author: CALOGERO, Justice. MARCUS, Justice SANDERS, Chief Justice SUMMERS, Justice

text:
    STATE of Louisiana v. Wanda BUTLER.
    No. 56978.
    Supreme Court of Louisiana.
    March 29, 1976.
    Dissenting Opinion May 17, 1976.

      C. Alvin Tyler, C. Alvin Tyler & Associates, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for plaintiff-respondent.
   CALOGERO, Justice.

Defendant Wanda Butler was charged by bill of information with having committed prostitution in violation of La.R.S. 14:82. On September 10, 1975, the matter was tried without a jury and defendant was found guilty. Prior to sentencing, defense counsel filed a motion in arrest of judgment and an amended motion in arrest of judgment asserting that in the instant case La.R.S. 14:82 was applied to make unlawful the “offering” of sexual intercourse with no requirement and no proof that an act did take place; that since the statute did not put defendant on notice that a mere “offering” of sexual intercourse was criminally proscribed, to convict defendant of prostitution for “offering” was an unconstitutional application of La.R.S. 14:82; and, finally, that La.R.S. 14:82 unconstitutionally discriminates against women. After a contradictory hearing the motion in arrest of judgment and the amended motion in arrest of judgment were denied. From this denial, defendant applied to this Court for writs, which were granted.

The only issue before this Court is whether the trial court erred in refusing to sustain the motions in arrest of judgment. Article 859 of the Louisiana Code of Criminal Procedure specifies only eight grounds that will serve to arrest judgment: (1) the indictment is substantially defective; (2) the offense is not punishable under a valid statute; (3) the court lacked jurisdiction; (4) the right to jury trial and correct number of jurors were not complied with; (5) the verdict was not responsive to the indictment or was otherwise so defective that it would not form the basis for a valid judgment; (6) double jeopardy; (7) the prosecution was not timely instituted; and (8) the prosecution was for a capital case or for an offense punishable by life imprisonment but was not instituted by grand jury indictment.

Earlier criminal procedure articles providing for arrest of judgment contained the general statements that “[a] motion in arrest of judgment lies only for a substantial defect, patent upon the face of the record,” and that “[n]o defect that is merely formal, or cured by verdict, or that can not be ascertained without an examination of the evidence is good ground for arresting judgment.” La.Code of Criminal Procedure, arts. 517, 518 (1928). Interpreting these articles, this Court in State v. Eubanks, 179 La. 92, 153 So. 31 (1934) stated as follows:

“The ‘record’ in a criminal case includes a statement of the time and place of holding court, the indictment and in-dorsement thereon, the arraignment and plea of accused, the impaneling of the jury, and the judgment; and a motion in arrest will be sustained only when it is patent on the face of the record that there has been some irregularity in relation to one of the above-enumerated steps of the proceeding. State v. McCrocklin, 130 La. 106, 57 So. 645.”

Because of uncertainty as to the proper use of motions in arrest of judgment, the article was rewritten to clearly specify the grounds which will serve to arrest judgment. La.C.Cr.P. art. 859, official revision comment (a). It was still intended, however, that the grounds for arrest of judgment be restricted to those errors patent on the face of the record and discoverable without examining the evidence. As noted in the official revision comments to article 859, “[t]he controlling consideration, in determining which defense may be asserted by a motion in arrest, has been whether the defect is so basic that it should not be cured by verdict.”

Therefore, Article 859 does not authorize this Court, when reviewing the denial of a motion in arrest of judgment, to determine whether the verdict is supported by the law and the evidence. See State v. Gatlin, 241 La. 321, 129 So.2d 4 (1961); State v. Ware, 228 La. 713, 84 So.2d 56 (1955). That question is properly raised by a motion for directed verdict (now a motion for acquittal) as provided in La.C. Cr.P. art. 778, or by a motion for a new trial as provided in La.C. Cr.P. art. 851. See State v. Eubanks, supra. Thus, under present law, when defendant is tried without a jury, defense counsel may move for a judgment of acquittal after close of the state’s evidence or of all the evidence and the judge shall grant the motion if the evidence is insufficient to sustain a conviction. La.Code of Criminal Procedure art. 778. When the defendant is tried with or without jury, he may before sentencing move for a new trial on the grounds that the verdict is contrary to the law and the evidence. La.Code of Criminal Procedure art. 851(1). Review by this Court of the denial of a motion of acquittal or a motion for a new trial is restricted to whether there was no evidence of guilt or of an essential element of the crime. See State v. Hamilton, 312 So.2d 656 (La.1975); State v. Williams, 310 So.2d 513 (La.1975); State v. Douglas, 278 So.2d 485 (La.1973).

The essence of defendant’s argument in assignments of error numbers one and two is that she was convicted of a violation of La.R.S. 14:82 without proof by the state that she committed an act of indiscriminate sexual intercourse and that since by its terms that statute did not put her on notice that the mere offering to engage in indiscriminate sexual intercourse for compensation is proscribed, La.R.S. 14:82 as applied to her in this case is unconstitutional. Although not clearly stated, defense counsel was apparently raising two basic issues: (1) that the verdict was contrary to the law and the evidence, since, under what defendant argues is a proper interpretation of La.R.S. 14:82, proof of the act of sexual intercourse is required, and from the testimony of the state’s only witness it was clear that no act of sexual intercourse was performed by defendant; and (2) that as applied in the instant case, La.R.S. 14:82 is void for vagueness since it did not put defendant on notice that the “offer” as well as the act of sexual intercourse is prohibited.

The first issue, that the state failed to prove an essential element of the crime by failing to show that defendant performed an act of sexual intercourse, is not properly before this Court. As previously noted, the correct procedure for raising such an issue in a bench trial is by motion for acquittal or by a motion for a new trial. La.Code of Criminal Procedure arts. 778, 851.

The question of the “vagueness” of the prostitution statute as applied to defendant in this case, however, is more difficult. Of the grounds specified in article 859 of the Code of Criminal Procedure only subsections two and five are possibly applicable to the instant case. Article 859(5) provides that if “the verdict is not responsive to the indictment, or is otherwise so defective that it will not form the basis of a valid judgment,” the trial court shall arrest the judgment. Although the second part of this subsection has previously been interpreted to allow this Court to consider whether the verdict is supported by the law and the evidence, City of Monroe v. High, 254 La. 362, 223 So.2d 834 (1969), as previously indicated that issue is properly raised by motions for acquittal or for a new trial. Properly viewed, Article 859(5) is authority for inquiry into the legality of the verdict only, not its correctness. City of Monroe v. High, supra (dissenting opinion by Barham, J.). See State v. Glover, 304 So.2d 348 (La.1974).

Article 859(2) provides that if “the offense charged is not punishable under a valid statute,” the trial court shall arrest the judgment. This subsection permits the unconstitutionality of the statute under which the prosecution was instituted to be raised by a motion in arrest of judgment. See La.Code of Criminal Procedure art. 859, official revision comment (b); State v. Peterman, 121 La. 620, 46 So. 672 (1908). However, while article 859(2) authorizes this Court to consider the “validity” of the statute under which defendant was charged in determining whether the trial court erred in denying the motion in arrest of judgment, it does not authorize this Court to examine the testimony and proof adduced at trial to determine the correctness of the statute’s application in a particular case. Therefore, in the instant case, we must limit our inquiry to (1) what was the offense charged and (2) whether that offense is punishable under a valid statute.

In this case, the offense charged was that defendant “practiced indiscriminate sexual intercourse with males for compensation” in violation of La.R.S. 14:82. This conduct is clearly proscribed and is made punishable under a criminal statute of this state. La.R.S. 14:82 provides as follows:

“Prostitution is the practice by a female of indiscriminate sexual intercourse with males for compensation.
“Whoever commits the crime of prostitution shall be fined not more than one hundred dollars, or imprisoned for not more than six months, or both.”

We now turn to the question of whether this statute, under attack as void for vagueness, is valid. Certainly the state, under its general police powers, has the authority to ban or proscribe “the practice by a female of indiscriminate sexual intercourse with males for compensation.” Furthermore, when interpreting articles of the Louisiana Criminal Code, the courts of this state are governed by La.R.S. 14:3, which provides as follows:

“The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.”

Considering the language of La.R. S. 14:82 in light of this mandate, it is clear that the statute is not void for vagueness. The noun “practice” when used in its common and usual sense means actual performance, execution, or repeated or customary action. Thus the words “practice by a female of indiscriminate sexual intercourse with males for compensation” clearly puts persons on notice that indiscriminate acts of sexual intercourse when performed in return for compensation are prohibited by the laws of this state.

We, therefore, conclude that La.R.S. 14:82 by the clear and unmistakable import of its terms, requires proof of a specific act of sexual intercourse, notwithstanding some language in State v. Bourg, 248 La. 844, 182 So.2d 510, cert. denied 385 U.S. 866, 87 S.Ct. 127, 17 L.Ed.2d 93 (1966), which seemed to state otherwise. Although the decision in Bourg contained language indicating that proof of an offer to engage in sexual intercourse was sufficient to convict an accused of prostitution, that case involved a charge of pandering under La.R.S. 14:84 and not prostitution under La.R.S. 14:82. Other cases frequently cited to support an argument that no proof of a specific act of sexual intercourse is required for proof of prostitution actually involved the crime of “abduction,” State v. Davis, 158 La. 21, 103 So. 391 (1925), and the crime of “transporting,” State v. Thibodeaux, 136 La. 935, 67 So. 973 (1915) which were complete upon the taking or transporting of women for the purpose of prostitution. Therefore, these cases are not controlling in prostitution prosecutions.

In light of the language in the jurisprudence interpreting statutes related to prostitution, it is not surprising that there has been some confusion as to the precise proof required in prostitution cases. Unfortunately in the instant case, since defendant did not move for acquittal or a new trial, we cannot examine the proof offered by the State. Because the statute under which defendant was charged is valid and not unconstitutionally vague, and that is the only issue before us, we must conclude that assignments of error numbers one and two are without merit.

By assignment of error number three, defendant argues that La.R.S. 14:82 is unconstitutional because it applies only to women and not to men. This issue was properly raised by the motion in arrest of judgment. La.Code of Criminal Procedure, art. 859(2). However, this Court recently considered this question in State v. Devall, 302 So.2d 909 (La. 1974) and held that the classification did not violate the equal protection clause.

For the reasons assigned, the refusal by the trial court to sustain the motions in arrest of judgment is affirmed. The case is remanded for imposition of sentence.

DIXON, J., concurs, being of the opinion that evidence of an offer of coitus for pay is some evidence of the “practice” of prostitution, proscribed by the statute.

MARCUS, J., concurs in part and dissents in part and assigns written reasons.

SANDERS, C. J., concurs in part and dissents in part and assigns written reasons.

SUMMERS, J., dissents and assigns reasons.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the decree only as I agree that the correct procedural device for defendant to urge that the state failed to prove an essential element of the crime in a bench trial is by motion for acquittal or for a new trial. La.Code Crim.P. arts. 778, 851. I do not agree that La.R.S. 14:82 requires proof of a specific act of sexual intercourse when it denounces “the practice by a female of indiscriminate sexual intercourse with males for compensation.” Proof of an offer to engage in sexual intercourse, in my opinion, is sufficient for conviction. State v. Bourg, 248 La. 844, 182 So.2d 510, cert. denied, 385 U.S. 866, 87 S.Ct. 127, 17 L.Ed.2d 93 (1966). Thus, I cannot subscribe to that portion of the majority opinion which states otherwise.

SANDERS, Chief Justice

(concurring in part and dissenting in part).

I concur in the affirmance of the conviction.

I must dissent, however, from the pronouncement that LSA-R.S. 14:82, the prostitution statute, requires proof of a specific act of sexual intercourse. This pronouncement, if it became the law, would render the prostitution statute unenforceable. It does not become authoritative here, since only three members of the Court subscribe to it.

The statute prohibits “the practice . . . of indiscriminate sexual intercourse with males for compensation.” The gravamen of the offense is the practice. Hence, evidence of solicitation of men to have compensated sexual relations may prove the offense. See State v. Bourg, 248 La. 844, 182 So.2d 510, cert. denied 385 U.S. 866, 87 S.Ct. 127, 17 L.Ed.2d 93 (1966).

For the reasons assigned, I concur only-in the decree and otherwise dissent.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by the Chief Justice.

      . Under former La.Code of Criminal Procedure article 778, defendants could move for a directed verdict in cases tried by jury. However, article 778 was amended by La. Acts 1975, No. 527 to provide only for motion for judgment of acquittal in non-jury trials. The effective date of this new provision was September 12, 1975.

      . Webster’s Third International Dictionary (1971) ; Webster’s Seventh New Collegiate Dictionary (1972).

      . This conclusion is buttressed by the doctrine of strict construction of penal statutes under which close questions as to coverage of criminal provisions are resolved in favor of the accused, State v. Patterson, 259 La. 508, 250 So.2d 721 (1921), State v. Penniman, 224 La. 95, 68 So.2d 770 (1953), as well as by the well established due process principle that a statute must clearly indicate what conduct it prohibits or requires. Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939) ; State v. Cloud, 248 La. 125, 176 So.2d 620 (1965). Furthermore, the statutes in most other states explicity prohibit the offer to engage in sexual acts when defining prostitution. See, e. g., Ark.Stat.Ann. 41-3202; Fla.Stat.Ann. Tit. 44, § 796.07; Kan.Stat.Ann. 21-3512; N.Y.Consol.Laws, Penal Law § 230.00 (McKinney) .

      . There was some concern expressed by the state in the instant case as to how to ef-tively prosecute under La.R.S. 14:82 if proof of an act of sexual intercourse is required. While it is true that sexual intercourse can rarely be established by direct evidence, prostitution, like adultery when relied on as grounds for divorce, can be proved by showing facts or circumstances which lead fairly and necessarily to the conclusion that an act of sexual intercourse has taken place and which exclude any other reasonable hypothesis but that of guilt. See Patrick v. Patrick, 212 So.2d 145 (La.App.2d Cir.), writ refused 252 La. 700, 212 So.2d 851, writ refused 252 La. 878, 214 So.2d 548 (1969) and Dubois v. Falgout, 268 So.2d 70 (La.App.3d Cir. 1972) where with reference to adultery, the court noted that the degree of proof is almost equal to that in a criminal proceeding.” When using undercover agents to control prostitution, the state, of course, can prosecute for the offense of attempted prostitution in appropriate cases. La.R.S. 14:27.


source: Caselaw Access Project

license: Public Domain

text:
    Harry CONNICK, District Attorney for New Orleans v. LUCKY PIERRE’S et al.
    No. 57154.
    Supreme Court of Louisiana.
    March 29, 1976.
    Dissenting Opinion May 17, 1976.

      William J. Guste, Jr., Atty. Gen., Robert L. Livingston, Jr., Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William F. Wessel, First Asst. Dist. Atty., for plaintiff-appellant.
    John R. Martzell, Martzell & Montero, New Orleans, for defendants-appellees.
   CALOGERO, Justice.

Invoking the provisions of R.S. 13:4711, the district attorney for Orleans Parish filed a petition for an injunction and abatement of nuisance against the owners, the lessees/sub-lessors, a bartender, and the sub-lessee business operator of the premises and business at 735 Bourbon Street in New Orleans known as Lucky Pierre’s. He alleged that 735 Bourbon Street was “a place in which assignation, prostitutions and solicitation, is practiced, initiated, solicited for and permitted to exist as a practice,” and that the “defendants have maintained this nuisance or knowingly permitted it to exist without instituting legal proceedings to enjoin it.” The district attorney asked that defendants be enjoined from permitting the continuation and exis-fence of the alleged nuisance and that an order of abatement issue directing the closing of the business and premises for a period of one year. Abatement under La. R.S. 13:4715, which can be ordered only as to the owner, was removed from the litigation when plaintiff moved to dismiss the suit against the owner without prejudice.

Prior to hearing on the request for a preliminary injunction defendants presented, as a part of a preemptory exception of no cause of action, the argument that La. R.S. 13:4711 et seq. is unconstitutionally vague. The district court agreed with this contention, found the statute to be void for vagueness, and sustained the exception of no cause of action with respect to the in-junctive relief sought, and to that extent dismissed plaintiff’s petition: Plaintiff has appealed to this Court under the provisions of Article V, Section 5(D)(1) of the Louisiana Constitution of 1974, which provides for direct appeal to the Supreme Court in a case in which a law or ordinance has been declared unconstitutional.

La.R.S. 13:4711 permits the enjoining of the “maintenance of a nuisance” after first defining the same as follows: “to carry on, to conduct or to knowingly permit to exist, without instituting and proceeding with the legal action necessary to enjoin, prostitution, assignation or obscenity as now defined, or as hereafter defined, by the criminal laws of this state.” Additionally, if it can be established that the owner of the building knew of the maintenance of the nuisance but did not institute and proceed with the legal action necessary to enjoin its continuance, the judge may enter, as part of the judgment rendered in the injunction proceeding, an order of abatement directing the effectual closing of the building for one year. La.R.S. 13:4715. Among the persons who may petition for the issuance of an injunction or an order of abatement is the district attorney in the name of his parish. La.R.S. 13:4712.

Violation of the provisions of an injunction or order of abatement issued under these provisions constitutes contempt of court and is punishable by a fine of not less then $100 nor more than $500 or by imprisonment in the parish prison for not more than one year or both. If the offender is convicted of a second or subsequent contempt, the punishment shall be both fine and imprisonment. La.R.S. 13:-4714, 4715.

Before the district court, defendants in the instant case set forth five grounds in support of their exception of no cause of action, including the allegation that La.R. S. 13:4711 et seq. is void for vagueness both on its face and as applied. Since the district court ruled the statute unconstitutional on the basis of this vagueness attack, we shall confine our consideration here to that issue.

The fourteenth amendment of the United States Constitution, as well as Article I, Section 2 of the Louisiana Constitution of 1974, command that words and phrases used in statutes be not so vague and indefinite that any “penalty” prescribed for their violation constitutes the taking of liberty or property without due process of law. Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed.2d 888 (1939); State v. Lindsey, 310 So.2d 89 (La.1975); City of Shreveport v. Brewer, 225 La. 93, 72 So.2d 308 (1954). Thus any statute which either forbids or requires the doing of an act and which, therefore, acts as a guide to future conduct, is deemed to be void for vagueness if “men of common intelligence must necessarily guess at its meaning and differ as to its application ..” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). See U. S. v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); State v. Dardar, 257 La. 191, 241 So.2d 905 (1970); State v. Cloud, 248 La. 125, 176 So.2d 620 (1965); State v. Robertson, 241 La. 249, 128 So.2d 646 (1961); Note, 109 U.Pa.L.Rev. 67 (1960) ; Note, 62 Harv.L.Rev. 77 (1948).

La.R.S. 13:4711 et seq. requires owners, lessees, sublessees, employees and other persons in active concert or participation with them to institute and proceed “with the legal action necessary to enjoin prostitution, assignation or obscenity . . . .” or be faced with a law suit seeking to enjoin them from maintaining that nuisance and, possibly to close down their businesses and/or premises for one year. As previously noted, if an injunction is issued or abatement ordered, a party subsequently adjudged to have violated the injunction or order is subject to fixed, definite penalties. Thus, since defendants in the instant case face the potential imposition of a fine and/or imprisonment, as well as a threat to their property interest, they are entitled to due process of law under both the United States and Louisiana Constitutions. We must, therefore, examine the provisions and terms of La.R.S. 13:4711 et seq. to determine whether they give persons of ordinary intelligence fair notice of what conduct is prohibited or required or whether they are so unclear or indefinite that the statute is void for vagueness.

The activities which are the focus of this public nuisance statute are “prostitution, assignation or obscenity as now defined, or as hereafter defined, by the criminal laws of this state” (emphasis added) La.R.S. 13:4711. In the instant case, there was no charge relative to obscenity. With respect to the allegations of assignation and prostitution contained in the petition, however, there is arguably some uncertainty as to what conduct on the premises will, if proved, bring the provisions of this statute into play. Assignation is nowhere defined in the criminal statutes of this state, but has been defined in the jurisprudence as “solicitation for prostitution and for crimes against nature.” Garrison v. Menendez, 158 So.2d 856 (La.App. 4th Cir. 1963). On the other hand, prostitution is defined in La.R.S. 14:82 as “the practice by a female of indiscriminate sexual intercourse with males for compensation.” However, there has been confusion as to the conduct proscribed by this penal provision since, although the words of the statute seem to indicate that an act of sexual intercourse must be proved, the jurisprudence, in cases dealing with the public nuisance provisions and with the pandering statute, contains language indicating that proof of an offer to engage in indiscriminate sexual intercourse for compensation is enough. See State v. Bourg, 248 La. 844, 182 So.2d 510, cert. denied 385 U.S. 866, 87 S.Ct. 127, 17 L.Ed.2d 93 (1966); Parish of St. Landry ex rel. Goudeau v. Veillon, 308 So.2d 830 (La.App.Orl. 1955). But see State v. Butler, 331 So.2d 425 (La. 1976), No. 56,978 (decided this day), where we state that prostitution, as presently defined in La.R.S. 14:82, requires proof of an act of indiscriminate sexual intercourse.

At this time, however, it is not essential to resolve the problems with respect to the definitions of assignation and prostitution, for we conclude that the phrase “without instituting and proceeding with the legal action necessary to enjoin .” is so vague and indefinite that it does not give adequate notice of what action must be taken in order to avoid the issuance of an injunction or an order of abatement, or, once issued, of how to avoid being held in contempt for violation of the injunction. For this reason, La.R.S. 13:-4711 et seq. violates the due process clauses of the United States and Louisiana Constitutions and is void for vagueness.

By the terms of La.R.S. 13:4711 et seq., defendants are being told that they have an affirmative duty to institute and proceed with the legal action necessary to enjoin any acts of prostitution or assignation which they know are taking place in a building which they lease or in the place of business which they operate or where they are employed. For example, the attorney general in his brief to this Court suggests that “if an operator is informed by the police that prostitutes frequently use his premises to solicit for prostitution, is shown photographs of known offenders, sees them in his place, sees them leaving the establishment with different male patrons, and does nothing, then it is obvious that he in effect acquiesced in the practice.” Assuming that this is so, this operator in order to avoid the consequences of La.R.S. 13:4711 et seq. is required to institute and proceed “with the legal action necessary to enjoin” these activities. But in actuality any person, even a reasonably intelligent one, is left in a quandary because he does not know the extent or the scope of the obligation allegedly imposed upon him.

It has been suggested in briefs and on oral argument that this terminology may conceivably mean one or all of the following: (1) cooperation with law enforcement officials; (2) self-help; (3) a law suit. Thus the district attorney suggested that possibly an owner, operator or employee could comply with the statute by calling the police and cooperating with them in enforcing the law. However, while this would probably be evidence tending to negate knowing acquiescence, it is unclear whether it is also “the legal action necessary to enjoin.” And if that action does fall within the intent of the statute, it is still not clear what steps, if any, would have to be taken if the police are informed but do nothing to arrest the alleged prostitutes because of lack of probable cause or otherwise and, therefore, the activities continue. It was also suggested in briefs that an owner or operator could possibly extricate himself by employing self-help and asking persons who are “practicing” prostitution or assignation on the premises to leave. And finally it is suggested that “the legal action necessary to enjoin” requires the named persons, if they know the prohibited activities are taking place, to undertake affirmative injunctive action in the civil courts.

The very fact that these various types of action have been suggested as possible ways in which a person can comply with the terms of La.R.S. 13:4711 et seq. lends support to the argument that the statute is void for vagueness. Yet even assuming that compliance clearly calls for the filing of a civil suit seeking injunctive relief, perhaps the most plausible interpretation of the language, the statute would still be vague for there is the additional uncertainty relative to whom the injunction proceedings should be filed against. For example, if a person believes that prostitution or assignation is being “practiced” in a building which he owns, he does not know whether he is required to sue his lessee; the sublessee; the manager of the business; a bartender or hotel maid; every woman who allegedly practices prositution or assignation on the premises, whether it is on only one occasion or more frequently; every willing patron who seeks out prostitutes or who accepts an “offer”; or any one or possibly all of these parties. The same can be said with respect to a lessee or an operator or employee of a business alleged to be the site of “maintenance of a nuisance.” Furthermore, it is not clear whether the party must be successful in obtaining an injunction or injunctions and, if so, whether, pursuant to an injunction or injunctions, he must succeed in ridding the building or business of the practice of the prohibited activities.

As has been shown by the various conceivable interpretations of the phrase “legal action necessary to enjoin” it is impossible for a person who ostensibly falls within the purview of La.R.S. 13:4711 et seq. to discover the statute’s applicability, to evaluate the risk of sanction and to guide his future action or conduct. Thus La.R.S. 13:4711 et seq. fails to fulfill the due process requirement that statutes be sufficiently definite to give notice as to what conduct is necessary to avoid legal sanctions.

For the reasons assigned, the judgment of the lower court is affirmed.

SANDERS, C. J., dissents and assigns written reasons.

MARCUS, J., dissents and assigns reasons.

SUMMERS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I do not agree with the majority’s conclusion that the phrase “without instituting and proceeding with the legal action necessary to enjoin, prostitution, assignation or obscenity” violates the due process clauses of the United States and Louisiana Constitutions and is void for vagueness. In my view, the provision is clear and definite and affords adequate notice of what action must be taken to avoid the issuance of an injunction or an order of abatement or, once issued, of how to avoid being held in contempt for violation of the injunction. Additionally, in my opinion, “prostitution” and “assignation” as defined in the criminal laws of this state have well-defined, well-understood, and generally-accepted meanings. Accordingly, I respectfully dissent.

SANDERS, Chief Justice

(dissenting).

The majority has struck down this nuisance-abatement statute, holding that the following words are unconstitutionally vague:

“without instituting and proceeding with the legal action necessary to enjoin. . .”

I disagree. A statute satisfies the constitutional requirements if it gives a person of ordinary intelligence fair notice of what conduct is criminal. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1953); State v. Heck, La., 307 So.2d 332 (1975); City of Baton Rouge v. Norman, La., 290 So.2d 865 (1974).

In testing a statute, the words should be taken in their usual sense, in connection with the context, and in the light of the purpose of the provisions. See State v. Heck, supra; State v. Truby, 211 La. 178, 29 So.2d 758 (1947).

In context, the provision reads as follows :

“. . . knowingly permit to exist, without instituting and proceeding with the legal action necessary to enjoin, prostitution, assignation or obscenity . . . .” LSA-R.S. 13:4711.

This provision means that the operator of a business who knowingly allows prostitution to be practiced on his premises without taking- legal action to stop it if necessary is maintaining a nuisance. The purpose of the "without” phrase is to absolve an operator who does take necessary legal steps to free his premises of the criminal conduct.

In my opinion, the statute is reasonably clear, and I would uphold it.

For the reasons assigned, I respectfully dissent.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by the Chief Justice.

      . “§ 4711. Maintenance of nuisance defined; right to enjoin or abate.

      Maintenance of a nuisance is to carry on, to conduct or to knowingly permit to exist, without instituting and proceeding with the legal action necessary to enjoin, prostitution, assignation or obscenity as now defined, or as hereafter defined, by the criminal laws of this state.
      Maintenance of a nuisance in or upon any building, structure, land, watercraft or movable, or any part thereof, by the owner, lessee, sublessee or occupant thereof, his officers, agents, representatives, employees or any other person or persons in active concert of participation with him or them, may be enjoined as provided in R.S. 13:4711 through R.S. 13:4714.
      Maintenance of the same nuisance at any other location within the state by the adverse party, his officers, agents, representatives, employees or any other person or persons in active concert or participation with him or them may also be enjoined in such action.
      An order of abatement directing effectual closing of the building, structure, land or other place may be entered as a part of the judgment in the case as provided in R.S. 13:4715. Abatement shall not be an authorized remedy in cases involving obscenity.
      Amended by Acts 1970, No. 451, § 1; Acts 1974, No. 277, § 1.”

      . An order of abatement may not be entered when the grounds for the issuance of the injunction is obscenity. La.R.S. 13:4711.

      . After the filing of the petition, prompt notice must be served on the adverse parties and a preliminary hearing held within twenty-four hours from the time of notice. At this preliminary hearing, the judge must determine whether “probable cause maintenance of a nuisance” exists and, if it does, he may issue a preliminary injunction describing the conduct sought to be permanently enjoined. Regardless of the outcome of this initial hearing, within the next five to ten days an adversary hearing must be held, with the judge required to render judgment within forty-eight hours of its conclusion. If the judge finds that “maintenance of a nuisance” does in fact exist, an order granting a final injunction may issue describing in reasonable detail the conduct permanently enjoined. La.R.S. 13 :- 4713.

      . It should be noted that Menendez involved an interpretation of the meaning of assignation as used in the very statute presently before us and is, therefore, not very persuasive authority for the proposition that assignation is defined by the criminal laws of this state.

      . This in itself may prove to be a difficult or impossible task, at least in New Orleans, in light of the extant federal injunction entered in Fletcher v. Giwrrusso, No. 73-1939 (E.D.La.1973) which prohibits the superintendent of the New Orleans Police Department and the New Orleans city attorney and “all others working in concert with them” from ejecting or causing to be ejected from a place where intoxicating liquor is sold women “known” to be prostitutes or who have been convicted of prostitution.

      . Both parties to this litigation raised the question of whether a private citizen can enjoin conduct which, by the very terms of La.R.S. 13:4711, is criminal under the laws of this state. While the general rule is that the authority of a court whose jurisdiction is confined to civil eases does not extend to the enforcement of criminal laws by injunction, if the conduct complained of is injurious to property interests or civil rights or if it is a public nuisance, the fact that it is also a violation of a criminal law does not take away the authority of the court to prevent the injury by issuing an injunction. City of New Orleans v. Liberty Shop, 157 La. 26, 101 So. 798 (1924). See City of New Orleans v. Belas, 235 La. 867, 106 So.2d 291 (1958); Annot., 91 A-L.R. 315 (1934). While the cases cited involved injunction proceedings initiated by governmental bodies, if a private citizen faces “irreparable injury” the same basic principles should apply. See La.Code of Civil Procedure, art. 3601. At this time, however, we need not address ourselves to the issue of whether parties who seek injunctive relief to avoid the consequences of La.R.S. 13:4711 et seq. are faced with irreparable injury, such that an injunction can issue.


author: MARCUS, Justice. DENNIS, Justice CALOGERO, Justice,

text:
    Ellise Brian WILLIAMS v. Albert WILLIAMS.
    No. 56805.
    Supreme Court of Louisiana.
    March 29, 1976.
    Rehearing Denied May 14, 1976.

      William H. Delaunay, Provosty & Sadler, Alexandria, for plaintiff-appellant.
    T. Gerald Henderson, Chris J. Roy, Gravel, Roy & Burnes, Alexandria, for defendant-appellee.
    William J. Guste, Jr., Atty. Gen., William D. Maynor, Asst. Atty. Gen., for intervenor-appellant.
   MARCUS, Justice.

Ellise Brian Williams filed suit seeking a separation from bed and board from her husband, Albert Williams, on the ground of cruel treatment. In her petition she alleged that she was in necessitous circumstances and prayed that the court order defendant to pay her alimony pendente lite. Defendant filed a peremptory exception of no cause of action to her claim for alimony pendente lite, asserting that article 148 of the Civil Code, the legislation granting this right only to the wife, violates the fourteenth amendment to the United States Constitution and the Louisiana Constitution of 1974. The Attorney General, as authorized by La.Const. art. IV, § 8 (1974), intervened in the suit to defend the constitutionality of article 148. See La.Code Civ.P. art. 1091 (1960). The trial court sustained the exception of no cause of action predicated on the invalidity of the article and declared that article 148 denies married men equal protection of the law and due process of law and thereby violates the fourteenth amendment and art. I, §§ 2 and 3 of the Louisiana Constitution of 1974. The State appeals from this ruling pursuant to La.Const. art. V, § 5(D)(1) (1974). See La.Code Civ.P. art. 2086 (I960).

I.

Article 148 of the Civil Code states as follows:

If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.

(Emphasis added.)

Defendant contends that article 148, because it restricts its coverage to wives, creates a sex-based classification that is viola-tive of both the United States and the Louisiana constitutions.

The Louisiana Constitution of 1974 does not proscribe laws that draw rational sex-based classifications. Article I, section 3 of the constitution provides:

No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations.

(Emphasis added.)

This court recently interpreted the foregoing constitutional provision in State v. Barton, 315 So.2d 289 (La.1975), where we stated :

The first sentence of the section was intended only as a restatement of the federal equal protection guarantee. . . . The second sentence (which uses absolute language), in comparison with the third sentence (which employs the arbitrary, capricious, or unreasonable formula), permits no discrimination because of race or religious ideas, beliefs, or affiliations.
The third sentence delineates the limitation on the power of the state to discriminate by law against persons of specified classes, including members of either sex. The limitation imposed does not absolutely preclude the legislature from defining the range of persons affected by legislation according to the various classes listed in the section; rather, it proscribes the unreasonable or arbitrary definition of those affected according to class. Accordingly, if the discrimination that results from the legislative classification is .found to be within reason, the statute is not in violation of the constitution.

315 So.2d at 291 (footnotes omitted).

Nor does the equal protection clause of the fourteenth amendment to the United States Constitution deny this state the power to accord differing treatment to the sexes in its legislation. The United States Supreme Court has held that the equal protection clause does not prohibit a legislative classification based on sex, provided that the classification is reasonable, not arbitrary, and rests upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly situated shall be treated alike. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). See also Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973).

II.

In subjecting article 148 to state and federal constitutional scrutiny under the tests set forth above, we must consider the function and purpose of article 148 against the background of Louisiana’s community property system.

The community of acquets or gains is imposed upon married residents of this state by operation of law absent a contrary stipulation in a marriage contract. La.Civil Code arts. 2329, 2332, 2399 (1870). The community of acquets or gains is the matrimonial regime under which nearly all of Louisiana’s married couples acquire and dispose of property.

The Civil Code states that the husband is “head and master” of the community of acquets or gains, and that he, and not the wife, administers its effects and disposes of the revenues which they produce. La. Civil Code art. 2404 (1870). Upon the filing of suit for a separation or divorce, the husband’s powers of administration are somewhat diminished; he may no longer contract a community debit or dispose of the immovable property belonging to the community in fraud of his wife’s rights. Id. art. 150. Further, the wife may seek an injunction restraining him from disposing of or encumbering the community property. Id. art. 149; La.Code Civ.P. art. 3944 (1960). In other respects, however, the community regime remains in existence until a judgment of separation or divorce might be rendered, at which time the community is dissolved retroactively to the date on which the petition was filed. La.Civil Code arts. 155, 159 (1870).

Because of the wife’s lack of control over her own earnings (which fall into the community until she lives separate and apart from her husband) and the revenues from the community and her separate property (both of which fall into the community and are under her husband’s administration), we believe that it was reasonable for the legislature to seek to afford her special protection during the final (and often nonamicable) stage of the community’s existence. The legislature has sought to accomplish this objective by requiring the husband to pay his wife a sum during the pendency of the litigation that will enable her to maintain the standard of living that she was accustomed to enjoying during the marriage. Abrams v. Rosenthal, 153 La. 459, 96 So. 32 (1923).

The length of time during which this sum is due is also, in our view, a reasonable one. In divorce cases not predicated on a prior legal separation, the community remains in existence from the filing of the petition until such time as a judgment of divorce might be rendered. Throughout this period, the community is in a non-partitioned state and the wife is consequently unable to enjoy her interest in those assets that have fallen into it. In separation cases, we have permitted the wife to claim alimony pendente lite after a judgment of separation is rendered (and the community dissolved) until the judgment of divorce. Arnold v. Arnold, 186 La. 323, 172 So. 172 (1937). Allowing her this right after the judgment of separation is likewise reasonable and sometimes necessary, in view of the delays often attending the partition of the community that can serve to prevent her from actually realizing her interest in the community for a substantial period of time. Further, a judgment ordering the husband to pay alimony pendente lite is always subject to modification. If the community is partitioned in a separation proceeding prior to the judgment of divorce, the husband may be relieved of his obligation to pay alimony pendente lite if the wife receives income that is sufficient for her maintenance as a result of the partition. See McMath v. Masters, 198 So.2d 734 (La.App. 3d Cir. 1967). Finally, if no reconciliation has occurred following the separation the husband can in all cases terminate his obligation of providing alimony pendente lite by obtaining a judgment of absolute divorce when a year and sixty days have elapsed from the separation decree. La.R.S. 9:302, as amended, La. Acts 1970, No. 476, § 1.

III.

Upon consideration of article 148 in light of its objective, we conclude that the trial court erred in declaring the article unconstitutional. The article does not discriminate arbitrarily, capriciously, or unreasonably against males. Husbands and wives are not similarly situated under Louisiana’s community property system. The legislative conferral of the right of claiming alimony pendente lite only to wives bears a fair and substantial relation to the legitimate objective of the article—a fair and orderly termination of the community regime. Accordingly, article 148 does not deprive males of equal protection or due process of law under the fourteenth amendment to the federal constitution, nor does it violate article I, sections 2 and 3 of the Louisiana Constitution of 1974.

DECREE

For the reasons assigned, the ruling of the trial court sustaining the exception of no cause of action based on the unconstitutionality of article 148 is reversed; defendant-appellee is cast with the costs of this appeal.

DENNIS, J., concurs for the reasons assigned.

CALOGERO, J., dissents and assigns reasons.

TATE, J., dissents for the reasons assigned by CALOGERO, J.

DENNIS, Justice

(concurring).

I concur in the result reached by the majority opinion, but for different reasons. The classification drawn by La.Civil Code article 148 is not arbitrary, capricious or unreasonable. La.Const. of 1974, Art. I, § 3. Instead, it has; a “fair and substantial relation to the object of the legislation, that object being the reduction of the disparity between the economic capabilities of a man' and a woman”—a disparity which is likely to be exacerbated for a wife during separation and divorce proceedings. See Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974).

CALOGERO, Justice,

(dissenting).

The majority concludes that Article 148 of the Civil Code does not arbitrarily or unreasonably discriminate against men in violation of the equal protection guarantees of the federal and state constitutions because it finds that under the Louisiana community property system men and women are not similarly situated. In their opinion, the two sexes are not similarly situated because the husband, as head and master of the community, controls the funds and property which make up the community of acquets and gains between them.

It is true, of course, that under the community property system as it presently operates, the husband retains control over the couple’s community property until the community is partitioned. And I believe the original purpose of the legislature in enacting Article 148 was to supply a wife with living expenses, if she needed them, pending the time that she gained administration of her portion of the community.

However, under the jurisprudence of this state, there is no relationship between the wife’s right to claim alimony pendente lite and her inability to control community funds. Our courts have consistently required husbands to pay alimony pendente lite long after the community has been partitioned and the wife is in complete control of her portion of the community. McMath v. Masters, 198 So.2d 734 (La.App. 3rd Cir. 1967); Fontenot v. Fontenot, 175 So.2d 438 (La.App. 4th Cir. 1965). Husbands have been required to make these alimony payments even though the wife’s earnings do not fall into the community during the time the spouses are living separate and apart (L.C.C. art. 2334) and even though the wife’s income from her separate property may never have fallen into the community (L.C.C. art. 2386). Courts have even forced husbands to pay alimony pend-ente lite out of their separate funds if no community funds exist. Presumably, alimony would be due the wife even if the couple had agreed to a marriage contract (L.C.C. arts. 2329, 2332, 2399) and had never owned anything classified as community property.

Furthermore, our courts have interpreted the article in such a way as to place an extremely heavy financial burden on husbands regardless of the financial situation of the two partners. Article 148 grants alimony to the wife who “has not a suf-ficent income for her maintenance.” This provision has been read to grant a wife alimony even if she has a significant amount of separate property. Thomas v. Thomas, 281 So.2d 471 (La.App. 4th Cir. 1973); Shapiro v. Shapiro, 141 So.2d 448 (La.App. 4th Cir. 1962). She is not required to work even though she may be capable of earning her own income and has done so in the past. Bilello v. Bilello, 240 La. 158, 121 So.2d 728 (1960). And, of course, even if the community between the spouses has already been partitioned, and the wife currently possesses a significant liquid sum of money, she is not required to deplete that amount in order to maintain herself. McMath v. Masters, supra; Fontenot v. Fontenot, supra.

The sum of money which the wife is due under the provisions of Article 148 is “proportioned to her needs and to the means of her husband.” The term “means” refers to all of the husband’s resources, not merely his income. Bowsky v. Silverman, 184 La. 977, 168 So. 121 (1936); Vaughan v. Vaughan, 286 So.2d 416 (La.App. 4th Cir. 1973).

Striking Article 148 as unconstitutional would not necessarily deprive Louisiana wives of alimony pending separation and pending divorce because Article 119 of the Civil Code affords a vehicle for such claims. This article states that “the husband and wife owe to each other, mutually, fidelity, support and assistance.” By its terms it would seem available as a basis for a claim for alimony pendente lite, and it has been so used by courts in the past. Chauvin v. Chauvin, 282 So.2d 869 (La.App. 3rd Cir. 1973); Adams v. Adams, 243 So.2d 318 (La.App. 4th Cir. 1971), writs refused, 258 La. 212, 245 So.2d 410 j Hillard v. Hillard, supra.; see Lazarus, supra., at 419-23. Because it mandates reciprocal support, it does not treat the sexes differently.

Furthermore, summary process would be available to implement Article 119’s reciprocal support provision pending separation and/or divorce, under Article 2592 of the Code of Civil Procedure. The application of summary proceedings depends not upon a particular statute or code article, but upon the nature of the action. Article 2592 provides that summary proceedings may be used for trial or disposition of “[a]n incidental question arising in the course of litigation” and in “the original granting of, subsequent change in, or termination of . . . alimony . . . .”

For these reasons, I respectfully dissent.

      . The trial court, however, held that she stated a cause of action for alimony under Civil Code article 119, which declares that husband and wife owe one another mutual support and assistance.

      . Plaintiff wife did nqt appeal from the trial court’s ruling that article 148 of the Civil Code is unconstitutional.

      . In Barton we rejected a challenge to the constitutionality of La.R.S. 14:74, which makes neglect of wife, but not neglect of husband, a crime.

      . La.Civil Code art. 2334 (1870).

      . The wife can exclude the fruits of her paraphernal property from the community by executing a notarial act declaring her intention to administer the property for her separate use and benefit. La.Civil Code art. 2386 (1870), as amended, La.Acts 1944, No. 286.

      . See Hillard v. Hillard, 225 La. 507, 73 So.2d 442 (1954) ; 13 La.L.Rev. 600 (1953) ; Lazarus, What Price Alimony, 11 La.L.Rev. 401 (1951) [hereinafter cited as Lazarus].

      . Some courts, however, may assume that she is able to live off income which the capital produces, and impute that income to her. See Schmidt v. Schmidt, 210 So.2d 149 (La.App. 4th Cir. 1968).


author: SUMMERS, Justice. TATE, Justice DIXON, Justice PER CURIAM.

text:
    STATE of Louisiana v. Eddie GOVERNOR and Henry George Henderson, Jr.
    No. 57135.
    Supreme Court of Louisiana.
    March 29, 1976.
    Rehearing Denied May 14, 1976.

      Walton J. Barnes, II, Arthur J. Boud-reaux, III, Barnes & Barnes, Baton Rouge, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel C. Cashio, Dist. Atty., Charles H. Dameron, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

At approximately eleven o’clock on the morning of August 9, 1974 two black men, armed with a pistol and rifle, entered Morales Grocery Store at Brusly, Louisiana. They forced all of the customers in the establishment at gunpoint to lie face down on the floor and then proceeded to rob the cashier by removing a quantity of money from the cash register. The owner, Addie Morales Crochet, who was in a back office, observed the robbery in progress and came forth with a handgun, firing at the robbers. She then chased them down the street in an effort to apprehend them.

Eddie Governor and Henry George Henderson, Jr., were later apprehended, charged with the crime of armed robbery, tried by a jury, convicted and sentenced to serve fifteen years in the custody of the Department of Corrections without benefit of parole, probation or suspension of sentence.

Assignment No. 1

In a written motion to suppress the lineup conducted on the 9th and 10th of August 1974, it is alleged that, as a result of the lineup, defendants were subjected to “possible” identification by Geneva Seals, Mary Kay Parsons and Addie Morales Crochet. It is further alleged that the lineup procedure violated the rights of defendants because they were not allowed to consult with counsel, they were not allowed to select their place in the lineup, or to examine or object to the use of certain participants in the lineup contrary to normal procedure in the sheriff’s office. They allege, moreover, that they were not allowed to examine the witness brought to identify them prior to the lineup examination.

At the outset it should be noted that the lineup identification was not introduced into evidence. The prosecution relied entirely upon the in-court identification. Further, the in-court identification by several witnesses was amply supported by evidence independent of the lineup, and the defense does not seriously contest this fact.

With respect to the contention that defendants were denied the right to counsel, the record reflects that the lineup occurred on the 9th and 10th of August 1974, prior to the filing of a formal affidavit charging them with armed robbery on August 13, 1974 and the filing of the bill of information on August 14, 1974.

In addition, as the facts are understood, both defendants admitted they were advised of their right to counsel immediately upon being taken into custody. They also conceded that they were aware of the fact that they had the right to counsel and they advised the officers at the time of the lineup that they did not need counsel. The trial judge was of the opinion that both defendants waived their right to counsel if, in fact, they had such a right.

A lineup after arrest, but prior to an indictment or formal charge, does not require the presence of counsel because there is no “criminal prosecution” pending. No substantial constitutional or statutory right is violated if counsel is not present at this stage. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Nero, 319 So.2d 303 (La. 1975); State v. Johnson, 306 So.2d 724 (La.1975); State v. Vince, 305 So.2d 916 (La.1974); State v. James, 305 So.2d 514 (La.1974); State v. Jefferson, 284 So.2d 577 (La. 1973).

Considering the fact that evidence of the lineup identification was not used at the trial and that there was ample evidence to support in-court identification independent of the lineup identification, no ascertainable deprivation of right or fundamental unfairness resulted from the circumstance that defendants were not allowed to select their places in the lineup, or examine, or object to the use of, certain participants. Nor do they have a right to examine the witnesses brought to identify them prior to the lineup. The motion to suppress was properly denied.

Assignment No. 2

During the voir dire examination of prospective jurors defense counsel moved for a mistrial when Sherman Stewart, a member of the jury venire who, when asked by the trial judge if he had formed an impression or opinion as to the guilt or innocence of the defendants of such an extent that he could not render a fair and impartial verdict, responded that he had formed such an opinion. He further stated that he did not believe the “young lady” (a prosecuting witness) would lie.

At the request of defense counsel the courtroom was then cleared of all prospective jurors. Defense counsel then moved for a mistrial, arguing that Stewart was from the community where the robbery occurred and the other prospective jurors, having heard his declaration, would be unduly influenced. The motion was denied and the ruling was assigned as error. Defense counsel then questioned Stewart, asking if he had talked to any of the other prospective jurors about the case, and Stewart answered in the negative. Stewart was then challenged for cause, and the challenge was granted. The trial judge then admonished the prospective jurors and those selected to disregard anything said by Stewart concerning his opinion of the guilt or innocence of the accused, for those statements were not evidence, and they were to make independent judgments of the case.

Defense counsel argues that Stewart’s declarations constituted prejudicial conduct within the meaning of that term as used in Article 775 of the Code of Criminal Procedure which provides :

“Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by article 770 or 771.”

The trial judge’s careful admonition to the jurors and prospective jurors, to which brief reference has been made, and the granting of the challenge for cause effectively cured whatever harmful effect Stewart’s declaration may have had on the other jurors. Furthermore, defense counsel was granted the opportunity to question all other prospective jurors to determine whether they were influenced by Stewart’s statement. No prejudice resulted, and defendants were not deprived of a fair trial. State v. Wilson, 240 La. 1087, 127 So.2d 158 (1961). Mistrial is a drastic remedy and is only authorized in specified instances where unnecessary prejudice resulted to the accused. State v. Nicholas, 312 So.2d 856 (La.1975); State v. Whitley, 296 So.2d 820 (La.1974); State v. Kenner, 290 So.2d 299 (La.1974); State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972).

Assignment No. 3

The prospective juror Mayeux, when examined on voir dire, responded that he lived with his wife in Port Allen, West Baton Rouge Parish, “off and on” but that he spent most of his time in Avoyelles Parish working on his farm. He was registered to vote in West Baton Rouge Parish, and had been for ten or twelve years. He also owned property in West Baton Rouge Parish. He was then challenged for cause by the defense on the ground that he was not a resident of West Baton Rouge Parish, the parish where the case was to be tried as required by Article 401 of the Code of Criminal Procedure. The challenge was denied.

Sufficient indicia of residence was shown here to permit this juror to meet the qualification of residence provided by law. This qualification was not destroyed because the juror spent most of his time in an adjoining parish to work his farm. Although he may have resided at his farm to some extent, his principal residence was in West Baton Rouge Parish.

Assignment No. 4

The prospective juror Falcon stated that she would believe the testimony of a police officer in preference to other witnesses in case of a contradiction. Despite these statements, the prospective juror answered that in such a situation she would have to hear all the evidence before she would accept the policeman’s testimony. The defense challenge for cause was denied.

We perceive no error in the ruling. When taken as a whole Falcon’s testimony on voir dire does not support defendant’s contention that she was unduly biased in favor of the State’s witness and against defense witnesses. She testified that she knew of no reason why she could not serve fairly and impartially; that she had no preconceived opinions as to the guilt or innocence of the accused; that she had not heard about the case; that she agreed that defendants were innocent until proven guilty and that the State must bear the entire burden of proving guilt of the defendants; that she would not hold it against the defendants if they didn’t take the stand or produce any other evidence; and that when all of the evidence was out she would still be able to apply the law that the defendants were innocent until proven guilty regardless of the fact that a police officer may or may not have testified.

Assignment No. 5

Abandoned by the defense.

Assignment Nos. 6 and 7

Asserting the fallibility of perception and memory and the vagaries of eyewitness identification, the defense contends it was error for the trial judge to deny the admission of the result of polygraph tests taken by both defendants, which would tend to exculpate them from criminal liability. Because of its acceptance in some jurisdictions, it is argued that a deprivation of due process occurs when the Louisiana courts deny admissibility of polygraph tests. The trial judge refused to admit the results of the tests, because no cross-examination was available to the State while the tests were being conducted and because the State would not be permitted to enter such a test into evidence had defendants failed it. He also relied upon State v. Corbin, 285 So.2d 234 (La.1973).

Constitutional guarantees do not assure the defendant the right to the admissibility of any type of evidence, only that which is deemed trustworthy and has probative value can be admitted. The arguments against admissibility are the lack of standardization in lie detector tests, lack of probative value and insufficient scientific reliability, as well as the possible unduly prejudicial effect upon the jury and an invasion of the jury function. A majority of American jurisdictions exclude this type of evidence for these reasons. See McCormick on Evidence, § 207 (2d ed. 1972); Annotation, Physiological and Psychological Truth and Deception Tests, 23 A.L.R.2d 1306 (1952) and later cases in supplement; 22A C.J.S. Criminal Law § 645(2); 32 C.J.S. Evidence § 588(4); 29 Am.Jur.2d, Evidence § 831. The considerable degree of fallibility in polygraph testing is discussed in Skolnick, Scientific Theory and Scientific Evidence; An Analysis of Lie Detection, 70 Yale L.J. 694, 724-28 (1961).

In State v. Corbin, 285 So.2d 234 (La. 1973) where a stipulation was entered into between the defense and the State in which they agreed to appoint a polygraph operator to test all witnesses, the trial court nevertheless refused to do so. We upheld this ruling upon the authority of the majority rule in American jurisdictions which find these tests to be unreliable and fallible and because they had an unduly prejudicial effect upon the jury, infringing upon its function.

Defense counsel has undertaken an impressive research into the problem of polygraph testing, but the only reference to the record in support of this assignment of error pertains to the testimony of a psychologist relating to the ability of the mind to receive and store visual information.

We are referred to no evidence to establish the qualifications of the poly-graphist, whether these tests are accepted in his profession, or that the tests have a reasonable measure of precision. Without a more substantial showing of the reliability and probative value of these tests, they are unacceptable as evidence in this criminal prosecution.

Assignment No. 8

Two contentions are made in connection with this assignment of error based upon a ruling of the trial judge permitting the State to impeach two of its witnesses on the ground of surprise. First, it is said that surprise was not shown, and, secondly, it is argued that the proper foundation was not laid to impeach the credibility of the State’s two witnesses, Eddie Tobias and Phillip Williams, Jr.

In his opening statement the State’s attorney included remarks to the effect that he would prove that two people had seen these defendants, shortly before the robbery, driving one of the accused’s automobiles and that they had turned left in the direction of the store where the robbery had occurred.

When Tobias and Phillips were called to testify to this effect, they testified that they did see a car similar to the one owned by defendant Henderson but they could not identify who or how many people were in it, nor could they say which way the car turned. Their earlier statement to Officer Hebert, upon which the State was relying, was to the effect that they saw defendants in the car, described the car, and stated that it turned left, the direction of the Morales Grocery where the robbery occurred.

One can impeach his own witness when he is taken by surprise by the witness’ testimony, and the impeachment in such a case is limited to prior contradictory statements. La.R.S. 15:487. Surprise in the sense of this rule does not arise out of the mere failure of the witness to testify as expected, but out of his testifying upon some material matter against the party introducing him and in favor of the other side. La.R.S. 15:488.

Under the circumstances the prosecutor justifiably believed that the witness would testify in accordance with their statements to Officer Hebert and not, as the witnesses did, against the State in a matter as material as the identification and presence of the defendants at a place which would show their capability of committing the robbery. State v. Spotville, 308 So.2d 763 (La.1975).

The other issue presented by this assignment of error, as already noted, is whether the State established a proper foundation or predicate to impeach the credibility of the State’s two witnesses To-bias and Williams. Section 493 of Title 15 of the Revised Statutes recites the rule applicable to the necessary foundation for proof of contradictory statements in these terms:

“Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he had made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may
have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.”

It is manifest from the terms of the statute that it is designed to allow the witness a chance to explain the alleged discrepancies in his two statements. As noted in State v. Caldwell, 251 La. 780, 206 So.2d 492 (1968), Section 493

“. . . does not envision every detail of the incident should be directed to the witness, it merely requires that his attention be called to the time, place and circumstance, so that there may be ‘. no possibility of his mistaking the conflicting statement referred to, and which he is charged with having made. . .”

See also, State v. Bueche, 243 La. 160, 142 So.2d 381 (1962); School Board of Union Parish v. Trimble, 33 La.Ann. 1073 (1881).

A review of the prosecutor’s examination of the witnesses in establishing the required foundation convinces us that there was compliance with the intent and spirit of Section 493. Undoubtedly the witnesses were aware of the circumstances, time and place of the prior statement, for they admitted making the statement to Officer Hebert. The disagreement revolved around the content of the prior statement.

There is no substance to this assignment.

Assignment No. 9

As the narrative of facts in the beginning of this opinion discloses, the robbers made the customers lie on the floor while the robbery was in progress. The cashier, Mary Kay Parson, was a young girl on a summer job.

During the course of his rebuttal argument to the jury the prosecutor said “think about the rights of Mrs. Thibodeaux and those customers who were forced to lie down like a puppy dog, like a puppy dog in a common—in a public place.”

The contention that this argument by the State’s attorney is improper is not well-founded, for it was based upon a reasonable interpretation of the evidence. The law of this State defining the scope of argument is found in Article 774 of the Code of Criminal Procedure:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
“The argument shall not appeal to prejudice.
“The state’s rebuttal shall be confined to answering the argument of the defendant.”

As his rebuttal argument continued, the prosecutor said:

“. . . let’s quit thinking a whole lot about the rights of the accused and balance it just a little bit with the rights of these people and the rights of the public to be secure in their person and in their businesses and without having to lie on the floor like a bunch of puppy dogs. And when you have come to your conclusion, if it is guilty, then I say have the courage to come in and render a verdict which will at least set an example and say, well, you can’t do it with impunity, at least not in this parish.”

In this trial, as in all criminal trials, repeated reference by the defense to the rights of the accused is brought to the jury’s attention. The judge charges the jury on that subject. When the prosecutor’s argument is read as a whole it is noted that he too gave detailed reference to the rights of the accused, stating that he favored observance of those rights. Under these circumstances it can hardly be said that the reference to the rights of victims to crimes is irrelevant and beyond the scope of argument. The prosecutor must be free, as defense counsel is, to present arguments with logical force and vigor. He has not transcended those bounds here.

Assignment No. 10

A number of special charges to the jury were requested by the defense. The trial judge agreed to give all but the 4th, 5th and 6th charges.

Although these requested charges are not contained in the record and the trial judge’s per curiam informed defense counsel that he was unable to prepare a per curiam on this assignment of error unless the charges were furnished, the defense brief quotes what is represented to be the charges the judge refused to give. Since these representations are not contested by the State’s attorney they will be considered.

Fourth Requested Charge
“What a person perceives and what a person remembers depends to a great extent upon what is already in that person’s mind.”
Fifth Requested Charge
“Suggestions in many forms may create an impression in the mind which makes one truly believe the mistaken observation. This suggestion may arise at a biased pre-trial line-up or confrontation, or unintentionally in the witnesses’ own mind.”
Sixth Requested Charge
“Experimental psychologists agree that perception depends to a great extent on what is already in the mind of the per-ceiver; one learns to perceive selectively. . .”
“These findings suggest that once a witness’ report has been changed according to sortie minimum inducement and subtle pressure, self-persuasion regarding the truth of statements is likely to occur, and be difficult, if not impossible to rectify ....
“Many current police techniques regarding the handling of both suspect interrogation and lineup identification reflect, perhaps unknowingly, a highly sophisticated application of the various psychological principles outlined above. . .”
“These widespread practices on the part of police suggest a shrewd, pragmatic grasp of the dynamics of suggestion. This situation raises two issues for the criminal justice system: whether police practices which utilize principles of suggestibility result in correct identifications, and whether these methods are consistent with societal norms of justice even if the resulting identifications are correct . . . . ”

Defense counsel argues that this trial was hotly contested and the question of identification was crucial. Throughout the trial the defense attempted to present to the jury evidence and testimony relative to the vagaries of the eyewitness identifications made by the witnesses. The accuracy of their testimony was explored on cross-examination. He asserts that the sixth charge is a quote from United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and is therefore a correct statement of the law.

The State’s answer to these contentions is to refer the Court to the general charges of the trial judge on the accuracy of eyewitness identification which are quoted herewith:

“However, just as you must evaluate the evidence in light of your own common experience you must understand that human beings share one universal characteristic—that of fallibility; there are no absolutes.
“One of the foremost hinderances to perfection of your judicial system is that of unintentional mistaken identity of the accused by an eyewitness to the crime. This is not to say that the identification is not felt to be an honest one, or one founded on the vindictiveness of the victim or witness to the crime. We as sensitive human beings are above that. It is simply an honestly made mistake of dire consequences.”

These charges fairly and adequately cover the subject of the requested charges which were denied. These instructions were sufficient to instruct the jury on the law so that it could apply this law to the evidence. A requested charge need not be given if it is included in the general charge or in another special charge to be given. La.Code Crim.P. Art. 807; State v. Bastida, 310 So.2d 629 (La.1975); State v. Williams, 310 So.2d 528 (La.1975).

Assignment No. 11

When the jury retired after the case was submitted, the jury foreman returned into court after 55 minutes and informed the trial judge that the jury could not agree on a verdict, because some of the jurors were set in their ways. The judge advised him that “You’ll just have to sit for a while and keep deliberating.” Whereupon the jury foreman asked, “Suppose still and all, they still don’t want to change any opinions?” The trial judge replied: “This is too quick for me to declare a mistrial. That is what I’d have to declare. I can’t declare one in fifty-five minutes.” At this point defense counsel moved for a mistrial which was denied. Almost two hours later the jury returned guilty verdicts.

As the defense argument is understood, the judge’s remarks were coercive and tended to impose upon the jury a demand for a verdict regardless of their individual convictions.

The trial judge did not inform the jury foreman that he would not accept a mistrial. He simply urged the foreman to inform the jurors that they should continue their deliberations because they had only been out 55 minutes.

It is safe to state as a settled proposition that when the Court is informed by a jury that they cannot agree, it is not error for the Court to impress upon them the importance of the case, urge them to come to an agreement, and send them back for further deliberation; for the question of the discharge of the jury because of inability to agree on a verdict is within the sound discretion of the trial judge, and the exercise of that discretion will not be set aside in the absence of palpable abuse. State v. Rodman, 208 La. 523, 23 So.2d 204 (1945); State v. Seals, 135 La. 602, 65 So. 756 (1914); State v. Fuselier, 51 La.Ann. 1317, 26 So. 264 (1899); State v. Dudoussat, 47 La.Ann., 977, 17 So. 685 (1895).

This assignment is without merit.

Assignment No.-12

A verdict of “Guilty” was returned by the jury as to each defendant. However, on the written verdict a notation in pencil appeared below each showing the vote to be 11 for guilty and one for' not guilty. Defense counsel objected that, because of the addition of the penciled vote tabulation on the document reciting the verdicts, the verdicts did not conform with the requirement of Article 814 of the Code of Criminal Procedure which prescribes that the responsive verdicts to armed robbery are “Guilty. Guilty of Simple Robbery. Not Guilty.”

Although Article 814 does prescribe the quoted verdicts for armed robbery, Article 810 recites that “. . . There is no formal requirement as to the language of the verdict except that it shall clearly convey the intention of the jury. . . . ” And, according to Article 817 “Any qualification of or addition to a verdict of guilty, beyond a specification of the offense as to which the verdict is found, is without effect upon the finding.”

This assignment is without merit.

Assignment No. 13

A defense motion for a new trial relies upon some of the errors heretofore considered and found to be without merit. In addition, the motion relies upon newly discovered evidence as a basis for granting a new trial. It is alleged in the motion that Geneva Seals testified at the trial that she had seen the defendants between 9 and 9:30 at Coleman’s store in Brusly on the morning of the robbery and that she would not provide that information to the defense before trial. For this reason defense counsel could not prepare a rebuttal to her testimony. Since she testified, however, the defense has ascertained that one Stevens, whose affidavit is attached, is prepared to testify “that sometimes in the past, and during the year 1974” that a real tall Negro male about 20 came to Blanchard’s Building Materials in Plaquemine where he worked and asked for some gasoline which he furnished in a milk container.

Accepting the allegations of the motion and Stevens’ affidavit as true, we are of the opinion that this evidence, because of its vague and indefinite character, does not establish that an injustice has been done or that, if this evidence had been introduced at the trial, it would have changed the guilty verdict. La.Code Crim.P. art. 851.

Assignment No. 14

A motion in arrest of judgment filed by the defendant presents the question: Is a trial in which women serve on the jury, held prior to January 1, 1975 and the decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), declaring Louisiana’s constitutional and statutory prohibitions against service of women on juries to be contrary to the Federal Constitution, conducted in accordance with law? La.Const. art. VII, § 41 (1921); La.Code Crim.P. art. 402.

The answer is contained in three recent decisions of this Court holding that inclusion of women under these circumstances is not improper in view of the subsequent decision in Taylor v. Louisiana. See State v. Gray, 315 So.2d 624 (La.1975); State v. Nicholas, 312 So.2d 856 (La.1975); State v. Milton, 310 So.2d 524 (La.1975).

This assignment has no merit.

For the reasons assigned, the convictions and sentences are affirmed.

CALOGERO, J., concurs.

TATE, J., assigns concurring reasons.

DIXON, J., dissents with reasons.

TATE, Justice

(concurring).

The writer is not inclined to reverse the present convictions because, in reliance upon past jurisprudence, the trial court held to be inadmissible the results of polygraph (lie-detector) tests. By them, the defendants are allegedly proved to be telling the truth when they deny any connection with the robbery. The tests would obviously support their defense that they should not be sent to the penitentiary because of the mistaken identification of them by eyewitnesses who saw the actual robbers only briefly.

Nevertheless, in view of the notorious unreliability of eyewitness identification of strangers in circumstances such as the present, questionable to me seems to be our prior judicial characterization of lie-detector tests as incompetent evidence, because of their judicially assumed unreliability. The literature on the subject seems to indicate that, with advances in scientific knowledge, lie-detector tests have at least as high a degree of reliability as eyewitness testimony when conducted by an impartial and skilled expert.

Also, when there are conflicting versions of what actually occurred in a one-on-one situation, in the absence of objective evidence I am inclined to view that lie-detector tests might be at least as competent as trial-demeanor evaluation, to aid the trier of fact in determining which of the opposing witnesses is perjuring himself on the stand.

Sooner or later, it seems to me, the courts will have to accept the competency of lie-detector tests, at least under circumstances of especial need as above suggested. In criminal cases, for instance, the accused should be permitted to take lie-detector tests under controlled situations, with the agreement that whatever results are admissible, and with opportunity for either party to have further tests conducted. (By the Fifth Amendment, however, an accused’s failure to consent to the lie-detector tests could not, probably, be referred to.) See 70 Yale Law Journal 725-26 (1961).

The writer therefore notes his reservations as to the judicially established doctrine, rooted in times when the science of polygraphy was younger, that bars under any circumstances the use of this science-rooted technique as an aid for consideration by the trier of fact in determining truthfulness of a witness.

DIXON, Justice

(dissenting).

I respectfully dissent.

The prosecutor’s argument to the jury, to the effect that the jury should quit thinking about the rights of the accused and instead think about the victims’ rights, was highly improper. “The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.” American Bar Association Standards for Criminal Justice, Relating to the Prosecution Function, Standard 5.8(d). Predictions as to the consequences of an acquittal on lawlessness in the community go beyond the scope of the issues at trial and are to be avoided. See 54 Colum.L.Rev. 946.

There was no issue in the trial as to the rights of the victims. The criminal justice system exists to protect the people from lawlessness, but the argument of the prosecutor was a clear invitation to the jury to disregard the law—an argument we cannot condone.

On Application For Rehearing

PER CURIAM.

On application for rehearing, the defendants correctly point out that they attempted to introduce foundation evidence to prove the present reliability of polygraph tests. Nevertheless, our decision excluding the polygraph evidence was ultimatey based upon the jurisprudential rule which excludes as inadmissible this type of evidence because of its jurispru-dentially determined unreliability. We are unwilling at this time to reconsider this jurisprudential rule.

The other issues raised by the application for rehearing need no further explanation.

The application for rehearing is denied.

DIXON, J., dissents.


text:
    Terry N. BURLEY v. LOUISIANA POWER AND LIGHT CO. et al. COAL OPERATORS CASUALTY CO. v. LOUISIANA POWER AND LIGHT CO. et al.
    No. 57887.
    Supreme Court of Louisiana.
    May 4, 1976.
   In re: Louisiana Power and Light Co. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Plaquemines, 327 So.2d 585.

Writ denied. Under the facts found by the court of appeal, there is .no error in the result.

DIXON, J., concurs in the denial, believing the result to be correct.

CALOGERO, J., is of the opinion the writ should be granted.

DENNIS, J., is of the view the writ should be granted.