author: DIXON, Justice. TATE, Justice

text:
    STATE of Louisiana v. Harriet Marie JACKSON.
    No. 57307.
    Supreme Court of Louisiana.
    May 17, 1976.
    Rehearing Denied June 18, 1976.
    Ronald J. Rakosky, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. C. Fal-kenheiner, Dist. Atty., for plaintiff-appel-lee.
   DIXON, Justice.

Defendant was indicted, tried and convicted of aggravated burglary, a violation of R.S. 14:60. She was sentenced to twelve years imprisonment at hard labor. From this conviction and sentence she appeals, raising a single assignment of error.

On July 16, 1973 Dana Ashley Magee, a young baby, was forcefully taken from her home by two armed and disguised men. They also took money and weapons belonging to the Magees, and departed in the Magees’ automobile. They were chased by law enforcement officials and, as a result of this chase, one of the kidnappers was killed and another captured. Ultimately, two other men who had participated were captured. The child was returned unharmed.

Defendant, a part time domestic worker for the Magees, was indicted as a principal because she allegedly allowed two of the kidnappers into the guest residence of the Magee home the day before the kidnapping where they waited until the planned time.

On August 21, 1973 the grand jury for the Parish of Concordia returned true bills against defendant for aggravated kidnapping, armed robbery and criminal conspiracy. She was tried on January 14, 1974 for aggravated kidnapping. After a four day trial, the jury returned a responsive verdict of guilty of simple kidnapping. She was sentenced to five years imprisonment and a fine of $2000.

From her conviction and sentence, she appealed to this court. Due to the erroneous admission into evidence of a confession obtained in violation of her Sixth Amendment right to counsel as announced in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), we reversed and vacated the conviction and sentence. State v. Jackson, 303 So.2d 734 (La.1974).

On remand, the grand jury was again convened, and on April 9, 1975 it returned true bills against defendant for aggravated burglary, armed robbery, and aggravated kidnapping. She was tried on September 15, 1975 on the charge of aggravated burglary. A verdict of guilty was returned and defendant was sentenced to twelve years imprisonment at hard labor with credit for time served.

Defendant’s conviction of aggravated burglary was not barred by double jeopardy due to her earlier but never final conviction of simple kidnapping.

The Fifth Amendment to the federal Constitution provides the following prohibition: “. . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

Similarly, Art. 1, § 15 of the Louisiana Constitution of 1974 provides: “. No person shall be twice placed in jeopardy for the same offense, except on his application for a new trial, when a mistrial is declared, or when a motion in arrest of judgment is sustained.”

In Ball v. United States, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896), the United States Supreme Court held that the effects of double jeopardy do not attach to a conviction overturned on appeal:

“. . . it is quite clear that a defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offence of which he had been convicted. . . . ”

We recognized this principle early. State v. McGarrity, 140 La. 436, 73 So. 259 (1916); State v. Walters, 16 La.Ann. 400 (1862). It is recognized in the language of Louisiana’s current Constitution : “. . . except on his application for a new trial . . . ; ” and the legislature has codified it in C.Cr.P. 591.

Thus, defendant’s conviction for simple kidnapping, reversed on appeal, cannot form the basis for her claim of double jeopardy.

Nor does the doctrine of collateral estoppel prohibit defendant’s second trial. Collateral estoppel applies when an issue of ultimate fact has once been determined by a valid and final judgment; that issue cannot again be litigated between the same parties in any future lawsuit. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

Although defendant appealed her conviction of simple kidnapping, the fact that the jury returned the lesser included verdict to the charge- of aggravated kidnapping constitutes a final acquittal on the more serious charge. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); C.Cr.P. 598. Thus, the ef fects of collateral estoppel apply to those elements which differentiate aggravated kidnapping from simple kidnapping, aspects which are not essential to the crime of aggravated burglary.

However, because of grounds raised by defendant during the motion to quash and at oral argument before this court, our inquiry does not end here.

Defendant contends the increased penalty imposed after her second trial contravened the due process clause of the Fourteenth Amendment. Her argument derives substantially from North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).

In the former case, Pearce successfully attacked his first conviction and the sentence imposed thereunder. On retrial for the same offense, Pearce was again convicted, but a harsher sentence was imposed and no reasons were given for the increase. Concerned that the unexplained increase in sentence might evidence vindictiveness by the sentencing court, the Supreme Court found that this procedure unconstitutionally deterred Pearce’s right to appeal or attack collaterally the first conviction :

“Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” 395 U.S. 711, 725-726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656.

Following North Carolina v. Pearce, supra, there were other similar attacks: Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972); Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); and, more recently, Blackledge v. Perry, supra.

Perry was a North Carolina prison inmate who became involved in an altercation with another inmate and was subsequently charged and convicted of assault with a deadly weapon, classified a misdemeanor. He was sentenced to six months imprisonment to be served after completion of the prison term he was then serving. Under North Carolina law, defendant had a right to appeal by a trial de novo in which the prosecution and defense would begin anew, the former conviction being automatically annulled. After Perry filed his notice of appeal, the prosecutor obtained an indictment changing Perry with the felony of assault with a deadly weapon with intent to kill and inflict serious bodily injury. This indictment covered the same conduct upon which Perry had been convicted in the misdemeanor prosecution. To this increased charge Perry pleaded guilty and a sentence was imposed incarcerating him for seventeen months beyond the expiration of the term he was then serving.

The United States Supreme Court granted writs to decide whether the opportunity for vindictiveness in the Perry situation required a rule analogous to that of North Carolina v. Pearce, supra. Though no evidence was adduced tending to show the prosecutor acted in bad faith, the court noted that the reasoning of Pearce was to avoid the undue “fear of such vindictiveness.” The court held:

“. . .A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.
“Due process of law requires that such a potential for vindictiveness must not enter into North Carolina’s two-tiered appellate process. We hold, therefore, that it was not constitutionally permissible for the State to respond to Perry’s invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.” 417 U.S. 21, 28-29, 94 S.Ct. 2098, 2102-2103, 40 L.Ed.2d 628.

The court further said that “the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of ‘vindictiveness.’” (417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628).

In the case before us we find no such likelihood of vindictiveness. In basing defendant’s second trial on the aggravated burglary count rather than the simple kidnapping count the prosecutor was not “raising the ante” because defendant had taken a successful appeal; he was making essentially the same selection he might have made had defendant’s appeal been unsuccessful.

Also, the glaring defect in the trial court’s action in Pearce and the prosecutor’s action in Perry was the lack of apparent legitimate reason for the increased penalty to which the defendant was or could be subjected.

There was a substantial reason for the prosecutor’s presenting this case to a new grand jury and obtaining new indictments in 1975. The Louisiana Constitution of 1974, effective December 31, 1974, and the repeal of C.Cr.P. 402 by Act 20 of Ex. Sess. of 1974, effective January 1,' 1975, prevented discrimination against women in the composition of juries. New indictments obviated lurking issues about the composition of the grand jury which had returned the original indictment in 1973.

Though at the time of her first trial the defendant before us could have been tried for one offense in one indictment, at the time of her second trial she could have been tried on an indictment containing both the simple kidnapping count and the aggravated burglary count. This would have subjected her to the possibility of a harsher sentence. The fact that the prosecutor chose to try her for only one crime indicates an absence of vindictiveness. The “likelihood of vindictiveness” prohibited in Pearce and Perry is absent from the prosecutorial procedure in the case before us.

Defendant argues that she “is being punished, not for appealing, but for succeeding in her appeal.” The basis of the argument is the assumption that, if Harriet Jackson had permitted the simple kidnapping judgment to become final, the doctrine of double jeopardy would have protected her from a subsequent prosecution for aggravated burglary based on the same evidence and the same conduct.

The argument is hypothetical, and we need not answer it. The kidnapping judgment did not become final. The problem need not arise again, because of the change in our statutory law permitting the joinder of offenses in the same indictment in a‘ separate count for each offense. C.Cr.P. 493 as amended by Act 528 of 1975. Our statutes now permit the joinder of different, but connected offenses in the same bill, and the problem of deciding which of several possible offenses should be first brought to trial, under our procedural statutes, is now answered. The defendant does not argue the joinder of different, related, offenses in one trial is subject to successful constitutional attack.

For these reasons, the conviction and sentence are affirmed.

TATE, J., dissents and assigns written reasons.

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

TATE, Justice

(dissenting).

I respectfully dissent.

The defendant was originally charged with aggravated kidnapping (punishable by life imprisonment), but she was then convicted of simple kidnapping. She was sentenced to five years at hard labor.

Had we affirmed her conviction, she could not have been charged with aggravated burglary (her present conviction, for which she was sentenced to twelve years at hard labor): The burglary was the method by which the kidnapping was committed; the evidence as to the burglary was the identical evidence used to prove a necessary step in the kidnapping conviction; double jeopardy prevents re-trial for a second offense essentially included within the commission of the first offense. State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974).

However, unfortunately for the defendant, her initial conviction of simple kidnapping (for which she received a sentence of five years) was reversed, 303 So.2d 734 (La.1974); for, according to the state’s theory (accepted by the majority), this reversal leaves the state free to prosecute her on the burglary charge in order that she may receive a more severe penalty than the sentence received on her invalidated initial conviction.

Federal and state due process and double jeopardy principles of constitutional basis forbid the state from using a successful appeal as a basis for instituting prosecution for more severe and heavily punishable offenses than that for which she was originally convicted. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1974).

The very purpose of these traditional constitutional restrictions is to prevent the state, when dissatisfied with a jury verdict acquitting of more serious conduct or with a judicial sentence imposed as too light, from recharacterizing the conduct originally charged, in order to try an accused again to secure a heavier penalty (for the same conduct) than that initially imposed. The majority ignores these traditional principles in permitting this prosecution for a more serious offense than that of which the accused was initially convicted, simply because she obtained a reversal of that original conviction on the ground that her constitutional rights had been violated by it.

I respectfully dissent.

      . Defendant’s first trial occurred on January 14, 1974. At that time only one charge could be included in a single bill of indictment or information, unless specifically excepted by statute, and contemporaneously committed crimes could not be charged in separated bills and then consolidated for trial unless the defendant consented and the charges could have been brought initially in a single bill of indictment. State v. Richmond, 284 So.2d 317 (La.1973); C.Cr.P. 491-493, 706.

      . Defendant’s second trial occurred on September 15, 1975. At that time C.Cr.P. 491 and 492 had been repealed, and 493 had been amended to allow such joinder. See Acts 1975, No. 528, effective September 12, 1975.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Larry GLENN.
    No. 57465.
    Supreme Court of Louisiana.
    June 4, 1976.
    George C. Ehmig, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Me-tairie, for plaintiff-appellee.
   PER CURIAM.

Defendant Larry Glenn was charged by bill of information with the simple burglary of a building belonging to Badeaux’s Sup-erette in Marrero, Louisiana on July 28, 1975. La.R.S. 14:62. He was tried by jury on September 12, 1975, found guilty, and subsequently sentenced to two years imprisonment. Relying on one assignment of error, defendant Glenn appeals his conviction and sentence.

Defendant contends that the trial judge erred in failing to grant his motion for a new trial on the basis that the jury was not properly sequestered during its deliberations. C.Cr.P. art. 791. We have carefully considered defendant’s contention and reviewed the record and transcript presented with it. We conclude that the assignment of error lacks merit. Further, we find no errors which are discoverable by a mere inspection of the pleadings and proceedings. C.Cr.P. art. 920.

Accordingly, defendant Glenn’s conviction and sentence are affirmed.

      . Although defendant formally preserved four assignments of error, three of these were specifically waived in his brief.


author: TATE, Justice. CALOGERO, Justice

text:
    STATE of Louisiana, Appellee, v. Edward COOK, Appellant.
    No. 57305.
    Supreme Court of Louisiana.
    May 17, 1976.
    Rehearing Denied June 18, 1976.

      Tilden H. Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of illegal possession of heroin, La.R.S. 40:966(C), and sentenced as a multiple offender, La. R.S. 15:529.1, to twenty years at hard labor. Upon appeal, the single assignment of error relates to the denial of the motion to suppress the heroin seized at the time of the defendant’s arrest and its admission into evidence.

The issue so-raised primarily relates to whether the law enforcement officers had the right to make a forcible stop of the defendant, i. e., whether at the time they had grounds for reasonable suspicion that he had been engaged in or was about to engage in criminal conduct.

(1)

The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.C.Cr.P. art. 215.1 (1968). See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) and succeeding federal and state jurisprudence.

The right to make an investigatory-stop must be based upon reasonable cause sufficient to suspect the detainee of past, present, or imminent criminal conduct. State v. Weathers, 320 So.2d 892 (La.1975); State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970). As these decisions note, the reasonable cause must be determined, under the facts of each case, by whether the officers had sufficient knowledge of particular circumstances sufficient to permit them to infringe upon the individual’s right to be left alone free of governmental interference with his liberty.

If, however, the officers do not have the right to make an investigatory stop, evidence seized or otherwise obtained as the result thereof cannot constitutionally be admitted into evidence against a criminally accused. State v. Truss, 317 So.2d 177 (La.1975); State v. Finklea, 313 So.2d 224 (La.1975); State v. Saia, 302 So.2d 869 (La.1974). This inadmissibility extends to property dropped or abandoned in response to an illegal stop. State v. Lawson, 256 La. 471, 236 So.2d 804 (1970).

In determining the right of governmental officers to forcible stop or investigatory detention, we have consistently emphasized that the officers must have reasonable cause to stop and question the particular individual detained, including reasonable belief justified by some conduct on his part at the time that he has been, is, or is about to be engaged in criminal conduct.

In State v. Saia, cited above, we invalidated a forcible stop, where the sole cause was that the accused came out of a suspect residence, without any other reason to believe that this particular defendant engaged in criminal conduct. In State v. Truss cited above, we held that the mere fact that an- individual had a startled look when he saw the police and turned the other way, was not sufficient ground to stop and search him; we thus recognized the right of individuals in public places to be left alone and to avoid, if they wish, encounters with the police. See also State v. Finklea, 313 So.2d 224 (La.1975). .

As we stated in State v. Saia, cited above, at 302 So.2d 873: “The police cannot approach citizens under circumstances that make it seem that some form of detention is imminent unless they have probable cause to arrest the individual or reasonable grounds to detain the individual under Terry v. Ohio, supra. Police officers cannot actively create 'street encounters’ unless they have knowledge of suspicious facts and circumstances sufficient to allow them to infringe on the suspect’s right to be free from governmental interference.”

(2)

The defendant contends that the police had no reasonable cause to make the investigatory stop here at issue (as a result of which they obtained the heroin). He argues, principally relying upon the principles set forth at the quoted language of Saia, that the police provoked a street encounter with him, which resulted in their obtaining the heroin.

The reasonable cause for the investigatory stop must be tested in the light of the particular circumstances of the case. These show:

At about 9:00 p. m. in the evening, a police officer in his unmarked vehicle was maintaining a surveillance of an area in which robberies and purse-snatchings occurred nightly. He saw the defendant Cook, otherwise unknown to him, standing with his back against the corner of a building. Cook peeked surreptitiously around it several times, apparently looking at some pedestrians waiting some ten feet away (around the corner) at a bus stop.

When the defendant started walking up the street, the officer followed and overtook him by car. He had radioed other officers. When the other civilian-clothed officers got out of their car, displaying their badges, Cook commenced to walk away.

The policemen yelled, “Police, stop; police officers.” Cook walked hurriedly into the street, behind the back of a pick-up truck stopped for a red-light.

He threw a scarf-wrapped package into the back of the truck. He then stopped and waited for the policemen. This occurred within two blocks of the original observation.

The policemen retrieved the package from the truck and found that it contained what appeared to be heroin. The officers therefore arrested Cook for possession of this illegal drug.

(3)

If the police had no legal right to stop Cook, then the heroin-package abandoned by him as the result of the illegal stop is constitutionally inadmissible. State v. Lawson, 256 La. 471, 236 So.2d 804 (1970). Likewise, if the drug was illegally obtained, the police had no probable cause to arrest him, since the probable cause must exist before the arrest, not afterwards. State v. Finklea, 313 So.2d 224 (La.1975).

When the first officer saw Cook acting suspiciously, he had the undoubted right to follow him and keep him under observation. The issue is whether this conduct also entitled the officer to stop him for reasonable cause — “reasonable cause” being grounds for reasonable suspicion that Cook had been, was, or was about to be engaged in criminal conduct. If so, the policeman was entitled to stop Cook and ask of him “his name, address, and an explanation of his actions”. La.C.Cr.P. art. 215.1 (quoted in footnote 1 above).

The suspicious conduct occurred at night in an area of nighttime robberies and purse-snatchings. The conduct in question was consistent with an intention to commit this type of crime. The officer was reasonably entitled at that time to question Cook and to make an investigatory stop or detention for that purpose.

We were initially troubled as to whether the reasonable cause persisted after Cook left the area of his suspicious conduct. Nevertheless, we conclude that, based upon such reasonable cause, the policemen were not unreasonable in requiring the investigatory stop of Cook as he left the scene but was still within a short distance of it.

Conclusion

We therefore find no error in the trial court’s holding that the heroin was constitutionally seized, and was the product of an investigatory stop permitted by our state and federal constitutions. Accordingly, we affirm the conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

SANDERS, C. J., concurs in the result.

DIXON and DENNIS, JJ., concur.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice

(concurring).

I concur. I find the situation here distinguishable from that in State v. Saia, 302 So.2d 869 (La.1974) because Cook’s conduct (i. e., repeatedly peering around a building and ducking back) on a street corner in a high crime area at night was sufficient justification for the police to stop him and question him about his activities. That the police chose not to take this course, but chose instead to follow him for a short distance before stopping him does not invalidate their action.

      . La.C.Cr.P. art. 215.1 provides:
      “A. A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.

        “B. When a law enforcement officer has stopped a person for questioning pursuant to this Article, and reasonably suspects that he is in danger of life or limb, he may search the outer clothing of such person for a dangerous weapon or for any other thing the possession of which may constitute a crime.
      “C. If the law enforcement officer finds a dangerous weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.”


author: DIXON, J.,

text:
    STATE of Louisiana ex rel. Charles Wilfred EZEB, Jr. v. Hon. Elmo E. LEAR, Judge, 19th Judicial District Court, State of Louisiana.
    No. 58087.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: Charles Wilfred Ezeb, Jr. applying for Writs of Habeas Corpus and Mandamus.

Writ granted to this extent. It is ordered that a copy of the trial transcript in this court be furnished to relator’s attorney for preparation of appeal. Copy of letter of transmittal shall be furnished to relator.

SUMMERS, J., is of the opinion that this order is improvident and the writ should be denied.

DIXON, J.,

concurs, but is of the opinion that since 3 copies of this record are in this court, it would be simpler for us to send the record to the warden to deliver to the defendant, instead of burdening an attorney in Baton Rouge.


author: DIXON, Justice. DENNIS, J.,

text:
    STATE of Louisiana v. Jackie HARRINGTON.
    No. 57298.
    Supreme Court of Louisiana.
    May 17, 1976.
    Rehearing Denied June 18, 1976.

      Ferdinand J. Kleppner, Grisbaum & Kleppner, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant, Jackie Harrington, was charged by bill of information with the crime of public bribery in violation of R.S. 14:118. After a jury trial she was found guilty and subsequently sentenced to serve one year in parish prison and fined $100. On appeal she relies on eleven assignments of error. We find merit in Assignment No. 7.

After the conclusion of the testimony, the defendant timely requested that the judge charge the jury on the defense of entrapment. The trial judge was of the opinion that the defendant had not presented a defense of entrapment and therefore denied the request for the entrapment charge. In denying the requested charge, the trial judge committed reversible error.

The evidence adduced by the State through the testimony of several police officers, was to the effect that, beginning in November of 1974 prostitutes “working” Bourbon Street in New Orleans began offering money to the officers on the street if the officers would allow them to practice their “profession” without being arrested. After the first bribe offer, the officers on the street were instructed to accept any bribes offered by the prostitutes, in order to make bribery cases against them, as part of an operation designed to crack down on prostitution on Bourbon Street. However, all of the officers testified that they themselves did not inform anyone that they were available for bribes. According to their testimony, this information was disseminated to prostitutes working Bourbon Street by other prostitutes. The officers merely accepted the money which was offered them, marked it for identification by noting the time, place and date it was received, and by recording the serial numbers of the bills.

In the early morning hours of December 27, 1974, according to the State’s evidence, the defendant, accompanied by another known prostitute, approached officers on Bourbon Street and proceeded to hand twenty dollars over to Officer Keyser so she could work the street without fear of arrest. The twenty dollars was taken, marked and turned over to supervisors. At the close of the operation (January, 1975) the defendant was arrested.

According to the testimony of the defendant, she was told by police officers that unless she came up with bribe money, she would be arrested. She claims that she was arrested once for loitering, because she refused to pay the officers the bribes. On the night in question, she alleges that one of the officers told her that she was going to jail again, because she had not paid. This officer, according to the defendant, then took her purse as if to search it before taking her to the station and found a twenty dollar bill which he took, and then permitted her to leave. In response to a question by the court, she stated she did not give the twenty dollars to the officer; rather, the officer took the money from her purse without her consent.

Another defense witness testified she had been approached by officers who demanded fifty dollars to allow her to work the street. She testified she paid the money because the officers warned her that failure to pay would mean she would go to jail. She further testified that she conveyed this information to the defendant.

A discussion of the defense of entrapment appears in State v. Turner, 241 La. 94, 127 So.2d 512, 514 (1961):

“ ‘One who is instigated, induced, or lured by an officer of the law or other person, for the purpose of prosecution, into the commission of a crime which he had otherwise no intention of committing may avail himself of the defense of “entrapment.” Such defense is not available, however, where the officer or other person acted in good faith for the purpose of discovering or detecting a crime and merely furnished the opportunity for the commission thereof by one who had the requisite criminal intent. * * * Such entrapment is shown where it appears that officers of the law or their agents incited, induced, instigated, or lured accused into committing an offense which he otherwise would not have committed and had no intention of committing. In other words, if the criminal intent or design to commit the offense charged originates in the mind of the person who seeks to entrap accused and to lure him into commission of the crime merely for the purpose of arresting and prosecuting him no conviction may be made. * * * ’ ”

The question whether the defendant had the requisite intent to commit the crime (public bribery) or whether the police had implanted in the mind of an innocent person the disposition to commit the alleged offense and to induce its commission in order that they may prosecute is a question of fact to be decided by the jury. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); Badon v. United States, 269 F.2d 75 (5th Cir. 1959), cert. den. 361 U.S. 894, 80 S.Ct. 199, 4 L.Ed.2d 152 (1959); State v. Bates, 301 So.2d 619 (La.1974). In State v. Kelly, 263 La. 545, 268 So.2d 650, 652 (1972), we stated:

“. . . Thus it is a question of fact for the trier of facts to determine whether the accused had the necessary intent or persuasion before the suggestion by the officer to commit the crime. United States v. Caracci, 446 F.2d 173 (5th Cir.) supra; Badon v. United States, 269 F.2d 75 (5th Cir. 1959).”

In the instant case, the defendant presented some evidence that, if believed, could support the defense of entrapment. Her evidence, if believed, could lead to the conclusion that she relinquished the money to an officer because of threats of arrest, with the assurance that if she paid money she would be left alone.

C.Cr.P. 807 states:

“The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
“A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”

There is no contention that the requested special charge on entrapment needed qualification, limitation, or explanation. As we pointed out above, it was pertinent. There is no contention that it was not wholly correct. (The defendant requested the court to give its usual entrapment charge).

Nonetheless, the State argues that the defendant cannot rely on the defense of entrapment and at the same time deny committing the crime. Thus, the State argues, the defendant in this case, who denied giving any money to the officer, cannot also be heard to say that she was entrapped into giving him money. See e. g. Rodriguez v. United States, 227 F.2d 912 (5th Cir. 1955); State v. Parr, 129 Mont. 175, 283 P.2d 1086 (1955).

However, this approach has been rejected by several courts. See e. g. People v. West, 139 Cal.App.2d Supp. 923, 293 P.2d 166 (Cal.1956). There is no logical reason why the defendant should not be allowed to show that the entire plan involved in this case constituted a governmental attempt to entrap persons into committing the crime of bribery, even though she claims she did not bribe the officer, but that he took the money away from her when she refused to pay the bribe. In Sears v. United States, 343 F.2d 139 (5th Cir. 1965), the court allowed the defendant to assert that he did not commit the act he was accused of, and also raise the defense of entrapment. In the course of its opinion, the court stated:

“. . .A criminal defendant should not forfeit what may be a valid defense, nor should the court ignore what may be improper conduct by law enforcement officers, merely because the defendant elected to put the government to its proof. . . .” 343 F.2d 139, 143.

Since the judge failed to give the special instruction on entrapment, upon proper request by the defendant, we reverse the conviction. State v. Liesk, 326 So.2d 871 (La.1976); State v. Montalbano, 257 La. 884, 244 So.2d 820 (1971).

Accordingly, the conviction and sentence are reversed and set aside, and the case is remanded for a new trial in accordance with law.

DENNIS, J.,

concurs. Where, as here, the State’s own case in chief injects substantial evidence of entrapment into the case, in fairness the defendant should be entitled to an instruction on the subject. See Sears v. U. S., 343 F.2d 139 (5th Cir. 1965).

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

      . R.S. 14:118 provides, in pertinent part:
      “Public bribery is the giving or offering to give, directly or indirectly, anything of apparent present or prospective value to any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty:
      “(1) Public officer or public employee;..."


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. William Wayne MESHELL, Appellant.
    No. 57287.
    Supreme Court of Louisiana.
    May 17, 1976.
    Rehearing Denied June 18, 1976.

      James B. O’Neill, Zwolle, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., for plaintiff-ap-pellee.
   TATE, Justice.

The defendant Meshell was convicted of aggravated battery. La.R.S. 14:34, and sentenced to seven years at hard labor. Upon his appeal, we find merit in his Assignment of Error No. 2, and therefore reverse.

Assignment of Error No. 2:

The offense charged is that Meshell, age 22, beat his three-month-old baby with a strap. The defense did not deny that the child was beaten; the defense was that Meshell’s wife, not he, had beaten the cliild.

The wife testified that her husband had beaten the child and that, on the morning afterwards, she had called the law-enforcement authorities. The incident was reported to the department of welfare, and two welfare workers went to her home and observed the bruises on the beaten child.

The reversible error occurred during the examination of Mrs. Marilyn Fullerton, director of the local department of welfare. She testified, first, to receiving the wife’s complaint and of assigning welfare workers to go to the home, as well as of her own observations of the child’s bruises when it was brought to town.

After describing the mother’s complaints to her of the beatings, she was asked by the prosecutor: “Mrs. Fullerton, have you had previous complaints as to this home? Have you- received previous complaints ?” The defendant at once objected, and the objection was sustained. No motion for mistrial was made at this time.

Mrs. Fullerton, in reply to the next four questions, described again the child’s bruises and of her action in instructing a welfare worker to take pictures of the child, which had been introduced in evidence.

The prosecutor then asked here: “Do you have in our files any evidence similar to these very facts that you have testified to and have heard testified to here today which would lead you to believe that the same thing had occurred in that family before?”

The defendant once again objected, and the objection was once more sustained. The trial court retired the jury, and it instructed the prosecutor that evidence of other offenses was not admissible.

The defense counsel moved for a mistrial, pointing out that the prosecutor’s questions were intended to make the jury believe that there was a welfare file full of evidence of similar offenses. The trial court denied the motion for mistrial, which pointed out that it had sustained the objections to the questions.

Nevertheless, while we commend the trial court for its prompt action in sustaining the objections and in attempting to prevent further prejudice, a mistrial is mandatorily required by statute because of the prosecutor’s comments by way of question to inadmissible evidence of offenses other than that for which the defendant is on trial.

La.C.Cr.P. art. 770 provides: “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the . . district attorney . . . , during the trial or argument, refers directly or indirectly to: . . . (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible .... An admonition to the jury to disregard the remark or comment shall not he sufficient to prevent a mistrial.” (Italics ours.)

Thus, in the legislative judgment, a comment by the prosecutor as to inadmissible evidence of the present nature is regarded to be so irreparably prejudicial to an accused as to require a mistrial. Mere admonition or sustaining an objection does not cure the prejudice. The courts are bound by and must enforce this legislative mandate.

Even before this statutory requirement, this court held a prosecutor could not by mere questions bring to the jury’s attention notice of other alleged offenses inadmissible in evidence, and that the trial court’s sustaining the objections did not cure the prejudice or prosecutorial error in this regard. State v. Frazier, 165 La. 758, 116 So. 176 (1928). In reversing the conviction, we stated, 165 La. 765, 116 So. 178: “It is a grave injustice for a district attorney to propound improper questions, containing prejudicial suggestions or insinuations, without serious intention of having the questions answered, but for the purpose of having the questions make their unfavorable impression and have their prejudicial effect upon the mind of the jury.”

Thus, a prosecutor may not refer before the jury to the prejudicial and inadmissible information prohibited by Article 770, yet avoid the mistrial required by that code article by couching his remark or comment in the form of a question. See also American Bar Association Standards for Criminal Justice Relating to the Prosecution Function (1971), Standard 5.6(b): “It is unprofessional conduct for a prosecutor knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury.”

The state urges that, in this instance, the questions did not refer directly to the defendant’s beating the child, but only as to whether the witness’s file contained evidence of similar complaints of childbeat-ing at that address. In the context of the questions, however, where all the previous evidence of the trial was that the wife complained to welfare workers and others that the husband had beaten the child (as she herself had previously testified), the inescapable intent and effect of the questions was to imply that the welfare department had received similar complaints in the past that this husband-defendant had beaten his child.

Under Article 770, even indirect reference to such alleged other offenses is impermissible and mandatorily requires mistrial. The conviction must therefore be reversed.

Decree

Accordingly, we reverse the conviction and sentence, and we remand this case for a new trial in accordance with law.

REVERSED AND REMANDED FOR A NEW TRIAL.

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

      . Although evidence of other crimes may be admissible, if the predicate required by our jurisprudence is laid, to prove knowledge, intent, or system, La.R.S. 15:445, 446, the state does not contend even now that this trial court ruling was erroneous or that knowledge, intent, or system was an issue in the case.

      . We do not mean to imply that the welfare department had received other complaints of child-beating. Other than the questions, there is no intimation of any prior incident resulting in a complaint of a beating of the three-month-old baby.


author: MARCUS, Justice.

text:
    Mr. and Mrs. Zacharias TURNER, Sr. v. SOUTHERN WHEEL AND RIM SERVICE, INC. and Security Insurance Company.
    No. 57259.
    Supreme Court of Louisiana.
    May 17, 1976.
    Rehearing Denied June 18, 1976.
    P. Albert Bienvenu, Jr., Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for defendant-respondents.
    Charles R. Maloney, New Orleans, for plaintiff-respondent.
   MARCUS, Justice.

Plaintiffs are the parents of a former employee of defendant Southern Wheel and Rim Service, Inc. On November 16, 1973, their son was injured, allegedly while performing duties within the course and scope of hazardous employment. Plaintiffs contend that he was totally disabled as a result of this injury. On May 4, 1974, before filing suit to claim workmen’s compensation benefits, their son was killed in an accident totally unrelated to the work-connected injury. It is alleged that he is not survived by a wife, children, or dependents. On November 6, 1974, plaintiffs brought this compensation suit to recover disability benefits that had accrued in their son’s favor prior to his death and the un-reimbursed medical expenses that he had incurred in treating the work-connected injury. Defendants filed exceptions of no right of action, no cause of action, and lack of procedural capacity on the ground that the right of action to recover the accrued disability benefits and medical expenses had abated with the employee’s death. The trial court sustained the exceptions, and the court of appeal affirmed. 322 So.2d 810 (La.App. 4th Cir. 1975). We granted cer-tiorari, 325 So.2d 275 (La.1976), to review the rulings by the courts below that plaintiffs have no right of action to sue for the benefits allegedly owed by defendants to their deceased son.

The obligation of an employer to pay an injured employee workmen’s compensation benefits is a legal obligation, i. e., an obligation that is imposed upon him by operation of law. La.R.S. 23:1031; La. Civil Code art. 2292 (1870). The obligation is a statutory incident to the employment contract, and thus the benefits are awarded upon the theory that the statute is read into and becomes a part of the contract of employment. Sanderson v. Binnings Constr. Co., 172 So.2d 721 (La.App. 4th Cir. 1965); McKane v. New Amsterdam Cas. Co., 199 So. 175 (La.App.Orl.1940), cert. denied, (1941). The employer is the debtor or obligor with respect to his obligation to pay compensation benefits, and the employee is the creditor, or obligee, since the employee is the person in whose favor the obligation is formed. La.Civil Code art. 3556(20) (1870).

Plaintiffs urge that they are entitled to enforce the obligation against defendants-obligors under the survivorship provisions of Civil Code article 2315. This contention is without merit, since their son’s cause of action against his employer was not delictual or quasi-delictual in nature and arose under the Workmen’s Compensation statute, La.R.S. 23:1021 et seq., rather than article 2315 of the Civil Code. The Workmen’s Compensation statute, while it regulates the distribution of death benefits to dependents of an employee fatally injured by a work-related accident, contains no provision relative to the abatement of an employee’s action for compensation benefits that have accrued to him before his death. Consequently, the general principles regarding abatements of actions are applicable to the instant action, which seeks solely the accrued pre-death benefits allegedly due the employee. These principles are found in the Code of Civil Procedure and provide as follows:

Art. 426. Transmission of action and of right to enforce obligation
An action to enforce an obligation is the property of the obligee which on his death is transmitted with his estate to his heirs, universal legatees, or legatees under a universal title, except as otherwise provided by law. An action to enforce an obligation is transmitted to' the ob-ligee’s legatee under a particular title only when it relates to the property disposed of under the particular title.
These rules apply also to a right to enforce an obligation, when no action thereon was commenced prior to the ob-ligee’s death.
Art. 428. No abatement on death of party
An action does not abate on the death of a party. The only exception to this rule is an action to enforce a right or obligation which is strictly personal.

As these provisions make clear, the right of an obligee to enforce an obligation is his property that is transmitted upon his death to his heirs or legatees, even where (as here) the obligee did not commence an action thereon, unless the obligation sought to be enforced is strictly personal. Therefore, the sole issue presently before us is whether the deceased employee’s right to recover pre-death accrued disability benefits and unreimbursed medical expenses is a strictly personal one.

In our opinion, an employee’s right to enforce the performance of defendants’ duty to pay accrued disability benefits and medical expenses is heritable rather than strictly personal and is therefore transmissible to his heirs. Civil Code article 1999 provides that every obligation shall be deemed to be heritable as to both parties, unless the contrary be specially expressed, or necessarily implied from the nature of the contract. Further, the employer’s duty to provide compensation benefits is an obligation to give, rather than an obligation to do. La.Civil Code art. 1905 (1870). “The general rule is that all obligations to give, and the resulting rights, pass to the heirs of the obligor and obligee.” 6 C. Toullier, Droit civil francais, no. 403, at 439 (5 ed. 1839). See Comment, Heritability of Conventional Obligations, 31 Tul. L.Rev. 324, 348-49 (1956).

Our conclusion that the right to claim workmen’s compensation benefits accrued to the employee prior to his death is heritable is also supported by Louisiana jurisprudence. In Warren v. Globe Indemnity Co., 216 La. 107, 43 So.2d 234 (1949), we held that a suit by a dependent for death benefits under the compensation act did not abate when the claimant died during pendency of the litigation. In Warren, we specifically rejected the assertion of the employer and its compensation insurer that the right to compensation was a personal one that did not survive in favor of the dependent’s heirs. Rather, we stated that the heirs of a workmen’s compensation beneficiary have a vested interest in unpaid benefits that have accrued at the time of his demise. Similarly, jurisprudence in the courts of appeal has established that accrued, yet unpaid, compensation benefits due a deceased employee are heritable. Wascom v. Miller, 101 So.2d 744 (La.App. 1st Cir. 1958); Warning v. Royal Indem. Co., 75 So.2d 242 (La.App. 1st Cir. 1954); Hebert v. Fifteen Oil Co., 46 So.2d 328 (La.App. 1st Cir. 1950); Guillot v. Weaver Bros. & Thompson Lumber Co., 31 So.2d 278 (La.App. 2d Cir. 1947), cited with approval in Warren, supra. See W. Malone, Louisiana Workmen’s Compensation Law and Practice, § 301, at 375-76 (1951). The fact that the obligee had filed suit for benefits prior to his death in the cases cited above provides no basis for distinguishing the decisions, since, under the second paragraph of article 426 of the Code of Civil Procedure (quoted above), the same rules that govern the transmission of instituted actions apply to the transmission of the right to enforce an obligation where no action thereon was commenced prior to the obligee’s death.

Finally, we note that other jurisdictions also consider accrued, yet unpaid, compensation benefits to be an asset of the decedent’s estate, like any other debt owed him. 2A. Larson, The Law of Workmen’s Compensation § 58.40 (1976).

Accordingly, we hold that the heirs of the deceased employee have a vested right to enforce payment of the medical expenses and the disability benefits that accrued until he died. The courts below erred in sustaining the exceptions of no right of action, no cause of action, and lack of procedural capacity on the ground that the employee’s action had abated at his death. We are unable to ascertain from the posture of the record whether plaintiffs are his heirs or legatees. Hence, we must remand the case to the trial court for it to reconsider the exceptions filed in light of the views expressed in this opinion.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed, and the case is remanded to the trial court for further proceedings not inconsistent with this opinion. The costs of this proceeding are assessed against defendants; further imposition of costs shall await the outcome of the litigation.

      . Plaintiffs assert no claim for death benefits since the death of their son was not caused by the work-related injury, nor do they allege dependency. La.R.S. 23:1231, as amended, La.Acts 1975, No. 583, § 10.

      .Civil Code article 1997 defines a strictly personal and a heritable obligation as follows :
      An obligation is strictly personal, when none but the obligee can enforce the performance, or when it can be enforced only against the obligor.
      It is heritable when the heirs and assigns of the one party may enforce the performance against the heirs of the other.

      .The articles of the Civil Code on the subject of personal and heritable obligations have no counterpart in the French Code civil, were added by the redactors of the Civil Code of 1825, and are thought to have been partially inspired by the writings of Toullier. Batiza, The Actual Sources of the Louisiana Projet of 1823: A General Analytical Survey, 47 Tul.L.Rev. 1, 83 (1972).

      .Defendants strongly rely upon Brownfield v. Southern Amusement Co., 196 La. 73, 198 So. 656 (1940), wherein we held that a married woman injured in the scope of her employment was the proper party to enforce a compensation claim, since the right, we stated, was “personal” to her and is not enforced by the community through her husband. This case is clearly inapposite to the present matter.

      . The author states that under Louisiana jurisprudence compensation benefits accrued prior to the injured employee’s demise, as well as compensation benefits for the worker’s death which have already accrued to the beneficiary, survive to the beneficiary’s estate upon the latter’s death.


text:
    STATE of Louisiana, Respondent, v. Casey A. SMITH, Relator.
    No. 57239.
    Supreme Court of Louisiana.
    May 17, 1976.
    Rehearing Denied June 18, 1976.

      Bruce G. Reed, Trial Atty., Reed, Reed & D’Antonio, Metairie, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Richard J. Bontall, Research Atty., Metai-rie, for respondent.
   TATE, Justice.

The defendant was convicted of receiving a stolen car of a value of less than $100.00, La.R.S. 14:69 (1972), and sentenced to thirty days, suspended, in the parish prison and a fine of $250.00. We granted certiorari, 325 So.2d 269 (1976), because we felt the trial court may have erred in denying the defendant’s motion for a directed verdict of acquittal, La.C.Cr.P. art. 778, at the close of the state’s case.

Directed Verdict (Assignment of Error nos. 1 and 2)

The state’s case consisted of two witnesses :

A managerial employee of Hertz testified that a specified Ford rental automobile of the firm had been missing since January 19, 1973; it had been reported by the firm as stolen on April 27, but was recovered from the local police department July 10. A local detective from that department testified that, by license check of the parked automobile, he discovered the reportedly-stolen Ford in front of the defendant Smith’s residence during the early hours of July 9, that he waited until Smith came out from his residence and drove off in the vehicle, and that he stopped Smith about a mile later and (after re-checking the license number) arrested the defendant.

At the close of the state’s case (the testimony of these two witnesses), the defendant filed a motion for directed verdict of acquittal in this non-jury trial. La.C.Cr.P. art. 778. Since at that point there was no evidence of an essential element of the crime, i. e., that the defendant knew or had reason to believe that the vehicle was stolen, we granted certiorari to review the conviction.

The issue before us, as a reviewing court, is whether the defendant, by subsequently presenting his own evidence, waived his right to have the denial of his motion reviewed solely upon the basis of the state’s case rather than of the evidence as a whole (including that produced by him on his defense). This issue has never been directly addressed by this court, the motion for a directed verdict being a relatively recent addition to our criminal procedure.

As amended in 1975 (see footnote 2), La. C.Cr.P. art. 778 provides: “In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state’s evidence or of all of the evidence, if the evidence is insufficient to sustain a conviction. If the court denies a defendant’s motion for a judgment of acquittal at the close of the state’s case, the defendant may offer its evidence in defense.”

As enacted, the statute permits review of the denial of the defendant’s motion for a directed verdict of acquittal, whether or not the defendant subsequently offers evidence in defense. It does not necessarily provide that, nevertheless, the reviewing court may not consider, in ruling upen whether acquittal should be ordered as a matter of law, evidence in the defendant’s- case which cures the omission in the state’s evidence and which thus supports a verdict of guilty. That is, the reviewing court is not necessarily obliged by the article to reverse a conviction because of an erroneous denial of the motion at the time, where the conviction is otherwise supported by the evidence and affirmable on the evidence as a whole.

In the great majority of American jurisdictions (almost all of which allow the directed verdict), if the court overrules the defendant’s motion for a directed verdict of acquittal filed at the close of the state’s case, the defendant is deemed to waive his right to complain on review of an erroneous denial, at least where his own evidence fills in the gaps of the state case. 3 Wharton’s Criminal Procedure, Section 520 (12th ed., Torcía; 1975); American Bar Association Standards Relating to Trial by Jury, Standard 4.5(a), Commentary (1968); Comment, The Motion for Acquittal, 70 Yale L.J. 1151 (1961).

The cited law review comment criticizes the application in criminal cases of this “waiver” doctrine, which had been juris-prudentially developed in civil cases. The denial of review of the erroneous (at the time) overruling of an accused’s motion for acquittal, it is contended, overlooks the function of requiring the state to prove its case, upon penalty of dismissal; it unfairly forces the defendant to put on a case which, however strong, converts into an unreviewable issue of fact the issue of his guilt or innocence, when in fact the state itself did not prove its case. For similar reasons, modern treatises have criticized the rule, and a small minority of courts (two out of the eleven federal circuits, for instance) have rejected it. 8 Moore’s Federal Practice, Section 29.05 (1969); 2 Wright, Federal Practice and Procedure, Section 463 (1969).

Nevertheless, the distinguished and thoughtful scholars, judges, and lawyers who drafted the American Bar Association Standards for Criminal Justice Relating to Trial by Jury (1968) ultimately concluded to retain the majority rule and not to accept the minority rule. In the commentary to Standard 4.5(a), it is noted: “* * * an erroneous denial of the motion for acquittal made at the conclusion of the prosecutor’s case may be cured by subsequent developments at the trial. Although it has been argued that this rule comes perilously close to compelling the defendant to incriminate himself, Note, 70 Yale L.J. 1151 (1961), the argument is not believed to be persuasive, and no deviation from the majority rule is recommended here.”

Thus, the value adhered to is that adopted by a great majority of the American jurisdictions which have considered the issue: Despite the potential unfairness of the policy to a defendant, an erroneous denial of a motion for acquittal is nevertheless not cause for reversal if the evidence as a whole, including the defendant’s case, justifies the affirmance as guilty (assuming no other reversible error). To reverse, in such an instance, is to reverse not because the evidence as a whole does not prove guilt; but because of an erroneous interlocutory ruling which was cured by subsequent evidence.

The minority view appeals to at least some of us as more fair and more in accord with the purpose of the motion for an acquittal at the close of the state’s case. Yet we are unwilling at this time to depart from the view of the great majority of American jurisdictions which have considered the issue, especially since the authoritative, scholarly, and balanced American Bar Association standards have recently reviewed the issue and have reached the considered recommendation that the merits of the majority view outweigh its demerits.

We therefore conclude that, when a defendant’s motion for an acquittal is overruled at the close of the state’s case, on review the appellate court may consider, in determining whether there is evidence of guilt, not only the evidence before the court at the time of the motion but the entire admissible evidence contained in the record of the trial. We expressly do not hold, however, and Article 778 provides otherwise (see also footnote 2), that a defendant waives his right to have the denial of his motion for acquittal reviewed by introducing defense evidence. See State v. Douglas, 278 So.2d 485 (La.1973) and succeeding jurisprudence. Such review, however, is based upon the entire record of the trial, not just the state’s case.

At this point, we shall state that the defense case presents some evidence (however weak) by which the trial court could conclude that the accused should have known the automobile he received (borrowed) was stolen, thus supplying evidence as to the missing element of the state’s case. See Assignment No. 3 below. On review, the appellate court do not reverse the denial if there is some evidence proving the crime (this being considered a question of fact); they reverse only if there is no evidence proving the offense or an essential element thereof (this being considered a reviewable question of law). State v. Douglas, 278 So.2d 485 (La.1973).

We therefore find no reversible merit to assignments of error Nos. 1 and 2, which were taken as to the denial for the directed motion of acquittal.

Some Evidence of Guilt (Assignment No. 3)

At the close of the entire evidence, the defendant renewed his motion for acquittal on the basis that the evidence did not prove that the evidence in question was the subject of a robbery or theft, as contrasted with having been subjected merely to unauthorized use.

The state’s case, summarized above, shows that the car had disappeared from its owner’s possession without explanation some six months before it was recovered in the defendant’s possession, and that it had been reported stolen. This constitutes some evidence that the trier of fact can reasonably accept as proving that the vehicle had been stolen.

With regard to the issue of whether the defendant knew it had been stolen, a closer question is presented (and one on which we might have differed from the trial court, absent the trial court’s benefit of an evaluation of the demeanor of the witnesses).

The defendant, his brother-in-law, and his mother all testified that the Ford had been in the possession of a friend, a Hertz employee, for several months. The defendant’s mother and his brother-in-law admitted knowing the vehicle belonged to Hertz and to suspicions that the Hertz employee was unlawfully in possession of the vehicle. The brother-in-law testified that he had deduced that the vehicle was stolen.

The defendant, admitting that the vehicle was still tagged as belonging to Hertz, testified that his friend had told him he had bought the car shortly before the arrest. He assumed that his friend had borrowed it from Hertz with permission during the several months of his possession prior thereto.

There was thus some evidence by which the trial court could conclude that the defendant should have realized that the vehicle he received (borrowed) was stolen. Since the sufficiency of the evidence of guilt is not reviewable on appeal, we cannot find reversible error.

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

DIXON and DENNIS, JJ., dissent.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice

(dissenting).

I respectfully dissent.

It is my opinion that when a defendant, at the close of the state’s case, moves for an acquittal as provided in Louisiana Code of Criminal Procedure article 778, he is entitled to have the denial of that motion reviewed by this Court solely upon the basis of the evidence presented by the state. See United States v. Burton, 472 F.2d 757 (8th Cir. 1973); Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893 (1963). To hold that by subsequently presenting a defense an accused waives his right to have this Court review the trial court’s ruling for errors of law, as does the majority opinion, ignores the burden our criminal judicial system has placed on the state to produce evidence in support of the essential elements of the charge upon penalty of dismissal, makes meaningless a defendant’s right to move for acquittal before presentation of his defense, and has serious implications with respect to the constitutionally protected privilege against self-incrimination. See Comment, The Motion for Acquittal: A Neglected Safeguard, 70 Yale L.J. 1151 (1961).

As the majority itself acknowledges, at the close of the state’s case, the state had failed to offer any evidence from which the trial court could have concluded that the accused should have known that the automobile in question was stolen. See La.R.S. 14:69 (1972). Therefore, since there was no evidence of an essential element of the crime of receiving a stolen car of a value of less than $100.00, it is my opinion that this Court should reverse the conviction and sentence and remand with instructions to enter a judgment of acquittal. See State v. Douglas, 278 So.2d 435 (1973).

      . La.R.S. 14:69 defines the crime as follows:
      “Receiving stolen things is the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses. * * * ”

      . The device was first authorized, limited to non-jury trials, by Act 447 of 1950, enacting La.R.S. 15:401.1 to our former code of criminal procedure. See 14 La.L.Rev. 30-31 (1953). As then enacted, it provided that, if the motion for a directed verdict of acquittal was not granted at the close of the prosecutor’s case, “ * * * the defendant may offer evidence without having reserved the right. The judgment of the Court in refusing to grant such motion by the defendant shall not be subject to review by any appellate court.’’

      Article 778 of the Code of Criminal Procedure of 1966 replaced this provision and applied to both jury and non-jury trials (until a 1975 amendment deleted its application to jury trials). The present code article does not prohibit review of the denial of the motion for acquittal if overruled, see State v. Douglas, 278 So.2d 485 (La.1973), but it does not expressly provide as to whether the omission in the state’s case can, for purposes of appellate review, be supplied by the evidence introduced by the accused in his defense.


author: TATE, Justice. MARCUS, Justice

text:
    Joseph N. TRAIGLE, Collector of Revenue, Department of Revenue, State of Louisiana, Plaintiff-Appellee-Relator, v. PPG INDUSTRIES, INC., Defendant-Appellant-Respondent.
    No. 57224.
    Supreme Court of Louisiana.
    May 17, 1976.
    Rehearing Denied June 18, 1976.

      Robert G. Pugh, Pugh & Nelson, Shreveport, for plaintiff-applicant.
    William E. Shaddock, Scott J. Pias, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, for defendant-respondent.
   TATE, Justice.

The issue concerns the liability of the defendant chemical manufacturer for Louisiana sales/use taxes upon some five million dollars worth of graphite blades bought by it and used for the production of chlorine. The state Collector of Revenue sues to collect some one hundred thousand dollars of taxes allegedly due upon the purchase of this graphite.

The courts below closely divided on the issue. A majority of the intermediate court ultimately concluded that the graphite was not subject to taxation by reason of a statutory definition allegedly excluding it from sales tax. We granted certio-rari because of the importance, in administering Louisiana’s sales/use tax, of determining whether a chemical used as an electrode in the petro-chemical manufacturing industry is exempted from taxation because a trace of it is found as a waste residue in the ultimate chemical product.

As we will state more fully below, the precise issue of tax law relates to whether, under a tax definition, the graphite is used by the manufacturer as an ultimate consumer, as in the case of machinery or fuel (for which a sales/use tax is due when purchased by it); or whether, instead, the graphite is processed into the final product, so that the purchase of the latter, as the ultimate consumer, pays the tax (not the manufacturer). Before centering on this precise issue of tax law, however, we deem it advisable to state its factual context.

Factual Context

Chlorine is produced from salt water brine by an electrolytic process — i. e., the passage of electricity through a substance (the electrolyte) from a positive electrode or terminal (the anode) to a negative electrode or terminal (the cathode). In the present case, the electric current is passed through a salt water brine (the electrolyte) from the anode (the graphite blades here sought to be taxed, embedded in lead) to a cathode (a perforated steel screen, covered with asbestos). The passage of the electric current through the salt water brine breaks the salt water down into chlorine, hydrogen, and caustic soda, all saleable products.

In the process, the graphite (carbon) blades of the anode and the asbestos of the cathode become unusable and must be replaced. The carbon anodes last about six months, and the asbestos diaphragms last about 150 days. (The steel and lead do not appreciably deteriorate through their use in the process.)

The taxpayer no longer contends that the asbestos is exempt from taxation. However, essentially because a residue of the carbon, (graphite) is found within the final chlorine product, the taxpayer claims that (all) the graphite is non-taxable material, as included within the manufactured product; rather than being a taxable material used by the manufacturer, as the ultimate consumer, during its production of the ultimate article sold by it to the consumer.

In the electrolytic process, the chlorine (a pure element) escapes as a gas. Mingled with it is a small residue of carbon monoxide and carbon dioxide, about li/2 to 2% of the total volume. This residue results from the combination of carbon (graphite) atoms from the anode with loose oxygen atoms in the salt water. As all previous courts found, the oxides of carbon present in the chlorine are useless waste material (impurities) which would be removed, except that it is not economically feasible to do so.

The Legal Issue

The Louisiana sales/use tax is a tax upon the sale at retail, use, consumption, distribution, or storage for use in consumption, of materials sold or used in Louisiana. La.R.S. 47:302(A). It is measured by the sales price if the item is sold at retail, or upon the cost price when not sold at retail but rather used, consumed, or stored for use or consumption. La.R.S. 47:302(A).

Pertinently to the present issue, La.R.S. 47:301(10) defines “sale at retail” as: * * * A sale to a consumer or to any other person for any purpose other than for resale in the form- of tangible personal property . . . . The term ‘sale at retail’ does not include sales of materials for further processing into articles of tangible personal property for sale at retail * *

We should here note that, in the light of this precise definition and of the general purpose of the tax statute to impose the sales/use tax upon the transaction by which the ultimate consumer receives the particular item, the more reasonable interpretation in this instance is that the taxpayer manufacturer is liable for tax upon the graphite anodes: They were not purchased by the taxpayer for the ‘‘purpose’’ of "resale in the form of tangible personal property”, but rather for the purpose of using them as a part of the manufacturing process (like the machinery or fuel) in order to produce the chlorine for purposes of resale of the chlorine to an ultimate consumer.

Taxpayer’s Contention

The taxpayer points out, however, that traces of the carbon (but about 60% of the original anodes) are found in the bulk containers which contain the final chlorine product. Thus, they view the carbon as purchased for further processing “into” the chlorine manufactured for sale at retail.

Therefore, relying upon the principle that tax statutes should be liberally construed in favor of the taxpayer, the defendant argues that we should adhere to the interpretation by the majority of the court of appeal, namely: Since the carbon (although consumed) is in residue partly included within the final product’s bulk, it was purchased for “further processing into” the chlorine, which (in combination with the carbon oxide residues) was the product produced for sale at retail.

The taxpayer’s contention is tenable. The literal wording of the definition in the last sentence of La.R.S. 47:301(10) (quoted in full, footnote 3), upon which the taxpayer relies, permits this interpretation— namely that, if the substance used in the manufacture enters into the final article produced for resale (however unintended or useless or minutely), the substance can be regarded as purchased for “processing into” the article produced for sale; and thus as taxable, not to the manufacturer who used the substance, but to the purchaser at retail as the ultimate consumer.

Conclusion

Nevertheless, viewing the definition of La.R.S. 47:301(10) as a whole, the better or more reasonable interpretation, we believe, is that the substance cannot be regarded as purchased for processing "into” the finished article (and, thus, as non-taxable to the manufacturer), when in fact the "purpose” for which it is bought is not for incorporation "into” the manufactured product but rather only to be used in the process of producing the manufactured product for sale — at least where, as here, the inclusion of the waste residue of the substance results from an unintended (although unavoidable) inefficiency of the manufacturing process, is of no benefit to the product sold, and is of the nature of an impurity rather than of an integral part of the finished product.

And, if we were in doubt and regarded the statutory definition as ambiguous (we do not), we would find of persuasive aid the administrative construction given to the statute since soon (1949) after its enactment in present form in 1948 and all during the taxable years (1968-1972) in question. By this contemporaneous construction through the years, as is essentially uncontested, the graphite used in the manufacturing process was not regarded as non-taxable to the manufacturer, nor as purchased for incorporation into the finished product, for the reason that the small carbon residue found in the ultimate product was not “a recognizable, integral part” of it.

“Integral” is defined as “of, relating to, or serving to form the whole: essential to completeness: organically joined or linked * * * ”, Webster’s Third New International Dictionary, verbo “Integral”, p. 1173 (1961). The waste carbon oxides, chemically distinct from and inessential to the chlorine produced, forming no part of it organically, do not fall within this definition.

No economically feasible methods permits removal of the minute carbon oxide gas residue from the bulk containers in which the chlorine gas is sold. However, these oxides are waste materials in the chemical reaction, the purpose of which was to produce chlorine (not carbon oxides) for sale at retail.

In the terms of statutory language, La. R.S. 47:301(10), the carbon (graphite) anodes were not purchased for the “purpose” of “resale in the form of tangible personal property”; nor were they sold to the man-, ufacturer for “further processing into” the article (chlorine) produced for sale (an article of which they were not a chemical or component part, but rather a foreign substance uncombined with the chlorine which was manufactured for sale at retail).

As the taxpayer notes, an administrative construction cannot have weight where it is contrary to or inconsistent with the statute. However, where, the statute is ambiguous (as, most favorably to the taxpayer, this statutory definition may be), a long settled contemporaneous construction by those charged with administering the statute is given substantial and often decisive weight in its interpretation. Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1958); Esso Standard Oil Co. v. Crescent River Port P. Assn., 235 La. 937, 106 So.2d 316 (1958); and decisions therein cited. See also: Tennessee Gas Transmission Co. v. Violet Trapping Co., 248 La. 49, 176 So.2d 425 (1965); 3 Sutherland, Statutory Construction, Section 66.-04 (4th (Sands) ed., 1974).

This is especially so where, as here, the administrative construction has consistently been followed since adoption of the statute over twenty years ago. In the absence of legislative amendment during that long period, the administrative construction may reasonably be presumed to be in accord with the legislative intent; it also being a reasonable meaning of the legislative language in the light of the legislative purpose evidenced by the statute as a whole.

Other principles of statutory construction are also urged as applicable, such as: Where there is reasonable doubt as to the meaning of a tax statute, the doubt is ordinarily resolved, in the absence of other guide to the legislative intent, in favor of the taxpayer. See United Gas Corporation v. Fontenot, 241 La. 564, 129 So.2d 776 (1961); 3 Sutherland, Statutory Construction, Section 66.01 (4th (Sands) ed., 1974). Too, it is suggested that, in the present case, this principle is qualified by the further principle that claims of exemption from a tax otherwise to apply are strictly construed against the person claiming the exemption. See Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1959) and decisions therein cited; 3 Sutherland, Statutory Construction, Section 66.09 (4th (Sands) ed. 1974).

Nevertheless, the aim of all of these principles of interpretation is to ascertain the legislative intent as to the question at issue. For reasons earlier stated, we find the most reasonable construction of the statute, in the light of its wording and the legislative purpose evidenced by the statute as a whole, to be that the graphite used as an anode in the processing of the chlorine was not sold to the taxpayer for the purpose of resale, nor for processing into the chlorine sold. It was therefore taxable to the manufacturer, as the graphite’s ultimate consumer.

Further, even if the statute be regarded as ambiguous, the best guide to its meaning in the present case is the accepted contemporaneous administrative construction given to the statute for over two decades by the. agency charged with administering it, rather than deductions based upon other general interpretative principles less clearly indicative in the present case of the legislative intent. Until 1968, the present taxpayer itself, along with all other manufacturers' in the petrochemical field, accepted this interpretation. If the legislature had intended to exempt from taxation some thirty-five million dollars of process chemicals annually used in our petrochemical industries which do not form a component part of the final product, it is reasonable to assume that the legislature would have amended the statute so as not to permit such administrative construction; which, instead, has not until this case been questioned legislatively or judicially.

The defendant taxpayer alleges that, to permit the tax on the graphite, is to permit double taxation, since a sales tax is collected on the chlorine from its ultimate purchaser. The contention overlooks the statutory scheme of taxing the ultimate consumer of the particular product purchased, in this case the manufacturer. The purchaser of the chlorine (who pays the sales tax thereupon, as its ultimate consumer) is no more the ultimate purchaser of the graphite anodes used up in the present electrolytic manufacturing process than he is of the lead components of the anode, or the steel cathodes and the used-up asbestos diaphragms which are components thereof, or the machinery used in the manufacture of the chlorine — all of which are likewise taxable to the manufacturer, as their ultimate consumer.

Decree

For the reasons assigned, we find that the defendant manufacturer is liable for the sales/use tax upon the graphite anodes purchased by it for use in the manufacture of chlorine. Accordingly, we reverse the judgment of the court of appeal (which held these purchases non-taxable), and we reinstate and affirm the judgment of the district court in favor of the plaintiff Collector and holding the defendant manufacturer liable for such taxes, interest, attorney’s fees, and costs. All costs of these proceedings are taxed against the defendant.

COURT OF APPEAL JUDGMENT REVERSED; DISTRICT COURT JUDGMENT REINSTATED AND AFFIRMED.

DIXON, J., concurs.

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

SUMMERS, J., dissents for the reasons assigned by the Court of Appeal. See 321 So.2d 541.

MARCUS, Justice

(concurring in part and dissenting in part).

La.R.S. 47:301(10) exempts from imposition of the sales/use tax the “sales of materials for further processing into articles of tangible personal property for sale at retail . . . .” As the majority and both courts below found, approximately 60% of the graphite purchased by PPG is processed into the product stream and thus forms a part of the manufactured product that is afterwards sold at retail. About 40% of the graphite is not processed into the product but rather is discarded by the manufacturer as an industrial waste. In my view, therefore, the collector may assess the taxpayer with the sales/use tax on only 40% of the price that it pays for the graphite (representing that portion of the graphite that is not incorporated into the manufactured product).

In effectively adopting the collector’s position that the graphite must be of some benefit to the final product if the exemption is to apply, the majority has endorsed an administrative regulation that is in conflict with law and has also disregarded the well-established rule of statutory construction that in doubtful cases tax statutes are construed in favor of the taxpayer.

Accordingly, I respectfully concur in part and dissent in part.

      . The district court ruled that the taxes were due on the graphite. The Court of Appeal, Third Circuit, reversed the trial judge’s decision, one judge dissenting. 315 So.2d 859 (La.App. 3rd Cir., 1975). That court denied the collector’s application for a rehearing. Exercising its supervisory jurisdiction, this court held that the collector was entitled to re-argument under Art. 5, Sec. 8, Constitution, 1974 before a five judge panel. 317 So.2d 625 (La.1975). After re-argument that panel re-affirmed the original opinion, with two judges dissenting. 321 So.2d 541 (La.App. 3rd Cir., 1975). We granted writs, 325 So.2d 269 (La.1976), to review the Court of Appeal decision exempting the graphite from the sales/use tax.

      . About 60% of graphite is included in this escaping residue. The other 40% residue is left in stubs of the blades and in a carbon residue at the bottom of the tank; both of which are industrial wastes and are discarded as of no value.

      . La.R.S. 47:301(10) in full provides:
      “ ‘Retail sale,’ or ‘sale at retail,’ means a sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property, and shall mean and include all such transactions as the collector, upon investigation, finds to be in lieu of sales; provided that sales for resale must be made in strict compliance with the rules and regulations. Any dealer making a sale for resale, which is not in strict compliance with the rules and regulations shall himself be liable for and pay the tax.
      “The term ‘sale at retail’ does not include sales of materials for further processing into articles of tangible personal property for sale at retail, nor does it include an isolated or occasional sale of tangible personal property by a person not engaged in such business.”

      . Article 2-37 (as numbered in the 1961 edition) of the rules and regulations of the department of revenue for administration of the Louisiana General Sales Tax provided: “Sales to manufacturers and producers. The gross receipts of gross proceeds derived from sales of raw materials to manufacturers to be used in fabricating or producing finished articles of tangible personal property for resale and which becomes a recognizable, integral part of such finished articles, are not subject to the tax imposed under the sales tax act. The proceeds derived from subsequent sales of such finished articles of tangible personal property to consumers or users are subject to the tax.”
      By a 1973 amendment, after the taxable period, the department added a further clarification that the included substance must be of some benefit to the final product. While we agree with the taxpayer that this later administrative construction cannot be given weight as an additional requirement, we also agree with the trial court that the 1973-added explanation of beneficial effect was reasonably implied by the earlier requirement that, to be non-taxable, the substance must be an integral part of the finished article.


author: SANDERS, Chief Justice. SUMMERS, Justice

text:
    Luther CHISM, Jr. v. KAISER ALUMINUM & CHEMICAL CORPORATION.
    No. 57192.
    Supreme Court of Louisiana.
    May 17, 1976.
    Rehearing Denied June 18, 1976.
    Orlando G. Bendana, New Orleans, for plaintiff-applicant.
    Paul B. Deal, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendant-respondent.
   SANDERS, Chief Justice.

Plaintiff, Luther Chism, Jr., appealed from a judgment dismissing his suit for workmen’s compensation benefits, and the Court of Appeal affirmed. 320 So.2d 566 (4th Cir., 1975). We granted writs to review the judgment. La., 323 So.2d 469 (1975).

In February of 1974, plaintiff was surgically treated for a herniated disc by removal of the disc and fusion of the lower spine. Plaintiff alleges that his condition was brought about by on-the-job accidents on June 8 and October 12, 1973, and February 7, 1974, which aggravated or exacerbated an underlying back condition. The employer, Kaiser Aluminum, denies any occupational accident occurred. The issue presented for our review is whether or not plaintiff’s disability was caused by a work related accident under LSA-R.S. 23:1031, which provides:

“If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.
<( * * * »

The plaintiff has the burden of proving the causal relation by a preponderance of the evidence. The evidence, as a whole, must be sufficient to establish that it is more probable than not an occupational accident triggered the disability. Johnson v. Travelers Insurance Co., La., 284 So.2d 888 (1973); Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971).

Plaintiff testified that he had worked for Kaiser Aluminum since 1968, doing heavy manual labor which involved stooping and lifting heavy weights. He stepped in a hole on June 8, 1973, while on the job and sought medical treatment for back pain at the company first aid station. He received a course of heat treatments through June 20. In October, he suffered pain while at work, sought treatment at the first aid station, and then consulted his private physician.

The following February, while on the job, he again experienced pain, sought treatment from the first aid station, and was referred to the company physician. He also consulted his private physician. After several days of going to work and reporting to the first aid station, the pain became so severe that he was hospitalized on February 10. Surgery ensued.

Kaiser’s records reflect the June accident and the heat treatments at the first aid station through June 20. There is no mention of the other accidents; there is, however, an entry on November 1, 1973, to the effect that he had missed nineteen days of work due to kidney and back trouble; he was hospitalized for six days and could return to light duty for the following ten days as recommended by his private physician. Other entries show that heat treatments were given at defendant’s clinic throughout November and that Dr. Irving Redler would see plaintiff on November 14 and 26. Further, defendant’s records show that, on February 7, 1974, plaintiff complained of increased pain in his back, requested and was refused light duty, and a heat treatment was administered. He again complained of pain and was sent to defendant’s physician on February 8. Dr. Faust’s report to the defendant diagnosed no new or recurrence of old injury, but a possible mild muscle irritation; he recoin--mended limited work for three days.

At defendant’s request, Dr. Redler examined plaintiff on November 14, 1973. Plaintiff told him that he began to suffer severe pains across the lower back on October 16; that the pain increased to the point that he was unable to walk and was hospitalized for six days; that he had since returned to limited duty but continued to have back pain; he improved to the point that he could walk and was being treated at the first aid center with heat applications on a daily basis. An X-ray examination showed incomplete sacralization on the fifth lumbar vertebra, developmental in origin, which, compared to X-ray of December, 1970, showed no change in appearance. Dr. Redler stated that the disability was minimal and should be resolved within ten days with the therapy being administered. He further reported that, when he saw plaintiff on November 29, plaintiff complained that the pain had increased. Dr. Redler’s examination at that time showed no objective signs of disability and stated that residual disability was slight and plaintiff could return to regular work.

Dr. Charles W. Krieger first saw plaintiff on February 12, 1974, and plaintiff told him “that he received a back strain in 1969 while lifting equipment on the job. He subsequently had intermittent episodes of low back pain, which have gotten progressively worse in the past year.” After examination and a myelogram, Dr. Krieger diagnosed a herniated disc, leading to the surgical back fusion. Dr. Krieger’s testimony was crucial regarding plaintiff’s condition and its relationship to the alleged accidents.

Dr. Krieger’s testimony was that plaintiff’s condition, though aggravated by his work over a period of time, was not caused by any specific accident. He could not testify with certainty regarding when plaintiff’s disc herniated. He concluded that his examination revealed that the plaintiff had the condition in February of 1974 and that the condition had existed for a considerable period of time before that date. He replied to the following question in the affirmative :

“Then the final thing was that you concluded from your history or you could not tell otherwise from your history that there was no particular on-the-job episode of an accident and injury that brought this about, but it was just the series of heavy physical instances in this man’s life that brought about the physical deterioration of his back, is that correct, sir?”

In denying plaintiff’s claim, the Court of Appeal relied heavily upon our decision in Gorbach v. Prager, Inc., La., 310 So.2d 604 (1975). We find Gorbach distinguishable from the present case. In Gorbach, the plaintiff failed to establish that his aggravated back condition resulted from occurrences on the job rather than the automobile accidents occurring off the job. In the present case, the record discloses no causative event off the job.

Assuming that plaintiff had a back defect before beginning his long employment with defendant, the jurisprudence amply supports the principle that workmen’s compensation is payable when an occupational" accident aggravates or accelerates a pre-existing condition and produces disability. , LSA-R.S. 23:1021; Johnson v. Travelers Insurance Co., supra, and cases cited therein. When the ligaments, cartilages, or organs of the body give way because of exertion on the job, as in the case before us, the injury is compensable. Gorbach v. Prager, Inc., supra; Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1968).

It is true that the record does not establish which of the several occupational incidents finally ruptured the disc. We find that it does establish, however, that one or more of the accidents on the job aggravated plaintiff’s back condition to the extent that he became disabled. Thus, under the jurisprudence, the plaintiff has discharged his burden of proof. Concededly, his disability is total and permanent within the meaning of the statute. Hence, he is entitled to workmen’s compensation as provided by LSA-R.S. 23:1221.

Plaintiff alleges aggregate medical expenses of $12,500.00. However, the aggregate is not admitted by defendant, and the record reflects that plaintiff and defendant agree that some of these expenses have been paid by the defendant. Other expenses may have been incurred since the trial. In the interest of justice, we will remand the case to the trial court for determination of medical expenses. LSA-C.C. P. Art. 2164.

For the reasons assigned, the judgment of the Court of Appeal is reversed; judgment is rendered in favor of plaintiff, Luther Chism, Jr., and against Kaiser Aluminum & Chemical Corporation for workmen’s compensation at the rate of $65.00 per week from February 7, 1974, for a period not exceeding 500 weeks, with legal interest on each installment from due date until paid, subject to a credit for any payments made by defendant; all costs of court are assessed against defendant; the fee of' each expert witness who testified at trial is fixed in the sum of $100.00 and taxed as costs; the fee of plaintiff’s attorney, payable out of the award made, is fixed at 20% of the first $5,000.00 of the award, and 10% of the award exceeding $5,000.00, as provided by law.

It is further ordered, adjudged, and decreed that the case be remanded to the district court for the fixing of medical expenses.

SUMMERS, J., dissents for reasons assigned.

SUMMERS, Justice

(dissenting).

I do not agree that the findings of the trial judge and the Court of Appeal on this purely fact question should be reversed for the very tenuous reasons assigned by this Court.

I respectfully dissent.