author: SUMMERS, Chief Justice. BLANCHE, Justice,

text:
    Francis Louis FOLSE et al. v. Michalas E. FAKOURI et al.
    No. 63232.
    Supreme Court of Louisiana.
    May 21, 1979.

      Robert M. Johnston, Johnston & Duplass, New Orleans, for defendants-respondents.
    Frederick J. Gisevius, Jr., Dennis L. Rousseau, David E. Caruso, Jr., Robert F. Shear-man, Law Offices of Frederick J. Gisevius, Jr., New Orleans, for plaintiffs-applicants.
   SUMMERS, Chief Justice.

This is a suit for personal injuries instituted by Francis Louis Folse and June Ann Durning, the latter appearing individually and as natural tutrix and administratrix of the estate of her minor son, Stanley Jude Durning. At present only the claim of Francis Louis Folse is before the Court. Folse’s claim was based upon injuries he sustained on April 20, 1971 when the school bus he was driving on Metairie Road in Jefferson Parish was struck by a truck driven by John R. Mayer. Folse owned the school bus he was driving and was transporting school children under a contract with the Jefferson Parish School Board. The truck driven by Mayer was registered in the name of Clover Farm Creamery, a dairy located in Opelousas, Louisiana.

Defendants in the suit are Michalas E. Fakouri and Mazie Bertinot, d/b/a Clover Farm Creamery, Hartford Accident and Indemnity Company, the auto liability carrier of the truck, and John R. Mayer, the driver. By supplemental petition Clover Farm Creamery, Inc., and Green Spot of Opelou-sas were added as defendants. Green Spot was later dismissed from the suit.

Insofar as pertinent here the jury rendered judgment in favor of Folse and against defendants in solido for $327,926.81. Hartford Accident and Indemnity Company paid $100,121, the limits of its liability, and Hartford is no longer interested in the outcome of the case. The remaining defendants appealed to the Fourth Circuit where the judgment of the trial court was amended by reducing the unpaid portion of the award to plaintiff Folse from $227,805.81 to $166,805.81.

The Court of Appeal also denied a motion by plaintiff Folse to dismiss the appeal; or, in the alternative, to substitute the real party in interest; or, in the further alternative, to remand the ease to the District Court for further proceedings. The motion is based upon allegations of the appealing defendants that they had been discharged in bankruptcy, are insolvent and are unable to respond in damages.

And, although defendants denied at the trial that there was excess insurance and asserted their impecunious condition, after the trial Fakouri, one of the defendants, disclosed that a policy was issued to him by Insurance Company of North America (INA) providing excess coverage of one million dollars for this accident.

Therefore, based upon the alleged lack of interest of these impecunious defendants and the assumption that INA insured the accident, plaintiff prayed that the appeal of the named defendants be dismissed and INA be joined as defendant. 361 So.2d 887.

Folse applied for certiorari on October 11, 1978 to have this Court review the decision of the Court of Appeal. We granted the writ on October 26, 1978, and on November 27, 1978 Folse died. 363 So.2d 1385. His widow, Barbara Falgout, has been substituted as his legal representative to conduct this litigation and stand in judgment for the decedent.

There are no issues of liability or contentions that Folse was not totally and permanently disabled as a result of the injuries sustained in the collision of April 20, 1971. The issue is quantum.

It was contended on behalf of plaintiff Folse in the application to this Court for writs that it was error for the Court of Appeal to deny plaintiff’s motion to dismiss the appeal as to the named defendants and to fail to substitute INA as a party defendant. However, it is apparent from the final brief filed for plaintiff that only the reduction of the awards is now urged. We take this position to be influenced by the statement in defendants’ brief that liability insurers are not indispensable or even necessary parties to a suit. In the event that it is ultimately determined that the policy of INA did provide coverage to the defendant Fakouri, defendants assert, the decision of this Court would control the obligations of the insurer under the terms of its policy, and the plaintiff will suffer no detriment. A separate suit filed in St. Landry Parish is in progress to determine whether INA’s policy covered Fakouri.

This review will therefore be limited to a consideration of the reduction of the awards for loss of past earnings and past earning capacity and for loss of future earnings and future earning capacity.

Loss of past earnings are the monetary losses plaintiff experienced during the interval between the date of the accident, April 20, 1971, and the time of the trial which began on December 1, 1975 and ended on December 12, 1975, a period of four years, and eight months.

In the trial court the jury awarded Folse $47,000 to reimburse him for the loss of past earnings. The Court of Appeal reduced this award to $27,500. The appellate court was of the opinion that the trier of fact possesses considerable discretion in making awards for loss of future earnings because of the speculative nature of those awards and because that type award cannot be calculated with mathematical certainty. This same broad discretion, the court found, is not applicable where loss of past earnings are involved. Presumably this conclusion was reached because past losses were considered to be more accurately ascertainable.

Proceeding on this premise the court rejected expert testimony to the effect that the average bus driver’s salary in the United States was $10,000 per annum. The Court then reasoned that plaintiff continued to own the school bus and was paid mileage for its use in transporting children. Because he was no longer able to drive the bus the court found he was entitled to an award for the salary paid substitute drivers. This amounted to $20,196 for the four years preceding the trial. Plaintiff also claimed that he earned $1,200 per annum as an auto mechanic working at odd jobs for others. This was allowed. However, the claim that his work on his own vehicles each year had a value of $1,800 was reduced to approximately $800 per annum. Based upon these calculations, the court decided plaintiff’s loss of past earnings amounted to $27,500 for the period of four years and eight months prior to trial.

Plaintiff contends that the Court of Appeal erred when it restricted plaintiff’s claim for loss of past earnings by the calculations employed when the jury award was based upon those same calculations plus a loss of plaintiff’s past earning capacity. That the jury did consider and base its award on plaintiff’s loss of past earning capacity in addition to the actual monetary loss is said to be evidenced by the jury’s response to interrogatories stating that its award was “Past Loss of Wages and/or Earning Capacity $47,500.00.”

Conceding that the loss of past wages was only $27,500, what this argument amounts to is that an additional $20,000 award was made by the jury for plaintiff’s loss of the capacity to earn more during the four years and eight months before trial. Thus, it is not only plaintiff’s actual monetary loss during the period, but also the effect of his disability on his capacity to earn more. The Court of Appeal has not answered this contention.

Many factors could have entered into the jury’s deliberations on the question of plaintiff’s loss of the capacity to earn more during the four year-eight month period prior to trial. He was fifty years old at the time of the accident. He was apparently vigorous and industrious and had been steadily employed. The actuary who testified for plaintiff stated that the average salary of bus drivers throughout the United States in 1964 as determined by the Department of Labor was $10,174. Inflation and the additional employment opportunities created by a burgeoning economy after his injury and before trial may also have played a part in the jury’s deliberations and the unarticulat-ed reasons for their award.

The jury was entitled to determine from these and other factors in the record the probabilities and estimates of plaintiff’s ability to earn money. What plaintiff earned before and after the injury does not constitute the measure. Even if he had been unemployed at the time of the injury he is entitled to an award for impairment or diminution of earning power. And while his earning capacity at the time of the injury is relevant, it is not necessarily determinative of his future ability to earn. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Damages should be estimated on the injured person’s ability to earn money, rather than what he actually earned before the injury.

While the general rule set forth in the Civil Code is that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. La.Civil Code art. 1934(3). While this rule is stated in the Code to be applied where the contract has for its object the gratification of some intellectual enjoyment, the principle announced there may be applied by analogy to the loss of earning capacity where “damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party.” It is a rule of reason and common sense applicable to contracts and torts alike.

Because the Court of Appeal apparently disregarded the claim for loss of past earning capacity, and considering the fact that there was evidence in the record, including the expert opinion of the actuary, which would support the jury award, we find no abuse of the “much discretion” which “must be left to the . . . jury.” in its award for loss of past earnings and past earning capacity. Schexnayder v. Carpenter, 346 So.2d 196 (La.1977); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Logically, a like result should apply to the claim of loss of future earning capacity. The Court of Appeal reduced this award from $100,000 to $58,500. The reduction was based upon the rationale applied to the reduction of the award for loss of past earnings. As noted in the discussion relating to the loss of past earnings and earning capacity, the Court of Appeal based the reduction there on the amount lost by calculating altogether on the pecuniary loss, without considering the contention that there was also a loss of earning capacity, disregarding the expert testimony that bus drivers earned at least $10,000 per annum.

Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.

The Court of Appeal reduced the award for loss of future earnings based upon its rejection of the actuary’s testimony that $10,000 was the average bus driver’s salary in the United States. This testimony, the court said, had no probative value insofar as plaintiff’s earnings were concerned because the actuary’s study of salaries throughout the United States was too broadly based. When considered alongside the $9,000 income plaintiff derived from the rental of the bus and his salary as driver, together with the $1,200 allowed as earnings from odd jobs as an auto mechanic, or the $800 per annum allowed for repairing and maintaining his own bus, the $10,000 figure is representative of plaintiff’s earnings as a school bus driver. Although his earnings were not all salary, they are nevertheless equivalent to the national salary average of a school bus operator.

In the absence of testimony to the contrary, there appears to be no sound reason for disturbing the award of the jury on loss of future earnings and earning capacity. In light of the reasons we have assigned for maintaining the jury award for loss of past earnings and earning capacity, these jury awards should not be disturbed.

For the reasons assigned, the judgment of the Court of Appeal is reversed and set aside, and the judgment of the trial court awarding plaintiff $47,000 to reimburse him for loss of past earnings and past earning capacity and $100,000 for loss of future earnings and future earning capacity is reinstated and made the judgment of this Court, subject to such reductions and credits properly due as a result of the payment by Hartford Accident and Indemnity Company of its policy limits.

BLANCHE, J., dissents and assigns reasons.

BLANCHE, Justice,

dissenting.

I respectfully dissent.

The Court of Appeal opinion is correct and represents a studied and accurate review of facts in accordance with their constitutional duty. The jury evidentially used some economist’s figures as to an average bus driver’s salary in the United States, while the Court of Appeal’s accurate review of the evidence was based on the proof adduced at trial. It is difficult to stretch plaintiffs’ loss beyond that which the Court of Appeal ultimately approved, and we should encourage studied evaluations of the evidence as here demonstrated.


source: Caselaw Access Project

author: DENNIS, Justice. BLANCHE, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Charles Edward LUSK.
    No. 63422.
    Supreme Court of Louisiana.
    May 21, 1979.
    C. Frank 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., Richard Chaffin, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appel-lee.
   DENNIS, Justice.

Defendant, Charles Lusk, was convicted by a judge of possession of heroin with intent to distribute, La.R.S. 40:966, and sentenced to life imprisonment at hard labor. He appealed and urges three assignments of error.

Acting on a tip from a confidential informer that defendant, Charles Lusk, had in his possession a blue balloon containing heroin, law enforcement officers located defendant at a dice game in a Scotlandville bar and arrested him for possession of heroin with intent to distribute. Two of the officers testified that when they entered the bar with their guns drawn Lusk pulled a blue balloon from his pocket and threw it under the dice table. The blue balloon contained seven smaller balloons and some heroin. The State’s evidence did not disclose the quantity of heroin involved or the manner in which it was arranged within the seven balloons. One of the officers testified that Lusk had no track marks on his arms. Lusk testified that he did not throw anything under the dice table, that he did not use heroin and that he did not know what it looked like. Six of the dice players testified that they did not see Lusk toss anything under the table.

Reversible merit is presented by defendant’s assignment of error number 8. By this assignment defendant argues that the court erred in using impeachment evidence as substantive evidence of the offense.

Approximately one week after his arrest, while in jail, the defendant told a police-officer, “I don’t use that [heroin]. What you got was for sale.” During presentation of the State’s case-in-chief, the prosecutor asked the police officer to relate the incul-patory statement to the court. The trial judge sustained defense counsel’s objection to introduction of the statement because the defendant had not been advised of his constitutional rights immediately prior to his making the incriminating remark.

When the defendant took the stand he denied ever having seen heroin or having made an inculpatory statement to an officer while in jail. In rebuttal, the State introduced the inculpatory statement for purposes of impeaching the defendant’s testimony under the holding in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

When the trial judge found the defendant guilty of possession of heroin with intent to distribute he indicated in his oral reasons for judgment that he considered the inculpatory statement as evidence available to the prosecution in its case-in-chief. In doing so, he clearly erred. The statement used to impeach the defendant’s direct testimony was, under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and La.Const.1974, Art. 1, § 13, constitutionally inadmissible as part of the State’s direct case against petitioner. The rationale of Harris v. New York that “sufficient deterrence [of proscribed police conduct] flows when the evidence in question is made unavailable to the prosecution in its case in chief,” 401 U.S. at 225, 91 S.Ct. at 645, of course, does no more than allow an accused’s credibility to be impeached by use of his earlier tainted statement. Consequently, the defendant’s conviction was founded in part upon inadmissible evidence and must be set aside. However, since the reversal is due to trial error, rather than a finding that the evidence is insufficient, there appears at present to be no constitutional prohibition to a retrial of the charged offense. See, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Allien, 366 So.2d 1308 (La.1978); State v. Thompson, 366 So.2d 1291 (La.1978).

Decree

For the reasons assigned, defendant’s conviction and sentence are reversed and the case is remanded for further proceedings in accordance with the views set forth herein.

REVERSED AND REMANDED.

BLANCHE, J., dissents and assigns reasons.

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

BLANCHE, Justice,

dissenting.

I respectfully dissent.

It is unfortunate that the trial judge had to be candid and give reasons for judgment which resulted in a reversal of this conviction. The statement that the defendant gave, i. e., that he did not use heroin and that the heroin which the police had seized from him was for sale, in my opinion, was not subject to the Miranda warning. As this writer appreciates the situation, the defendant was not under custodial interrogation. To the contrary, it was he who called the officer to whom the statement was given, and he wanted the officer to help him get out of jail by reducing bond in exchange for giving information on heroin traffic in Scotlandville. It was during this conversation that the defendant gave his unsolicited statement.

Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), is not applicable. The defendant in the Harris case did not invite any officers to come to his cell so he could sing to them or make a deal for information.

I would affirm the conviction.

      . The judge’s reasons, in pertinent part, were as follows:
      “At the end of the State’s case, I had some doubt as to whether or not the heroin was possessed with the intent to distribute because I had no evidence as to what quantity of heroin can be used by an individual, whether he can use six doses in a day or in two days. I would say if he used six doses of two a day, that’s a three days supply, that would not be sufficient evidence that he intended to distribute this marijuana — this heroin. The only evidence I had was that he did not have track marks on him. But that was on his arms, and from my experience, I know that heroin addicts sometimes use their heels and their knees and other areas of the body where track marks are not easily discernable for the purpose of concealing them. However, that doubt was removed when Mr. Lusk took the stand and testified that he did not use heroin, he had no tracks on him, and then that was later corroborated by his statement in the prison relative to the fact that he did not use heroin, that the items that he had were for sale. So the issue of intent to distribute was resolved by that evidence.”

      . Since defendant’s timely objection to the introduction of the statement as evidence during the prosecution’s case-in-chief was sustained, and the statement was admitted during the State’s rebuttal for the limited purpose of impeachment, the defendant fulfilled his duty imposed by La.C.Cr.P. art. 841 to make known to the court his objection to the introduction or consideration of the statement as direct evidence at the time the ruling of the court was sought and the grounds therefor. Therefore, defendant was not required to reurge his objection when the court revealed in its oral reasons for its verdict that despite its ruling during trial which seemed to favor the defendant it had in fact considered the tainted statement as direct evidence against him.


author: SUMMERS, Chief Justice. TATE, Justice,

text:
    ROLLINS ENVIRONMENTAL SERVICES OF LOUISIANA, INC. v. IBERVILLE PARISH POLICE JURY.
    No. 63502.
    Supreme Court of Louisiana.
    May 21, 1979.

      R. Gordon Kean, Jr., John V. Parker, Sanders, Downing, Kean & Cazedessus, Baton Rouge, amicus curiae for Louisiana Chemical Ass’n.
    John V. Baus, Harry S. Hardin, III, Samuel 0. Buckley, III, Jones, Walker, Waech-ter, Poitevent, Carrere & Denegre, New Orleans, amicus curiae for Browning-Ferris Industries, Chemical Services, Inc.
    Veil David DeVillier, Gen. Counsel, Eunice, Office of Conservation of the State of La., for amicus curiae.
    Wallace A. Hunter, William N. Faller, Durrett, Hardin, Hunter, Dameron & Frit-chie, Baton Rouge, for plaintiff-respondent.
    Patrick W. Pendley, Dana K. Larpenteur, Freeman & Pendley, Ltd., Plaquemine, ami-cus curiae, for Iberville Parish Police Jury.

      Houston C. Gascon, III, Asst. Dist. Atty., for defendant-applicant.
   SUMMERS, Chief Justice.

Presented for consideration is the constitutionality of an ordinance of Iberville Parish prohibiting- the disposal of hazardous waste within the boundaries of that parish.

In the month of June 1975 the Police Jury of the Parish of Iberville adopted an ordinance providing for a comprehensive collection and disposal service from the road right-of-way line for all residential and small commercial garbage, trash and light tree debris on a twice-a-week basis. Collection and disposal of industrial garbage and trash, large commercial garbage and trash, construction refuse and hazardous waste were expressly excluded. The purpose of the ordinance is stated to be to protect the public health, safety and welfare, to prevent land, water or air pollution, the spread of disease and creation of nuisances, to conserve natural resources and to enhance the beauty and quality of the environment.

Hazardous waste excluded by the ordinance was defined to include,

“. . such items as petroleum waste; paints; plastics; explosives; acids; caustics; chemicals; poisons; drugs; radioactive materials; asbestos fibers; pathogenic wastes from hospitals; sanatoriums, nursing homes, clinics and veterinary hospitals, offal waste, and the like, which by virtue of their particular composition and inherent dangers, require handling and disposal methods different from those used in other waste materials. In the way of further explanation, ‘hazardous waste’ is solid waste, [whether it] be infectious, explosive, poisonous, caustic, or toxic, or otherwise dangerous or injurious to humans, plant or animal life. (Residential solid waste normally contains some hazardous materials, but because such materials are usually present in very small quantities, their safe disposal either in a sanitary landfill or incinerator presents no special problem. Therefore, residential waste is not considered to be ‘hazardous waste’, as used in this text.)”

Based upon the authority of the ordinance the parish promptly undertook a program of parish-wide pick-up service in the unincorporated areas of the parish. The project has been active since.

On June 14, 1978 Rollins Environmental Services of Louisiana, Inc. (Rollins), plaintiff herein, acquired a deep well disposal facility known as “Schwing B-l” from Clean Land Air Water Corporation (CLAW). The facility consisted of the well, the twenty acres upon which it is situated and certain other items of equipment used in its operation. “Schwing B-l” is located in Iberville Parish and is designed to dispose of liquid industrial residue by injecting it into the surface of the earth. The well had been drilled and operated under a permit issued to CLAW by the Louisiana Department of Conservation, more particularly, in accordance with the provisions of Statewide Order No. 29-N as promulgated by the Department.

On July 18, 1978, the Department of Conservation approved the transfer of CLAW’s permit to Rollins. The sale of the deep well disposal facility was consummated on July 28, 1978.

During the interim between the July 14, 1978 agreement to purchase and the closing of the sale between Rollins and CLAW on July 28, 1978, a young man met his death at an open unlicensed waste disposal site in Iberville Parish operated by CLAW.

Prompted by this incident and the innate concern and apprehension associated with the disposal of hazardous waste, on August 3, 1978 the Police Jury amended the original ordinance to provide that

“No person, firm, corporation, or other commercial establishment shall cause, suffer, allow, or permit any ‘Hazardous Waste’ ... or any other land contaminants to be dumped, discharged, stored, injected, or otherwise disposed of, within the boundaries of the Parish of Iberville, Louisiana, or any land within the confines of said parish.”

The amendment prescribed a fine of $10,-000 per day, for each violation with each day constituting a new violation, in addition to a fine of not less than $25 nor more than $100, or imprisonment for not more than thirty days or both for each day the violation continued.

Prior to the effective date of the amendment, the police jury summoned representatives of industry located in the parish to a meeting to solicit their assistance in alleviating the problems involved in disposing of hazardous waste. The meeting held on August 14,1978 attended by representatives of industry and some state agencies produced no answers to the problems which were satisfactory to the police jury. Accordingly, those present were advised by the jury that the amendment to the ordinance prohibiting the disposal of hazardous waste within Iberville Parish would become effective the following day and its provisions would be enforced.

Faced with the imminent prospect of heavy fines and imprisonment of its officers and employees if the disposal facility were utilized for injection of hazardous industrial wastes as contemplated, Rollins instituted suit the nex't day to enjoin the enforcement of the ordinance as amended and to have the enactment declared null and unconstitutional.

The trial court denied the injunction and held the ordinance as amended to be constitutional. After a special en banc hearing in the Court of Appeal, the judgment of the trial court was reversed and the August 3, 1978 amendment to the ordinance was declared unconstitutional. The Court of Appeal was of the opinion that the police jury exceeded its constitutional and statutory authority. Certiorari was granted on application of the parish. 365 So.2d 1374.

On this appeal the police jury contends that Section 1236 of Title 33 of the Revised Statutes confers authority upon that body to regulate hazardous waste. In particular it is the power conferred by subsections 16 and 31 which the police jury invokes. These provide:

“The police juries shall have the following powers:
“(16) To enact ordinances and regulations, not inconsistent with the laws and constitution of the United States, nor of this state, to protect their respective parishes against the introduction of every kind of contagious disease.
“(31) To enact ordinances to require, prohibit, or regulate the destruction, disposal, or burning of trash, garbage, leaves, limbs and branches, or debris of any kind and to regulate dumping and the use of borrow pits for sanitary fill.” (emphasis added).

Relying upon this statutory authority and its contention that the State has failed to preempt or occupy this field of legislation, the parish contends that it is vested with the inherent power to regulate and control the disposal of hazardous waste for the protection of the health and welfare of its citizens.

The statutory power conferred upon police jurors by subsections (16) and (31) do not specifically confer authority to regulate hazardous waste. The general powers to “protect their respective parishes against introduction of every kind of contagious disease” conferred by subsection (16), and the power to “prohibit, or regulate the destruction, disposal, or burning of trash, garbage, leaves, limbs and branches, or debris of any kind" (emphasis added) conferred by subsection (31), may arguably be extended by construction to include prohibiting any disposal of hazardous waste within a parish. Such a construction, however, is not warranted in the context of those subsections. Nowhere is hazardous waste mentioned. The authorization to protect their parishes against the introduction of “contagious disease” contained in subsection (16) contemplates an area of regulation by police jurors unassociated with the disposal of hazardous industrial waste. Similarly the phrase, “debris of any kind” relied upon by the parish to include hazardous waste, when considered with “burning of trash, garbage, leaves, limbs and branches”, referred to in subsection (31), does not permit the result contended for by the parish. The meaning of words or phrases may be ascertained by the words or phrases with which they are associated. Thus words of general meaning should be applied only to such classes of things of the same general kind as those specifically mentioned. Hazardous waste is not in the same class as “garbage, leaves, limbs and branches” and it follows that hazardous waste should not be considered as “debris of any kind” within the contemplation of this statutory authorization.

A police jury in this State is a creature and subordinate political subdivision of the State and as such only possesses those powers conferred by the State’s Constitution and statutes. La.Const. art. VI § 7(A); Union Sulphur Co. v. Parish of Calcasieu, 153 La. 857, 96 So. 787 (1923). Hall v. Rosteet, 247 La. 45, 169 So.2d 903 (1964); State v. Hertzog, 241 La. 783, 131 So.2d 788 (1961); B.W.S. Corporation v. Evangeline Parish Police Jury, 293 So.2d 233 (La.App.1974).

In any event any such ordinance or regulation must not be “inconsistent with the laws and constitution of the United States, nor of this state” by the express terms of subsection (16). Although this same proposition is not explicitly stated in subsection (31), the principle has general application in our law and applies to subsection (31) by implication. La.Const. Art. VI § 7(A). Therefore, where a police jury has authority to regulate by ordinance in a particular field, the exercise of that authority is dependent upon whether the State legislature has not enacted general laws on the same subject and thereby preempted that field of regulation. State v. Sissons, 292 So.2d 523 (La.1974); National Food Stores of Louisiana, Inc. v. Cefalu, 280 So.2d 903 (La.1973); City of Minden v. Davis Bros. Drug Company, 195 La. 791, 197 So. 505 (1940).

Notwithstanding the absence of legislation empowering the police jury to enact the August 3, 1978 amendment, the police jury maintains that the amendment is authorized under its general powers to protect the health and well-being of the citizens of Iberville Parish. A similar contention was made in City of Minden v. David Brothers Drug Company, 195 La. 791, 197 So. 505 (1940). That case involved the enactment of an ordinance by the city of Minden prohibiting the sale of intoxicating liquor as a medicine without obtaining a permit from the city. State law at the time “legalized the sale and use of intoxicating liquor for medicinal purposes and prescribed the manner and safeguards under which that may be done.” In addressing the claim that the ordinance was valid, this Court observed:

“The mere fact that the City of Minden adopted the ordinance under review, ostensibly to prevent the practice of something the municipal authorities deemed detrimental to the peace, good order, and health of the municipality, it is not sufficient to sustain the validity of the ordinance. Unless authority can be found, either in specific language or is fairly implied, in the powers expressly granted to the municipality, authorizing the adoption of the ordinance, it is void. Since we have been unable to find such authority vested in the City of Minden, the ordinance under review must fall.”

The principle employed in the foregoing case is applicable here. When applied to the statute and ordinance before us it is readily apparent that the ordinance is not authorized by statute, and its validity cannot be sustained on that basis.

While impliedly recognizing the settled rule that a subordinate political subdivision of the State cannot enact ordinances in a field which is preempted or occupied by the laws and Constitution of the United States or of the State of Louisiana, the police jury takes the position that the statutes in the field of hazardous waste “have proven to be inadequate, misinterpreted and completely unenforced.” Further, according to the parish, “the inefficiency of the State and its agencies in the control and regulation of hazardous waste, and the resulting void that these inefficiencies create with respect to the protection of life and welfare of the people of Iberville Parish” justify the enactment of the ordinance.

Aside from the fact that there is no proof to support these allegations, no authority has been cited to support the claim that ineptness or inefficient enforcement of State statutes justifies the intrusion of a parish into a field occupied by the State’s general law.

The recent evolution of environmental legislation at the federal and state levels speaks in unmistakable terms that regulation of hazardous wastes is a matter of broad national and state concern. From a review of this legislation it is apparent that the matter is such that spotty municipal and parochial control would be ineffective. It is not difficult to conclude that if Iber-ville Parish is permitted to prohibit the disposal of industrial hazardous waste within its borders there will be, in short order, similar ordinances in every parish of the State. Indeed, several parishes have enacted such ordinances. Louisiana’s prominent position in industry makes it one of the Nation’s foremost producers of chemical and other industrial waste classified as hazardous. As such it cries out against the prospect of such a stifling prohibition.

In the 1970’s with the passage of the Clean Air Act (42 U.S.C.A. §§ 7401-7642) and the Water Pollution Control Act Amendments of 1972 (33 U.S.C.A. §§ 1251-1376) the federal government has become involved in this area of environmental control and regulation. These laws impose specific requirements on industrial and other sources of air and water pollution. Implementation of these enactments has required the collection, concentration and disposal of various materials formerly discharged into the air and water. Steps taken as a result of these Acts have not been the complete answer to the problem of hazardous waste disposal, but these efforts have eliminated, to some extent, the unacceptable practices followed before this legislation.

To make the program more comprehensive Congress enacted the Resources Conservation and Recovery Act of 1976 (RCRA), (42 U.S.C.A. §§ 6901-6987) to regulate solid waste disposal. By its terms all federal agencies having functions relating to solid waste or hazardous waste are directed to cooperate with the Administrator of the Environmental Protection Agency (EPA) 42 U.S.C.A. § 6963. And, while the Act speaks in terms of “solid waste” and is known as the Solid Waste Disposal Act, the choice is a misnomer. The definition of “solid waste”, as used in the Act, is set forth in Section 6903(27) and includes “solid, liquid, semisolid, or contained gaseous materials resulting from industrial, commercial, mining, and agricultural operations..."

RCRA regulates the entire field of “solid waste” disposal from simple sanitary landfill to industrial waste disposal. Particularly relevant to the case at hand are the provisions of Sub-Chapter III of the Act, 42 U.S.C.A. §§ 6921-6931, entitled “Hazardous Waste Management” prescribing the regulations for disposal of “hazardous wastes”, which is defined in Section 6903(5) as follows:

“The term ‘hazardous waste’ means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical chemical or infectious characteristics may—
(a) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or
(b) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.”

An announced congressional purpose in establishing federal minimum standards governing generation, transportation and disposal of hazardous waste was to provide uniformity among the states in the field of hazardous waste disposal regulation. See H.R.Rep. No. 1491, 94 Cong., 2d Sess. 3, reprinted in [1976] U.S.Code Cong. & Admin.News, pp. 6238, 6268.

Section 6926(b) of RCRA authorizes individual states to develop their own hazardous waste control programs subject to the approval of the administrator of EPA. Section 6926(c) permits states with a hazardous waste program in existence pursuant to state law prior to the promulgation of regulations by EPA to request temporary authorization to carry out such a program under defined minimum standards. Section 6931(a) provides 25 million dollars for the fiscal years 1978 and 1979 for grants to states to develop and implement state hazardous waste programs. These funds are to be allocated to states with authorized programs, pertinently divided on the basis of “the extent of which hazardous waste is generated, transported, treated, stored, and disposed of within such State . . . .” This federal legislation envisions a uniform statewide regulatory scheme to compliment these federal regulations. Ordinances of the parish of Iberville cannot contravene this plan.

The desire to protect the health and safety of the State’s citizens, growth of the State’s industrial activity and the need to coordinate environmental control regulations with the federal program has prompted the Legislature to act in a number of significant ways in the field of environmental regulation on the state level.

State agencies most involved in environmental regulation and control relating to the problems presented in the instant case are the Department of Conservation (formerly Commissioner of Conservation) and the Department of Health and Human Resources (formerly State Department of Health). By Act 157 of 1940 the Commissioner of Conservation was authorized to “prevent the pollution of fresh water supplies by oil, gas, or salt water . . .” Under this authority, as the successor agency, the Department of Conservation has been charged with protecting Louisiana fresh water aquifiers from pollution for almost forty years. In that time thousands of brine disposal wells have been permitted at oil field sites throughout the state. At this time there are approximately 1,510 such active brine disposal wells in Louisiana.

Act 122 of 1976 (La.Rev.Stat. 30:1(D), 3(l)(c), 3(15), 4(C)(16)) restates and clarifies the authority of the Department of Conservation to regulate and permit other disposal wells in addition to brine disposal wells. This legislation specifically authorizes the Commissioner of Conservation to make rules, regulations and orders relating to the injection of waste products into the subsurface. Pursuant to that authority the Commissioner has issued statewide Order 29-9, a comprehensive set of regulations establishing the criteria to be met in order to obtain a disposal well permit.

The Department of Health and Human Resources is vested with exclusive jurisdiction over the handling, storage and disposal of waste materials, including solid and liquid residue. La.Rev.Stat. 40:5. Furthermore, Act 675 of 1977 (La.Rev.Stat. 40:1299.36) grants extensive authority to the Department to regulate and permit the disposal of waste material, including both solid and liquid wastes from industrial, commercial and agricultural operations.

The most recent development in State legislation in the field of hazardous waste is the enactment of Act 334 of 1978 (La.Rev. Stat. 30:1101-1116) in which the State has proceeded by coordinating its plan with RCRA to develop its own hazardous waste control program. The enactment is also designed to obtain federal funding for the State under RCRA 42 U.S.C.A. 6726(a); La. Rev.Stat. 30:1103(C), 1103(E), 1104.

Act 334 conferred upon the Department of Natural Resources exclusive jurisdiction for the development, implementation, and enforcement of a comprehensive state hazardous waste control program consistent with federal laws and regulations, (La.Rev. Stat. 1103A). The Act defines hazardous waste as follows:

“Any waste, or combination of wastes, which because of its quantity, concentration, physical, chemical or infectious characteristics may (1) cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or (2) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of or otherwise managed . . R.S. 1102(3)

This definition of hazardous waste is the definition the State adopted from that prescribed by Congress. When it is compared to the definition in the August 3, 1978 amendment to the Iberville Parish Ordinance it is apparent that the substances the State has chosen to regulate are the same substances prohibited in the amendment to the ordinance.

This latest expression of the legislature when considered with the previous legislation on the same subject demonstrates an affirmative and positive preemption by the state and federal governments in the field of hazardous waste regulation.

The Court is of the opinion, therefore, that the August 3, 1978 amendment to the Iberville Parish Ordinance in question is not authorized by the Legislature. We are moreover of the opinion that the federal and state governments have preempted the field of hazardous waste regulation as defined in the August 3, 1978 amendment to the ordinance. The amendment is therefore inconsistent with the State’s general law. As such it is unconstitutional, null and ineffective.

For the reasons assigned, the judgment of the Court of Appeal is affirmed.

CALOGERO and DENNIS, JJ., concur.

TATE, J., concurs and assigns reasons.

DIXON, J., concurs in the result only.

BLANCHE, J., recused.

TATE, Justice,

concurring.

I concur in the result reached by the majority. However, it may be appropriate to note that the language describing the limited and merely delegated authority of local police juries is subject to qualifications and explanations not expressly set forth by the majority opinion.

Under the constitution of 1921, local governing authorities (except in the case of specific home rule exceptions) were creatures of the state exercising delegated authority only as conferred by legislation. However, the constitution of 1974 changed this concept and greatly expanded the areas of local authority. See Kean, Local Government and Home Rule, 21 Loyola L.Rev. 63 (1975) for an authoritative and comprehensive discussion.

Under Article 7, Section 7(A), a local governing authority without a home rule charter (such as the present police jury) “shall have the powers authorized by this constitution or by law”, unless by vote of the electorate the local authority is empowered to exercise “any power . . not denied by its charter or by general law.” Any grant of power to a local government is, of course, subject to the constitution and may not be “inconsistent” therewith. Article 7, Section 7(A).

My chief reservation concerns the broad language of the majority opinion describing the limited powers possessed by police juries, to the effect that they must be expressly delegated by the legislature. The cited jurisprudence, interpreting the pre-1974 constitutional provisions, were indeed to this effect.

The present police jury has not adopted a home rule charter, nor has it by vote of the people been empowered to exercise powers not “denied ” by state law. Therefore, it is not inaccurate to hold, as the majority does, that the defendant jury was not “authorized by this [1974] constitution or by law [legislation]”, Article 7, Section 7(A), to adopt the ordinance at issue regulating hazardous waste.

The broad language of our majority opinion, however, inadvertently implies that a 11 police juries only possess powers authorized by statute — whereas many police juries and local governing authorities have adopted home rule provisions or by vote of the people have been empowered to exercise all powers not denied by statute or the constitution.

In the present case, of course, all local governing authorities, whether or not of only authorized (delegated) powers such as the present police jury, have been denied the power to adopt local ordinances independently regulating the disposal of hazardous wastes (as contrasted with implementing state statutes and regulations in the area) by Act 334 of 1978, La.R.S. 30:1101-116. By this enactment, the Department of Natural Resources is granted “exclusive jurisdiction for the development, implementation, and enforcement of a comprehensive state hazardous waste control program * * 30:1108. See also La.R.S. 40:5 (1976), granting state agencies “exclusive jurisdiction, control and authority . over the handling, storage and disposal of waste materials, including solids and liquid residues.”

The majority’s rationale is not inconsistent with these comments. Nevertheless, to avoid future misunderstanding, it seems preferable by these clarifying comments to expressly note what is merely implicit in the majority’s opinion — that the language describing the limited, delegated powers of the present police jury was not intended to apply to any police juries which have been empowered to exercise all powers not denied them by state law or inconsistent with the state constitution.

      . Report on Industrial Waste Disposal Wells Permitted by the Office of Conservation 19 (June 1978).


author: DIXON, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Calvin Roy SHEPPARD.
    No. 63537.
    Supreme Court of Louisiana.
    May 21, 1979.

      Gordon J. Hamner, Charles Gary Blaize, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., William G. Yates, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

This prosecution arose from a series of arguments among residents of an apartment complex in Houma, Louisiana on July 3, 1977. The initial dispute was between Cheryl Williams and Jerry Simmons, who was living with Melvina Williams, Cheryl’s mother. Cheryl then told her boyfriend, Lionel Sheppard, about the altercation, and Lionel subsequently went to the Williams’ apartment to discuss the matter with Simmons. After the argument became heated, Lionel went back to his apartment and returned with a pistol which he fired at the ground near Jerry Simmons’ feet as they stood in the complex’s parking lot. Simmons then called the police and his brothers to relate the incident.

The police questioned Lionel Sheppard but left without making any arrests. After their departure, conditions in the parking lot appeared to return to normal, and Simmons and his brothers stayed in the parking lot to talk and joke. At this point, Calvin Sheppard, Lionel Sheppard’s sixteen year old brother, walked through the parking area within a few feet of Simmons and his friends. After an exchange of words, Calvin Sheppard produced a pistol and shot Jerry Simmons. Simmons was pronounced dead at 1:55 p. m. at Terrebonne General Hospital.

Calvin Sheppard was originally charged with second degree murder but was later indicted on July 8, 1977 for first degree murder. After a three day trial he was convicted of manslaughter on March 15, 1978. On March 31, 1978 he was sentenced to fifteen years in the custody of the Department of Corrections. On appeal the defendant relies on fourteen of fifteen assignments of error filed below.

Assignments of Error Nos. 1, 2, 13, 14 and 15

By these assignments of error it is argued that the trial court was in error to permit the State to try and sentence the defendant, a sixteen year old at the time of the offense, as an adult. The defense alleges that trial in the district court violated the Louisiana Constitution and impinged on the rights secured to the defendant by the Fourteenth and Eighth Amendments to the United States Constitution.

The defense contends that R.S. 13:1570(A)(5) violates Article 5, § 19 of the Louisiana Constitution. In essence, the defense argues that the 1974 Constitution prevents the district court from retaining jurisdiction over a juvenile charged with a capital offense or attempted rape once a responsive verdict is returned, and that the legislature’s attempt to circumvent this prohibition in R.S. 13:1570(A)(5) is therefore without effect.

Article 5, § 19 provides:

“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.”

R.S. 13:1570(A)(5) provides:

“Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings:
A. Concerning any child whose domicile is within the parish or who is found within the parish:
(5) Who violates any law or ordinance, except a child who, after having become fifteen years of age, is charged with having committed a capital crime, or a crime defined by any law defining attempted aggravated rape; provided that once such a child has been actually charged with a capital crime, armed robbery, or attempted aggravated rape, the district court shall retain jurisdiction over his case, even though the child pleads guilty to, or is convicted of, a lesser included offense; and a plea to, or conviction of a lesser included offense shall not revest the juvenile court with jurisdiction of such a child.”

An examination of the applicable provisions is convincing that they do not conflict and indeed are quite consistent. By granting the district court jurisdiction over older juveniles alleged to have committed a capital offense or an attempted aggravated rape, the drafters of the Constitution intended that their trials conform in all ways to trials of adults conducted in the district courts. No language in the Constitution suggests a different interpretation. One procedural ramification of trial in the district court is the availability of the responsive verdict system. We therefore find no merit in the argument that Article 5, § 19 precludes the district court from exercising jurisdiction if a responsive verdict is returned in a capital case.

In State ex rel. Moore v. Warden, 308 So.2d 749 (La.1975), we considered whether the district court retained jurisdiction over a juvenile charged with first degree murder to accept a guilty plea to second degree murder. In deciding that the district court lacked this jurisdiction we noted:

“The uniform jurisprudence of the State since 1921 holds that the jurisdiction of the district courts is limited to the determination of guilt and punishment for capital crimes (and the constitutionally provided for attempted aggravated rape). Although it can be argued that the constitutional deposit of jurisdiction in the district courts of the trial of juveniles in capital cases is the grant of jurisdiction embracing every part of the case, from arraignment to sentence, we decline to make such a departure from established jurisprudence, particularly in view of the policy of the State that juveniles are not to be punished as adults, except as provided by the constitution.” 308 So.2d at 752.

However, by Act 337 of 1975, the legislature added § (5) to R.S. 13:1570(A) clearly with the object of changing the rule of State ex rel. Moore v. Warden, supra, and the older jurisprudence. It is therefore evident that the district court retains jurisdiction when the juvenile either pleads guilty to or is convicted of a lesser included offense.

The argument that the statute in question deprives the defendant of the equal protection of the laws is equally unpersuasive. The defense contends that such a deprivation arises because Sheppard, convicted of manslaughter, was treated as an adult without resort to the transfer procedures established in R.S. 13:1571.1 et seq., the prescribed method for transferring a juvenile to the district court if he is not charged with a capital offense or attempted aggravated rape. However, as we noted in State ex rel. Davis v. Criminal District Court, 368 So.2d 1092 (La.1979): “The uniform jurisprudence and the clear intent of the constitutional language is that adult procedures may be employed without waiver proceedings only in a valid capital or attempted aggravated rape prosecution.” 368 So.2d at 1094. (Emphasis added). Moreover, an obvious difference exists between Sheppard’s position and that of a juvenile prosecuted for manslaughter; Sheppard was prosecuted for a capital offense and was 'convicted of manslaughter when the jury returned a responsive verdict. The legislature should certainly be permitted to distinguish between the juveniles charged with capital offenses and those charged only with serious felonies; such a distinction is neither arbitrary nor unreasonable.

In addition, the defendant argues that his Eighth Amendment rights were violated because his fifteen year sentence is much longer than any sentence which could have been imposed on him if he had been tried as a juvenile. If Sheppard had been tried in juvenile proceedings, the longest sentence he could have received would have been confinement until his twenty-first birthday, a period of about three years at the time he was sentenced. This contention is merely an extension of the defendant’s argument that he was denied equal protection by being tried as an adult and therefore presents no ground for relief.

These assignments of error are without merit.

Assignments of Error Nos. 3, 4, 5, 6 and 11

By these assignments the defense argues that error was committed by the trial judge in denying the motion to suppress the defendant’s confession and its fruits and in allowing its introduction at trial.

At the suppression hearing, Officer Aris-tle Scott of the Houma City Police stated that he advised Sheppard of his Miranda rights when he arrested him at his home. Scott asked the defendant whether he wanted an attorney, but Sheppard did not respond. He was then taken to the police station booking room where Officer Price advised him of his rights a few minutes later. At some point during the interrogation in the booking room, Scott asked the defendant where the gun was and the defendant told him that he had given it to his cousin, Clarence Sneeze. Officer Scott then went to Sneeze’s residence to secure the pistol and took no further part in questioning Sheppard.

Officer John Price of the Houma City Police testified that he arrived at the police station on the day in question and found the defendant in the booking room. After advising him of his rights, he called in Calvin’s mother from the hallway because he always tried to have parents present when he questioned juveniles; Calvin’s father, however, remained in the hallway. After Mrs. Sheppard gave the officers permission to interrogate her son, Officer Scott read the defendant his rights and asked where the pistol was. Price then ushered the defendant and both his parents into the detective bureau and read Sheppard his rights from a form. He then received affirmative answers from Sheppard’s parents to his questions concerning their ability to read and understand English, and was told by both parents that he could speak to their son. At that point the defendant stated that he wanted to explain the afternoon’s incidents. Price read the defendant the Miranda form and the attached waiver, and Calvin and his parents signed the waiver. Calvin then made a statement in which he declared that he had argued with Simmons and had been walking away from a confrontation when the victim fired a shot at him which in turn caused him to fire a shot in the victim’s direction. The statement was reduced to writing and was signed by the defendant and his mother after Price read it to them. Price then persuaded Sheppard to initial each sentence of the statement.

Both officers stated that the defendant appeared to understand the rights read to him and did not appear unduly nervous or frightened when questioned. They also were adamant that the statement was not secured as a result of threats, promises or other inducements.

The testimony given by the defendant and his parents greatly differs from that of the police officers. Mrs. Sheppard testified at the hearing that no one ever sought her permission to speak to Calvin and that no one advised him of his constitutional rights in her presence. She admitted signing Calvin’s statement but said she did so without understanding what it meant. Moreover, she stated that the police officer interrogating Calvin persuaded them to sign the statement and only afterwards read it to them. Mrs. Sheppard denied having signed the waiver form but admitted that her signature appeared on it.

Mr. Sheppard testified that the police were already interrogating his son when he arrived at the station, and that he saw the police obtain his wife’s signature on a piece of paper. He denied having signed anything, but stated that he recognized his signature on the waiver form. He also testified that he did not understand the rights read to his son.

Calvin Sheppard admitted that his rights were read to him before he was questioned, but denied understanding them. He also supported his parents’ assertions that he gave the statement before they entered the room. Although he freely admitted signing the statement, he testified that at the time he believed the statement to be a “deal” with the prosecution which would release him to his parents. On cross, the defendant admitted having been previously arrested and having been picked up for questioning a number of times, but specifically denied having been read his rights during any of these brushes with the law.

In the instant case, the defendant confessed on July 3, 1977 and was tried in March, 1978, prior to our decision in State in the Interest of Dino, 359 So.2d 586 (La.1978), which was handed down on June 15, 1978. Therefore, the more stringent safeguards articulated in Dino for the admissibility of a juvenile’s confession are not applicable to this prosecution, and the admissibility of Sheppard’s confession is to be determined by the totality of the circumstances surrounding it. State v. Collum, 365 So.2d 1272 (La.1978). In Collum, this court articulated the standard for the proper application of this test:

“Proper application of the totality of circumstances test requires that the State sustain the burden of affirmatively proving that the waiver of rights was made freely and voluntarily, with understanding of the consequences which might flow from such a waiver. La.Rev. Stat. 15:451; State v. Hills, 354 So.2d 186 (La.1977). Age of the defendant is a factor which requires this Court to give closer scrutiny to the confession of a juvenile than would ordinarily be required of an adult confession. State v. Sylvester, 298 So.2d 807 (La.1974).
There is no litany of factors to be considered in applying the test. Each case is to be judged on all of the facts and circumstances in that particular situation. ...” 365 So.2d at 1278.

In its reasons for denying the motion to suppress, the district court noted that Calvin Sheppard had finished the fourth grade and had been transferred to a school for slow learners. School records reveal that Sheppard was tested as having an I.Q. of 47 in 1967, but that he had an I.Q. of 68 when tested in the next year. Records also indicate that Sheppard reads on a fifth grade level. His parents, who ostensibly were there to advise him, completed only one or two grades of school. Nevertheless, the trial judge considered the defendant not “as ignorant as he would like to picture” himself to be, and noted that Calvin was at the time working in a federal jobs program and had been able to complete the necessary forms to apply for the program.

A review of the record demonstrates that the trial judge did not err in admitting the confession. The defendant spoke in complete sentences and gave rational and coherent testimony. He also indicated that he knew from past experience that he was being questioned with regard to charges against him and admitted that he was advised of his rights a number of times. The police took numerous precautions to be sure that Calvin understood the implication of his actions before he spoke. His refusal to speak when he was first questioned by Officer Scott suggests that he was aware of his right to remain silent while under interrogation. In fact, the defendant remained silent until his parents were with him, at which time they apparently permitted the police to interrogate their son and expressed their own curiosity over the events in question. Officer Price stated that Sheppard himself wished to explain what had happened. It is also noteworthy that the defendant adhered to the substance of his statement when he testified in his own behalf at trial. These factors indicate a voluntary and knowing waiver of the defendant’s constitutional rights.

These assignments are without merit.

Assignments of Error Nos. 7, 8 and 9

The defendant contends that the trial court was in error to permit the State to refer to events involving the victim and the defendant’s brother, but which did not involve the defendant himself. The first assignment was taken when the prosecutor referred in his opening statement to the argument between Simmons and Lionel Sheppard which ended in Lionel Sheppard’s firing a shot at Simmons’ feet. Although the defense argued that this incident was separate from the charges against the defendant, the trial court overruled the de-fence objection when the prosecutor explained the relationship between the earlier incident and the fatal shooting of Simmons by Calvin Sheppard. The defense subsequently objected when testimony was later elicited concerning the first shooting incident.

It is clear from the record that the first shooting incident was a direct cause of the criminal conduct with which Calvin Sheppard is charged, since his shooting Simmons resulted from the series of arguments which occurred at the apartment complex on the day in question. Therefore, the opening remarks and subsequent testimony concerning the first incident were admissible as part of the res gestae. R.S. 15:447, 448; State v. Taylor, 363 So.2d 699 (La.1978); State v. Brown, 340 So.2d 1306 (La.1976).

The defense has relied on the cases of State v. Perry, 16 La.Ann. 444 (1862) and State v. Laque, 41 La.Ann. 1070, 6 So. 787 (1889) for the proposition that threats made by a third party against the victim are not admissible against the defendant. However, both cases clearly indicate that this rule is inapplicable if the threats by the third .party form part of the res gestae of the charged offense. Therefore, the trial court was correct to permit the opening remarks and testimony on this point.

These assignments are without merit.

Assignment of Error No. 10

The defense argues by this assignment of error that the trial court erred in overruling a defense objection to hearsay testimony given by the victim’s brother, Jesse Simmons. While testifying concerning incidents leading up to the crime, Simmons stated that he drove to the scene with his little sister:

“Q Now, let’s back up just a little bit. When you first arrived at the Circle, and located your brothers, did you talk to your brother, Jerry? (the victim).
A Yeah, I said a few words to him.
Q O.k., and what about your little sister, did she stay in the car during the whole time?
A No, she didn’t. At the time when I talked to Jerry, the few words that I said, I said, ‘Man, don’t take my little sister out here; Man, I heard there’s been some shooting.’ I said, ‘Man, you known Mama, she don’t want her out here.’ And he said, ‘Aw, Man, go head, go head.’
MR. HAMNER:
Objection, Your Honor.
MR. YATES:
Your Honor, I realize this is hearsay, but I think that it’s exceptional hearsay. I think it will go to prove the state of mind of the decedent at the time, and I would ask for an exception to the hearsay rule at this time.
THE COURT:
It’s not the decedent, as I remember correctly, talking to him.
MR. YATES:
Well, he was getting ready to relate some words related to him by the deceased.
MR. HAMNER:
I don’t see the relevancy, Your Honor, with the decedent, at this time.
THE COURT:
I think it would be important. I’ll permit the question, I’ll permit it to be answered.
MR. HAMNER:
We object for the record.
THE COURT:
Let the objection be noted.
BY MR. YATES:
Q What did your brother tell you?
A My brother told me, he said, ‘Aw man, that’s all right.’
Q O.k., and was he angry or anything at that time?
A No, he was laughing:
Q Did he take your little sister?
A Sure, he pulled her right out the window and went over by my brother and he went back to talking.”

Hearsay is an out of court assertion introduced to prove the truth of its content. State v. Weedon, 342 So.2d 642 (La.1977). Hearsay is generally inadmissible because of its historic unreliability and because of the unfairness to the defendant who cannot test the truth of the statement. State v. Thompson, 331 So.2d 848 (La.1976). One traditional exception to the rule, however, involves out of court declarations introduced to prove the state of mind of the declarant. 6 Wigmore on Evidence, §§ 1714 et seq. (Chadbourn Rev. 1976); McCormick on Evidence, §§ 294-296 (2d ed. 1972); State v. Weedon, supra. The hearsay in question indicated that the victim had no intention of continuing the altercation or of starting a new one since he was not concerned about his little sister’s safety. The victim’s state of mind was highly relevant in the instant case because the defense was contending that Calvin Sheppard acted in self-defense. Therefore, the trial court was not in error to permit his testimony.

This assignment of error is without merit.

Under Article 920(2) of the Code of Criminal Procedure, this court may review errors which are discoverable from a mere inspection of the pleadings and proceedings without inspection of the evidence. In State v. Jones, 341 So.2d 3 (La.1976), we held that the failure to delay sentencing for at least twenty-four hours after a motion for a new trial was denied. C.Cr.P. 873, was an error patent which the court could raise on its own motion. The same standard of review should apply if the statutory delay is ignored after a denial of a motion in arrest of judgment, since the applicable delay is governed by the same code article.

In the present case the defendant was brought before the court for sentencing on March 31, 1978. The minutes reflect that the court heard argument on the motion in arrest of judgment and subsequently denied it. Defense counsel then moved for a delay in sentencing, but the trial court denied the motion and sentenced the defendant to fifteen years. It is therefore clear that the trial judge failed to observed the delay required by Article 873. Moreover, the reasons given by the Trial judge for the imposed sentence appear insufficient in light of the requirements of Article 894.1 of the Code of Criminal Procedure.

For the reasons assigned, the conviction of Calvin Sheppard is affirmed, but his sentence is vacated and the case is remanded to the district court for resentencing in accordance with Articles 873 and 894.1 of the Code of Criminal Procedure.

CALOGERO, J., dissents.

TATE, J., dissents and assigns reasons.

TATE, Justice,

dissenting.

The issue is whether a juvenile may be sentenced to imprisonment in an adult institution because the state overcharges him with a capital offense of which he is acquitted (although convicted of a lesser offense by a permitted responsive verdict).

The defendant, a 16-year-old boy, became involved in an argument with neighbors in a housing project in July, 1977. He shot one of the participants and killed him. There is no question of his guilt of the offense.

The homicide could not be characterized as a first-degree murder, a capital offense, because of the absence of any statutory aggravating circumstance. La.R.S. 14:30 (1976), 14:30.1 (1977), State v. Payton, 361 So.2d 866 (1978). The jury, in fact, convicted the defendant of manslaughter. La.R.S. 14:31 (1973).

Under our state constitution, juveniles charged with manslaughter (a non-capital offense) are within the exclusive jurisdiction of the juvenile court, La.Const. of 1974, Art. 5, Section 19; unless, prior to trial, formal transfer proceedings permit the trial of the juvenile in adult court, after hearing and under strict judicial supervision of the propriety of the transfer. La.R.S. 13:1571.1 (1975) et seq. (No such formal transfer proceedings were ever here initiated.) Unless so formally transferred, the juvenile when found guilty of commission of the offense is punishable only in juvenile correctional institutions, not in an adult penitentiary.

Here, the majority would permit this 16-year-old boy to be sentenced to the adult penitentiary upon conviction of manslaughter, despite a constitutional provision intended to keep juveniles out of the adult criminal justice system for non-capital crimes, in the absence of formal transfer proceedings designed to assure judicial supervision that this particular juvenile should be tried and punished as an adult because of his past record and because he is not amenable to treatment or rehabilitation. No such transfer proceedings have here been held.

This juvenile is punishable in an adult penitentiary for no reason other than that the state over-charged him with a capital offense, when his conduct at maximum was a violation of a non-capital crime, either second-degree murder, La.R.S. 14:30.1, or manslaughter, La.R.S. 14:31.

The majority errs in holding that the elaborate constitutional and legislative (transfer) provisions to protect juveniles against prosecution and punishment as adults can be circumvented by the simple expedient of intentionally overcharging this juvenile defendant of a capital crime when there is no factual justification for doing so. The majority thus permits the state to decide unilaterally (through the grand jury) unfettered by due process considerations, that the juvenile, if convicted of a non-capital lesser offense, will serve his sentence as an adult offender in an adult institution rather than in an appropriate juvenile institution.

Article 5, Section 19 of the Louisiana Constitution of 1974 provides for exclusive juvenile jurisdiction of persons “alleged to have committed a crime prior to his seventeenth birthday . . . ” except for persons fifteen years of age or older “alleged to have committed a capital offense or attempted aggravated rape . . . .”

The majority holds that under this constitutional provision the district court jurisdiction over the juvenile defendant, obtained when the juvenile was charged with first degree murder, is retained after the juvenile is convicted of a lesser, non-capital offense.

The jurisprudence of this state interpreting Article 7, Sections 52, 96 of the 1921 Constitution (the predecessors to the present Article 5, Section 19), dating back to this court’s decision in State v. Dabon, 162 La. 1075, 111 So. 461 (1927) and continuing uninterrupted through State ex rel. Moore v. Warden, 308 So.2d 749 (La.1975), makes it clear that there is a constitutional protection for juveniles which allows district court jurisdiction for older juveniles only in those cases in which the juvenile is actually convicted of a capital crime. See also, State v. Bedford, 193 La. 104, 190 So. 347 (La.1939); State v. West, 173 La. 974, 139 So. 304 (1932).

The majority’s unsupported statement that “[b]y granting the district court jurisdiction over older juveniles alleged to have committed a capital offense or an attempted aggravated rape, the drafters of the constitution intended that their trials conform in all ways to trials of adults conducted in the district courts,” is, I think, much too facile a dismissal of our long-standing constitutional protection of juveniles. Under the 1921 constitution, the district courts had jurisdiction to try juveniles charged with capital crimes, just as the 1974 provision permits; the real issue is whether, if acquitted of the capital offense, the juvenile may nevertheless be punished as an adult. As long ago stated by Chief Justice O’Niell in State v. Dabon, 162 La. 1075, 1082, 111 So. 461, 463 (1927):

“When a child under the age of 17 years is indicted for murder, the case is one in which only a jury of 12 in the criminal district court can decide whether a felonious homicide was committed, and,
if so, whether it was murder or manslaughter, but when the jury decides that the crime was not murder but manslaughter, the verdict means, and is, in effect, that the child was indicted for a crime which the child did not commit. The main object and purpose in the establishment of juvenile courts was not merely to have a different form of procedure for the trial of juvenile offenders, but to deal with them as wards of the state, to be kept, apart from the demoralizing influence of hardened criminals, and to be reformed and redeemed, not degraded and ruined. It would be paying attention more to the forms of procedure than to the object and purpose of the law to say that, because this child was indicted for the crime of murder, which she did not commit, she should be finally dealt with and punished as a felon, whereas, if she had been properly accused of the crime which she did commit, she should be dealt with not as a felon but only as a ward of the state, not to be made an example of but to be reformed and redeemed.” (Italics mine.)

The central inquiry is not, as the majority states, whether the language of the 1974 constitution suggests that the intention of the framers was to leave our constitutional interpretation intact, but whether there is any manifestation of an intention to change this court’s interpretation of the constitutional language. There is no such manifestation in the debates of the constitution. In fact, the language of the debates indicates that there was no intention to change the existing jurisprudence on this point.

The constitutional provision granting adult criminal courts jurisdiction to try juveniles charged with capital offenses must be interpreted in the light of its constitutional intent to protect juveniles from punishment as adults, unless convicted of the capital offense — if acquitted of the capital offense, by this verdict the juvenile became subject to punishment only as a juvenile. This was the long-settled constitutional import of the 1921 constitutional provision, which was not intended to be changed by the 1974 constitution.

The constitutional protection for juveniles contemplated, under the settled meaning attached to the provision, that a responsive verdict of a non-capital effect had the effect of transferring the juvenile back to the juvenile system, since the non-capital crime of which convicted was never intended by the constitution to be tried in adult court or to subject the offending juvenile to punishment in an adult penitentiary.

The majority relies on the amendment of La.R.S. 13:1570(A)(5) by Act 337 of 1975 as justifying retention of jurisdiction by the adult correctional system, when the juvenile charged with a capital offense is convicted of a lesser offense. The legislature was, of course, without the power to lessen by statute the constitutional protection of juveniles against adult punishment for manslaughter.

Of course, if a specific juvenile is bad enough to entitle the state to transfer him (after court determination), then the transfer provisions, La.R.S. 13:1571.1 (Supp. 1978), permits such transfer under strict judicial scrutiny. These transfer procedures are constitutionally authorized by Art. 5, Section 19.

It makes absolutely no constitutional sense to hold that the constitutional protections against trial and punishment of juveniles as criminals may be circumvented at the whim of the prosecutor charging (“alleging”) commission of a capital offense. The constitutional words that the jurisdiction of the district court attaches when the capital crime is “alleged” does not necessarily mean that it continues, if in fact the juvenile is not guilty of the capital offense which permits adult punishment.

In the present case, for instance, the juvenile was originally charged with second degree murder. He was indicted for first degree murder (permitting the adult trial instead of the juvenile trial protections), but the jury convicted him only of manslaughter. Under the facts, the juvenile was obviously over-charged. Even assuming it was an intentional murder, there was no first degree murder because there was no aggravating circumstances involved that justify such a charge. At most, it was second degree murder, and even then the jury convicted only of manslaughter in this apartment complex argument between teenage neighbors.

No functional purpose is served to put juveniles into adult penitentiaries simply because the state chooses to indict a juvenile for a capital offense which he did not commit and as to which no evidence supports his conviction of the capital degree of the crime, when our state constitution contemplates that the juvenile guilty of manslaughter should instead be processed through the juvenile instead of the adult correctional system.

      . The defense alleges a deprivation of Sixth Amendment rights, but this argument is not developed m bnel.

      . When he imposed sentence, the trial judge stated:
      “The Court has considered very carefully this matter, the fact that a young man is dead as a result of the actions of this young man. This is a very serious matter. The Court has considered many other elements in this sentence. I sentence this young man to serve fifteen (15) years with the Department of Corrections. This is the judgment of this Court. Thank you.”

      . The present language in Article V, Section 19 began with Delegate Proposal 43 of the Constitutional Convention, which spoke in terms of crimes "committed" by older juveniles. See Verbatim Transcript of the Constitutional Convention, State of Louisiana, Vol. XXXVI, 112th Day’s Proceedings, p. 65.
      The delegate who authored the proposal explained the language as “[maintaining] the present provisions regarding juveniles or youngsters fifteen years or older who commit vicious or heinous crimes and allow that these persons be tried in the district court as the present 1921 constitution provides for and which has not — and I repeat — it has not been changed." [Emphasis supplied.] Transcript, Vol. XXXVI, 112th Day’s Proceedings, p. 65.
      The debates over this delegate proposal centered on language which many delegates feared would require the establishment of separate juvenile courts in those parishes which at the time had none, and on differing views as to whether the jurisdiction of the juvenile courts should be defined in the constitution at all. Verbatim Transcript, Vol. XXXVI, 112th Day’s Proceedings, pp. 65-103.
      This delegate proposal did not pass in its original form, but by amendment, in response to the opposition stated above, was changed to its present form. See Official Transcript, Vol. XXXVIII, 118th Day’s Proceedings, pp. 62-74. It was by this later amendment that the word “alleged ” was added. The intention in adding this word was not to change the then-existing interpretation of the constitution to provide jurisdiction to be in district courts for responsive verdicts to capital offenses, but was a stylistic change designed to assure that the jurisdiction of the district court for convictions for capital crimes is established at the outset of the prosecution (provided there is subsequently a conviction for the capital crime charged).

      . The juvenile could not under the constitution be tried and punished as an adult for manslaughter, without formal transfer proceedings prior to trial, with hearing and adjudication before an impartial judge — as contrasted with a virtually ex parte determination by a prosecutor to evade the constitutional restriction of trial and punishment in adult courts of juveniles charged with a non-capital homicide, by simply over-charging the juvenile with a nonexistent capital offense.