author: SUMMERS, Chief Justice.

text:
    STATE of Louisiana v. Gerald EGENA and Billy Ray Jacob.
    No. 63130.
    Supreme Court of Louisiana.
    April 9, 1979.
    Harold Douglas, New Orleans, for Billy Ray Jacob.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for the State.
   SUMMERS, Chief Justice.

In a bill of information Gerald Egena and Billy Ray Jacob were charged with the September 23,1972 armed robbery of Henrietta. Thormahlen in violation of Article 64 of the Criminal Code. They were jointly tried on March 15, 1973 and found guilty as charged, the jury returned this verdict: “Guilty as Charge (sic) of Arm (sic) Robbery.” Each was sentenced to forty years at hard labor. On appeal to this Court, their convictions and sentences were reversed and the case was remanded for a new trial. This Court discovered an error patent on the face of the record because the verdict failed to name each defendant and the finding as to each as required by Article 818 of the Code of Criminal Procedure.

On February 22, 1978 Egena and Jacob were again tried for armed robbery, and on this new trial each was found guilty as charged in a properly personalized verdict. Each was sentenced to serve forty years at hard labor. Both appealed, but Egena thereafter moved to dismiss his appeal and the motion was granted. This appeal, therefore, is on behalf of Jacob, who urges six of the ten assignments of error originally filed.

Assignments 1, 2 and 3: The defense contends that the trial judge erred in refusing to compel the attendance of the victim, Henrietta Thormahlen, at a pre-trial hearing and at the trial itself. Error is also claimed for allowing hearsay testimony at trial as to her out-of-eourt identification. Because all of these assignments relate to the ruling of the trial judge that the victim was unavailable for trial, they are consolidated here.

At the first trial Henrietta Thormahlen testified that she owned a small sweet shop on 1701 Agriculture Street in the city of New Orleans. She was 76 years old on September 23, 1972, and was attending her shop. The door was locked because she had been robbed before. That afternoon two Negro males — one tall, one short — knocked at the door. Mistaking one of them for a neighbor she admitted them. As the tall one entered he ordered his companion to lock the door. Both were armed. One of them then grabbed her around the neck and pistol whipped her, while the other opened the money drawer and demanded more money. She emptied her pockets, but he was not satisfied with the $35 thus obtained. He stuck his pistol in her face and demanded to know where the rest of the money was or he would kill her. She pointed to an icebox where an additional $40 was secreted.

They then dragged her through the door connecting the shop to her residence where they tied her to a chair with a sheet, gagging her at the same time. They then ransacked the house and departed with her jewelry. Defense counsel had ample opportunity to cross-examine Mrs. Thormahlen and did in fact do so with considerable skill and effect.

Prior to the first trial she identified Ege-na and Jacobs in a corporeal lineup at the police station. She also made an incourt identification at the first trial.

In the interim between the first trial on March 15, 1973 and the second trial on February 22, 1978 Henrietta Thormahlen was confined to the Audubon Health Care Center in New Orleans.

Prior to the 1978 trial the State filed a motion asking that the record of the victim’s testimony at the first trial be introduced as evidence at the second trial. The motion alleged that the victim of the robbery was then confined to the Audubon Health Care Center and that her condition was such that she was too ill to appear in court.

To support the motion the State offered the letter of Dr. Louis A. Balart, a specialist in internal medicine and the victim’s physician, which reads:

“Mrs. Thormahlen is a patient at Audubon Health Care Center where I am a physician. Her diagnoses are atheros-clerotic cardio vascular and cerebrovascu-lar disease with a stroke in 1976 and subsequent right sided hemiplegia. Her physical and mental status at the present time is one that precludes any appearance by Mrs. Thormahlen in a court of law.”

Thereafter a hearing was held on the State’s motion and on defendants’ motion to suppress identification. Mrs. Thormahlen had been subpoenaed by the defense but did not appear at the hearing. The sheriff’s return stated simply, “she’s in the hospital.” Whereupon, the defense moved for an instanter subpoenae of the victim whose identification of defendants was in question. In opposition to the instanter subpoena an Assistant District Attorney testified that Mrs. Thormahlen was at the Audubon Health Care Center where she was confined in a wheelchair. He testified that she had suffered a stroke and that her right side was visibly paralyzed. Later at the hearing Dr. Balart was called and testified as a medical expert that Mrs. Thormahlen had been in his care approximately one year, she was confined in the health care center, she was eighty-three years old, and had suffered a stroke about two and one-half years before, which left her partially paralyzed on the right side. She was senile and had cardiovascular disease and was mostly confined in a wheelchair. He was of the opinion that she could not come to court to testify.

Defense counsel also moved for the appointment of an independent physician to examine Mrs. Thormahlen and report to the court on her condition.

On the basis of the entire record of these hearings the trial judge, relying on Article 295 of the Code of Criminal Procedure, ruled that the witness Mrs. Thormahlen was “unavailable” and that her testimony at the first trial could be read to the jury in the second trial. The motion to appoint an independent physician was also denied.

Article 295 of the Code provides:

“The transcript of the testimony of a defendant who testified at the preliminary examination is admissible against him upon the trial of the case or, if relevant, in any subsequent judicial proceeding.
“The transcript of the testimony of any other witness who testified at the preliminary examination is admissible for any purpose in any subsequent proceeding in the case, on behalf of either party, if the court finds that the witness is dead, too ill to testify, absent from the state, or cannot be found, and that the absence of the witness was not procured by the party offering the testimony.
“The transcript of testimony given by a person at a preliminary examination may be used by any party in a subsequent judicial proceeding for +he purpose of impeaching or contradicting the testimony of such person as a witness.”

While the article does not refer to the transcript of a witness’ testimony at a former trial, this Court has held in State v. Ghoram, 328 So.2d 91 (La.1976), that the transcript of a witness at a first trial could be introduced in his stead at a second one upon a proper showing that the prosecutorial authorities had made a good faith effort to obtain his presence at trial. Examples of such showings appear in this Court’s decisions: died, State v. Ford, 336 So.2d 817 (La.1976); escaped from jail, State v. Owens, 338 So.2d 645 (La.1976); asserted his Fifth Amendment privilege, State v. Dotch, 298 So.2d 742 (La.1974), cert. denied, 420 U.S. 976, 95 S.Ct. 1401, 43 L.Ed.2d 657; gone to sea, State v. Green, 296 So.2d 290 (La.1974); or refused to testify, even after being placed in contempt, State v. Ghoram, supra.

Permanent physical disability and failure of faculties due to disease or senility are good grounds of unavailability of a witness as a condition precedent to admitting, among other things, his former testimony. McCormick, Handbook of the Law of Evidence, § 253 (2d ed. by Cleary, 1972). See also State v. Milby, 345 So.2d 18 (La.1977) involving the denial of a- continuance when the continuance was sought because of the inability of a bedridden witness to respond to a subpoena. Because the witness was “too ill to testify” the trial judge permitted her preliminary examination testimony to be read at the trial.

There is no merit to these assignments.

Assignment 6: It is the defense contention that no testimony of the victim identified the defendants at the first trial. Yet, the court, over defense objection, permitted Officer Poissenot to testify that such an identification was made.

At the hearing to suppress identification outside the presence of the jury, Officer Poissenot testified that Mrs. Thormah-len identified a picture of defendant Jacob during a police investigation of the instant crime. There was no defense objection. At the trial Officer Poissenot testified that when he presented photographs to Mrs. Thormahlen “an identification was made,” but the witness was instructed by the prosecutor not to repeat what the lady said. Therefore, the officer did not mention which photographs were selected by Mrs. Thormahlen. Although testifying that an identification procedure was carried out, there was no reference to the persons identified.

Under those circumstances no error occurred, and no hearsay testimony of the victim’s identification of the defendants was received in evidence.

Assignment 7: The defense claims that the prosecutor solicited testimony from its witness concerning other crimes, testimony which was inadmissible and furnished grounds for a mistrial which the trial judge denied.

The incident occurred during direct examination of Detective Wilbert Rome, a State witness and a fingerprint expert:

“Q. Okay, now the comparison of the print, what finger is that?
A. It is also the right index finger of Gerald Egena.
Q. Now where did the print on the right come from?
A. On the right, the enlargement of the inked impression?
Q. Right.
A. It came from a card in the file.
BY MR. DOUGLAS [defense counsel] Your Honor, I move for a mistrial.
BY THE COURT:
Step up to the bench gentlemen.
(All counsellors stepped a few minutes later returned to open court.)
BY THE COURT:
The court denies the motion for a mistrial.
BY MR. DOUGLAS:
Note an objection for the record.”

The witness’ testimony was unresponsive, the prosecutor was seeking to elicit testimony that the print came from the defendant Egena, rather than from a card in the file. State v. Hegwood, 345 So.2d 1179 (La.1977). Moreover, this appeal does not concern Egena and if the quoted testimony be considered a reference to another crime it is not a reference to a crime committed by Jacob. Finally, no admonition by the court to the jury to disregard the statement was requested by defense counsel. The reason seems obvious. To dwell upon this innocuous reference to a card file as a reference to another crime would be to magnify the purport of that reference in the minds of the jury to the prejudice of Egena, not Jacob. La.Code Crim.Pro. art 770; State v. Matthews, 354 So.2d 552 (La.1978); State v. Fowlkes, 352 So.2d 208 (La.1977).

Assignment 8: The defense contends that a photograph of the victim’s face depicting a cut and bruise was introduced into evidence by the State solely for the purpose of creating prejudice against defendant.

According to the defense, no issue at the trial concerned whether Mrs. Thormahlen was robbed, the only issue being whether Egena and Jacob were the offenders — a question of identification.

In addition to the fact that no ground for the defense objection to the introduction of the photograph was stated as required by Article 841 of the Code of Criminal Procedure, the photograph was corroborative of the victim’s testimony that a robbery did in fact occur and that she was hit with a “gun”. No argument is made that the photograph is gruesome.

The question before the court when photographs are sought to be admitted in evidence is whether the probative value of such evidence outweighs its prejudicial effect. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Williams, 343 So.2d 1026 (La.1977). In this Court’s view no error occurred when the trial judge permitted introduction of the questioned photograph.

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

DIXON, J., concurs, not agreeing with the discussion of Assignments 7 & 8.

      Judge Cecil C. Cutrer participated in this decision as Associate Justice Ad Hoc sitting in the place of Justice Marcus.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Chester HAMILTON.
    No. 63174.
    Supreme Court of Louisiana.
    April 9, 1979.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Marvin Opotowsky, Asst. Dist. Atty., for plaintiff-relator.
    Paul L. Katz, Robert F. Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-respondent.
   MARCUS, Justice.

Chester H. Hamilton was charged by bill of information with unauthorized use of movables in violation of La.R.S. 14:68. Defendant filed a motion to quash the information and, after a hearing, the trial judge granted the motion. We granted the state’s application under our supervisory jurisdiction to review the correctness of this ruling.

Defendant filed a motion to quash on September 19, 1978, alleging that the bill of information had been filed on September 7, 1977, and that the state had failed to commence trial within one year from the date of institution of prosecution as required by law. The record reflects, however, that the bill of information was in fact filed on September 23, 1977.

The penalty provision for unauthorized use of movables (La.R.S. 14:68), the offense charged, is a fine of not more than one hundred dollars or imprisonment for not more than six months, or both. Since this penalty does not provide for imprisonment at hard labor, the offense is a misdemeanor. La.Code Crim.P. art. 933(3), (4); La.R.S. 14:2(4), (6).

La.Code Crim.P. art. 578 provides in pertinent part:

Except as otherwise provided in this Chapter, no trial shall be commenced:
(3) In misdemeanor cases after one year from the date of institution of the prosecution.
The offense charged shall determine the applicable limitation.

A prosecution for an offense, other than one punishable by death or life imprisonment, shall be instituted in a district court by indictment or by information. La.Code Crim.P. art. 382.

La.Code Crim.P. art. 580 provides:

When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.

In the instant case, prosecution was instituted by a bill of information in a district court charging defendant with the offense of unauthorized use of movables (La. R.S. 14:68), a misdemeanor, on September 23, 1977. The state had one year from that date to commence trial or until September 23, 1978. Defendant’s motion to quash the information was filed on September 19, 1978 (four days before the running of the limitation to commence trial). The motion to quash suspended the running of the period of limitation until the ruling of the court thereon but in no case shall the state have less than one year after the ruling to commence trial. The trial judge ruled on the motion to quash on October 3,1978. Hence, the state has until October 3, 1979, to commence trial. Accordingly, the trial judge erred in granting defendant’s motion to quash the information. We must reverse.

DECREE

The ruling of the trial judge sustaining the motion to quash is reversed and set aside; the case is remanded to the district court for further proceedings.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Laura Lynette SMITH, Appellant.
    No. 63179.
    Supreme Court of Louisiana.
    April 9, 1979.

      Alton T. Moran, Allen J. Bergeron, Jr., Baton Rouge, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant was convicted of theft of over five hundred dollars, La.R.S. 14:67, and sentenced to three years imprisonment at hard labor. On her appeal, the defendant argues four assignments of error.

Assignment No. 8 presents the most arguable issue. It concerns the sustaining of a state objection to a question of a defense witness. The question was designed to impeach a state witness, by proof of a prior statement he had made which was contradictory of his testimony at the trial. La. R.S. 15:493.

Context Facts

The context facts need be stated to understand the contention:

The defendant, Miss Smith, is charged with embezzling at least $6,000 from the book fund of her employer, a vocational technical school.

Her duties required her to receive the proceeds of book sales, represented by the money and a triplicate pink copy of a receipt of the sale, and to deposit the proceeds in the bank. The money received, the pink slips, and the bank deposit were supposed to correspond. Miss Smith was responsible for the receipt and deposit of the money, and to verify that the totals corresponded with the pink receipt copies showing book sales.

In June, 1976, discrepancies were discovered in the money collected from sales and the deposits during the preceding month. An audit for two years developed that over twenty thousand dollars of the total book sales (tallied from the yellow copies of sales which remained permanently in the receipt books) had not been deposited — that the pink triplicate copies of the receipts for some twenty thousand dollars had never been attached to the deposit slips, which represented the deposit of the monies represented by these receipts.

A number of the pink receipts for which no deposit had been made (although the money for them had supposedly been turned in to the defendant) were discovered in the defendant’s desk and file cabinet. Also, between five and six thousand dollars of the permanent (yellow) receipts marked with the defendant’s initials (thus allegedly indicating that she had sold the books and collected the money for which receipt was made) represented proceeds which never reached the bank.

Part of the state case also concerned the deposit of some six thousand dollars in cash in the defendant’s bank accounts, allegedly over and above the defendant’s salary and earnings. Most of the defense witnesses were called in an attempt to establish an innocent reason for these cash deposits.

However, another aspect of the accused’s defense was to blame discrepancies in the accounts on a slipshod implementation of an imperfectly understood system, in which leakage could occur through many others rather than herself. The state evidence itself indicated a shortage of some four thousand dollars in the year preceding the accused’s employment, and the issue to some extent is whether the new system administered by the defendant might not be as deficient in safeguard as the former system.

Assignment No. 8

The state’s first witness was the director of the school. His testimony was important to the state’s case in its description of the old and new accounting systems and of the defendant’s duties, which tended to place the blame for the present shortage solely on her apparent defalcation.

Under cross-examination, this witness flatly denied that he had told the defendant and her grandmother, that there had been shortages in the book funds in previous years of approximately the same amount. (The witness had previously admitted the time and occasion of the conversation with the defendant and her grandmother, although he denied that it had included his telling them of these previous shortages.)

After thus laying this proper foundation to prove a prior inconsistent statement, La. R.S. 15:493, the defendant’s counsel later, in the defense case, questioned the accused’s grandmother as to this conversation with the school’s director. The trial court sustained a state objection to this inquiry as an attempt to impeach on a collateral matter. La.R.S. 15:494.

The ruling was erroneous. The previous shortages in the book fund were certainly relevant to a material issue in the case, i. e. , that the system as a whole contained leakages for which the defendant could not be held responsible, especially since sixteen other persons besides the accused kept receipt books from which they issued receipts, who could conceivably fail to turn in to the accused the pink slips and cash from their sales.

The inquiry was not prohibited impeachment as to collateral facts or irrelevant matter. La.R.S. 15:494. It rather concerned a prior inconsistent “statement . relevant to a material issue in the case.” State v. Brent, 347 So.2d 1112, 1117 (La. 1977). See also State v. Cappo, 345 So.2d 443 (La.1977).

However, although the ruling was incorrect, we do not find it presents reversible error.

If the grandmother had been permitted to testify (as she should have been) that the director had told her the previous year’s shortages were about the same as those in which the defendant was employed, it is unlikely that the jury’s evaluation of the director’s credibility would have been affected as to the detailed facts to which he testified. He himself admitted the prior shortages, although he minimized them; and another state witness did testify as to the four thousand dollar shortage in the year preceding the defendant’s employment.

It seems to us far more likely that the jury would believe the director merely forgot or the grandmother was mistaken as to the prior inconsistent statement on a peripheral matter. Even if the jury felt that the director deliberately did not remember his former statement, it is unlikely that the jury would find this misstatement any reason to disbelieve the details of his testimony, which were corroborated by other witnesses and to some extent by the defendant herself.

Indeed, the chief evidence of the defendant’s guilt was the pink receipts (representing undeposited receipts) found in her desk and her filing cabinet, and the five to six thousand dollars of pink slips with the defendant’s initials (showing her receipt of the money) for which no deposits were made. The shortages in the former accounting system, and any misstatement by the director concerning its amount, were to some extent peripheral to this substantial corroborated evidence tending to prove the accused’s guilt.

Accordingly, we find no reversible merit in this assignment.

Conclusion

The other assignments do not present arguable merit nor concern circumstances likely to recur or legal issues not governed by clearly applicable legal principle. Accordingly, we have discussed and disposed of them in an appendix attached to this opinion, which remains a public record of this court but which will not be published with this opinion.

We affirm the conviction and sentence.

AFFIRMED.

      . In her explanation of these discrepancies, the defendant suggested that someone else had • taken the pink slips and the money, and that someone else (who had stolen the money) had left some of the pink slips in her desk and file cabinet.


author: DIXON, Justice.

text:
    STATE of Louisiana v. James Michael DUPRE.
    No. 63186.
    Supreme Court of Louisiana.
    April 9, 1979.

      Alton T. Moran, Allen J. Bergeron, Jr., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

During the early evening of March 25, 1976, James Michael Dupre and Richard Durr accosted a woman as she was getting into her car in the parking lot of the Bon Marche shopping center in Baton Rouge. Holding their victim at gunpoint, they drove in her car to Livingston Parish and began to drive through the countryside in search of the “C.C.,” a deserted country road. Once there, Dupre raped the victim in the back seat of her car. After a trip to Hammond to buy gasoline and to drop off Dupre, Durr and the victim returned to the “C.C.” where she was raped again. Durr then released the victim and she drove back to Baton Rouge.

Five days later, Durr and Dupre were hitchhiking in the rain near Bon Marche and attracted the attention of two teenage girls who were leaving the center. Although the men stated that Hammond was their destination, the girls offered to take them no farther than the interchange of Interstate 12 and Sherwood Forest Boulevard. When they arrived there, Durr and Dupre suddenly displayed weapons and demanded that the girls drive onto the Interstate. On the ruse of turning around to follow this order, the driver pulled into the parking lot of a convenience store and the girls began to struggle with their abductors. The scuffling attracted the attention of a police officer who blocked Durr’s attempts to drive back onto the highway after he had seized the wheel from the driver. The two men then fled on foot across a nearby field and managed to elude the police that evening.

A composite sketch drawn from the first victim’s description of her assailants led to the arrest of Durr in Albany, Louisiana and to the arrest of Dupre in Metairie on April 6, 1976. Both men were indicted by the grand jury of East Baton Rouge Parish on two counts of aggravated kidnapping, R.S. 14:44. Dupre was subsequently held mentally incompetent to proceed and was committed for evaluation to the East Louisiana State Hospital in Jackson. After a later determination that he had regained the capacity to proceed to trial, Dupre entered pleas of not guilty and not guilty by reason of insanity. Tried alone, he was convicted as charged on both counts on September 28, 1977, and was subsequently sentenced to consecutive terms of life imprisonment. He now appeals his conviction and sentence, urging eight of the twelve assignments of error filed in the district court.

Assignments of Error Nos. 2, 8, 7

By these assignments of error the defense contends that the trial judge erred in admitting evidence of other crimes. These assignments were taken when the court overruled defense objections to references made by the state to the aggravated rape of the first victim. In brief the defense asserts that the trial court’s rulings were erroneous under the standards announced in State v. Prieur, 277 So.2d 126 (La.1973), which are interpreted by the defense to permit only evidence of convictions to be introduced.

The defense reliance on Prieur and subsequent interpretations of its standards is misplaced. Prieur supplied guidelines for the introduction of evidence of other crimes to establish knowledge, intent, or system; it did not hold that only evidence of convictions is admissible. Moreover, the decision expressly recognized that other crimes which form part of the res gestae of the charged offense constitute an exception to the rule that other crimes evidence is generally inadmissible. State v. Prieur, supra; see State v. Schwartz, 354 So.2d 1332 (La. 1978). Here the rape was inseparably intertwined with the first kidnapping and tended to explain the movement of the abductors and their victim.

Evidence of the rape, was also admissible to prove an essential element of the charged offenses. R.S. 14:44 defines aggravated kidnapping in part as “the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a reléase of the person under the offender’s actual or apparent control.” The state’s theory of the case was that the sexual act performed by the first victim constituted the relinquishment of something of value within the meaning of the statute. As such, evidence of the rape wasan inextricable part of the state’s proof of the charged offenses. Relevant evidence necessary to establish elements of the crime charged is not rendered inadmissible merely because the evidence involves the commission of another crime. State v. Anderson, 343 So.2d 135 (La.1977); State v. Bell, 315 So.2d 31 (La.1975).

These assignments of error lack merit.

Assignment of Error No. 10

In this assignment of error, the defense argues that the trial judge committed reversible error during the charging of the jury when he inadvertently stated that the defendant was on trial for aggravated rape. Although the defense argues that this slip of the tongue severely prejudiced Dupre, the record demonstrates that the judge eliminated any possible prejudice by immediately correcting himself and by correctly charging the jury on the applicable law.

This assignment is without merit.

Assignment of Error No. 8

In this assignment the defense contends that the trial court was in error to deny a motion for mistrial. The assignment was taken because of reference made, during cross-examination of a psychiatrist testifying for the defense, to charges pending against the defendant for aggravated rape:

“Q Okay, now, this is the information, all the history on him you received from him, not from another source?
A That’s correct.
Q So you don’t have any independent way of knowing whether or not he told you the truth or not?
A No, I don’t have.
Q And you base your opinion upon what this man who’s charged with aggravated rape and aggravated kidnapping told you himself?
A Yes.”

The defense did not object to this last question until two pages later in the transcript.

Although the credibility of a witness may be impeached only by evidence of conviction of crime, and not by arrests, indictments, or prosecutions, R.S. 15:495; State v. Hatch, 305 So.2d 497 (La.1974), evidence of arrests or pending charges is admissible if it has relevance independent of its impeachment value. State v. Ledet, 345 So.2d 474 (La.1977); State v. Robinson, 337 So.2d 1168 (La.1976). In the instant case the aggravated rape mentioned by the prosecution was part of the same occurrence for which the defendant was charged. Dr. Steele testified that Dupre was a chronic undifferentiated schizophrenic and based this opinion in part on the defendant’s confused account of the incidents in question and his apparent lack of motive for committing the crimes. However, the doctor admitted that the only information he relied on was supplied to him by the defendant. The prosecution was certainly entitled to emphasize to the jury the limited basis of Dr. Steele’s opinion and to question the expert to determine whether his opinion of Dupre’s condition would be changed if he was aware of the defendant’s more coherent statements to the police and of his purpose in abducting his victims. Therefore, reference to the aggravated rape was relevant to test the opinion of the defense’s expert witness.

This assignment of error lacks merit.

Assignment of Error No. 5

By this assignment of error, the defense contends that the trial court erred in admitting in evidence an oral inculpatory statement made by the defendant to the Baton Rouge police on April 6, 1976. The defense argues that the statement was inadmissible because it was made while the defendant was under duress.

Deputy Kearney Foster of the Livingston Parish sheriff’s office arrested the defendant at his mother’s house in Metairie at approximately 1:50 a. m. on April 6, 1976. The defendant was initially taken to the Jefferson Parish sheriff’s office where he made a brief statement. Foster then went with Dupre to his mother’s house where the defendant surrendered the gun used in the abductions. They then drove to Livingston Parish where the defendant again confessed at 5:00 a. m. A transcription of the recorded confession was signed by the defendant. At 1:30 that afternoon the defendant was interviewed in Livingston Parish by Sergeant Julius O’Brien of the Baton Rouge police and made an oral statement which was subsequently tape recorded.

The defense takes the position that the statement made to Sergeant O’Brien was a result of the defendant’s fatigue which was caused by the prolonged interrogation conducted by the Livingston Parish authorities between 1:50 and 5:00 a. m. However, although the prosecution laid a predicate for the introduction of the statement, the record reveals that only the earlier statement made to Deputy Kearney Foster was introduced at trial. Therefore, any possible infirmities in the statement given to Officer O’Brien are irrelevant to this prosecution. With respect to the statement introduced at trial, we note that the state adequately carried its burden .of showing the statement’s voluntary nature, R.S. 15:451; C.Cr.P. 703, and that it was made after the defendant was informed on his Miranda rights. State v. Adams, 347 So.2d 195 (La.1977).

This assignment has no merit.

Assignment of Error No. 11

By this assignment of error the defendant contends that the trial judge erroneously charged the jury concerning the defense of insanity. The defense did not offer special instructions at trial and in brief does not specify its objections to the charge.

The record reveals that the trial judge's charge consisted of a reading of the relevant statute. R.S. 14:14, combined with language drawn from the McNaughten case concerning defect of reason and disease of the mind. In light of the continuing validity of the McNaughten rule in Louisiana, State v. Berry, 324 So.2d 822 (La.1976), it is clear that the trial judge correctly charged the jury on this issue.

This assignment lacks merit.

Assignment of Error No. 12

In this assignment of error the defense argues that the trial court’s charge concerning the relinquishment of anything of value was erroneous and prejudicial.

In its general charge, the trial court addressed the issue whether sexual relations constituted anything of value within the meaning of the aggravated kidnapping statute. In this context, the court stated:

“It’s further the law of this state that the forcing of a woman through threats to have sexual intercourse with the accused or to perform a sexual act in the presence of the accused for his own sexual gratification is an act that falls within the statute defining extortion as the communication of threats to another with the intent thereby to obtain anything of value or any acquittance, advantage, or immunity. Those words in the extortion statute are almost the same words that appear in the aggravated kidnapping statute. It is the law applicable to this case because the official comments under the aggravated kidnapping statute refer to it as cases where there is a forcible carrying of a person from one place to another and such kidnapping is done for the purpose of ransom with the intent to extort. Our Supreme Court has defined the words, (sic) extortion, in the manner that I have just read to you.”

The defense contends for the first time in brief that the proper definition of the phrase “anything of apparent present or prospective value” in the aggravated kidnapping statute is the general definition of “anything of value” provided in R.S. 14:2(2):

“ ‘Anything of value’ must be given the broadest possible construction, including any conceivable thing of the slightest value, movable or immovable, corporeal or incorporeal, public or private, and including transportation, telephone and telegraph services, or any other service available for hire. It must be construed in the broad popular sense of the phrase, not necessarily as synonymous with the traditional legal term ‘property.’ In all cases involving shoplifting the term ‘value’ is the actual retail price of the property at the time of the offense.”

This court has repeatedly held that a jury charge must be considered as a whole, and has declined to reverse a conviction on the ground of an erroneous instruction unless the disputed portion, when viewed in light of the entire charge, is erroneous and prejudicial. State v. Dardar, 353 So.2d 713 (La.1977); State v. George, 346 So.2d 694 (La. 1977). Here the trial judge did not misstate the law when he informed the jurors that sexual relations were considered something of value for purposes of the extortion statute, R.S. 14:66; see State v. Felton, 339 So.2d 797 (La.1976), and was correct in stating that the terms used in the extortion statute are similar to those in the statute defining aggravated kidnapping. Although it would have been preferable to have read the general definition of “anything of value” as provided in R.S. 14:2(2), it should be noted that the general definition is extremely broad and would appear to cover the situation before the court. Therefore, we conclude that the defendant was not prejudiced by the trial court’s failure to read this definition.

This assignment of error lacks merit.

For the reasons assigned, the conviction and sentence of James Michael Dupre are affirmed.

      . The defense objected to the references to the aggravated rape in the state’s prospective opening statement (Assignment of Error No. 2) and in the state’s opening statement (Assignment of Error No. 3). Assignment No. 7 was taken when evidence of the aggravated rape was introduced.

      . The state’s theory was similar for the second count — that the defendant would have raped the teenagers if the girls had not escaped at the convenience store.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Virgil PUGH.
    No. 63208.
    Supreme Court of Louisiana.
    April 9, 1979.
    Joseph T. Dalrymple, Antoon, Dalrymple & Beck, Alexandria, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Donald T. Johnson, Asst. Dist. Atty., for plaintiff-respondent.
   BLANCHE, Justice.

We granted defendant’s writ application wherein he seeks relief from denial of a motion to quash six bills of information. We have before us the question of whether the charge of vagrancy by being an habitual drunkard is one which is constitutionally sound.

Defendant was arrested a number of times during the summer of 1978 upon complaints made to police about his conduct. The complaints were made by his neighbors and by his mother and brother. He was charged in six bills of information, each charging him with a violation of LSA-R.S. 14:107(1), vagrancy by being an habitual drunkard. Defendant filed a motion to quash the bills of information, but it was denied by the trial judge. Defendant then applied to this Court.

Defendant argues that the statute under which he was charged is, on its face, over-broad and vague, that it violates his right to privacy, and that punishment under it would constitute cruel and unusual punishment. He claims that the statute is unconstitutional under the constitutions of both the United States and Louisiana.

R.S. 14:107 states, in relevant part:

“The following persons are and shall be guilty of vagrancy:
“(1) Habitual drunkards . . . .”

Lanzetta v. New Jersey, 306 U.S. 461, 59 S.Ct. 618, 83 L.Ed. 888 (1939), applies the test of vagueness which had been articulated in the earlier case of Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). In Lanzetta the Court, quoting Connally, found that the language-of a statute

“. . . must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties[.j [This] is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law[.] [A]nd a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” (306 U.S. at 453, 59 S.Ct. at 619, 83 L.Ed. at 890)

Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), deals with a conviction on the basis of a status or chronic condition. In ruling on the statute in that case the court said:

“This statute, therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the ‘status’ of narcotic addiction a criminal offense, for which the offender may be prosecuted ‘at any time before he reforms.’ .
“It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” (370 U.S. at 666, 82 S.Ct. at 1420, 8 L.Ed.2d at 762, 763)

The court went went on to find that the punishment under the statute constituted cruel and unusual punishment as prohibited by the Eighth Amendment.

In Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), the court distinguished Robinson from the situation it found in Texas, where the punishment was for conduct, not status. In Powell the court said:

“On its face the present case does not fall within that holding, since appellant was convicted, not for being a chronic alcoholic, but for being in public while drunk on a particular occasion. The State of Texas thus has not sought to punish a mere status, as California did in Robinson ; nor has it attempted to regulate appellant’s behavior in the privacy of his own home. Rather, it has imposed upon appellant a criminal sanction for public behavior which may create substantial health and safety hazards, both for appellant and for members of the general public, and which offends the moral and esthetic sensibilities of a large segment of the community. This seems a far cry from convicting one for being an addict, being a chronic alcoholic, being ‘mentally ill, or a leper . . . (392 U.S. at 532, 88 S.Ct. at 2154, 20 L.Ed.2d at 1267—Emphasis added) ingful biochemical, physiological or psychological sense, or whether it represents one peculiar manifestation in some individuals or underlying psychiatric disorders.

This Court has given similar treatment to the question of vagueness of a statute so as to render it constitutionally infirm in Connick v. Lucky Pierre’s, 331 So.2d 431 (La.1976). See also State v. Gisclair, 363 So.2d 696 (La.1978).

We find that the statute in question here, R.S. 14:107(1), is one which is vague (by reason of being overbroad) and one which seeks to punish status, rather than actions, so as to render any punishment thereunder cruel and unusual.

R.S. 14:107(1) does not set out any guidelines or definitions as to what constitutes habitual drunkenness and who may be classified as an habitual drunkard.

As to people, does it apply to the skid row bums, the after-work beer drinkers, the three-martini luncheon executives, the “TGIFers” at or about five o’clock on Friday afternoon in some local bar, or does it just apply to the Virgil Pughs of the world who may be either a “gamma” or “delta alcoholic” and who was accused not too long ago of thrashing his mother’s flowers with a golf club. As to frequency, does the statute proscribe against those who are “crocked” all the time or possibly those who down a couple of six packs watching weekend football on television from their favorite armchair? Furthermore, the above examples do not distinguish between public and private behavior and neither does the statute.

Accordingly, it may be seen that much imagination is involved as to how one would avoid the offense as well as to how or whom prosecutors should charge for violating the same.

Because of the nature of its vagueness and overbreadth, the statute imposes punishment even if every act with which the accused is charged is unproven. This is so because what the statute seeks to punish is not action but rather a status. No one would doubt the cruelty of punishing lepers, and the same is true of alcoholics, which we imagine the statute must have had in mind when it declared a vagrant to be an habitual drunkard. Thus, we hold that the statute violates the constitutional ban against cruel and unusual punishment as set forth in Robinson, supra.

DECREE

For these reasons, judgment is rendered declaring LSA-R.S. 14:107(1) to be constitutionally defective. It is further ordered adjudged and decreed that the ruling of the district court denying defendant’s motion to quash the six bills of information charging him with a violation of LSA-R.S. 14 — 107(1) is hereby reversed and the matter is hereby remanded to the district court with orders to discharge the defendant.

“Nor is there any substantial consensus as to the ‘manifestations of alcoholism.’ E. M. Jelli-nek, one of the outstanding authorities on the subject, identifies five different types of alcoholics which predominate in the United States, and these types display a broad range of different and occasionally inconsistent symptoms. Moreover, wholly distinct types, relatively rare in this country, predominate in nations with different cultural attitudes regarding the consumption of alcohol. Even if we limit our consideration to the range of alcoholic symptoms more typically found in this country, there is substantial disagreement as to the manifestations of the ‘disease’ called ‘alcoholism.’ Jelli-nek, for example, considers that only two of his five alcoholic types can truly be said to be suffering from ‘alcoholism’ as a ‘disease,’ because only these two types attain what he believes to be the requisite degree of physiological dependence on alcohol. He applies the label ‘gamma alcoholism’ to ‘that species of alcoholism in which (1) acquired increased tissue tolerance to alcohol, (2) adaptive cell metabolism * *, (3) withdrawal symptoms and “craving,” i. e., physical dependence, and (4) loss of control are involved.’ A ‘delta’ alcoholic, on the other hand, ‘shows the first three characteristics of gamma alcoholism as well as a less marked form of the fourth characteristic — that is, instead of loss of control there is inability to abstain.’ Other authorities approach the problems of classification in an entirely different manner and, taking account of the large role which psychosocial factors seem to play in ‘problem drinking,’ define the ‘disease’ in terms of the earliest identifiable manifestations of any sort of abnormality in drinking patterns.” (88 S.Ct. at 2149)

REVERSED AND REMANDED.

      . U.S.Const. Amends. 5, 8 and 14.

      . LSA-Const. Art. 1, §§ 2 and 20.

      . In Powell v. Texas, supra, the Supreme Court _ observed:
      “. . . [T]here is widespread agreement • today that ‘alcoholism’ is a ‘disease,’ for the simple reason that the medical profession has concluded that it should attempt to treat those who have drinking problems. There the agreement stops. Debate rages within the medical profession as to whether ‘alcoholism’ is a separate ‘disease’ in any mean-


author: BLANCHE, Justice. TATE, Justice,

text:
    David H. MASSEY v. Wayne P. PARKER, Registrar of the Bureau of Vital Statistics of the City of New Orleans.
    No. 63222.
    Supreme Court of Louisiana.
    April 9, 1979.

      H. M. Westholz, Jr., New Orleans, Dept, of Health & Human Resources,.for defendant-applicant.
    Robert E. Winn, J. David Forsyth, Sessions, Fishman, Rosenson, Snellings & Bois-fontaine, New Orleans, amici curiae for Assoc. Catholic Charities of N. O., Inc.; Adoptive Couples Together, Inc., an N. 0. Right to Life Assoc.

      Gerald R. Cooper, New Orleans, for David H. Massey.
   BLANCHE, Justice.

The Registrar of the Bureau of Vital Statistics of the City of New Orleans, defendant in this case, seeks to have this Court overturn or modify the ruling which gave plaintiff complete access to records dealing with his adoption. We granted writs to consider questions raised by this decision. Massey v. Parker, 362 So.2d 1195 (La.App. 4th Cir. 1978), writ granted 363 So.2d 1385 (La.1978).

Plaintiff was born in New Orleans in November of 1945 and was adopted in New Orleans in proceedings made final in May of 1947. The files relating to the adoption, possibly including the original birth certificate, were sealed and placed in the Archives of the Bureau of Vital Statistics. Plaintiff sought a court order to see his original birth certificate and judgment of adoption. In his petition he asserted three reasons for which he should be permitted to see the sealed records: “to ascertain his inheritance rights if any; determine the bequests he will make from his own estate; and provide for his natural parents should they be found in necessitous circumstances.” Plaintiff also has asserted his desire to know the identity of his natural parents.

Plaintiff sought relief by mandamus. A hearing was held, and the district judge granted the relief requested by ordering defendant to produce the original birth certificate and judgment of adoption for plaintiff’s inspection. Defendant moved for a new trial. He argued among other things that plaintiff’s blood parents were indispensable parties to this litigation, since their right to privacy could be affected, and that there were some parties who wished to intervene in the proceedings. A representative of potential intervenors also filed an affidavit urging that a new trial be granted. A new trial was granted, but no inter-venors or other parties made an appearance; the court rendered another verdict for the plaintiff and ordered that the records be opened to him. In his reasons for judgment the district judge quoted from Chambers v. Parker, 349 So.2d 424 (La.App. 4th Cir. 1977), writ den. 351 So.2d 170 (La. 1977) , and R.S. 40:81, as it read before the “compelling reasons” language was added to said statute. He concluded:

“The compelling reason in this case is the fact that Mr. Massey desires to ascertain if he has any inheritance rights. Also, he is ready to aid his biological parents, if they are in need of financial help.”

Defendant appealed. Amici curiae filed a brief on appeal. The Court of Appeal for the Fourth Circuit held:

“. . . [Tjhat an adopted person’s right of inheritance from his natural parents, as recognized by Civil Code Article 214 is a ‘compelling reason’ for allowing the adopted person to examine his original certificate of live birth.” Massey v. Parker, supra at 1198.

Judge Schott dissented and stated:

“Under the present statute, however, there must be a judicial determination on two issues before the sealed package is ordered opened. First, the court must determine if the applicant’s reasons are ‘compelling’ and, second, the court must determine to what extent the package is to be opened in order to satisfy the ‘compelling necessity.’
“In this case I believe that a proper adjudication was not made of these issues.” supra.

In particular, Judge Schott noted that he felt the mother was a real party at interest who ought to be represented by a curator, since she could have compelling reasons of her own to protect her privacy; because of this, the “compelling necessity” which the plaintiff could show would have to be limited if it would infringe on her rights.

The right to inherit from blood relatives was the basis for the decision in this case in both the district court and the court of appeal; each court found that this right which the law gives to adopted persons constitutes a compelling reason to allow plaintiff to view the sealed records. The trial court did not apply the statute as amended in 1977; the appellate court did. R.S. 40:81, as amended by Acts 1977, No. 659, stated:

. . This sealed package may be opened only on the order of a competent court either upon its own motion, or upon the demand of the adopted child or the adoptive parent, or the state registrar, for compelling reasons and only to the extent necessary to satisfy such compelling necessity.”

This Court granted defendant’s writ application. Both defendant and amici filed briefs and argued before us, urging either reversal of the decision below or such modification as would limit the inspection of the sealed records to that portion absolutely necessary to assure plaintiff his inheritance rights.

Within the last few years there has been considerable development of the laws relative to adoption and the treatment of adoption records, including the original birth certificate of the child. Earlier legislation is outlined in Chambers v. Parker, supra. More recent development has followed cases which dealt with adopted persons who sought to see sealed records, usually asserting the ascertaining of inheritance rights as the reason to have the records opened. The present case is the first in which this Court has granted writs. This is the latest of the cases and is one which comes after legislation requiring that a compelling reason be shown for opening the sealed records. Since 1977 the law has contained the proviso that the sealed records may be opened “only to the extent necessary to satisfy such compelling necessity.” In the revision enacted in 1978 additional provisions are made:

«§ g"^ * * *
“In satisfying the requirement that information shall be revealed only to the extent necessary to satisfy the compelling necessity shown, the court is authorized to use the services of a curator-ad-hoc appointed pursuant to Article 5091.2 of the Louisiana Code of Civil Procedure.” Acts 1978, No. 450.

Article 5091.2 is also added to the Code of Civil Procedure to provide for the curator. Acts 1978, No. 450, § 3.

Amici have argued that the changes in the statute requiring the showing of a compelling reason and the provision for the appointment of a curator ad hoc ought to be retroactive as being remedial, as being legislation dealing with procedures rather than with substantive rights, or as further explaining or clarifying what was already in the law. Defendant and amici also have argued that the most recent legislation is intended to explain how the court must proceed and what the court must consider in determining whether to permit examination of the sealed records and to what extent examination will be permitted. We believe the changes in the statutes are designed to explain the law in light of the several court of appeal decisions and to clarify the factors to be considered by a court before it orders opening of the sealed records; the statutes as amended give guidelines and additional procedures to the courts to enable them to make a determination of when records shall be opened and the extent to which they shall be opened. We are further persuaded of the legislative intent in enacting the revisions by considering that the 1978 enactment itself makes provision for a retroactive application:

“§ 80. ■
“The provisions of R.S. 40:78, 79, and 81 and R.S. 9:437 shall all apply to adoption decrees rendered at any time, prior to, as well as after, the effective date of this Chapter.’.’ Acts 1978, No. 450.

The legislature has indicated that, even when a “compelling necessity” is found, there are other factors which must be considered in determining to what extent information contained in sealed records will be disclosed.

Since 1938 the statutes have required that the records of adoptions be sealed with only limited access permitted. Initially the blood parents, the adoptive parents, and the adoptee had an unqualified right to see the records, then the blood parents were removed from the list of those to whom access would be given. In 1948 access was restricted to follow only from a court order.

Under the law of Louisiana it is clear that a person who is adopted retains the right of inheritance from blood parents and other blood relatives. LSA-C.C. art. 214; La.Const. art. 12, § 5 (1974). This right which the law gives an adopted person may constitute a compelling reason for the opening of the sealed records. Plaintiff has argued that obligations he may owe to his blood parents can constitute a compelling reason, but we find none to be compelling as there are no obligations owed by law. LSA-C.C. art. 214.

If those blood relatives from whom plaintiff could inherit are living in Louisiana or own immovable property in Louisiana, there is the potential for inheritance rights to exist. No rights to an estate can exist until there is an estate to be inherited. LSA-C.C. arts. 978, 979, 984; nor can any rights exist unless the blood relatives have lived in or owned immovable property (or other property) in a state which requires that plaintiff inherit. This being so, it must be established first whether there is in fact any estate to which plaintiff has a claim. In order to do this, there is no compelling necessity that plaintiff see the sealed records, but there is a compelling reason for the court to examine the records. In doing so, the court must be aware that others than plaintiff have a possible interest in the records which have been sealed. In this case, it could be that the blood parent (or parents) who gave the child up for adoption was assured of permanent anonymity, or has some real expectation of anonymity based upon the sealing of the records; that either or both may have a right to personal privacy which includes a right to remain anonymous is a possibility which must be recognized and dealt with by the court.

Given the circumstances of this case, and because of the lack of information which the district judge had on which to base a ruling, it is ordered that the decision below be reversed and the case be remanded for the appointment of a curator ad hoc in accordance with law. Acts 1978, No. 450. The curator shall be ordered to look into the records which have been sealed; he shall determine if the blood parents or other blood relatives are named. If not, there is no further relief which can be granted. If one is named, or if more than one are named, the court, aided by the curator, must make the further finding of whether there are any inheritance rights which presently exist. If there are, then the court shall have to determine a means by which plaintiff’s rights may be assured, giving full consideration to protecting the confidentiality which may have been guaranteed to the blood parent or parents. It may be decided at this point that the parents are indispensable parties who must be joined or represented (either by counsel or by a curator) in the proceedings. LSA — C.C.P. arts. 641, 644-646, 927. Such a determination cannot be made at the present time.

In any steps which are taken, the utmost discretion and confidentiality must be observed; the situation is not one in which plaintiff alone could have rights which the law will protect; the parents’ (and other relatives’) right to privacy is a right which must be recognized and protected as long as it is insisted upon. There also may be an obligation owed the parent or parents arising from an agreement between one or both of them and those acting for the state or the adoption agency at the time plaintiff was given up for adoption. There may be an obligation implied from the acts of the parties at the time of the adoption. Any such obligation cannot be breached without giving the parties a right to be heard and making provision for the exercise of their rights while at the same time assuring the protection of plaintiff’s right to inherit.

DECREE

IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that the judgment of the district court ordering Wayne P. Parker, Registrar of the Bureau of Vital Statistics of the City of New Orleans, to produce the original birth certificate and judgment of adoption of David H. Massey for inspection be recalled and set aside.

IT IS FURTHER ORDERED that the case be remanded to the district court and the trial judge is hereby directed to appoint a curator ad hoc in accordance with law, directing said curator to examine the adoption record which has been sealed and to make such investigation and findings of fact as necessary to determine whether a compelling reason exists for the opening of said record to the said David H. Massey and the extent which said examination by the said David H. Massey shall be permitted to satisfy said compelling reasons; and more particularly, to report back to the court his findings of fact relative to whether there were any rights of inheritance by the said David H. Massey from his blood parent or parents and whether any right to privacy or anonymity exists, either express or implied, in favor of said parents based on the sealing of said record, and if so, whether said parents have a right to be heard, insuring at the same time the rights of said parent or parents and insuring the protection of the rights of the said David H. Massey, all in accordance with the views hereinabove expressed.

REVERSED AND REMANDED.

TATE, Justice,

dissenting.

I respectfully dissent.

The scholarly majority opinion, as I apprehend it, recognizes that an adopted child’s right of inheritance from his natural parents, Civil Code Article 214, furnishes a “compelling reason” within the meaning of the statutory phrase. La.R.S. 40:81 A (1977). By reason of this compelling need, a competent court, upon motion of an adopted child, is permitted to open the original certifícate of his birth (sealed following his adoption) in order to ascertain the child’s natural parents. Nevertheless, the present adopted child is not permitted to ascertain his true parentage.

The majority opinion, in its excellent reasoning, feels that through the appointment of a curator ad hoc, La.C.Civ.P. art. 5091.2 (1978), the court may ascertain if there are blood relatives living in or owning immovable property in Louisiana, so that the potential for inheritance rights exists. The curator may also ascertain whether the blood parent(s) had some real expectation of anonymity or right to personal privacy which should possibly be respected.

The remedy so authorized by statute is chimerical.

Leaving aside the questions of diligence and thoroughness of representation inherent in the often perfunctory appointment of a curator at low fee, the best that might be ascertained is that, at a given point in time, the natural parent living in Louisiana possesses no property. It does not negate that the parent will acquire some thereafter. Must the adopted child bring suit again and again to re-investigate the issue, in order to vindicate his inheritance rights protected for him by our law when, without his consent, he is detached from his family and placed in a new family?

Again, the mere circumstance that his blood parents have moved from Louisiana does not deprive the adopted child of his right to inherit from them by intestacy, whether the intestacy occurs in Louisiana or elsewhere. The adoption in Louisiana vests the child with his inheritance rights from his natural parents, C.C. art. 214, and these inheritance rights are not limited to those of forced heirship nor necessarily to those provided by Louisiana law (should the blood parents have moved to another state).

The right of inheritance from one’s own blood family is regarded by our law as not divestible from the child by his parents, if they surrender him for adoption. Civil Code Article 214. Nor can civil acts of human societies deprive a child of his ancestry and his membership by blood and descent in a family group — a family membership founded on unalterable laws of nature, which imparts to the individuals of the blood family a sense of the present self as forming an integral part of a greater whole of family continuing from the immeasurable past through the individual into the immeasurable future.

The statute states that the adopted child’s birth certificate may be opened, for compelling reasons, on the demand of the adoptive parents or of the department, as well as of the adopted child. La.R.S. 40:81 A (1977). The compelling need of the adoptive parents or of the department for such information may, indeed, be ascertained through the mechanism of a curator ad hoc, for these parties’ reason may indeed be outweighed by the natural parents’ interests in maintaining their privacy.

In my opinion, however, the compelling need of the child to know his own parents, both for economic reasons of inheritance and for the emotional sense of wholeness with the past to which all individuals should be entitled, will always outweigh the interest of the blood parents in hiding their parentage from the child. Whatever the merits of the blood parents’ interests, in my opinion the compelling need of the child— born through the laws of nature and of God to his blood parents, divested of his parents through no choice of his own, innocent of any blame whatsoever — must always outweigh those interests of the parents to hide from their child and others the unalterable fact of their parentage through which they brought into this world their child.

I would affirm the court of appeal majority and the trial court. Therefore, I must respectfully dissent from my brothers of the majority, as persuasive and as intelligent is their opinion.

TATE, J., dissents and assigns reasons.

DIXON, J., dissents and would affirm.

CALOGERO, J., dissents. The Court of Appeal was correct.

      . “Legislative intent to preserve inheritance rights to adoptee excludes, as inconsistent, any interpretation which would prevent adoptee from learning identity of those from whom he is to inherit. [LSA-R.S. 9:402, 40:79, 40:81, 40:205, 40:206, 40:209, subd. A; LSA-C.C. art. 214.]” [sic] See Chambers v. Parker at 426.

      . “. . . This sealed package shall be opened only on the order of a competent court either upon its own motion, or upon the demand of the adopted child or the adoptive parent, or the state registrar.” This is the wording of the statute as it was amended through 1976 (see Acts 1976, Number 352), which did not include the “compelling reasons” language; this was not part of R.S. 40:81 until the amendment in 1977.

      .The representative for amici filed briefs on behalf of Associated Catholic Charities of New Orleans, Inc., Adoptive Couples Together, Inc., and New Orleans Right to Life Association.

      . Similar language was included in R.S. 40:79, as amended by Acts 1976 No. 352; this was made retroactive by R.S. 40:80, though no similar retroactivity was included for R.S. 40:81 in the legislation passed in either 1976 or 1977.

      . Present legislation is to be found primarily in R.S. 9:402, R.S. 9:421-441, R.S. 40:32-81, and R.S. 46:65(G). Attention is also called to the Acts of the Legislature in the following sequence: Acts 1932, No. 46; Acts 1936, No. 233; Acts 1938, No. 428; Acts 1940, No. 269; Acts 1942, No. 154; Acts 1948, No. 228; Acts 1976, No. 352; Acts 1977, No. 659; and Acts 1978, No. 450.

      .The recent cases, following which there have been three years of legislative revision, are: Spillman v. Parker, 332 So.2d 573 (La.App. 4th Cir. 1976); Chambers v. Parker, supra; Larned v. Parker, 360 So.2d 906 (La.App. 4th Cir. 1978); and the current case of Massey v. Parker, Court of Appeal decision cited supra.

      . Acts 1938, No. 428 made this provision. Also note Acts 1936, No. 233 which required that a separate book be kept and that access to this book was only by court order.

      . Acts 1948, No. 228; cf. also Acts 1936, supra note 7.

      .Depending upon the facts in each particular case, other laws and jurisprudence may be applicable, in addition to the general requirements.

        Records: An Examination, 52 Tul.L. 10. See generally, Comment, Confidentiality of Adoption Rev. 817 (1978).

      . In this day of universal credit, however, it is unlikely that any person possesses absolutely no property, whether land or a television set or an automobile or an interest in a community— nor is forced heirship restricted to immovable property, as suggested by the majority opinion.

      . Insofar as the relators argue that adoptions might be discouraged if the natural parents fear that their child may later learn their identity, it is sufficient to point out that for several decades an adoptive child has had the right to learn his parentage (before the recent 1977 amendments to the statute), without noticeable effect on inhibiting adoptions.
      Further, the adoptive child will rarely himself move until after he is an adult to learn through court proceedings his parentage (in the relatively few number of instances when he has the interest and dedication to do so), and it might be argued that the social values involved in protecting the anonymity of the blood parents are adequately served by preserving their identity for the first twenty years of their child’s life.


author: DENNIS, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Arthur H. GREENWALD.
    No. 63226.
    Supreme Court of Louisiana.
    April 9, 1979.

      John Wilson Reed, Robert Glass, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William E. Wynne, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

The defendant, Arthur Greenwald, pleaded guilty to simple possession of cocaine, La.R.S. 40:967(C), reserving his right to appeal from the denial of his motion to suppress, State v. Crosby, 338 So.2d 584 (La.1976), and was placed on probation for fifteen months, without a judgment of guilt, La.R.S 40:983, upon the condition that he pay a fine of $5,000 and contribute $1,000 to the court’s restitution fund.

One morning a young woman stopped her automobile in front of a New Orleans Harbor Police patrol car which was parked across from the Chef Menteur bridge office. She ran to the building, knocked on the door and reported to the officer on patrol that the passenger in her car, who was probably armed with a gun, had threatened her life and had narcotics in his possession. She added that other persons in four or five cars had chased her from Florida attempting to kill her.

As the officer returned to the car with the woman, he observed nothing unusual about the vehicular traffic on the bridge. He saw Greenwald, who was seated on the front passenger side, lean downward toward the floorboard. The officer, who was armed, commanded Greenwald to get out of the car and place his hands on top of its roof. When the defendant complied the officer frisked him but found no weapon. The officer observed a burlap type bag inside of the car on the passenger floorboard. Although the evidence is sketchy, it appears from the record that at this time the defendant was away from the passenger door, out of reach of the burlap bag, and that the bag was tied at its top. Without drawing his revolver, the officer ordered the defendant to pick up the bag ¿nd empty its contents on the ground. When the bag was emptied no gun was found, but the officer saw two amber vials with black tops. The officer called for a narcotics officer and detained Greenwald for ten minutes awaiting his arrival. The narcotics officer opened the vials and discovered that they contained a white powdery substance, which appeared to be cocaine. Greenwald was then placed under arrest for possession of narcotics.

After a hearing on defendant’s motion to suppress, the trial court approved the search of the burlap bag and denied the motion to suppress the two vials found. The defense concedes that the officer had reasonable cause to require Greenwald to step from the automobile, submit to a search of his outer clothing for the protection of the officer and submit to reasonable questioning by the policeman. However, the defendant contends that the officer’s actions in requiring the defendant to dump the contents of the burlap bag on to the ground exceeded the limited protective seizure and search for weapons under the Fourth Amendment, in the interest of the police officer and others nearby.

The police officer was certainly justified in responding to his informant’s tip. While the Supreme Court decisions indicate that an unverified tip is insufficient for a narcotics arrest or a search warrant, even when the informant is known to the officer, see, e. g., Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the information carried enough indicia of reliability to justify the officers’ forcible stop of the defendant. See, Adams v. Williams, 407 U.S. at 147, 92 S.Ct. at 1924, 32 L.Ed.2d at 617.

However, nothing resembling probable cause existed until after the search had turned up the amber vials with black tops. It is axiomatic that an incident search may not precede an arrest and serve as part of its justification. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Thus, the search cannot be justified as incident to a lawful arrest.

If the officer lacked probable cause for an arrest, however, his seizure and search of the defendant’s person and possessions might still have been justified, since he had reasonable grounds to believe that the defendant was armed and dangerous, if the nature and scope of the search conducted were related to that justification. See, Sibron v. New York, 392 U.S. at 63, 88 S.Ct. at 1903, 20 L.Ed.2d at 936.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court recognized that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Id., 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906-07. Furthermore,

“[wjhen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” Id. 392 U.S. at 24, 88 S.Ct. at 1881, 20 L.Ed.2d at 908.

But the sole justification for such a limited protective search for concealed weapons is the protection of the police officer and others nearby, and it must therefore be confined in scope to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. Id. 392 U.S. at 29, 88 S.Ct. at 1884, 20 L.Ed.2d at 911.

The nature and scope of the search of the burlap bag conducted by the officer in this case were so clearly unrelated to a limited protective search for concealed weapons as to render the amber vials of cocaine inadmissible. The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched. In the instant case a patting of the defendant’s clothing did not uncover the presence of a weapon-like object. The defendant was standing outside the car with his hands on its roof out of reach of the burlap bag which was inside the vehicle with its top tied. The officer was armed and obviously in control of the situation. At this point he would have been justified in doing no more than questioning the defendant about the information that had been supplied by the woman. Instead, without any necessity to do so for the protection of himself or others, the police officer forced the defendant to pull the burlap bag from the car, open it and empty, its contents on the street. The search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception—the protection of the officer by disarming a potentially dangerous man. Such a search violates the guarantee of the Fourth Amendment, which protects the sanctity of the person against unreasonable intrusions on the part of all government agents. See, Sibron v. New York, 392 U.S. at 65-66, 88 S.Ct. at 1904, 20 L.Ed.2d at 936.

The trial court fell into error in its refusal to suppress the inadmissible evidence. The defendant’s conviction and disposition based thereon must be reversed and the ease remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

SUMMERS, C. J., and BLANCHE, J., dissent.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

Officer had at least implied consent from the alleged victim to search her automobile. In any event, under the facts here presented, I do not consider the search and seizure of the burlap bag to have been “unreasonable” within the meaning of our state and federal constitutions. Hence, the trial judge did not err in denying the motion to suppress.

Accordingly, I respectfully dissent.