462 is not applicable.

The only case in the jurisprudence directly on point is Price v. Town of Ruston, 171 La. 985, 132 So. 653 (La.1931) wherein this Court rejected a contention similar to rela-tors’ with the following language:

“There is no merit in the appellant’s argument that the option was null for want of a stipulation limiting the time within which it might be exercised. The stipulation limiting the time was that the option would be available whenever the Elks’ Lodge might desire to sell the property, meaning whenever it might become necessary for Mrs. Price or her heirs or assigns to prevent the title to the third story of the Price building from passing to someone else.” 171 La. at 993, 132 So.2d at 656.

For the foregoing reasons there is no merit to relator’s contention that the pertinent clause of the contract is null and void in violation of Civil Code Article 2462.

Relying on Civil Code Article 2291, relator Deshotels asserts that Crawford should be estopped from asserting the validity of the option clause in the McDaniel-Crawford contract because of Crawford’s plea of res judicata to an earlier Deshotels suit. Desh-otels asserts that Crawford’s plea was an admission of the validity of the McDaniel-Deshotels sale, and, impliedly, a confession that the option clause in the McDaniel-Crawford contract was invalid.

A judicial confession under Article 2291 is a party’s explicit admission of an adverse factual element; it has the effect of waiving evidence as to the subject of the admission. Jackson v. Gulf Insurance Company, 250 La. 819, 199 So.2d 886 (1967); Farley v. Frost-Johnson Lumber Co., 133 La. 497, 63 So. 122 (1913). Moreover, a judicial admission does not estop the confessor from denying the correctness of his earlier admission unless the party claiming the benefit from the confession has relied on that admission to his prejudice. Johnson v. Kennedy, 235 La. 212, 103 So.2d 93 (1958); Succession of Turner, 235 La. 206, 103 So.2d 91 (1958); 19 La.L.Rev. 433 (1959).

Even assuming that Deshotels is correct in his assertion that Crawford, by virtue of certain pleadings, has implicitly acknowledged the invalidity of the contract between Mrs. McDaniels and himself, (an assumption that we do not concede is correct), that acknowledgment was simply not explicit enough to constitute a judicial confession under Article 2291. Moreover, Deshotels has neither alleged nor shown any reliance or detrimental change of position based on the alleged confession. Consequently, Deshotels’ argument that Crawford has made a judicial confession is merit-less.

Decree

For the reasons assigned, the judgment of the Court of Appeal is affirmed; all costs to be assessed against plaintiff.

AFFIRMED.

SUMMERS, J., dissents.

DIXON, J., concurs with reasons.

DENNIS, J., dissents with reasons.

DIXON, Justice

(concurring).

I respectfully concur.

C.C. 2462 clearly contemplates that an option will be for only a “stipulated time,” which I take to mean a time certain — a day on the calendar or a day on which it is contemplated that an event will occur which is not within the control of the person granting the option.

However, it is hot necessary to nullify the option in the absence of such a “stipulated time” if the option is treated in the same way a contract of sale of minerals is treated. That is, if the option is not exercised within a ten year period, the obligation is extinguished for nonuse by liberative prescription.

DENNIS, Justice,

dissenting.

I respectfully dissent.

By characterizing the defendant’s conduct as “landman’s activities” and the contract as a “first refusal” the courts cannot alter the actualities. The activities amounted to an unauthorized practice of law and the contract was an invalid option.

      . The term landman, as distinguished from an independent landman like plaintiff, is defined as “An employee of an oil company whose primary duties are the management of the company’s relations with its landowners. Such duties include the securing of oil and gas leases, lease amendments, pooling and unitization agreements and instruments necessary for curing title defects from landowners.” Howard R. Williams, Oil and Gas Terms (4th ed. 1976).


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. John LEWIS.
    No. 61171.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.

      Frank E. Beeson, III, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.

      TATE, J., would grant a rehearing.

   SUMMERS, Justice.

In a bench trial John Lewis was convictéd of attempted second degree murder and sentenced to serve twenty-five years in the custody of the Director of the Department of Corrections. Six assignments of error are urged on this appeal.

A brief statement of fact will facilitate an understanding of the issues presented. On March 5, 1976 Tyrone Aubert was shot in the neck by defendant John Lewis. As a result Aubert was paralyzed. It is the defense contention that the shooting was unintentional and that Lewis intended to strike Aubert with the pistol because Au-bert had threatened him with a knife. Although admitting he owned a knife found at the scene, Aubert claimed he made no attempt to attack Lewis and that the shooting was unprovoked.

Assignments 1 and 2: In two instances the defense contends the State’s attorney sought to inflame the passions of the trial judge by emphasizing the deplorable physical condition of the victim Aubert after the shooting. One instance involved a question propounded to a witness inquiring into the length of Aubert’s stay in the hospital after the shooting. The witness answered “eight months”, and was then asked if Aubert was confined to a wheel chair prior to the shooting. The answer was that he was not. When defense counsel objected, the court remarked that the witness had answered.

The other instance relied upon pertained to the interrogation of the victim Aubert. He was asked how long he had remained hospitalized as a result of the shooting, to which he answered “eight months.” When asked if other than New Orleans hospitals were involved, defense counsel objected. The trial judge permitted the answer but curtailed further examination on the subject. Whereupon Aubert stated he was also in a Memphis, Tennessee, rehabilitation hospital.

There is no merit to those assignments. In neither instance was the testimony such that it would inflame the trial judge or prejudice the defendant. Though its relevancy is somewhat tenuous, defendant’s physical condition did show that he had been shot. It is inconceivable that this innocuous testimony would inflame the trial judge to defendant’s prejudice.

Assignment 3: While the victim was being questioned by the State’s attorney he was asked if he knew a young lady named Cindy. Aubert answered that when he worked on Bourbon Street, she came to the club and talked to him. He was then asked how old she was and replied that she was in her teens. Further questioning disclosed that she was a white girl and that she knew the defendant Lewis. When defense counsel objected that the interrogation was irrelevant, the trial judge directed that the witness’ statement to the effect that Cindy knew the defendant be stricken from the record.

Although this aspect of the matter was not urged upon the trial judge in brief, defense counsel argues that the State was appealing to racial prejudice by attempting to show that the white, teenage girl Cindy was consorting with defendant Lewis, a black man.

Aside from the fact that the trial judge ordered the testimony stricken from the record, the prosecutor was not. permitted to dwell upon Cindy’s acquaintance with Lewis. In the absence of a satisfactory explanation for this questioning by the State, it may be inferred that an effort was being made to establish a motive for the shooting by showing a rivalry for Cindy’s attentions between Aubert and his assailant Lewis. In this light, testimony tending to establish Cindy’s identity and acquaintance with both men would be relevant. Otherwise, it was obvious to the trial judge that Cindy was white and Lewis was black. Hence the State’s venture into racial overtones was both indiscreet and improper.

In this case, however, no jury was involved and the trial judge was fully capable of disregarding this very brief reference to race. No error warranting reversal has occurred.

Assignment 4: Renauld Lewis, a cousin of the defendant, was called as a witness for the defense. On direct examination he testified that on the occasion of the shooting Aubert asked the defendant Lewis to sit in his car and smoke a “joint” (marijuana). On cross-examination the State’s attorney confirmed this testimony by asking Renauld Lewis if he heard Aubert ask the defendant to “sit and smoke a joint.” The witness said that was correct. No objection was made.

Questioning of the witness continued and, in time, came to the subject of a statement given by the witness to the police on the night of the shooting. At this point the prosecutor asked, “Is there anywhere on this statement that you told the police about this marijuana cigarette?”, to which the witness replied, “No.” In answer to another question, the witness said he forgot to mention the marijuana when he gave the statement to the police. Then the prosecutor asked, “Isn’t it a fact it’s your cousin [defendant] that’s been in trouble with regard to marijuana?” Defense counsel objected, and the court sustained the objection.

The defense elicited from its own witness the fact that defendant had been invited to smoke “a joint”. This created the inference that defendant had smoked marijuana in the past. Having opened the door to this line of questioning, the defense could expect that the State would attempt to show that the defendant, rather than the victim, was the party who suggested smoking marijuana. It was therefore within the proper scope of cross-examination for the State to explore that area.

Although Section 495 of Title 15 of the Revised Statutes declares that no witness can be asked whether he has been indicted or arrested, and can only be questioned as to convictions, the defense effort to invoke this rule is unavailing. Here the question was asked, defense counsel objected and the objection was sustained. The question was never answered. Asking the question is not reversible error. It is the forceful extraction of the prohibited information which the law reprobates. No error resulted. State v. Maney, 242 La. 223, 135 So.2d 473 (1961).

Assignments 5 and 6: In cross-examining the defendant the prosecutor inquired concerning his occupation. When the defendant’s answers seemed evasive, the witness was asked, “You didn’t do any hustling?” After the witness answered, “No, not at all,” defense counsel objected. Even though the witness had answered, the trial judge sustained the objection.

Other questions on cross-examination implied that defendant was a procurer. One such question sought an explanation for a motel key found in defendant’s possession on the night of the shooting. When asked the purpose of the question, the State’s attorney replied, “To set up this defendant’s line of business, Your Honor.” An objection to the questioning was sustained.

Thereafter, when asked if he knew Cindy and whether she worked for him, defendant acknowledged that she was a friend of his, but inquired, “What do you mean by work for me?” The State’s attorney answered, “Are you her pimp?” When defendant denied that he was a pimp, the trial judge said, “I don’t understand the relevancy of this at this time. I’m not going to permit any more questions like that.”

It is apparent from the questions, answers, objections and rulings that no error of law occurred in these situations. At all times the trial judge properly curtailed examination, even on the mere promise that it may become objectionable. There is no merit to these assignments.

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


author: SANDERS, Chief Justice. TATE, Justice

text:
    STATE of Louisiana v. Lewis D. HAMMETT.
    No. 61197.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Frances M. Gilfoil, Asst. Dist. Atty., for plaintiff-appellant.
    Nolan J. Edwards, Crowley, for defendant-appellee.
   SANDERS, Chief Justice.

The State charged Lewis Hammett with driving while intoxicated, a violation of LSA-R.S. 14:98. Defendant filed a motion to suppress “all evidence ... on the grounds that the same came as a result of an illegal arrest.” The trial court granted the motion, declaring two arrest statutes, LSA-C.Cr.P. Arts. 213(3) and 933(4), unconstitutional. Because the court declared a statute unconstitutional, the State appealed to this Court. See LSA-Const. Art. 5, § 5(D).

In his motion, defendant successfully argued that because the police officer did not see him commit the offense, he was unauthorized to arrest him. Thus all evidence seized was suppressed.

The provisions at issue, LSA-C.Cr.P. Arts. 213(3) and 933(4), provide, respectively, that:

Article 213:
“A peace officer may, without a warrant, arrest a person when:
“(1) The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor it must be made immediately or on close pursuit;
“(2) The person to be arrested has committed a felony, although not in the presence of the officer;
“(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer; or
“(4) The peace officer has received positive and reliable information that another peace officer holds a warrant for the arrest.
“A peace officer in close pursuit of a person to be arrested, who is making an arrest pursuant to this article may enter another jurisdiction in this state and make the arrest.” [Emphasis added.]
Article 933:
“Except where the context clearly indicates otherwise, as used in this Code:
“(1) ‘Offense’ includes both a felony and a misdemeanor.
“(2) ‘Capital offense’ means an offense that may be punished by death.
“(3) ‘Felony’ means an offense that may be punished by death or by imprisonment at hard labor.
“(4) ‘Misdemeanor’ means any offense other than a felony, and includes the violation of an ordinance providing a penal sanction.” [Emphasis added.]

In declaring LSA-C.Cr.P. Arts. 213(3) and 933(4) unconstitutional, the trial judge stated:

“With respect to the provisions of La.C.Cr.P. Art. 213(3), the Court feels that there is a constitutional infirmity in such provision in that the sub-section refers to ‘offense’. By reference to La.C.Cr.P. Art. 933 ‘offense’ is not defined with particularity except that it ‘ . . . includes both a felony and a misdemeanor’ . ‘Misdemeanor’ is then defined as follows:
(4) ‘Misdemeanor’ means any offense other than a felony and includes the violation of an ordinance providing a penal sanction.
It thus appears that there is not specific delineation to the meaning or coverage of ‘misdemeanor’. What exactly is the extensiveness of the meaning of ‘penal sanction’? (Imprisonment? Fine? Award of attorney fees? Award of accelerated damages? Adverse status determination? Adjudication of societal wronging having adverse consequences not necessarily involving imprisonment or fine?) Is ‘offense’ within the meaning of C.Cr.P. Art. 933(4) limited to Title 14 crimes and local ordinances, or does it extend to the whole body of statutory law — state and local? Does the language ‘ . . .as used in this Code: ‘limit the thrust of such article to Title 14 provisions? The clear possibility of differing interpretations leads this Court to the conclusion that La.C.Cr.P. Art. 933(4) is subject to the constitutional infirmities of vagueness, differing constructions and ambiguity, especially in light of stricti juris interpretations of criminal statutes, and is therefore unconstitutional.” [Footnotes omitted.]

It is evident, therefore, that the trial judge concluded that these provisions are void for vagueness. We disagree.

Article 213(3) refers to “an offense.” Offense is defined in Article 933 as including a felony and misdemeanor. Felony is then specifically defined as an offense that may be punished by death or by imprisonment at hard labor. Finally, misdemeanor is defined as “any offense other than a felony, and includes the violation of an ordinance providing a penal sanction.”

The trial judge had difficulty with the words “penal sanction.” In the context of this article, the words mean a criminal penalty, or sentence. Although all language is imprecise to some degree, the phrasing is sufficiently clear to avoid unconstitutionality. Thus, the definition includes the violation of an ordinance providing a criminal sentence. We note, however, that the arrest in the present case was for the violation of a state statute.

The remaining interpretative questions noted by the trial judge are insubstantial. Articles 213 and 933 apply to all criminal prosecutions and proceedings in the district courts. LSA-C.Cr.P. Art. 15. Hence, the application of these articles is not restricted to the crimes defined in the Louisiana Criminal Code (Title 14, LSA). The articles also apply to a prosecution for crimes defined by other statutes.

The official revision comments of Article 213 state specifically that:

“(a) This article combines the better features of the A.L.I. Code, § 21 and Ill.Code of Crim.Proc., § 107-2(c), with former R.S. 15:60, and makes the following changes:
“(1) Instead of the phrase ‘felony or misdemeanor,’ this article contains the term ‘offense.’ Art. 933 defines ‘offense’ to include both felony and misdemeanor,’ and ‘misdemeanor’ to include violations of ordinances.
“By use of the term ‘offense’ in Clause (3), the authority of a peace officer to make arrests for crimes committed out of his presence is broadened to include arrests for misdemeanors as well as for felonies. Accord: Ill.Code of Crim.Proc., § 107-2." [Emphasis added.]

Moreover, the official revision comments of Article 933 state further that “ ‘[O]ffense’ is a general term which is frequently employed to cover both felonies and misdemeanors.” Article 933 additionally provides definitions for “felony” and “misdemeanor” which are in strict conformity with LSA-R.S. 14:2. Therein, the official revision comments note that the “felony” and “misdemeanor” definitions “are the commonly accepted ones in this State. See Arts. 337-342, La.Code of Crim.Proc. of 1928.”

Thus, we conclude that the term “offense” in Article 213(3) includes both misdemeanors and felonies.

It is well established that a police officer can make an arrest without a warrant if he has reasonable grounds to believe that the person to be arrested has committed an offense, though not in the presence of the officer. State v. Terracina, La., 309 So.2d 271 (1975); State v. Dell, 258 La. 1024, 249 So.2d 118 (1971); State v. Millsap, 258 La. 883, 248 So.2d 324 (1971).

Thus, we hold that the statutes are constitutional. Since the ruling of the trial judge, sustaining the motion to suppress, was based upon the uneonstitutionality of the statutes, that ruling must be reversed.

For the reasons assigned, the ruling of the trial court sustaining defendant’s motion to suppress is overruled. The case is remanded to the district court for further proceedings according to law and consistent with the views herein expressed.

TATE, J., concurs and assigns reasons.

CALOGERO, J., concurs for reasons assigned by TATE, J.

TATE, Justice

(concurring).

In my opinion, the trial judge correctly construed La.C.Cr.P. art. 213 as not allowing the warrantless arrest of a defendant for a misdemeanor not committed in the officer’s presence. La.C.Cr.P. art. 213(1) is a specific provision permitting warrantless arrests by an officer when “The person to be arrested has committed an offense in his presence, and if the arrest is for a misdemeanor it must be made immediately or on close pursuit.” La.C.Cr.P. art. 213(3) (permitting warrantless arrest for any offense when there are reasonable grounds therefor) is a general provision which, if inconsistent, must yield to the specific circumstances set forth in art. 213(1).

However, under the circumstances as herein presented, the defendant’s arrest was apparently proper. The briefed facts reveal that on July 13, 1977 the defendant ran a stop sign in Lafayette Parish and was involved in a serious automobile accident in which six people were injured.

A Louisiana state trooper called to the scene smelled alcohol on the defendant’s breath and, within 40 minutes of his arrival, arrested defendant for DWI and advised him of his constitutional rights. The defendant was then transported to the state police troop headquarters, where he was again advised of his rights, given a PEI test and thereafter booked at the Lafayette Parish Sheriff's Department.

Accordingly, the arrest for the misdemeanor was made by the police officer in whose presence the offender was found under evidentiary circumstances showing he had just committed the misdemeanor,

      . Neither the record nor the motion state what evidence was seized. However, defendant’s brief refers to the evidence from PEI test, a test for intoxication.

      . The former LSA-R.S. 15:60 provided:
      “Any peace officer may, without a warrant arrest a person:
      "(1) For the commission of any felony or misdemeanor committed in his presence;
      “(2) When such person has committed a felony although not in the presence of the officer;

      “(3) When a felony in fact has been committed and he has reasonable cause to believe that such person has committed it;
      “(4) When he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it;
      “(5) When he has received positive information by written, telegraphic or other authoritative source that another officer holds a warrant for such arrest.” [Emphasis added.]


text:
    STATE of Louisiana v. Roland RANKER.
    No. 61199.
    Supreme Court of Louisiana.
    May 22, 1978.

      Prank G. DeSalvo, Maurice T. Hattier, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joseph E. Roberts, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Roland Ranker was charged by bill of information with armed robbery in violation of R.S. 14:64. Following a trial by jury defendant was found guilty and given a sentence of ninety-nine years at hard labor in the custody of the Department of Corrections. On appeal defendant raises only three assignments of error.

Because we find merit in assignment of error number one we find it unnecessary to discuss the second and third assignments.

ASSIGNMENT OF ERROR NUMBER 1 DEFENDANT’S BEING BANISHED FROM THE COURTROOM THROUGHOUT THE TRIAL

The Confrontation Clause of the sixth amendment of the United States Constitution provides that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him. The fourteenth amendment makes the guarantee of this clause obligatory upon the states. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Perhaps the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial. Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). In the context of this ease this fundamental right would have permitted the defendant to face and observe the state’s witnesses who came forth and testified about earlier line-up identifications and identified the defendant at trial as the armed robber.

The right of confrontation is not absolute, however, as the Supreme Court of the United States stated in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Therein, in its review of a Seventh Circuit Court of Appeals decision which had in effect held that there was an absolute right of the defendant to be present at all stages of the proceedings, 413 F.2d 232 (1969), the United States Supreme Court held that “a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.”

It was in reliance upon this expression of the United States Supreme Court that the trial judge in this case had defendant removed from the courtroom during voir dire of the jury and kept out of the courtroom during the entire trial except for two brief returns for the purpose of identification by witnesses.

The question posed here is whether or not defendant’s conduct was so disorderly, disruptive and disrespectful of the court that the trial could not be carried on with him in the courtroom. The record indicates, and the trial judge in his per curiam to this assignment acknowledges, that the first six pages of the transcript reflect the disruptive conduct of defendant upon which the trial judge relied. We thus incorporate by way of the attached appendix to this opinion those six pages.

In our assessment the record in this case does not portray Roland Ranker as a disruptive, contumacious, or stubbornly defiant defendant. On the contrary it appears that Ranker attempted to voice his dissatisfaction with his appointed attorney in a non-disruptive and almost polite, although insistent manner. We do not question the right of the trial judge to conduct the proceedings before him so as to maintain dignity, order and decorum, the hallmarks of all court proceedings in out country. See, Illinois v. Allen, supra. We simply cannot find on the basis of this record that defendant speaking out as he did and relating the substance of his complaint, that his lawyer would not communicate with him, was the type of disorderly, disruptive or disrespectful conduct which was of such dimension as to warrant the denial of defendant’s constitutional right to be present in the courtroom at every stage of his trial. For these reasons we find merit in defendant’s assignment of error number one.

Decree

For the foregoing reasons defendant’s conviction and sentence are hereby reversed and the case remanded to the trial court for retrial.

REVERSED AND REMANDED.

SANDERS, C. J., dissents.

APPENDIX

(During the time that the Sheriff was calling prospective jurors the following transpired.)

BY THE COURT:

One minute, Mr. Sheriff, let the defendant be seated at the bar. You can talk to your lawyer while you are seated just as well. Now, Ranker, listen to what I am going to tell you. This trial is going to proceed today in an orderly fashion and it’s going to proceed with or without your cooperation. I have a duty under my oath of office to conduct this trial fairly, with dignity and decorum, and to see that your rights are protected to the fullest extent of the law. Do you understand that?

BY THE DEFENDANT:

Yes, sir.

BY THE COURT:

I’m going to be a very indulgent man, but I am not going to tolerate any deviation from the law or from the rules of dignity and propriety. And I will not have it in this court. If you persist in disobeying such as my order to take a seat I will have means to deal with you. I don’t want to do that unless you force me to do that. Do you understand?

BY THE DEFENDANT:

Yes.

BY THE COURT:

Okay, take a seat.'

BY THE DEFENDANT:

Your Honor,—

BY THE COURT:

I do not want to hear from you because I don’t listen to defendants except through their lawyers. During the course of the trial at the proper time if you want to take that witness stand and testify under oath then I will certainly listen to you and the jury will too. Proceed, Mr. Labich.
(Thereupon the Sheriff called more prospective jurors and the following transpired.)

BY THE DEFENDANT:

Your Honor, my judge [lawyer] don’t want to speak for me.

BY THE COURT:

You have to be quiet. If you say one more word I will have to exclude you from the courtroom and then proceed with your trial without you. That would not be to your interest, but I will have to do that in order to proceed according to the rules.

BY THE DEFENDANT:

Your Honor, my lawyer don’t want—

BY THE COURT:

Take the defendant out of the courtroom. Let me tell you before you leave when you at any time you tell the Sheriff— one minute, let me talk to him, Mr. Sheriff. Any .time you tell the Sheriff that you are ready to sit down, communicate with your lawyer, but obey the rules of the law in this court then I will bring you back into the courtroom. As a matter of fact I will even extend it now if you are willing now to sit down and proceed with this trial in an orderly fashion you won’t be removed. Are you willing to do that?

BY THE DEFENDANT:

When my lawyer speaks to me I will have to see.

BY THE COURT:

You can talk to your lawyer.

BY THE DEFENDANT:

I talks to my lawyer, but my lawyer understand don’t wants to talk to me. I am speaking to him to try to get him to talk to me.

BY THE COURT:

I see you and your lawyer conversing back and forward. He is your lawyer.

BY THE DEFENDANT:

But he don’t want to say nothing for me. I talk to him and he tells me to be quiet.

BY THE COURT:

Mr. Hattier, you can talk with your client, you understand that.

BY MR. HATTIER:

I am trying to keep track of the jurors when they take their seats to select the jury. I can not do 2 things at once.

BY THE COURT:

Take a seat. I will give you one more chance. If you persist in talking except through your lawyer then you are going to be removed from the courtroom in accordance with the law. The Supreme Court has backed me and other judges up on that. And the reason for that is that we live under a system of the law and we must proceed according to the rules instead of the laws of the jungle. Sit down, one more try.

BY THE DEFENDANT:

Have my lawyer, understand—

BY THE COURT:

Take the defendant out, Mr. Sheriff, I have had enough. When you keep quiet you let us know and you can come back in. Proceed please.
(Thereupon the defendant was removed from the courtroom and the following transpired.)

BY MR. HATTIER:

Your Honor, I am going to have to ask for a mistrial under the conditions of my not being able to work with my client with the way — I believe it’s created an impression on the jurors and at this time we do request a mistrial.

BY THE COURT:

I have given this matter consideration. Your Motion for a Mistrial is denied because, as the jury well observed, his conduct was such as to make it necessary for the Court to exclude his presence so that the trial could proceed in an orderly manner. I will, however, caution the jurors that they are in no sense whatsoever to permit what you witnessed in the courtroom to affect in any manner the question of the guilt or innocence of the defendant. He is nonetheless entitled to a fair trial based on the evidence and the law in the case as you will hear when the case gets under way. The action of the Court was made necessary and is sanctioned by no less an authority than the Supreme Court of the United States. For the reason that if it were otherwise we would have chaos and bedlam rather than the orderly processes of the law. The point is do not let what you observed in any way influence your judgment on the question of guilt or innocence. Do you all understand that? Is there any juror in this room who does not understand that? Alright, proceed.

BY MR. HATTIER:

Reserve a Bill.

      . The precise assignment of error raised by defendant is: “The Court erred when it did not grant defendant’s request for a mistrial when the Court barred the defendant from the Courtroom during the selection of the jury.”

      . 397 U.S. at 343. In Allen the defendant argued with the judge in an abusive and disrespectful manner, continued talking after the judge ordered defense counsel to take over voir dire examination, and told the judge “when I go out for lunchtime you’re going to be a corpse here.” At that point defendant tore up the file which his attorney had and threw the papers on the floor. Thereupon, the tnal judge warned defendant that with another outbreak of that sort he would be removed from the courtroom. The warning having no effect upon him he continued to talk back to the judge, telling him that there’s not going to be a trial: “I’m going to sit here and your’re going to talk and you can bring your shackles out and straight jacket and put them on me and tape my mouth, but it will do no good because there’s not going to be no trial.” Allen was then removed from the courtroom. After a noon recess he was permitted back in court during his trial whereupon he reiterated again that there was going to be no trial. He related he was going to start talking and keep talking all through the trial, thereupon the judge again ordered him removed from the courtroom.


author: MARCUS, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Gordon T. SCHMIDT.
    No. 61214.
    Supreme Court of Louisiana.
    May 22, 1978.

      Alfred B. Shapiro, Gravel, Roy & Burnes, Alexandria, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Polk Culpepper, Asst. Dist. Atty., for plaintiff-respondent.
   MARCUS, Justice.

Gordon T. Schmidt was charged by bill of information with possession of a controlled dangerous substance, to-wit: marijuana, in violation of La.R.S. 40:966. After trial by a judge, he was found guilty as charged and sentenced to serve five months in the parish prison and to pay a fine of $350 plus court costs, or in default thereof, to serve" thirty days in the parish prison. Execution of the prison sentence was suspended and defendant was placed on supervised probation for a period of one year. Defendant’s application to this court for review under our supervisory jurisdiction was granted. He asserts one assignment of error for reversal of his conviction and sentence.

Defendant contends the trial judge erred in denying his motion to suppress physical evidence. He argues that the evidence was seized as a result of an unconstitutional search of an automobile.

A pretrial hearing was held on the motion to suppress evidence. The sole witness to testify at this hearing was Officer Mark Baden, a deputy sheriff for Rapides Parish, who was called by defendant. His testimony reflects the following circumstances surrounding the search of the automobile and the seizure of the evidence at issue.

At about 2:30 a. m. on August 11,1977, in Rapides Parish, Deputy Baden, accompanied by Deputy Tim Ledet, observed a Chevrolet Camaro speeding and being driven recklessly. They pursued the vehicle which they clocked at a speed in excess of 90 miles per hour. The deputies, unable to overtake the Camaro with their vehicle, summoned assistance from both the Alexandria City Police and the Louisiana State Police who, having more powerful automobiles, were eventually able to force the Ca-maro off the road onto the grounds of Central Louisiana Hospital in Pineville. Deputies Baden and Ledet joined the other officers immediately thereafter. The occupants of the Camaro were Terrell White, the driver; David Holley, a front-seat passenger; and defendant, who occupied the right rear seat. Deputy Baden approached the Camaro and asked White to exit the vehicle and step to the rear. In doing so, White staggered; he smelled of alcohol. Deputy Baden placed him under arrest. The officers then asked Holley and defendant to exit the Camaro and step to the rear. Officer Baden stated that he smelled an odor of what he thought to be marijuana smoke after the occupants had been removed from the vehicle. When asked what action he took next, Deputy Baden replied, “[Ajfter an arrest is made, we inventory the vehicle.” No search warrant had been obtained. Before entering the car itself and with the aid of a flashlight, he checked the Camaro for anything that might harm him. (The three occupants of the Camaro were located outside and to the rear of the vehicle; hence, they were not in a position to reach inside the vehicle for a weapon.) He saw a plastic bag, containing what appeared to be marijuana, partially beneath a rear floor mat. Deputy Baden testified that this check was made “in the process of inventorying the vehicle,” although made prior to entering the Camaro to conduct a complete search. The inventory search and a form listing the items found in the Cama-ro were eventually completed. However, Deputy Baden admitted that he did not ask White for consent to search the vehicle, nor if there were any valuables in the Camaro. He further testified that he had not summoned a tow truck before beginning the search, nor did he attempt to ascertain ownership of the Camaro prior thereto.

Through the testimony of Deputy Baden at the hearing on the motion to suppress evidence, defendant made an initial showing that a warrantless search and seizure occurred. Hence, the burden of proof shifted to the state to affirmatively show that the search and seizure were justified under one of the well-recognized exceptions to the warrant requirement of the fourth amendment to the federal constitution. State v. Braud, 357 So.2d 545 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977). The state does not contend, nor do we find, that the search and seizure were justified under the exceptions of consent, probable cause plus exigent circumstances, or search incident to a lawful arrest. Rather, the state argues that the seizure of the marijuana was justified under the “plain view” exception to the warrant requirement or, alternatively, that the evidence was seized pursuant to a valid inventory search. We do not agree.

It is well settled that objects falling within the plain view of an officer who had a right to be in a position to have that view are subject to seizure and may be introduced in evidence. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Williams, 349 So.2d 286 (La.1977); State v. Dixon, 337 So.2d 1165 (La.1976); State v. Rogers, 324 So.2d 403 (La.1975); State v. Jefferson, 284 So.2d 882 (La.1973). In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the United States Supreme Court explained the circumstances under which the “plain view” doctrine is of significance:

It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the ‘plain view’ doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.
What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification—whether it be a warrant for another object, hot pursuit, search incident to [a] lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused—and permits the warrantless seizure.

Under the facts of the instant case, we do not find that the police officer had a legitimate reason to flash his light into the automobile. The facts indicate that the compact automobile had been stopped for traffic violations. The car was located on the grounds of a state hospital and was surrounded by a number of police officers. The driver and two passengers had been removed from the vehicle. Clearly, the subsequent flashlight check (intrusion) by Deputy Baden into the vehicle (protected area) was not done to determine if some person who might have harmed him was concealed in the automobile. Rather, we find that the flashlight check was done either as a prelude to or as part of the inventory search of the car. Hence, the validity of the seizure depends upon the justification for the initial intrusion, i. e., the inventory search exception to the warrant requirement.

In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the United States Supreme Court upheld police intrusions into automobiles impounded or otherwise in lawful custody where the process was aimed at securing or protecting the car and its contents. In that case, the car had been impounded and the search was made pursuant to standard police procedures which had as their purpose the inventorying and safeguarding of the vehicle’s contents. The conduct of the police was held not “unreasonable” under the fourth amendment. In State v. Jewell, 338 So.2d 633 (La.1976), following the reasoning of Opperman, we held that true inventory searches of motor vehicles impounded for reasonable cause do not offend the prohibition of article 1, section 5 of our state constitution against unreasonable governmental searches, seizures, or invasions of privacy.. However, in Jewell and other more recent cases, we found that the facts in each case did not support the conclusion that the police officer was conducting a search to safeguard the vehicle’s content, as contrasted with making a warrantless search for incriminating evidence, without probable cause to do so. The searches in these cases were held unreasonable and therefore unconstitutional. We reached these conclusions because of the presence of various factors indicating that the purported inventory searches were not reasonably restricted in scope so as to constitute true inventory searches. At least five such factors are present in the instant case: (1) failure to ask for consent to search; (2) failure to inquire whether other arrangements could be made for the vehicle, especially if the vehicle contained a competent passenger as well as the driver; (3) failure to call a tow truck prior to commencement of the search; (4) conducting the search at the site of the arrest rather than at the place of storage; (5) failure to ask the vehicle’s custodian whether it contained any valuables. See State v. Gaut, 357 So.2d 513 (La.1978); State v. Rome, 354 So.2d 504 (La.1978); State v. Jewell, supra.

Accordingly, we conclude that the search in the instant case was not reasonably restricted in scope so as to constitute a true inventory search. The seizure of the marijuana was not justified under the inventory search exception to the warrant requirement.

In sum, the state failed to meet its burden of showing that the search and seizure were justified under one of the well-recognized exceptions to the warrant requirement of the fourth amendment. Hence, the search and seizure of the marijuana were unconstitutional; the trial judge committed reversible error in denying defendant’s motion to suppress the evidence.

DECREE

For the reasons assigned, the conviction and sentence are reversed, and the case is remanded for a new trial consistent with law and the views herein expressed.

SANDERS, C. J., and SUMMERS, J., dissent.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I join in the majority opinion and fully concur with its holding. However, I disagree with the statements contained in footnote 2 insofar as they imply that this Court will always consider the State’s evidence at trial in determining whether the ruling on a pretrial motion to suppress was correct. In a proper case, if justice requires, this Court has and should review the trial court’s ruling solely on the basis of evidence submitted to it for the purpose m advance of the trial on the merits. State v. Welch, 337 So.2d 1114 (La.1976).

      . 353 So.2d 1044 (La.1978).

      . In determining whether the ruling on defendant’s motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Stewart, 357 So.2d 1111 (La.1978); State v. Shivers, 346 So.2d 657 (La.1977); State v. Smith, 257 La. 1109, 245 So.2d 327 (1971); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967). We have reviewed the pertinent evidence given at the trial of the instant case. This evidence presents substantially the same facts and circumstances surrounding the search and seizure at issue as was indicated by the testimony of Deputy Baden at the hearing on the motion to suppress. Since the evidence adduced at the trial does not affect the result we reach in the instant case, our relation of the pertinent facts is based only upon the testimony given at the suppression hearing.