author:
CULPEPPER, Justice Ad Hoc.
     DENNIS, Justice, CALOGERO, Justice,

text:
    STATE of Louisiana v. Debbie J. ARNOLD. STATE of Louisiana v. Albert L. ARNOLD.
    Nos. 62758, 62759.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      J. P. Mauffray, Jr., Jena, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Speedy 0. Long, Dist. Atty., for plaintiff-appellee.
   CULPEPPER, Justice Ad Hoc.

The defendants, Albert L. Arnold and Debbie J. Arnold, were charged with the crime of attempted cattle theft under LSA-R.S. 14:67.1. In a consolidated trial, the defendants were found guilty as charged by a 12-man jury.

From this conviction the defendants have appealed, assigning 8 specifications of error, seven of which this court deems worthy of consideration. Assignment No. 6 is merely a generalized statement of the same issues raised in Assignments No. 1, 2, 3 and 4, and is not argued separate by defendants, so we will not discuss it.

ASSIGNMENTS OF ERROR NOS. 1 and 2

In these assignments, the defendants object to the admission into evidence of the written statement given to the police by Mrs. Elizabeth Cruse, and to her reading of that statement into the record, on the basis that it is hearsay.

On direct examination by the State, Mrs. Elizabeth Cruse testified she saw Debbie Arnold, one of the defendants, sitting on the passenger side of a brown car parked on the side of the road near a wooded area. The trunk of the car was open and a male unidentified at the trial was standing at the rear of the car near the wooded area. Mrs. Elizabeth Cruse testified that when she stopped her car to see what was happening, Debbie Arnold saw her, slid over to the driver’s seat, and drove off in a hurried manner, leaving the trunk open. The unidentified man ran into the woods. Mrs. Elizabeth Cruse followed the Arnold vehicle because it had no license plate. When she lost sight of the vehicle, she returned to a road nearby the car’s previous position in order to observe the vehicle when Debbie Arnold returned to pick up the man in the woods. Mrs. Elizabeth Cruse further stated that when her car began to overheat she left her position and notified Mr. and Mrs. Ermon Cruse and Mr. Carl Girod, neighbors, of what she had seen. She later returned to the scene of the alleged crime. She observed several spots of blood near the spot where the Arnold vehicle had been parked. Additionally, she stated that on her return to the scene she saw a calf whose throat had been apparently slashed coming down the road from the direction of the wooded area and heading towards Mr. Gir-od’s house.

Upon cross-examination, Mrs. Elizabeth Cruse was asked to repeat her story several times. Also she was asked if she had given a statement to the investigating police officer. She replied that she had given such a statement. She was asked then about the contents of the statement concerning the description of the Arnold car, the times she observed it, and the presence of children in the car. Apparently, this was done in an attempt to show inconsistencies in her prior written statement to the police and her testimony in court.

Upon redirect, the witness identified her written statement and was asked to read it into the record. The defendant’s objection was overruled. The statement was no more than a brief recount of her prior testimony, differing in no significant aspect from her testimony under direct or cross-examination. When the written statement was offered into evidence, the defendants objected on the grounds that it was hearsay and unnecessary.

LSA-R.S. 15:434 provides: “Hearsay evidence is inadmissible except as otherwise provided in this Code.” However, no definition is given in the statutes. As defined by the jurisprudence, hearsay evidence is evidence of an unsworn, out-of-court statement made by a person other than the testifying witness which is introduced for the truth of its content. State v. Sheppard, 350 So.2d 615, at page 643 (La.1977); and State v. Jacobs, 281 So.2d 713 at page 715 (La.1973).

By definition, then, Mrs. Elizabeth Cruse’s statement was not hearsay evidence. Although it was an unsworn, out-of-court statement, it was originally made by the witness herself. It is not a retelling of what someone else stated, but a statement by the witness of what she herself had said. Indeed, she is the only witness whose testimony as to her statement ordinarily would not be hearsay. The traditional exclusion of hearsay in jury trials is based upon consideration of unreliability and of potential unfairness to an accused to permit into evidence damaging out-of-court statements which cannot be tested as to their basis in fact, or by cross-examination of the out-of-court declarant. State v. Ford, 336 So.2d 817 at page 821 (La.1976); and Pugh, Louisiana Evidence Law, pages 388 — 432 (1972). These considerations for exclusion are absent in the case at bar where the witness who is testifying to the out-of-court statement is the declarant. Permitting Mrs. Elizabeth Cruse to read her statement into evidence was not objectionable as hearsay.

The admission into evidence of Mrs. Elizabeth Cruse’s written statement likewise was not error. Mrs. Cruse identified the statement as hers, laying a proper foundation for its admission into evidence. The defendants contend that the written statement should be excluded because it is a repetition of testimony to the jury. They rely on LSA-Code of Crim.Proc. Article 793:

“Use of evidence in jury room; reading of recorded testimony
“A juror must rely upon his memory in reading a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.”

This article is a limitation on the evidence which a jury can take into the jury room. Also, it prohibits the repetition of testimony to the jury after both sides have rested and the jury has retired. There is no evidence in the record to indicate that the jury in the case at bar took Mrs. Elizabeth Cruse’s statement into the jury room. The record only reveals that it was admitted into evidence just like any other documentary evidence and the jury was free to examine it while in the courtroom. LSA-Code of Crim.Proc. Article 793 is therefore inapplicable.

We find no merit in Assignments of Error Nos. 1 and 2.

ASSIGNMENT OF ERROR NO. 3

The defendants contend that the trial court erred in allowing into evidence the hearsay testimony of Mrs. Ermon Cruse as to statements made to her by Mrs. Elizabeth Cruse. Mrs. Ermon Cruse stated:

“She said there was somebody stopped up there with the turtle hull of the car up, and said they acted like they were trying to load something. She also said that a man ran into the woods and a girl crawled under the steering wheel of the car and took off.” (Tr. p. 52)

Over defendants’ objection, the trial judge allowed the statement into evidence. We think correctly so. Evidence is nonhearsay which is offered non-assertively, i. e., to prove that the utterance occurred, and not to prove the truth of the facts recited. State v. Sheppard, supra, at page 643. Mrs. Ermon Cruse’s testimony as to what Mrs. Elizabeth Cruse had told her was elicited in order to show that Mrs. Ermon Cruse possessed certain knowledge and that is why she went to the scene of the alleged crime.

Secondly, the testimony of Mrs. Er-mon Cruse as to what Mrs. Elizabeth Cruse told her was merely a corroboration of Mrs. Elizabeth Cruse’s testimony. It offers no facts into evidence which were not before the trier of fact already. Even where a statement is deemed to be hearsay, this Court has held that its admission to corroborate or to cumulate a witness who has already testified is not reversible error. State v. Ford, supra.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

The defendants contend that the trial court erred in allowing into evidence the hearsay testimony of Mr. Ermon Cruse as to statements made by Mrs. Elizabeth Cruse to him. In response to a question by the State as to whether on the day of the alleged crime he had an occasion to go down to the scene, Mr. Ermon Cruse stated:

“No, I didn’t have no business there until Mrs. Cruse come back by and told me that somebody was trying to get a calf up there.” (Tr. p. 6)

No objection was made by defense counsel at the trial to the admission into evidence of this statement by Mr. Cruse. Under the contemporaneous objection rule, an error as to the admission of hearsay evidence cannot be availed of after a verdict unless it was objected to at the trial. LSA-Code of Crim.Proc. Article 841. This court is therefore without power to act upon the objection raised by defendants in this assignment of error.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

The defendant contends that the conviction of the defendant on circumstantial evidence alone was error because the evidence presented at the trial did not remove every reasonable hypothesis of innocence.

As outlined above, Mrs. Elizabeth Cruse testified that she saw Debbie Arnold in the Arnold car acting suspiciously with the car trunk open at the spot where she later saw blood. Additionally, after chasing the car she went to tell her neighbors of the occurrence. On her way to Mr. Girod’s house, she saw a calf with its throat apparently slit coming from the direction of the woods where she had seen the unidentified man and Debbie Arnold and going towards Mr. Girod’s house. The calf was later identified as belonging to Girod.

Mr. Ermon Cruse, without objection by defense counsel, testified that Mrs. Elizabeth Cruse had told him she saw some people attempting to load a cow into the trunk of the Arnold vehicle. Mrs. Ermon Cruse testified that a few minutes prior to Mrs. Elizabeth Cruse driving to her home, she saw both defendants and another man drive by her house and shoot at her trash barrel.

LSA-R.S. 15:438 provides:

“The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

Under this rule of law and these facts, Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 7

The defendants contend that the penalty provision of LSA-R.S. 14:67.1 is unconstitutional because it violates the prohibitions against cruel and unusual punishment in Article I, Section 20 of the Louisiana Constitution of 1974 and the Eighth Amendment to the United States Constitution. LSA-R.S. 14:67.1 provides for punishment of not less than one year without benefit of parole, probation, or suspension of sentence, and not more than ten years. Because the crimes charged were attempts, they carried a possible penalty of one-half the penalty prescribed in 14:67.1 [LSA-R.S. 14:27(3)].

The court sentenced Debbie Arnold to imprisonment for six months at the West Monroe Correctional Facility. Albert Arnold was given a suspended sentence of imprisonment at hard labor four years. He was placed on “active supervised probation” for the entire four years, with the condition that he serve one year in the parish jail’s work farm.

In State v. Stetson, 317 So.2d 172 (La.1975), this Court looked to the United States Supreme Court case of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 22 L.Ed.2d 346 (1972), to formulate four generalized criteria for assessing the constitutional validity of penalty provisions:

“The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings. In addition, the State must not arbitrarily inflict a severe punishment; the punishment must not be unacceptable to contemporary society; and the punishment must not be excessive.”

In State v. Miller, 263 La. 960, 269 So.2d 829 (La.1972) this Court dealt with the issue of whether making the issuance of worthless checks (LSA-R.S. 14:71) a felony constituted cruel and unusual punishment. The Court held that the penalty under the worthless check statute was not cruel and unusual and that it failed to meet the following criteria:

“Cruel and unusual punishments are those that are barbarous, extraordinary, or grossly disproportionate to the offense. In short, the constitutional prohibition is directed to punishments that shock the conscience of civilized men. State v. Crook, 253 La. 961, 221 So.2d 473 (1969).”

Likewise, this Court finds nothing in the penalty provision of LSA-R.S. 14:67.1 which is barbarous, excessive, or grossly disproportionate to the crime of cattle theft. The penalty provision of the statute is not cruel and unusual punishment and does not violate the constitutional prohibitions.

Assignment of Error No. 5 is therefore without merit.

ASSIGNMENT OF ERROR NO. 8

The defendants argue that the classification of theft of livestock in LSA-R.S. 14:67.1, as opposed to theft of other animals and other equally valued objects under the general theft statute (LSA-R.S. 14:67), is a violation of due process and equal protection under the Fourteenth Amendment to the United States Constitution.

Section 1 of the Fourteenth Amendment to the United States Constitution provides:

“Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In the case of State v. Barton, 315 So.2d 289 (La.1975), this Court enunciated a standard of review of statutory classifications as mandated by the equal protection clause:

“The equal protection clause requires that there be some justification in fact for the statutory classification drawn by the legislature, such that those similarly situated are similarly classified and treated. In other words, legislative classifications must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced are treated alike.”

The classification of cattle and other livestock theft as separate from general theft is reasonable and not arbitrary. The distinction is based on the nature of the object and it reflects the legislature’s method of dealing with a particular social evil. The classification bears a substantial relation to the object of the legislation, i. e., to discourage the theft of livestock which, because of their very nature, are left unguarded and not within the immediate control of their owners.

This Court is aware that the inclusion of livestock theft in a special article has been severely criticized by commentators as unnecessary and archaic. Bennett, Work Of The Louisiana Appellate Courts, 1968-1969, Criminal Procedure, 30 La.L.Rev. 309 (1970); Bennett, Work Of The Louisiana Appellate Courts, 1965-1966, Criminal Law, 26 La.L.Rev. 573 (1966); Bennett, Louisiana Legislation of 1962, 23 La.L.Rev. 64 (1962). The wisdom of including such a classification in our criminal statutory scheme is a matter for the legislature to determine. This Court can only pass judgment on whether or not that classification meets constitutional standards.

Assignment of Error No. 8 is without merit.

For the reasons assigned, the convictions and sentences of Debbie J. Arnold and Albert L. Arnold are affirmed.

CALOGERO and DENNIS, JJ., concur and assign reasons.

MARCUS, J., concurs.

DENNIS, Justice,

concurring.

I respectfully concur.

I disagree with the majority opinion’s statements, in discussing assignments of error numbers one and two, that Mrs. Elizabeth Cruse’s statement by definition was not hearsay.

In State v. Martin, 356 So.2d 1370 (La.1978) this Court in considering the very same question, stated:

“We have on occasion indicated that an out-of-court assertion by a testifying witness is not hearsay, although it does not appear that this notion was actually crucial to any of our decisions. In other cases, this Court has stated the definition of hearsay in language which would include an out-of-court assertion of a testifying witness. After warning that any one-sentence definition is an over-simplification, Professor McCormick proposes the following:
‘Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ C. McCormick, Evidence, § 246 (Cleary ed. 1972).
Upon reflection, we conclude that Professor McCormick’s formulation is preferable as a brief definition of hearsay. Often an erroneous ruling admitting an un-sworn out-of-court assertion by a testifying witness will not present grounds for reversal, but the hearsay character of a proffered out-of-court assertion is not altered by the fact that the statement was made by a person who appears in court as a witness.” 356 So.2d 1373-74. [footnotes omitted]

However, the erroneous ruling did not present grounds for reversal because the declarant appeared as a witness at trial. See State v. Martin, supra; G. Pugh, Louisiana Evidence Law, § 433 (1974).

CALOGERO, Justice,

concurring.

In light of our recent decision in State v. Martin, 356 So.2d 1370 (La.1978) I disagree with the majority’s assertion that Mrs. Cruse’s statement was not hearsay. However, I do agree that no reversible error occurred and further that introduction of the witness’ written statement on re-direct was proper for the reason that on cross-examination of that witness the defense made an issue over the witness’ prior statement to police and the content thereof.

       Chief Judge William A. Culpepper of the Court of Appeal, Third Circuit, participated in this decision in place of Chief Justice Sanders, retired.


source: Caselaw Access Project

author: BOLIN, Justice, Ad Hoc.

license: Public Domain

text:
    LANDIS CONSTRUCTION COMPANY, INC. v. HEALTH EDUCATION AUTHORITY of Louisiana.
    No. 62765.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      George G. Kiefer, Kiefer, Glorioso & Fleming, New Orleans, for defendant-respondent.
    Joseph E. Friend, Dodge, Friend, Wilson & Spedale, New Orleans, for Landis Const. Co., Inc., plaintiff-applicant.
    John A. Stewart, Jr., New Orleans, for Associated Gen. Contractors of Louisiana, amicus curiae.
    Michael J. Molony, Jr., David J. Conroy, C. E. Hall, R. King, Milling, Milling, Benson, Woodward, Hillyer & Pierson, New Orleans, amicus curiae, in support of application of Landis Const. Co.
   BOLIN, Justice, Ad Hoc.

Landis Construction Co., Inc. (Landis) brought suit against the Health Education Authority of Louisiana (HEAL) to compel arbitration under the terms of a construction contract. HEAL denied the existence of an agreement to arbitrate on the ground that the signatories to the construction contract were without authority to stipulate for arbitration. From judgment of the trial court ordering arbitration, HEAL appealed. The court of appeal reversed. 359 So.2d 1045 (La.App. 4th Cir. 1978). We granted writs to review the correctness of this judgment. We reverse the judgment of the court of appeal.

On May 25, 1973, Landis, a corporation engaged in the business of contracting, and HEAL, a corporate and public body and an instrument of the State of Louisiana, executed an agreement whereby Landis was to construct a parking garage in New Orleans for HEAL. It is not now contended that the contract lacked a provision for arbitration of disputes. The vice-president of Lan-dis and the Chairman of the Board of Trustees of HEAL executed the agreement on behalf of the two corporations.

After the garage was constructed a lien dispute arose and Landis brought this suit to compel arbitration in 1976. HEAL contended that the stipulation for arbitration was invalid because the signatories to the contract were without power to so stipulate under the terms of La.Civil Code article 2997. This article, found in the section of the code entitled “Of Mandate”, provides in part:

Thus the power must be express and special for the following purposes:
******
To compromise or refer a matter to arbitration.
******

At trial a 1965 resolution of the Board of Directors of Landis was introduced. In essence it granted to the vice-president the power to execute such contracts as he deemed proper and to the advantage of the corporation. Also introduced, without objection, was a resolution of HEAL, dated April 19,1973, accepting Landis’ bid for the construction of the parking garage. The HEAL document provided in part:

The Executive Director or the Chairman of the Board is authorized to execute a contract with Landis Construction Company, the contract to be approved in advance by [the architect] and by general counsel for HEAL,

Relying on these resolutions, the trial court found that the vice-president of Lan-dis and the Chairman of the Board of Trustees of HEAL had the authority to execute the construction contract. Although the exact basis for the trial court’s decision is unclear, the court concluded:

This particular contract contained an arbitration clause; and either by express or apparent authority or subsequent ratification by the principals, HEAL and Lan-dis, both parties should be bound by the contract and all its elements. Included in these elements, of course, is the arbitration clause.

In reversing the lower court the appellate court stated that neither resolution expressly authorized the party signing the contract to stipulate for arbitration as required by La.C.C. art. 2997. The court further found no ratification of the contract. On rehearing the court also rejected the argument that the respective resolutions of the two corporations were aimed at this particular construction contract such that they could be construed as granting express authority to stipulate for arbitration.

At the outset we point out that we are restricting our review to the question of whether or not HEAL is bound by the stipulation for arbitration. We have determined that HEAL’s actions in confecting a contract with the representative of Landis and deriving benefits from that contract prevent it from urging the lack of authority of Landis’ vice-president as a defense in this litigation. William D. Seymour & Co. v. Castell, 160 La. 371, 107 So. 143 (1926); Squier v. Stockton, 5 La.Ann. 120 (1850); United States Securities Corp. v. Exchange National Bank, 15 La.App. 23, 130 So. 818 (2d Cir. 1930).

Turning to the issue before us, we conclude the Chairman of the Board of Trustees of HEAL did have express authority to bind HEAL to the arbitration clause. Because of the narrow grounds on which we decide this case, it is unnecessary to address the broader question of whether the private law of mandate necessarily applies to the acts of a public or private corporation which must operate through a representative.

We disagree with the appellate court’s interpretation of HEAL’s resolution. The intermediate court was of the opinion that this resolution was not aimed at the specific construction contract confected between the two corporations to the extent that each corporation would be bound to every clause in the contract once it was executed.

Under the express wording of HEAL’s resolution, dated about a month prior to the actual execution of the construction contract, the Executive Director or Chairman of the Board was authorized to execute the contract with Landis whose low bid for the construction of the parking facility was being accepted. In our view, this authorization was aimed at the specific construction contract in question. The resolution also provided, in part, that the contract was to be approved by HEAL’s general counsel and architect. Testimony taken at the trial establishes that counsel for HEAL had reviewed the portions of the contract containing the stipulation for arbitration before the contract was executed. It is also clear that the specifications which were made a part of the contract were prepared by HEAL’s architect. In fact, the arbitration provision appears in these specifications.

We hold that the express authority to execute the specific construction contract included the authority to bind HEAL to each and every provision of the contract, including the stipulation for arbitration.

For the reasons assigned the judgment of the court of appeal is reversed and the judgment of the trial court is affirmed. Defendant is cast with whatever cost is permissible by law.


author: DENNIS, Justice.

text:
    WEST BATON ROUGE PARISH SCHOOL BOARD v. T. R. RAY, INC.
    No. 62760.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      William R. D’Armond, Sanders, Downing, Kean & Cazedessus, Baton Rouge, for defendant-respondent.
    Joseph W. Cole, Jr., Asst. Dist. Atty., 18th Judicial Dist., for plaintiff-applicant.
    Ben Louis Day, Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, for La. Architects Ass’n, amicus curiae of the American Institute of Architects.
    R. Gray Sexton, Wilson & Sexton, Baton Rouge, for La. Engineering Soc. amicus curiae.
   DENNIS, Justice.

In this case we are called upon to decide whether a corporation which is not licensed to practice architecture may demand arbitration of a fee dispute under a contract by which it has agreed to perform architectural services.

T. R. Ray, Inc. contracted with the West Baton Rouge Parish School Board to perform architectural services in erecting a new high school building. After the plans and specifications were completed and construction had begun, the architect employed by T. R. Ray, Inc. who had been in charge of the project left the employ of the corporation. Because of the loss of the architect’s services the school board notified the corporation that it wished to terminate the contract. Shortly thereafter the corporation instituted arbitration proceedings to recover a balance of $41,117.53 allegedly due under the contract. The school board filed suit to enjoin the corporation from submitting the claim to arbitration.

The district court determined that the contract was void because prohibited by law and rendered judgment for the school board preliminarily enjoining the corporation from submitting its claim to arbitration. The court of appeal reversed and recalled the injunction, holding that although a corporation may not practice architecture, there is no prohibition against its acting as a “supplier of architectural services . to be performed by a licensed architect.” West Baton Rouge Parish School v. T. R. Ray, Inc., 361 So.2d 300, 302 (La.App. 1st Cir. 1978). We granted certiorari to review the intermediate appellate court’s interpretation of the law and the contract.

The law governing this case is clear. Only a person who has been granted a certificate of registration and license by the State Board of Architectural Examiners may practice architecture in the State of Louisiana. La.R.S. 37:14s. The practice of architecture is the performance of professional services embracing the safe, healthful, scientific and aesthetic planning, design, and specifications for and the overseeing of the construction of any public or private building or buildings. La.R.S. 37:141.

In its contract with the school board for the design of a public building, the corporation agreed to perform “professional services” as an architect including the preparation of drawings and specifications setting forth in detail the requirements for the construction of the entire project; to act as representative of the owner during construction by advising and consulting with the owner and issuing the owner’s instructions to the contractor; and to accept the authority and responsibility of rejecting work which did not conform to the design and specifications. Thus the “professional services” which the corporation agreed to perform encompassed all of those set forth in the legal definition of “the practice of architecture.” La.R.S. 37:141.

It is undisputed that the corporation did not secure from the Board of Architectural Examiners a certificate of registration and license. Indeed, it was legally impossible for it to have done so because a licensee must pass an examination and possess certain moral, legal and educational qualifications. La.R.S. 37:146. Consequently, the agreement between the corporation and the board was a contract to perform architectural services unlawfully without a certificate of registration and license.

It is self-evident, therefore, that the school board was entitled to have the contract declared void and to have execution of its arbitration clause enjoined. Individuals can not by their conventions derogate from the force of laws made for the preservation of public order and good morals. La.C.C. art. 11. The laws regulating the practice of architecture were enacted “to safeguard life, health and property and to promote the public welfare”, La.R.S. 37:141(A), and thus were plainly made for the preservation of public order. The laws also prohibit the practice of architecture without a license, and whatever is done in contravention of a prohibitory law is void. La.C.C. art. 12. See, e. g., Jary v. Emmett, 234 So.2d 530 (La.App. 3d Cir. 1970); Van Horn v. Vining, 133 So.2d 901 (La.App. 2d Cir. 1961); Ronaldson v. Moss Watkins, Inc., 127 So. 467 (La.App. 1st Cir. 1930).

Although the issue is not before us in this preliminary injunction review, because of the harsh consequences and unnecessary litigation which otherwise might follow, it should be noted that although the contract is unenforceable the corporation is not necessarily without a remedy. From the record before us it appears that both parties entered the contract in good faith and that the corporation may be entitled to compensation under the theory of unjustified enrichment or under the doctrine of culpa in contrahendo. See, Coleman v. Bossier City, 305 So.2d 444 (La.1975). See also, Oil Purchasers, Inc. v. Kuehling, 334 So.2d 420 (La.1976); Tate, The Louisiana Action for Unjustified Enrichment: A Study in Judicial Process, 51 Tul.L.Rev. 446 (1977); Tate, The Louisiana Action for Unjustified Enrichment, 50 Tul.L.Rev. 883 (1976); Schwenk, Culpa In Contrahendo in German, French, and Louisiana Law, 15 Tul.L.Rev. 87 (1940).

For the reasons assigned, the judgment of the court of appeal is reversed and the judgment of the district court, preliminarily enjoining the corporation from submitting its claim to arbitration, is reinstated at the cost of the corporation.

REVERSED.

       Chief Judge James E. Bolin participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . We reject as specious the defendant’s argument that the legislature intended to prohibit only natural persons from practicing architecture without a license. As the court of appeal and the district court, we think it clear that an architect must be a person who “is technically and legally qualified to practice architecture,” La.R.S. 37:141, by virtue of successfully taking an examination and possessing certain legal, educational and moral qualifications. La.R.S. 37:146.

      . In its opinion, the court of appeal stated that “T.R. Ray, Inc. did not hold itself out to be an architect but to be the supplier of architectural services, such services to be performed by a licensed architect.” It is difficult to understand how the intermediate court could have reached this conclusion. The contract was prepared on an American Institute of Architects Standard Form of Agreement Between Owner and Architect. The contract designates T. R. Ray, Inc. as “the Architect” and provides that the Architect shall perform the “Architect’s Services” described in the agreement. The contract does not require that the “Architect’s Services” be performed by a licensed architect; it merely provides that they be performed by T. R. Ray, Inc.

      .The issue of whether the contract is void ab initio is properly a question for the Court. See La.R.S. 9:4201; Standard Co. of New Orleans, Inc. v. Elliott Construction Co., 363 So.2d 671 (La.1978); George Engine Co. v. Southern Shipbuilding Corp., 350 So.2d 881 (La.1977); Stone v. Stone, 292 So.2d 686 (La.1974).

      . Jary v. Emmett, 234 So.2d 530 (La.App. 3d Cir. 1970), is distinguishable as a suit in quantum meruit, which represents “an ill-considered importation from the common law,” Oil Purchasers, Inc. v. Kuehling, 334 So.2d 420 (La. 1976), and was not a proper remedy in that case. Additionally the facts in the instant case, in which the architectural services were actually performed by a licensed Louisiana architect, are distinguishable from those in Jary which involved the performance of services by a Texas architect who was not licensed in Louisiana.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Jack LeBLANC, Jr.
    No. 62770.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      Richard J. Bertrand, Lafayette, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Ronald D. Cox, Asst. Dist. Atty., for the State.
   DIXON, Justice.

Petitioner, Jack LeBlanc, Jr., was charged by bill of information with willfully and intentionally resisting arrest by officers of the Lafayette Parish sheriff’s office, in violation of R.S. 14:108. The petitioner was tried before a judge ad hoc, found guilty and sentenced to pay a fine of $25 plus costs and to serve thirty days in the parish jail. The jail term was suspended and petitioner was placed on one year unsupervised probation. This court granted v/rits to review petitioner’s two assignments of error.

Assignment of Error No. 1

After the state rested its case, the defense moved for a judgment of acquittal which was denied and after the judge ad hoc ruled against the defendant, the defense made a motion for a new trial that was denied. When defense gave notice of intention to apply for writs, the judge ad hoc stayed the sentence pending the determination of the writs and prepared a narrative account of witnesses’ testimony from notes he made during the trial because there was no recording of testimony at trial.

The defense contends that the judge ad hoc erred in denying his motion for a new trial when there was no evidence to support the finding of guilty. Defense argues that a recording and transcript should be available for judicial review rather than a narrative account. Defense contends that under Art. 1, § 19 of the Louisiana Constitution of 1974 and subsequent legislative acts the entire record including recorded and transcribed testimony of all witnesses must be forwarded to the court for review unless defendant intelligently waived his constitutional right to judicial review based on the complete record. The state contends in response that defense counsel did not request recording of all proceedings pursuant to C.Cr.P. 843 which requires a motion from the court, state or defense before a recording will be made in misdemeanor cases. The defense contends that the requirement in C.Cr.P. 848 of a motion for recordation in a misdemeanor case conflicts with Art. 1, § 19 which grants the right of judicial review based on a complete record.

The right of judicial review based on a complete record of all the evidence is mandated by Art. 1, § 19 of the Louisiana Constitution of 1974 which provides:

“No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.”

However, before the adoption of the new Constitution, the Louisiana State Law Institute drafted C.Cr.P. 848 as part of a package to amend the Code of Criminal Procedure so as to eliminate provisions relating to bills of exception and instead to provide for assignment of error. C.Cr.P. 843 as amended by Acts 1974, No. 207 provided:

“On motion of the court, the state, or the defendant in misdemeanor cases in the district court in which the possible sentence may give the defendant the right to appeal, and in felony cases, the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.” (Emphasis added).

A year later C.Cr.P. 843 was amended by Acts 1975, No. 118 § 1 and now provides:

“In felony cases, and on motion of the court, the state, or the defendant in misdemeanor cases tried in a district, parish, or city court, the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.” (Emphasis added).

The second amendment deleted “in the district court in which the possible sentence may give the defendant the right to appeal” and added instead “tried in a district, parish, or city court.”

With this 1975 amendment the Louisiana State Law Institute added the Official Revision Comment as a replacement for Revision Comment to the old C.Cr.P. 843 bill of exception provisions. The new Official Revision Comment for C.Cr.P. 843 provides in part:

“(b) In misdemeanor cases in the district court in which the possible sentence may give the defendant the right to appeal, this article requires that all of the proceedings be recorded if the defendant, the state, or the court so moves. No such motion is required for recordation of the proceedings in felony cases.
The right in this article to require that all of the proceedings be recorded by the clerk or court stenographer in misdemeanor cases is related to the right to appeal. See Art. V, Section 5, Constitution of 1974. If Art. I, Section 19, Constitution of 1974 gives broader rights, the constitution will, of course, prevail.” (Emphasis added).

In the present case the issue is whether the words “on motion of the court, the state, or the defendant” are unconstitutionally restrictive because Art. 1, § 19 of the 1974 Louisiana Constitution gives broader rights.

The basic wording of Art. 1, § 19 was first proposed at the Constitutional Convention of 1973 by Mr. Avant, who explained that certain trials were not automatically recorded and that it was possible for a person to receive up to six months in jail without having any sort of a record available for review. Most of the debate during the constitutional convention concerned the cost of implementing Mr. Avant’s proposal. Mr. Kelly reasoned that the cost in these matters involved the transcription and not the actual recordation of the matter; anyone could record the testimony without real expense and the use of cassette tape records in the city courts was suggested as one low cost method of recordation.

Similar to the present situation, Mr. Kelly was concerned that if the defendant or his lawyer did not ask that a complete record be made, the record would not be made. Also, one delegate thought the proposed amendment might be too broad and should only apply when a person is subject to imprisonment and not when a person is subject to forfeiture of a right or property. But another delegate reminded him that C.Cr.P. 884 provides that if a defendant is sentenced to pay a fine plus court costs that defendant is still subject to imprisonment if he defaults. Throughout the debate it was clear that the amendment was intended to apply to misdemeanors tried in city court as well as felonies tried in district court.

After passage of the amendment which became the basic wording of Art. 1, § 19, Mr. Dennis (now Justice Dennis of this court) proposed an amendment which added “the cost of transcribing the record shall be paid as provided by law.” Mr. Dennis explained that he was:

“. . . attempting to clarify and do what Mr. Avant and Mr. Kelly, I believe, wanted to do which was to simply make sure that a recording is made of all of the testimony and then leave it up to the legislature as to who would get that transcribed free, at the cost to the state, or who would have to pay for it himself.
.” (Emphasis added).

Mr. Dennis’ amendment passed to become, together with Mr. Avant’s amendment, Art. 1, § 19 of the 1974 Louisiana Constitution.

Our review of the verbatim transcripts and the clear words of Art. 1, § 19 indicate that no one in a misdemeanor case should have to make a motion before recording of the proceeding is made. Art. 1, § 19 grants the right of judicial review based on a complete record whenever a person is subject to imprisonment or forfeiture of rights or property. Therefore, the words “on motion of the coúrt, the state, or the defendant” in C.Cr.P. 843 are an unconstitutional restriction on this constitutional right.

The state further contends that the complete record of all the evidence was not made because the defense waived that right. In the instant case, the minute entry for the day of the trial shows that prior to trial counsel for defense informed the court that he did not need a transcript of the proceedings and the judge ad hoc in his narrative of facts stated:

“The court asked the defendants and their attorneys whether or not they wished a record or a transcript of the testimony to be prepared and the defendants through their attorneys stated that they would not need a transcript of the record and therefore waived the same. Accordingly, the court made extensive notes during the trial on five legal pages.” (Emphasis added).

In brief defense argues that he declined transcription prior to trial because of the cost and because he wanted to wait to see if a transcript was needed; however, he stresses the difference between a transcript and recording and that he never intended to waive the recording of the proceedings.

Throughout the verbatim transcripts of the constitutional convention and in the clear words of Art. 1, § 19, dichotomy exists between recordation and transcription. This dichotomy was clear when the delegates discussed the cost of providing this constitutional right and when Mr. Dennis explained his proposed amendment. Further, it is much more likely that defense would waive transcription rather than rec-ordation. As Mr. Arnette reasoned during the constitutional convention:

“This amendment does say that you can waive it. But the problem with that is . that nobody is going to waive it before the record is taken, before the trial is over, because he doesn’t know whether there’s a mistake made until the trial is over.”

Mr. Hargrave in his article, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 60-62 (1974) explains the waiver provision in Art. 1, § 19 as follows:

“Since the provision requires that review be based on a ‘complete record of all evidence upon which the judgment is based,’ some kind of stenographic or sound recording of the testimony will be necessary. The section, of course, does not require that the record be transcribed in all eases; but a record must be available to one who might choose to take advantage of his right of review. If he makes a knowing and intelligent waiver of the right, the record need not be transcribed.” (Emphasis added).

Pretermitting whether the intelligent waiver of right in Art. 1, § 19 is the right of recordation or judicial review, this court cannot say that the record demonstrates a knowing and intelligent waiver of the right of recordation, see State v. Bizette, 334 So.2d 392 (La.1976), or judicial review, and absent an intelligent waiver on record, this court cannot presume a waiver.

Finally, the state contends that defendant did not make any objection during trial that was overruled and in his writ, petitioner does not state what specific parts of the record are needed. First, according to the defense in brief and the judge ad hoc in his narrative account, the defense made a motion for judgment of acquittal which was denied. Second, defense’s assignment of error is that there is no evidence to support a finding of resisting arrest so defense needs a complete record transcribed rather than designating a specific part. Third, failure to make contemporaneous objections and to designate parts of the record for appellate review may procedurally bar the right of judicial review, State v. Spain, 329 So.2d 178 (La.1976), but not defendant’s constitutional right to an initial recording of all the evidence upon which the judgment was based.

We find meritorious defendant’s Assignment of Error No. 1.

Assignment of Error No. 2

Defense contends that the trial judge erred in denying its motion for a new trial which alleged that defendant’s rights were prejudiced because the judge ad hoc and his son are members in a two man law firm that represents the Lafayette Parish sheriff’s department. In brief defense contends that a lawyer whose only law partner represents the sheriff’s office should not have been appointed, and the judge ad hoc should have recused himself, emphasizing the apparent conflict when the son represents the Lafayette Parish sheriff’s department and the father (his partner) sits as the judge ad hoc in a trial where the arresting officer, the charging officer and the prosecuting witnesses all are members of the Lafayette Parish sheriff’s department.

Defense did not file a motion to recuse because it did not learn that the judge’s firm represented the sheriff until after the trial. Therefore, instead of assigning error to the denial of a motion for recusal (which must be made before verdict or judgment, C.Cr.P. 674), the defense assigns error to the denial of the motion for a new trial. Davis v. Board of School Commissioners, 517 F.2d 1044, 1051 (5 CA 1975) cert. den. 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976).

C.Cr.P. 671 provides:

“In a criminal case a judge of any court, trial or appellate, shall be recused when he:
(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
(2) Is the spouse of the accused, of the party injured, of an attorney employed in the cause, or of the district attorney; or is related to the accused or the party injured, or to the spouse of the accused or party injured, within the fourth degree; or is related to an attorney employed in the cause or to the district attorney, or to the spouse of either, within the second degree;
(3) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause;
(4) Is a material witness in the cause;
(5) Has performed a judicial act in the case in another court; or
(6) Would be unable, for any other reason, to conduct a fair and impartial trial. In any cause in which the state, or a political subdivision thereof, or a religious body is interested, the fact that the judge is a citizen of the state or a resident of the political subdivision, or pays taxes thereto, or is a member of the religious body is not of itself a ground for recusation.”

However, the state correctly argues that the relationship grounds in C.Cr.P. 671(2) are not applicable to the instant case because the judge ad hoc is not related to the assistant district attorney nor the defense attorney employed in the cause; further the judge ad hoc’s law firm and his son are not alleged to be employed by the Lafayette Parish sheriff’s office in defending any pending civil litigation in the same cause. Therefore, neither C.Cr.P. 671(2) nor (3) are applicable in the instant case.

In interpreting the provision of C.Cr.P. 671(1), this court in State v. Maduell, 326 So.2d 820 (La.1976), held that recusal under § 1 would not be justified upon mere general conclusory allegations, but the disqualifying bias, interest or prejudice must be of a substantial nature. In Maduell, this court found nothing in the record demonstrating that the ground for recusal had support or that in the conduct of the trial the judge was anything other than fair and impartial. In the instant case, however, this court has no record to review the judge’s conduct, and as the state correctly points out the defense’s application and brief do not allege or show any specific instances of the judge’s partiality or bias nor any gain that the judge would have from finding the defendant guilty. C.Cr.P. 671(1) is not applicable in the instant case.

Finally, C.Cr.P. 671(6) provides that a judge shall be recused when he would be unable, for any other reason, to conduct a fair and impartial trial, and the Official Revision Comment to C.Cr.P. 671 provides in part:

“Ground (6) is a catchall provision to include circumstances which clearly indicate that the judge would not be able to serve fairly and impartially, even though none of the specified grounds for recusation exist.”

The American Bar Association has recommended that a judge should disqualify himself “in a proceeding in which his impartiality might reasonably be questioned.” Code of Judicial Conduct, Canon 3(C)(1). The federal recusal statute has adopted this standard also in 28 U.S.C. § 455(a). Professor Orfield stated that “courts should not be only impartial but above the suspicion of partiality.” Orfield, Criminal Procedure From Arrest to Appeal, 374 (1947), as quoted in the Official Revision Comment for C.Cr.P. 671. In State v. Lemelle, 353 So.2d 1312 (La.1977), this court found that even the appearance of impartiality, as well as impartiality itself, outweighs the inconvenience caused by the recusal of the trial judge. We find that the judge ad hoc should have recused himself on his own motion and that he abused his discretion in failing to grant a new trial.

For the reasons assigned, petitioner’s conviction is reversed and this case is remanded to the City Court for a new trial.

SUMMERS, C. J., dissents.

MARCUS, J., concurs.

       Chief Judge William A. Culpepper participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Joe W. Sanders, Retired.

      . The difficulties with the 1974 amendment to C.Cr.P. 843 were explained by Mr. Joseph at 35 La.L.Rev. 597, 598 (1975):
      “In another respect, however, the amended article is probably unconstitutionally restrictive. Although Article 1, § 19 of the 1974 Constitution clearly applies to city court proceedings and to unappealable cases tried in district court, the Code requires a record only in cases tried in district courts ‘in which the possible sentence may give the defendant the right to appeal.’ The differences in coverage can be explained by the fact that the amended code article was drafted by the Louisiana State Law Institute prior to the adoption of the new constitution. An additional amendment to include all district court and city court cases should be adopted.”
      Mr. Joseph noted that Louisiana House Bill 164, Regular Session of 1975 had been proposed to broaden the coverage of C.Cr.P. 843 and subsequent to his article the proposal was passed and became the 1975 amendment now in question.

      . This question was expressly reserved in State v. Robertson, 310 So.2d 619 (La.1975), where this court reviewed three pre-1974 misdemean- or convictions. The defendant’s court appointed attorney failed to request recordation as in the present case and in affirming the convictions this court reasoned:
      “Under the law applicable at the time of trial, the accused was not entitled as of right to have the testimony as to guilt or innocence recorded and transcribed, unless the accused or his counsel so requested. La.R.S. 13:961, subd. C (1950); 15:291 (1960). Whatever might be the merit of the claim under the 1974 statute (since the record shows no intelligent waiver), the failure of court-appointed counsel to request recordation and transcribing is not reviewable, as the denial of a statutory or constitutional right, on an appeal under the law in effect at the time of the trial.” 310 So.2d at 621-622.

      . Mr. J. Jackson explained:
      “Now, some people say we are not talking about cost. I’m suggesting to you that I think, personally, as a delegate, that some people are weighing that factor and that’s the way they are going to decide how to vote on this amendment. Can we really substitute cost for justice?
      I’m suggesting to you that whereas we had provided our judiciary, where we have provided our district attorneys with the necessary funds, with the necessary staff, with the necessary supportive services, then it seems no more than reasonable that we ought to provide at least as this amendment provides . . .
      states, the opportunity for a person who may have his property, certain of his rights forfeited, to have the recordings of that testimony against him. . . Verbatim Transcripts of the Constitutional Convention of 1973, Vol. XIII, 42nd day, p. 82.

      . Id. at 74, 81.

      . Id. at 77-78.

      . Mr. Kelly explained:
      “. you could read it in one way whereby it would mean that free transcripts would be provided in all cases including civil cases and everything else.
      That’s not what this amendment does. And there’s one basic question that has to be answered, and that’s whether or not we are going to put a price tag on justice. Now anytime a person is called into a court of law — I don’t care whether it’s a mayor’s court, a district court, or whatever court you may bring him into — I think that he should be entitled to have every right provided to him, including this right to know what has been said against him and to have some recordation of the same.
      Now, the cost factor has been argued here today heavily. That’s the main opposition to this. It is, well, look what this is going to cost. This is just no argument when we start talking about placing a man in jail or taking his property away from him. And this city court argument, that’s a fallacy because a city court can provide a cassette recorder just as easily as a district court can. And I’ll say this This misuse is not only in city courts or courts of limited jurisdiction, as Mr. Avant answered in a question by me. This goes on in our district courts today. I guarantee you, you get the guy that is called in, is ticketed, say, for simple battery. He’s got a good job; he’s got a wife to support; he’s got children to support. So he gets picked up on a simple battery charge one Saturday night. All right, he goes into court the next Friday or the Friday week, and he doesn’t think too much about it because he looks at the penalty and he says, ‘Well, not too much can happen to me over this. I don’t think I’ll even go to the trouble of getting a lawyer. I’ll go and defend myself.’ He walks in there and the judge calls him up and says, ‘Are you ready for your case?’ ‘Yes.’ And let’s suppose that he has been apprised of all of his other constitutional privileges. No one ever asked him, ‘Do you want this recorded?’ They are not even going to ask him, if he’s got a lawyer sitting beside him, ‘Do you want this recorded?’
      So he goes on and the witnesses testify against him. Now he thinks, ‘Well, maybe if I am guilty, I’ll get a fine or something.’ But for some reason, somebody’s in a bad mood on this particular day, and the first thing you know, he’s been sentenced to four months in jail. He doesn’t even have time to go home, tell his wife, ‘Look . . . ,’ or call his employer, T’m not going to make it to work today because I’ve got four months to serve.’ And then he decides, ‘Well it’s high time I’d better get a lawyer because I’m in trouble.’
      So he calls one. Now, what’s he going to do? There has been no recordation of any of the evidence presented against him, and by evidence, I’m talking about what witnesses said happened on this particular event. This is the very thing which I think Mr. Avant has in mind. This is no move to abolish city courts. This same thing goes on in district courts. This is a move to protect the average man who doesn’t think that he’s got legal problems, and he walks into that district court or city court and the first thing you know, he ends up in jail.” Id. at 80-81.

      . Verbatim Transcripts of the Constitutional Convention of 1973, Vol. XIV, 43rd day, p. 27.

      . Verbatim Transcripts of the Constitutional Convention of 1973, Vol. XIII, 42nd day, p. 79.

      . The record indicates that the judge ad hoc was appointed and the trial was begun on the same day. No grounds for recusal would exist until the case is assigned. State v. Lemelle, 353 So.2d 1312 (La.1977).


text:
    STATE of Louisiana v. Cuong NGUYEN.
    No. 62778.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert T. Myers, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

The issue of law presented in this case is whether a defendant who is employed by the owner of stolen property to regain the property commits the crime of receiving stolen things by accomplishing his mandate.

Defendant, Cuong Nguyen, was charged by bill of information with theft of property valued at $500.00, La.R.S. 14:67, and receiving stolen things valued at $175.00, La.R.S. 14:69. After a trial, a jury convicted defendant of attempted receiving stolen things, La.R.S. 14:27 and 69, but found him not guilty of theft. The court imposed a suspended six month jail sentence and placed the defendant on supervised probation.

Defendant’s principal contention in this Court is that the trial judge erred in denying his motion for a new trial because there was no evidence of certain elements of the crime charged.

Because the witnesses in this case spoke only Vietnamese, the prosecution and defense agreed to stipulate the substance of their testimony, rather than to require its transcription and translation. The stipulation is as follows:

“STATEMENT OF FACTS AGREED UPON BY STATE AND DEFENSE
“It is hereby agreed by the State and defense that the following facts were in evidence at the trial of this matter held on April 17, 1978, and were not in dispute. It is further agreed by both parties to dispense with the necessity of a complete transcript for purposes of appeal to the Supreme Court of Louisiana.
“Mr. Trong Van Tran testified that his store, the Saigon Shop, was burglarized on December 24, 1977, and that among the items missing were watches and a pendant of a dragon. An invoice was submitted into evidence that he had paid $50 wholesale for the pendant.
“Several days after this event, the defendant came into the store with a pendant for which he wanted Mr. Van Tran to make a new chain. Mr. Van Tran recognized the pendant as being the one stolen from his store. He did not apprise Mr. Nguygen [sic] of this fact until he came again to the store to pick up the pendant. Upon learning that the pendant belonged to Mr. Van Tran, Mr. Nguygen told him he wished him to keep it. Mr. Van Tran then asked if he would be willing to try to find and return to him the other things missing in the burglary. Mr. Nguygen agreed to do so by finding the person who had originally sold the pendant to his landlady. Mr. Van Tran gave him $500 for this purpose.
“On January 18, 1978, Mr. Nguygen returned to the store with a watch that he told Mr. Van Tran he had purchased for $100, but that was the only item he was able to buy. He then gave Mr. Van Tran $300 and the watch. Mr. Van Tran told Mr. Nguygen that the watch was not one that came from his store. However, his testimony was that he had since determined from serial numbers that the watch was his.
“Mrs. Van Tran testified. A taped phone conversation between the defendant and Mrs. Van Tran, which took place after defendant’s arrest, was introduced into evidence. In that conversation she stated that the watch did not belong to her but that she wanted to keep it. She also stated that she had given him $500, $100 of which he used to purchase the watch, $300 which he returned to the Van Trans on January 18, 1978, and $100 which she intended for him to keep for his efforts on their behalf.
“Mr. Nguygen testified in his own behalf. He stated that he had purchased the pendant from his landlady who had offered it to him as a gift. Upon realizing its value, he insisted on paying her $50, which he did. He took the pendant to the Saigon Shop, which he knew to belong to Mr. Van Tran, whom he had known casually in Vietnam. On the second visit to the Shop to pick up the pendant he had left, Mr. Van Tran told him that the pendant was his. Mr. Ngu-ygen told him where he had gotten it and the Mr. Van Tran should keep it. Mr. Van Tran and his wife then asked Mr. Nguygen to assist them in recovering the other stolen items which he agreed to do.
“Mrs. Sinh Thi Nguyen (no relation), Mr. Nguygen’s landlady, testified that she sold the pendant to him after receiving it from Mrs. Ha Thi Nguygen as a gift for her kindness in providing her family with room and board. Mrs. Ha Thi Nguygen testified that she and her husband had received the pendant and the watch from a man in Jackson Square, that she gave the pendant to Mrs. Sinh Thi Nguygen as a gift and that she sold the watch to Mr. Nguygen at his request for $100.”

Since the foregoing recapitulation of the testimony constitutes all of the evidence designated for our review, the question of whether there was evidence of each essential element of the crime must be decided solely on the basis of the stipulation.

La.R.S. 14:69, in pertinent part, provides:

“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.
U * * * »

Accordingly, this Court has held that the crime consists of four elements:

“(1) [T]he intentional procuring, receiving, or concealing
“(2) of anything of value
“(3) which has been the subject of any robbery or theft
“(4) 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.” State v. Walker, 350 So.2d 176, 177 (La.1977).

Mere possession of stolen property does not create a presumption that the person in possession of the property received it with the knowledge that it was stolen by someone else; the state must prove that the accused actually knew or had good reason to believe that the property was stolen before a conviction under La.R.S. 14:69 can be obtained. State v. Walker, 350 So.2d 176 (La.1977); State v. Henderson, 296 So.2d 805 (La.1974); State v. Rock, 162 La. 299, 110 So. 482 (1926).

Eminent criminal law treatise writers have observed that the crime of receiving stolen property requires the prosecution to prove additionally, although most statutes do not specifically mention it, that the receiver intended to deprive the owner of his property. W. R. LaFave and A. W. Scott, Criminal Law, § 93 (1972); 2 Wharton’s, Criminal Law and Procedure, § 567 (1957); Clark and Marshall, Crimes, § 12.39 (7th ed. 1967); cf. R. M. Perkins on Criminal Law, p. 329 (2d ed. 1969).

These scholars also maintain that it is essential to the commission of the crime of receiving stolen property that the property in question be “stolen” at the moment the defendant receives it. If at the time of the alleged offense the property, although previously stolen, has lost its stolen character through a recovery by the owner or his agent, the receiver cannot be held guilty. 2 Wharton’s Criminal Law and Procedure § 573 at p. 293 (1957); Clark and Marshall, Crimes, § 12.38 (7th ed. 1967); R. M. Perkins on Criminal Law, p. 326 (2d ed. 1969).

In the instant case, the defendant was accused of receiving two stolen things, viz., a pendant of a dragon and a watch. The stipulated evidence clearly established that both of these valuable articles had been the subject of a theft during the burglary of Mr. Van Tran’s store. It was also agreed by the parties that the defendant intentionally received or procured each item after the burglary of the store. However, from this point the defendant’s receipt of each article must be analyzed separately to determine if there was any evidence of the other essential elements of the crimes charged.

It is readily apparent that there was no evidence that the defendant actually knew or had good reason to believe that the dragon pendant had been stolen before he received it. The defendant’s proof of a legitimate chain of transfers between himself, his landlady and fellow tenant was unrefut-ed. When the accused was apprised that the pendant had been stolen it was in Mr. Van Tran’s possession. The defendant made no attempt to procure or receive the pendant after he had been given good reason to believe that it had been the subject of a theft.

On the other hand, the defendant was certainly aware that the watch had been the subject of a theft before he received it from the same tenant who sold the pendant to his landlady. However, there is no evidence that the defendant intended to deprive Mr. Van Tran of the watch. Moreover, the parties have stipulated facts which clearly show that the defendant acted as the agent of Mr. Van Tran, the owner, and not for himself, in receiving or procuring the watch. Accordingly, at the time the defendant took the watch into his possession it was no longer “stolen” but was in the custody of the owner who had received it through his agent.

Thus, questions of statutory construction are raised. Did our legislature in enacting La.R.S. 14:69 intend to incorporate either of the additional elements of the crime of receiving stolen property that apparently are essential to conviction in most other states?

Although we frankly doubt that the lawmakers sought to punish a person who knowingly receives stolen property with an intent to return it to its owner, La.R.S. 14:69 and all preceding legislation seem to be silent on this point. Because the answer to the second question is clearer, we set to one side, without deciding, whether the Louisiana receiving stolen property crime can be committed without an intent to deprive the owner of his property.

The very name of the crime, “receiving stolen things,” invokes an express requirement that the things must be “stolen” at the time they are received in order for the conduct to be illegal. Although a contrary argument could be made based on the tenses of some of the verbs in the crime definition, it must be rejected if the law’s provisions are “given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La.R.S. 14:3. If the law were interpreted so as to prevent the stolen property from losing its stolen character upon recovery by the owner, an absurd result inconsistent with the legislation’s purpose would be achieved. Policemen, spouses, relatives, friends and trusted employees acting in good faith for the owner, as well as the owner himself, would be guilty of the crime upon receipt of the property with knowledge that it had once been stolen, if the stolen character of the property were to continue even after recovery by the owner or someone acting for him.

For these reasons we conclude that the legislature intended that proof of the commission of receiving stolen things, La.R.S. 14:69, requires proof that the property in question be “stolen” at the moment the defendant receives it. Since the stipulated facts in this case conclusively establish that at the time of the alleged offense the watch, although previously stolen, had lost its stolen character through recovery by the owner’s agent, the defendant cannot be held guilty for receiving the watch.

Consequently, since there was no evidence to support a finding that defendant violated La.R.S. 14:69 in receiving either the pendant or the watch, the trial court’s refusal to grant defendant’s motion was error and defendant’s conviction and sentence must be reversed.

Under circumstances in which a defendant’s conviction has been overturned due to a total lack of evidence as to an essential element of the crime as distinguished from reversal for a trial error, the Double Jeopardy Clause prohibits a second trial and requires the direction of a judgment of acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Brown, 366 So.2d 550 (La.1979). Moreover, the fact that defendant has sought a new trial as his sole remedy does not mean that defendant has waived his right to a judgment of acquittal. Burks v. United States, supra.

Accordingly, for the reasons assigned, defendant’s conviction and sentence are reversed, and a judgment of acquittal is entered in his favor.

REVERSED: JUDGMENT OF ACQUITTAL RENDERED.

       Chief Judge L. Julian Samuel participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.


text:
    STATE of Louisiana v. Louis HOPKINS.
    No. 62840.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Gravel, Roy & Burnes, Richard V. Burnes, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., William E. Tilley, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant, Louis Hopkins, was charged by grand jury indictment with distribution of heroin on January 30, 1976, in violation of R.S. 40:966. After trial by jury, beginning May 17, 1976, he was found guilty as charged. On June 2, 1976, the trial court imposed a sentence of life imprisonment at hard labor, the mandatory term under the statute. R.S. 40:966(B)(1).

Defendant appealed this conviction and sentence to this court. In State v. Hopkins, 351 So.2d 474 (La.1977), this court affirmed his conviction on the merits. This court noted, however, that the trial court sentenced Hopkins on the same day that it denied a motion for a new trial, and no entry appeared which indicated a waiver of the twenty-four hour delay before sentencing as required by C.Cr.P. 873. Accordingly, this court remanded the case for resen-tencing.

On June 23, 1978, the trial court again sentenced Hopkins to life imprisonment and made the sentence executory as it had the first time. Defendant now challenges this sentence on appeal, urging nine assignments of error.

Assignment of Error No. 7

The defense argues that the mandatory life sentence imposed is excessive per se and constitutes cruel and unusual punishment. The defense here reurges the same attack on the penalty for heroin distribution in R.S. 40:966(B)(1) that it tried originally in State v. Hopkins, supra. At that time this court rejected the argument and subsequently has reaffirmed its position in State v. Mallery, 364 So.2d 1283, 1978 and State v. Terrebonne, 364 So.2d 1290, 1978.

This assignment of error lacks merit.

Assignments of Error Nos. 4, 5, and 6

Defense contends that the trial court erred in failing to consider that Hopkins was convicted for heroin distribution which occurred before the penalty provision of R.S. 40:966 was amended in 1977 and under the existing statute at the time of the offense probation and parole were available. Further, defense contends that the trial court incorrectly ruled that it lacked the power to suspend in whole or in part a felony sentence.

In remanding the instant ease for re-sentencing, State v. Hopkins, 351 So.2d 474, 479 (La.1977), this court cited State v. Whitehurst, 319 So.2d 907 (La.1975), noting that “those convicted under this statute still have available to them probation and parole .” The court was referring to the penalty provision for heroin distribution in effect before R.S. 40:966(B)(1) was amended by Acts 1977, No. 631 § 1 which was effective September 9, 1977, and provided for life imprisonment “without benefit of probation, or suspension of sentence.” The applicable penalty provision for the instant offense, committed on January 30, 1976, provided for a sentence of life imprisonment at hard labor and allowed, as an option, the imposition of a fine. Acts 1973, No. 207 § 3. The statute did not bar parole or probation. State v. Wilson, 362 So.2d 536 (La.1978); State v. Terrebonne, supra; State v. Mallery, supra.

Hopkins still had available to him at the discretion of the judge suspension and probation.

Under the penalty provisions before the 1977 amendment, a trial court could suspend the mandatory life sentence for heroin distribution. This suspension of sentence in a felony case is authorized by C.Cr.P. 893 which provides in part:

“When it appears that the best interest of the public and of the defendant will be served, the court, after conviction of a felony for which the punishment is with or without hard labor or a felony which is a violation of the Controlled Dangerous Substances Law of Louisiana, noncapital felony, may suspend for the first conviction only the imposition or execution of any sentence, where suspension is allowed under the law and in either case place the defendant on probation under the supervision of the division of probation and parole supervision. The period of probation shall be specified and shall not be less than one year nor more than five years. The suspended sentence shall be regarded as a sentence for the purpose of granting or denying a new trial or appeal.
The court under the same conditions and by the same procedure as provided for above may suspend the execution or imposition of the sentence of a multiple offender and place the defendant on probation if he intends to participate in the program authorized by the Federal Narcotics Rehabilitation Act or other federal or state rehabilitation programs, however if for any reason the defendant is rejected by said program he shall be returned to the custody of the court which imposed the sentence and the sentencing judge shall order the sentence be executed. Rejection by said program shall be a violation of the defendant’s suspended sentence.
If the sentence consists of both a fine and imprisonment, the court may impose the fine and suspend the sentence or place the defendant on probation as to the imprisonment.”

At the sentence hearing, Hopkins admitted to a prior felony conviction for robbery. If Hopkins is a multiple offender, he is eligible for suspension of sentence only if he enters a recognized narcotics rehabilitation program. See State v. Jones, 327 So.2d 417 (La.1976). However, at the time of the instant offense, January 30, 1976, R.S. 40:966 did not, as it now does, expressly prohibit the suspension of sentence for heroin distribution. See State v. Lacour, 363 So.2d 521 (La.1978). Hopkins still had available to him at the discretion of the trial judge suspension of sentence.

The defense further argues that if the trial court did not want to suspend the felony sentence in whole then the court could suspend the felony sentence in part. C.Cr.P. 894 provides that in a misdemeanor case the court “may suspend the imposition or the execution of the whole or any part of the sentence imposed.” C.Cr.P. 893 provides that in felony cases the court may suspend the imposition or execution of any sentence for the first conviction. Suspension in part of a felony sentence is not part of the Louisiana sentencing structure. (Suspension in part of a misdemeanor sentence was not part of the law until 1966).

We find meritorious defense’s argument that the trial court failed to consider the availability for Hopkins of suspension and probation, which existed before the 1977 amendment and at the time of the commission of the offense. See State ex rel. Robertson v. Maggio, 341 So.2d 366 (La.1976).

Assignments of Error Nos. 1,2, 3, 8 and 9

Defense consolidated his five assignments of error and contends that because the trial judge believed he had no authority to impose anything except the whole unsuspend-ed mandatory life sentence, the trial court did not consider C.Cr.P. 894.1.

By Acts 1977, No. 635 § 1, effective September 9, 1977, the legislature added C.Cr.P. 894.1 which requires that the sentence be individualized. The trial court is required to state for the record the considerations taken into account and the factual basis supporting them in imposing the particular sentence upon the individual before the court. State v. Jackson, 360 So.2d 842 (La.1978); State v. Scarborough, 359 So.2d 982 (La.1978). The trial court’s statement of reasons should reflect that he followed the prescribed sentencing guidelines which would particularize the sentence. State v. Gibson, 362 So.2d 769 (La.1978); State v. Sepulvado, 359 So.2d 137 (La.1978).

Of course C.Cr.P. 894.1 presupposes that the trial court has a choice between suspension and execution of the sentence imposed, but we have already found that the trial court had this power of suspension in sentencing for heroin distribution before the 1977 amendment to R.S. 40:966(B)(1). The hearing record indicates that most of the discussion between defense counsel and the trial court concerned the court’s ability under the law to suspend Hopkins’ mandatory life sentence. The trial court disagreed with some hesitancy that it had such power before sentencing defendant to a mandatory life sentence:

“BY MR. BURNES (defense counsel): So I don’t contest that the statute — at least as far as the statute goes — that you cannot impose anything other than a life sentence. But I’m saying that your hon- or can suspend that sentence in whole or in part. That’s the legal position that I’m urging with respect to your authority. The other part of my argument is why you should exercise that authority; that authority to suspend in whole or the authority to suspend in part.
BY THE COURT:
I don’t see that I have — it’s not clear cut to me that I can do that.
BY MR. BURNES:
Yes, your honor.
BY THE COURT:
And for that reason I would stay with the mandatory sentence in accordance with Revised Statute Title 40. Sec. 966 B, sub-sec. 1, and say that he, Louis Hopkins be sentenced to life imprisonment at hard labor in accordance with that title and section number with the Louisiana Department of Corrections.
BY MR. BURNES:
Has the sentence just been imposed, your honor?
BY THE COURT:
Yes sir.”

The record of the sentencing hearing does not indicate that the trial court followed the sentencing guidelines of C.Cr.P. 894.1. The trial court did not state for the record the considerations taken into account and the factual basis for imposing sentence nor did it give weight to the grounds enumerated in C.Cr.P. 894.1 B for determination of suspension of sentence or probation. Accordingly, defendant’s sentence is vacated and the case is remanded to the trial court with instructions to the trial judge to consider the statutory sentencing guidelines before imposing sentence.

       Chief Judge L. Julian Samuel participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Joe W. Sanders, Retired.

      . Specifically, defense quotes the following from the sentencing hearing:
      “BY THE COURT:
      We have a statute that says it’s mandatory and of course you’ve got a case there which uses the word ‘probation and parole,’ but I’m not sure that applies to the trial judge.”
      “BY THE COURT:
      Of course, I realize that, or I feel that under the case of State vs. Speed, I believe it was, that if the state doesn’t raise the issue the judge can give almost any kind of sentence, but in the absence of some agreement with the state I’d have to stay with the mandatory aspect of it.”
      BY THE COURT:
      . . . —I’m just guessing — But I don’t — looking at the rap sheet and the mandatory aspect of the law and, of course, considering your argument that it’s not mandatory, I still feel that it’s the safest thing for the trial judge to do is to stay with the law as it’s written.”


author: WILLIAM A. CULPEPPER, Justice Ad Hoc.

text:
    Raymond CABALLERO, Plaintiff-Relator, v. Flora WILKINSON, wife of and Julius W. Cerdes, Defendants-Respondents.
    No. 62858.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      Kenneth A. Beoubay, Beorbay & Gegen-heimer, Gretna, for defendants-respondents.
    Fred Bronfin, New Orleans, for plaintiff-applicant.
   WILLIAM A. CULPEPPER, Justice Ad Hoc.

This is a suit for payment of a promissory note. The plaintiff is the holder but not the owner. Defendants, makers of the note, filed an answer alleging payment. The trial court rejected defendants’ defense of payment and held for plaintiff on the merits. The Court of Appeal, 360 So.2d 579 (La.App. 4th Cir. 1978), reversed, with one judge concurring on different grounds. The majority held, on its own motion, that since plaintiff is not the owner of the note nor shown to be specially authorized by the owner to sue, he has no right of action. The concurring judge was of the opinion the record shows defendants had paid the note.

We granted certiorari, 362 So.2d 797, principally to consider whether the majority in the Court of Appeal erred in deciding that the holder, who is not the owner, of a promissory note cannot sue for payment. We ultimately conclude the majority erred in this respect. Nevertheless, we affirm the decision of the Court of Appeal on the basis that defendants paid the note.

The record shows that on August 25, 1971, defendants borrowed $10,000 from American Budget Plan, Inc., a finance company. They executed two separate promissory notes, referred to as “hand notes”, for the sum of $5,375 each, payable to bearer. To secure each hand note, defendants executed on the same day a collateral mortgage note and mortgage for the sum of $10,000, the mortgages being on separate pieces of immovable property.

In March of 1972, American Budget Plan, Inc. borrowed a total of $30,300 from Daniel L. Levy, Jr. and his sisters. The plaintiff, Levy’s brother-in-law, acted as agent for Levy and his sisters in loaning the $30,-300 to American Budget. When plaintiff delivered his two checks totaling $30,300 to American Budget, he received as security for the loans the pledge of certain promissory notes executed by third parties and held by American Budget. Among the notes thus pledged was one of the hand notes in the sum of $5,375 executed by defendants on August 25, 1971. Thereafter, plaintiff held the notes as agent for the owners and received for them the monthly payments on the $30,300.

In 1975, American Budget defaulted on the monthly payments due on the $30,300. On October 1, 1975, plaintiff filed this suit on the hand note he held as part of the security pledged for the $30,300 loan.

The first issue is whether the majority in the Court of Appeal erred in holding that although the plaintiff is the holder of the note he cannot sue for payment, because he is not the owner, nor does the record show that he is specially authorized by the owner, under LSA-C.C.P. Article 694, to sue for payment. LSA-R.S. 7:51 of the Negotiable Instruments Law, which was in effect at the time the promissory note in question was executed in 1971, provided:

“The holder of a negotiable instrument may sue thereon in his own name; and payment to him in due course discharges the instrument.”

LSA-R.S. 7:191 contains the following definitions:

“ ‘Bearer’ ” means the person in possession of a bill or note which is payable to bearer.
* * * * * *
“ ‘Holder’ means the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof.”

These provisions of our prior Negotiable Instruments Law make it clear that the holder of a note may sue thereon in his own name, and a holder is defined as including the bearer in possession of a note which is payable to bearer. The note at issue is payable to bearer. This was the construction of these statutes in Paletou v. Sobel, 185 So.2d 95 (La.App. 4th Cir. 1966), where the court stated:

“If plaintiff was a holder of the notes under the provisions of Section 51 he does have a right of action. From our jurisprudence it is plain that plaintiff was entitled to sue in his own name even though he was only given possession for the purpose of collection.” (citations omitted)

The law is the same under the new Commercial Laws adopted in 1974. LSA-R.S. 10:3-301 provides:

“The holder of an instrument whether or not he is the owner may transfer or negotiate it and, except as otherwise provided in R.S. 10:3-603 on payment or satisfaction, discharge it or enforce payment in his own name.”

We next address the issue of whether the note sued on was paid. The facts must be set forth in sufficient detail to determine: (1) Was American Budget the agent of the plaintiff for collection of the note? (2) If so, was the note paid to American Budget?

Sometime before March of 1972, Daniel L. Levy, Jr. and his sisters had collected fire insurance benefits which they decided to invest. Levy had been a member of the board of directors of American Budget until about 1969, so he contacted Mr. Peter L. Plaia, Chief Executive Officer of American Budget, and these two agreed on the terms of the loan. The plaintiff, Levy’s brother-in-law, acted as agent for Levy and his sisters in delivering the money, holding the security and keeping a record of the payments. On March 27, 1972, plaintiff delivered his personal check in the sum of $18,-300 to American Budget, which amount, together with interest, was to be repaid in monthly installments over a period of five years. On March 30, 1972, Caballero delivered to American Budget his check in the sum of $12,000, also to be repaid with interest over a period of five years. On the occasion of the delivery of each check, Caballero received an envelope containing promissory notes made by third parties and held by American Budget. These notes were pledged by American Budget to Caballero as security. Among these pledged promissory notes was the one at issue here made by defendants, Mr. and Mrs. Cerdes.

Plaintiff kept a record on the $18,300 loan and on the $12,000 loan to American Budget, showing the amounts of the monthly payments by American Budget, the amounts attributed to principal, the amounts attributed to interest, the amounts of “interest” paid to American Budget, and the principal balances due. For instance, plaintiff’s records, which are filed in evidence, show that on the $18,300 loan, the monthly payments were $483, the sum of $305 was attributed to principal, the sum of $138 was attributed to interest, retained by Caballero, and the sum of $40 was paid to American Budget as its share of the “interest”. On the loan of $12,000, the payments were $350 per month, of which $200 was principal, $90 was interest for Caballero and $60 was American Budget’s share of the “interest”. American Budget made these monthly payments to plaintiff and received its respective portions of the “interest” of each payment until October of 1975, at which time American Budget defaulted. A principal balance of $5,490 was still due to plaintiff on the total loans of $30,300.

When questioned as to the nature of the $40 and the $60 “interest” paid by Caballero to American Budget out of the monthly payments, Levy said he understood these were “finder’s fees”. This implies they were paid to American Budget for finding the loans and continuing to receive the monthly payments. Caballero testified he did not know what it was for, since Levy had made the agreement with Plaia. In any event, it is clear that American Budget was plaintiff’s compensated agent to collect the note sued on.

When American Budget defaulted in 1975, plaintiff handed to his attorney for legal action the promissory notes which he had received as pledges from American Budget. Amongst these promissory notes was the one signed by Mr. and Mrs. Cerdes, and which is the subject matter of this suit.

The defense of payment arises out of the fact that during April and May of 1973, Mr. and Mrs. Cerdes had refinanced the debts they owed to American Budget. They borrowed money from two homesteads, executing new mortgage notes and mortgages on the immovable properties. When these new loans were closed, the mortgage notes held by American Budget were paid and the mortgages were canceled. Mr. Peter Plaia, representing American Budget, received one check payable to his order in the sum of $5,125 on which there is the notation: “Pay out of collateral mortgage dated 8/25/71— Julius W. Cerdes.” At the other loan closing, Peter Plaia received a check payable to his order in the sum of $5,250. Copies of both checks filed in evidence show they were deposited to the personal account of Peter Plaia. The evidence shows without question that these checks were intended and understood to be in payment of the entire debt owed by Mr. and Mrs. Cerdes to American Budget. Nevertheless, a problem of payment arises because the checks were made payable to Peter Plaia, instead of American Budget Plan, Inc., and because neither of the hand notes were surrendered to defendants or marked paid. As stated above, the hand note herein sued on was at the time being held by the plaintiff, Caballero.

The evidence also shows that when the hand notes executed by Mr. and Mrs. Cerdes on August 25,1971 matured 90 days thereafter, they made an agreement with American Budget to “extend” the notes in consideration of the payment of $250 per month. Defendants made these monthly payments to American Budget until they refinanced with the homesteads in April and May of 1973, thus making a total of about 20 payments of $250 each. And, as stated above, at the time the new homestead loans were closed, the balances due on the hand notes were paid to American Budget, through its chief executive officer, Peter Plaia.

There is no evidence that Mr. and Mrs. Cerdes had knowledge of the pledge of their hand notes by American Budget to Caballero. On the contrary, Mr. and Mrs. Cerdes understood that American Budget held their hand notes, and that the monthly payments, as well as the pay-offs at the times of closings of the new homestead loans, were paid to the holder of the hand notes.

Under the above circumstances, we conclude that American Budget Plan, Inc. was the agent of Caballero for collection of the hand notes. Thus, payment by Mr. and Mrs. Cerdes to American Budget through its officer, Peter Plaia, was equivalent to payment to Caballero.

LSA-R.S. 7:119 provides in part that a negotiable instrument is discharged: “(1) By payment in due course by or on behalf of the principal debtor.” LSA-R.S. 7:88 states: “Payment is made in due course when it is made at or after the maturity of the instrument to the holder thereof in good faith and without notice that his title is defective.” We find no express provision of our Negotiable Instruments Law that payment in due course may be made to the agent of the holder. However, LSA-C.C. Article 2145 provides the general rule that “Payments in general can legally be made only to the creditor, or someone empowered by him.”

Applying the above statutory rules to the facts of the present case, payment by defendants to American Budget had the same effect as if payment had been made direct to Caballero. However, we are careful to point out that this suit is by the holder whose agent received payment. It is not a suit by a holder who has not received payment directly nor through an agent.

For the reasons assigned, the judgment of the Court of Appeal is affirmed and plaintiff’s suit is dismissed. All costs in the trial and appellate courts are assessed against the plaintiff.

AFFIRMED.

       Chief Judge William A. Culpepper of the Court of Appeal, Third Circuit, participated in this decision in place of Chief Justice Sanders, retired.