text:
    STATE of Louisiana, Appellee, v. Andrew C. PITTMAN, Appellant.
    No. 63115.
    Supreme Court of Louisiana.
    March 5, 1979.

      F. Smith Knobloch, Knobloch & Knob-loch, Thibodaux, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   BLANCHE, Justice.

Defendant, Andrew Chrisman Pittman, was charged with theft of property valued in excess of $500. After trial by jury he was found guilty of attempted theft of property valued at $110,000 and was sentenced to serve one year in the Lafourche Parish Jail and pay all costs of the proceedings, with sentence to be reduced to six months in the Parish jail and suspension of the other six months on good behavior for one year if all costs were paid. Defendant appeals, relying upon eleven assignments of error.

Defendant was charged with theft of immovable property, consisting of a building and land. The property is located in Cut Off, Louisiana, and was owned by the Community Bank of Lafourche. The property had been used as a restaurant and lounge, and contained a large parking area.

Some time prior to the end of April, 1977, defendant inquired about purchasing the property and spoke several times with Gary Caballero, Senior Vice President of the Community Bank of Lafourche and Branch Manager at the Galliano Branch. On July 5, 1977, Pittman filed a bill of sale in the Conveyance Records of Lafourche Parish. This bill of sale, dated April 28, 1977, purportedly transferred the ownership of the property from the bank to Pittman for a consideration of $110,000 payable in ten annual installments, beginning June 1, 1978, together with interest at the rate of 12.65 percent per annum. There is no reference to any note or mortgage being executed in connection therewith, and the property description was set forth by reference to a copy of an act of dation en paiement by which the bank had acquired ownership of the property, which act was attached to the purported sale.

In the summer of 1977 the Community Bank of Lafourche leased the property to Lawrence Gros and Walter Roy Hancock under a lease-purchase agreement. The lessees began renovation of the property in order to prepare it for operation as a club. In late July or early August of 1977, while the renovations were going on, Pittman entered the property on one occasion and spoke with Hancock. Pittman said that he wanted to know what was going on, that he owned the building, that he had bought it and had a bill of sale on record. He did not try to stop the work or exercise any authority over the project. Subsequent to this, it appears that the officers of the bank became aware of the bill of sale which Pittman had filed in the public records. The District Attorney’s office investigated and Pittman was arrested and charged by Bill of Information filed August 18, 1977. Following preliminary motions and hearings, Pittman was tried on the charge of theft, a violation of LSA-R.S. 14:67 and convicted by a jury on the responsive verdict of attempted theft, LSA-R.S. 14:27, Code of Criminal Procedure Article 814.

At the trial the State introduced evidence that the bank used this particular form of a bill of sale only when selling movables, not when selling immovables, and that copies of this form (apparently pre-signed in blank by the assistant cashier, Wayne Guidroz, and the witnesses) were kept by Caballero, who was the vice president and loan officer of the bank as well as a notary. The State introduced evidence that Caballero’s signature was forged; the defense introduced evidence that the signature was not forged. Pittman admitted to filing the bill of sale in the Conveyance Office and claimed that a valid sale had taken place. Hancock testified that Pittman had spoken to him about owning the property. Clyde Caillouet, a member of the Board of Directors of Corn-munity Bank of Lafourche, testified that he had no knowledge of any physical interruption of the possession by the bank. The trial judge noted that Caillouet’s testimony showed that there was, in fact, no actual loss to the bank.

Although defendant makes eleven assignments of error, our consideration of the following two assignments of error will dispose of the case in defendant’s favor.

ASSIGNMENTS OF ERROR NUMBERS 5 and 11

The defendant assigns as error:

5. THE TRIAL COURT ERRED in denying defendant’s motion for a new trial on the grounds that no evidence was produced to show that the owner was deprived of anything of value.

11. THE TRIAL COURT ERRED in denying defendant’s motion for a new trial on the grounds that no evidence was produced which showed the defendant acquired possession, or that he specifically intended to acquire possession of the property in question.

The elements of the crime of theft (LSA-R.S. 14:67) are (1) that there be a misappropriation or taking, (2) that the misappropriation or taking be of a thing of value, (3) that the thing belong to another, and (4) that the misappropriation or taking be with the intent to deprive the other permanently of that which is the subject of the taking.

Concerning attempted theft (LSA-R.S. 14:27), a person who has the specific intent to commit a theft and who does or omits an act for the purpose of accomplishing the same is guilty of an attempt to commit the offense intended, and it is immaterial whether under the circumstances he would have actually accomplished his purpose.

A threshold question for our consideration is whether defendant’s conduct was shown to be a misappropriation or taking.

Defendant recorded a bill of sale in the Conveyance Records. This bill of sale recited that the bank had sold the property to defendant and that defendant was indebted to the bank for the sum of $110,000. The defendant also told one person that he, and not the bank, was the owner of the property-

At the outset we observe the difficulty in stealing or attempting to steal immovable property, and admittedly, the defendant did not “haul off” either the land or any of the immovables located thereon. Additionally, he did not exercise any physical possession or control over the property, and the recor-dation of the act of sale did not amount to any taking (although it is conceivable that, given evidence of other acts [circumstances]), such action could have amounted to an overt act in a plan to steal money from a prospective purchaser on the basis of such a recorded title).

We conclude that none of these acts of the defendant, taken either separately or together, constitute a misappropriation or taking of the immovable property in question. Proof of this element is required to prove the offense of theft, and, in our opinion, neither of the above-referred to acts of the defendant divested the bank of its control over the property. Thus, we find that there was no evidence to prove the crime. State v. Douglas, 278 So.2d 485 (La.1973).

The elements of the crime of attempted theft include the specific intent to commit the crime of theft and an act tending directly toward the accomplishment of the theft. “Mere preparation to commit” the theft is not sufficient to constitute the crime. There was no act shown which tended directly toward the accomplishment of the theft with which defendant was charged. In the absence of such evidence, he could not be guilty of an attempted theft.

For the foregoing reasons, the conviction and sentence are annulled and set aside and the defendant is ordered discharged. State v. Thompson, 366 So.2d 1291 (La.1978); State v. Liggett, 363 So.2d 1184 (La.1978).

REVERSED.

       Judge Cecil C. Cutrer, Louisiana Court of Appeal, Second Circuit, participated in this decision as an Associate Justice Ad Hoc.


source: Caselaw Access Project

author: TATE, Justice.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Anthony C. VICTOR, Appellant.
    No. 63135.
    Supreme Court of Louisiana.
    March 5, 1979.

      Weldon J. Hill, II, Baton Rouge, for defendant-appellant.
    William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Mary V. Gilliland, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

After a non-jury trial, the defendant was convicted of theft, La.R.S. 14:67. The trial court deferred sentence for two years, placing the defendant on active probation, conditioned upon his receiving mental health treatment.

On appeal, in his two assignments of error (taken respectively to the denial of motions for acquittal and for a new trial) the defendant raises a single issue: he contends that there is no evidence of (1) a “misappropriation or taking” (2) with “intent to deprive” the owner permanently of the object of the theft, two of the elements of the crime. La.R.S. 14:67.

On appeal, this court’s jurisdiction is limited to questions of law; therefore, if there is some evidence proving essential elements of the crime, no question of law is presented, sufficiency of the evidence being a matter to be decided by the trier of fact. State v. Madison, 345 So.2d 485 (La.1977); State v. Woods, 327 So.2d 405 (La.1976); State v. Williams, 310 So.2d 513 (La.1975). As these decisions note, this court may reverse a trial court’s denial of a directed verdict or of a new trial only where there is no evidence, direct or circumstantial, by which the trier of fact might reasonably have concluded the defendant’s guilt.

As we stated in State v. Lindinger, 357 So.2d 500, 501 (La.1978): “For purposes of appellate review, the issue of whether there is a total lack of circumstantial evidence to prove the crime (or an essential element of it) is decided by whether or not there is some evidence from which the trier of fact could reasonably conclude that beyond a reasonable doubt the accused had committed every element of the crime with which charged.”

Facts

The offense charged is a shoplifting-type theft in a discount store. From the evidence, the trier of fact could reasonably conclude:

The defendant removed a terrarium and placed in its box a television set. The box was on a shopping cart. He then went to another area of the store and spoke to his two daughters. The daughters came and pushed the cart to the checkout counter. The cashier rang up the prices of the visible goods, but then lifted the terrarium box to reveal hidden in it the television set and certain other goods.

The defendant was charged with and convicted of the theft of the goods hidden in the box.

The Defendant’s Contentions

The defendant argues that, at most, the evidence shows an attempted theft. His argument is based on two contentions:

(1) He himself never obtained control of the property so that it constituted a “taking”, citing State v. Neal, 275 So.2d 765 (La.1975). As that decision stated, however, 275 So.2d 770: “A theft occurs, when the thing is taken, although it may remain in the possession of the thief for only seconds.” Concerning this decision, Professor Dale Bennett commented, 34 La.L.Rev. 345: “It is of the essence in theft that the thief must have acquired control of the property. As illustrated by the facts of Neal, the duration of such control . is immaterial.”

(2) He himself did not carry away the objects (although his daughters may possibly have), so that therefore was no “aspor-tation” by the thief himself, a prerequisite to the commission of the crime of theft, citing State v. Laborde, 202 La. 59, 11 So.2d 404 (1942). In Laborde, the defendant had sold a heifer on the open range (belonging to another) to an innocent third person, who had himself carried (asported) the heifer away; the defendant’s conviction was reversed for lack of any evidence to prove the crime’s (then) essential element of asportation.

“Asportation” as Required by Laborde However, Laborde is not persuasive authority.

In the first place, its holding that the “asportation” could not be accomplished by means of the acts of a third person has uniformly received scholarly criticism as illogical and unduly technical. Morrow, The 1942 Louisiana Criminal Code in 1945, 19 TuhL.Rev. 483, 494-501 (1945); Michael, Present Problems in Louisiana Substantive Criminal Law, 11 Loyola L.Rev. 70, 73 (1962); Bennett, Work of Louisiana Supreme Court for the 1942-1943 Term, 5 La.L.Rev. 512, 556-57 (1944); Note, 5 La.L. Rev. 323 (1943); LaFave and Scott, Criminal Law 632 (footnote 14) (1972).

In the second place, the crime in Laborde was committed prior to the enactment of the Louisiana Criminal Code of 1942, article 67 (now La.R.S. 14:67), and Laborde itself indicated that the “asportation” formerly required for larceny or theft was no longer an element of the crime of theft under the new article 67. 11 So.2d 406. See also Morrow, Bennett, and Note, cited above.

Theft under La.R.S. 14:67

By Article 67 of the Louisiana Criminal Code of 1942, now La.R.S. 14:67, the traditional and technically defined criminal offenses of larceny, embezzlement, and obtaining by false pretenses were combined into a single crime. The intention of the new statutory language was to provide simply and clearly “the fundamental notion that it is socially wrong to take the property of another, in any fashion whatsoever.” See Official Revision Comment, “General purposes of section.”

As defined by La.R.S. 14:67, theft consisted of three elements: (a) the “misappropriation or taking of anything of value which belongs to another,” (b) either “without the consent of the other . . . or by means of fraudulent conduct,” (c) with “intent to deprive the other permanently” of the object of the taking or misappropriation.

The “asportation” problem of Laborde had its origin in the technical requirements of the common-law crime of larceny. The crime required both the taking (caption) of personal property of another and carrying it away (asportation), with intent to steal it. Clark and Marshall, The Law of Crimes, Sections 12:00,12:05 (7th ed. 1967); LaFave and Scott, Criminal Law, Section 86 (1972). Caption required that the thief achieve full dominion over the object, displacing the control of its rightful possessor. Asportation, on the other hand, could be slight, almost imperceptible: any movement of the thing, even a few inches, was sufficient.

In the generic crime of theft now provided by La.R.S. 14:67, the requirement of the former larceny crime was replaced by the requirement that there be a “misappropriation or taking” of the property of another.

As the official revision commit to article 67 notes, the technical distinctions of the many former common-law “theft” crimes were eliminated. See also Bennett, The Louisiana Criminal Code, A Comparison with Prior Louisiana Criminal Law, 5 La.L. Rev. 5, 37-38 (1942). While a “taking” was still required (i. e., the thief must acquire control of the property), the technical “as-portation” requirement was eliminated, as an element of the crime. The official revision comment indicates that, for the former “asportation” concept, the “slightest . misuse of anything belonging to another should be sufficient, but in any case it would be a question for the court to decide whether the offender’s activity was sufficient to amount to a ‘taking’.”

Thus, for conduct of the present nature, La.R.S. 14:67 provides that a theft may occur when there is a “misappropriation” (exercise of wrongful dominion) or a “taking” (unauthorized control) of the property of another, without regard to whether there is physical movement (asportation) or as to whether the thief has accomplished the misappropriation or taking by himself personally or through the agency of others.

Conclusion

The factual issue of whether there is a “taking” for purposes of a theft concerns whether the offender exerts control over the object adverse to or usurpatory of the owner’s dominion.

For instance, under usual circumstances the ordinary shopper does not disturb the owner’s dominion by handling goods displayed for sale. The mere fact that a customer has removed a large item from its package, in order to inspect it, will not ordinarily be any evidence of theft. In this instance, no inference arises of any intent to deprive the owner permanently of the object, nor does even any inference arise of a “taking” — i. e., an intent to usurp or negate the owner’s dominion.

In the present case, the trial court could reasonably conclude from the evidence that the defendant had concealed the store’s goods in the terrarium box and had then directed his daughters to the checkout counter (where they would be charged only for the less expensive terrarium but not for the goods concealed within the box).

The defendant’s hiding the television set in the box is under the circumstances at least some evidence of a “taking”, although it may not have given rise to an inference of an intention to deprive the owner permanently of the latter’s property. Nevertheless, the trier of fact could conclude beyond a reasonable doubt from the evidence as a whole, not only a taking, but also an intent by it to deprive the owner permanently of the objects concealed in the terrarium box.

Thus, some evidence tends to prove each of the crime’s elements which the defendant disputes as shown by any evidence in the record. Accordingly, since we do not review the sufficiency of the evidence (but only reverse if no evidence proves the crime or one of its elements), we affirm the conviction and sentence.

AFFIRMED.

       Judge Cecil C. Cutrer of the Louisiana Court of Appeal, Third Circuit, is sitting as an Associate Justice Ad Hoc on this case.

      . La.R.S. 14:67 provides: “Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential. * * * ”

      . The late Professor Morrow, one of the three draftsmen of the 1942 Criminal Code, explained that the former “asportation” concept was suppressed by omission, and that the official revision comment concerning “asportation” (set forth in the official explanation in quotes) was used in the comment only to relate the new code article to the past, for the benefit of those working on the revision. Morrow, cited in text, at 19 Tul.L.Rev. 495-98. He notes that from the words of the code article itself, as well as the revision comment, the notion of physical movement incorporated in the old concept of “asportation” has been abolished by its omission from the statutory elements of the crime.

      . The concept is that the thief exerts wrongful dominion or acquires control over the property of another, without his consent. The same concept is expressed by the American Law Institute Model Penal Code, Section 223.2(1) (1962), which similarly defines theft: “A person is guilty of theft if he takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.” (Italics ours.)
      In Tentative Draft No. 2 (1954), the Advisory Committee Comment discusses the intent to replace all the technical common-law distinctions, pp. 61-62, and replace them with a test similar to Louisiana’s: “We have chosen ‘taking’ or exercise of ‘unlawful control’ as the test, thus dispensing with the common law standards of physical seizure and movement. ‘Taking’ unauthorized control becomes the touchstone in the ordinary case of theft by a stranger; ‘exercise’ of unauthorized control is the requirement in the typical embezzlement situation where the actor already has lawful control.” Id., p. 62.
      See also Tentative Draft No. 1 (1953), p. 65: “The concept of appropriation serves to differentiate completed property offenses from attempts. This is a difficult problem because all theft partakes of the character of attempt. The thief proposes to make the property his own more or less permanently; but he is nonetheless a thief if, shortly after he exerts his dominion over the property of another, he is prevented from making off with it. The precise point at which it can be said that the actor exerted adverse control will depend, inter alia, on the nature of the property and the usual means by which control is exerted over that kind of property. It is not necessary that the actor have gone far enough to gain unhindered control. Appropriation is not to be tested by mechanical rules such as characterized common law larceny. Particularly, ‘caption’, in the sense of undisputed physical control, and ‘asportation’, i. e., removal of the object from its former location, are not requisites of appropriation. These are but circumstances to be considered along with all others relevant to the ultimate issue whether the behavior of the actor constituted a negation or usurpation of the owner’s dominion. Community attitudes with respect to what constitutes proprietary behavior in relation to a particular species of property are a proper consideration.”


author: DIXON, Justice.

text:
    STATE of Louisiana v. Wesley J. VERRETT, Jr.
    No. 63136.
    Supreme Court of Louisiana.
    March 5, 1979.
    Alton T. Moran, Director, Allen J. Ber-geron, Jr., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Premila B. Chumbley, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant, Wesley J. Verrett, Jr., was charged by bill of information with simple burglary in violation of R.S. 14:62. After a six member jury found defendant guilty, he was sentenced to serve eight years at hard labor. Defense counsel filed eighteen assignments of error in the district court which have been either abandoned or consolidated in brief into six arguments on appeal.

Defense contends: that the trial court erred in overruling defense objection to sufficiency of the State’s answer to the bill of particulars and C.Cr.P. 768 notice regarding oral statement allegedly made by defendant; that the court erred in overruling defense objection to the State’s reference to the value of the stolen objects, and in denying defense motion for a mistrial on the same grounds; and that the court erred in denying the defense motion to suppress items recovered as a result of illegal search and seizure. Defense also contends that the trial court erred in sustaining the State’s objection to the defense cross-examination questioning; that the court erred in overruling the defense objection to the State’s leading question; and that the court erred in denying the defense motion to suppress defendant’s confession.

Our review of the record discloses no substantial questions of law requiring explanation, and no erroneous rulings prejudicial to defendant’s case. Therefore, defendant’s conviction and sentence are affirmed.

SUMMERS, C. J., concurs in the result only.

       Judge Cecil C. Cutrer, Louisiana Court of Appeal, Third Circuit, participated in this decision as an Associate Justice Ad Hoc.


author: DIXON, Justice. SUMMERS, C. J.,

text:
    STATE of Louisiana v. Farrell BENSON.
    No. 63172.
    Supreme Court of Louisiana.
    March 5, 1979.
    James Miguez, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Adam L. Ortego, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

At approximately 2:00 p. m. on July 17, 1977, a man wearing a white cowboy hat walked into the Sulphur branch of the Cal-casieu Marine National Bank, took a deposit slip from a stack made available to bank customers, and left the building. Three hours later, a hatless man entered the bank and approached the teller window manned by Mary Carrier. He handed her a brown paper bag and a note scrawled on a deposit slip which stated that he had a gun and wanted all her money. Ms. Carrier handed him approximately $9300.00 in five, ten and twenty dollar bills which included an unspecified amount of “bait” money. The robber then made his escape in a truck.

At 6:30 p. m. that evening, Officer Vaughan Duhon of Troop D of the Louisiana State Police stopped Farrell Benson for having an expired safety sticker on his truck. Duhon realized that the truck fit the description of the vehicle used in the robbery and contacted Chief C. J. Andrus of the Sulphur police department. When An-drus arrived at the scene, he told Benson that he was being investigated in connection with the crime and suggested that he be permitted to drive Benson’s truck to the police station to avoid a towing charge. Benson agreed to this plan. When Andrus got into the truck, he moved a rag on the vehicle’s seat and discovered a gun which he showed to the other officers.

Several witnesses were called to the police station where Benson was exhibited to them wearing a cowboy hat and seated at a desk. Some of the witnesses were able to identify him, but others expressed the opinion that the police had apprehended the wrong man. Benson was later released when none of the bait money was found on him or in his truck.

Over seven months after the robbery, Benson was arrested for an unrelated crime. A gun was seized at the time of his arrest. On April 5, 1978, Benson was charged by bill of information with the armed robbery of the bank, a violation of R.S. 14:64. The defendant was originally represented by Raleigh Newman, but from the time of his arraignment on April 10, 1978, James Miguez served as his attorney. Trial was set for May 1, 1978.

On April 28, 1978, Miguez requested a continuance on the basis of his poor health. Although the trial judge denied the motion, the trial was reset for June 5 when the prosecution indicated that it had no objection to the continuance. Miguez then filed a motion to suppress on May 22 and motions for a preliminary hearing and for oyer on May 26.

The motion for oyer was considered on May 31, and the defense was granted the right to discover and inspect certain items in the prosecution’s possession. On June 1, the motion to suppress was denied and the preliminary examination was held. On June 2, a Friday, Miguez filed a motion for continuance in which he alleged that the defense needed additional time to obtain the services of a handwriting expert, to have independent chemical analysis made of certain physical evidence, and to subpoena witnesses. The motion was denied on June 5, and trial began. Miguez then filed for a continuance until a transcript of the preliminary examination could be made available to the defense. This motion was also denied by the trial judge. Benson was then tried, found guilty as charged, and sentenced to eighteen years at hard labor without benefit of parole, probation, or suspension of sentence.

The defendant now appeals his conviction and sentence on the basis of six assignments of error. We find merit in the first two assignments and therefore reverse.

Assignment of Error No. 1

In this assignment, the defense contends that the trial judge was in error to deny the motion for continuance filed on June 2 which concerned the need for additional time to secure the aid of a handwriting analyst, to conduct independent chemical tests of physical evidence, and to subpoena witnesses.

Article 712 of the Code of Criminal Procedure provides that a timely filed motion for continuance “may be granted, in the discretion of the court, in any case if there is good ground therefor.” The jurisprudence interpreting this article has held that the granting of a motion to continue is a matter committed to the trial judge’s discretion, and that a denial of the motion will not be reversed unless an abuse of discretion is demonstrated. State v. Johnson, 343 So.2d 155 (La.1977); State v. Bennett, 341 So.2d 847 (La.1976).

In the instant case, however, several factors indicate that the trial judge abused his discretion when he denied the motion insofar as it pertained to the need for additional time to contact a handwriting expert. On June 5,1978, the date of trial, less than two months had elapsed since the arraignment on April 10. During part of this period the defense attorney was ill and was advised by his doctor to avoid trial work for a month. The defense attorney became aware of the handwritten note and handwriting exemplars in the state’s possession only after he was granted the right to inspect these items on May 31 when the motion for oyer was heard. On the next day, Miguez was involved in the hearing on the motion to suppress and the preliminary examination and had little opportunity to obtain the services of a handwriting analyst. Defense counsel filed the motion for continuance on Friday, June 2, but the motion was not considered until the following Monday, the date on which trial was scheduled to begin. The trial judge stated in his per curiam that he believed that the defense counsel had not been zealous in preparing the case for trial because between June 1 and June 5 he had not contacted the New Orleans handwriting specialist whom he had employed in other cases.

We cannot accept the trial judge’s conclusion that this inaction constituted a lack of due diligence on the part of the defense attorney. Defense counsel had at most three days, including the weekend, in which to evaluate the added strength the handwriting evidence would lend to the state’s case, to decide whether to use expert testimony to counter the testimony put forward by the state, and to contact a suitable expert in the field. Even if Miguez had contacted an expert immediately upon learning of the existence of the note and the exemplars, a two or three day period might have been insufficient for an adequate evaluation of the characteristics of Benson’s handwriting and the writing on the note. Under these circumstances, denying a motion for continuance when such important evidence is revealed to the defense only a matter of days before trial constitutes an abuse of discretion.

The record before this court is incomplete, and it is therefore unclear whether expert testimony concerning Benson’s handwriting was introduced at trial. However, the state did not deny defense assertions that it intended to use expert testimony on this point, and the list of exhibits introduced at trial includes the robbery note, a handwriting exemplar, and an enlargement used in analyzing handwriting. Therefore, because the state apparently had the benefit of expert testimony on this issue, the trial court’s decision denying the defense the opportunity to obtain experts of it own prejudiced the defendant.

This assignment of error has merit.

Assignment of Error No. 2

By his second assignment, the defendant argues that error was committed when the trial judge denied the motion for continuance which was filed in order to allow the defendant sufficient time to obtain a transcript of the preliminary hearing held on June 1. In a per curiam, the trial judge stated that he considered the motion an attempt to delay trial, and relied on information supplied by the district attorney that the only witness at the preliminary hearing was an investigator for the district attorney’s office who had interviewed witnesses. The trial judge concluded that the defendant was not placed at a disadvantage by not having the transcript, apparently because a witness at trial may be impeached only with his own statements made at the preliminary hearing. C.Cr.P. 295.

The defendant in a criminal proceeding has a statutory right to a transcript of the preliminary hearing in his prosecution. C.Cr.P. 294; State v. Allen, 276 So.2d 868 (La.1973). However, we held in State v. Allen, supra, that failing to provide the defendant with the transcript of the preliminary examination was not reversible error in the absence of a showing that the cross-examination and impeachment of prosecution witnesses were not hampered at trial.

In the instant case, however, the record does not contain a transcript of the preliminary examination, nor a complete transcript of the trial; it is impossible to determine whether the defense cross-examination and impeachment of state witnesses were impaired by the lack of the transcript of the preliminary examination. We are unable to assume an absence of prejudice from a silent record. The trial judge’s conclusion that the transcript would not aid defendant because the prosecutor said that ■'the ohly witness at the preliminary examination was an investigator may be correct, but we cannot make that determination on appeal because of the deficient record.

This assignment has merit.

For the reasons assigned, the conviction and sentence are reversed, and the case is remanded to the district court for proceedings consistent with the views expressed herein.

SUMMERS, C. J.,

dissents.

DENNIS, J., dissents being of the opinion that the trial judge did not abuse his discretion in denying defense counsel a continuance.

      . The record indicates that the other two grounds were connected with a different prosecution of the defendant.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Jessie Robert JOHNSON.
    No. 63183.
    Supreme Court of Louisiana.
    March 5, 1979.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., John W. Sinquefield, Asst. Dist. Atty., for plaintiff-appellee.
    Richard W. Langford, Weber & Weber, Baton Rouge, for defendant-appellant.
   DENNIS, Justice.

Defendant Jessie Robert Johnson was charged by bill of information with simple burglary, La.R.S. 14:62, armed robbery, La. R.S. 14:64, and attempted first degree murder, La.R.S. 14:27 and 30. Following a jury trial, defendant was found guilty of simple burglary and armed robbery. The trial judge declared a mistrial on the attempted first degree murder charge when the jury was unable to agree upon a verdict. Defendant was sentenced concurrently to nine years at hard labor for simple burglary and to ten years imprisonment without benefit of probation, parole, or suspension of sentence for armed robbery. On appeal, defendant relies on two assignments of error for reversal of his convictions and sentences.

The defendant lived in a rented room above the grocery store and bar owned by Frank Trask. On the evening of the crime Trask’s daughter, who lived next door, heard the sound of glass breaking in the alley and Mr. Trask went to investigate. According to Trask, when he entered the store, defendant attacked him with a coke bottle, took money from his wallet and fled. The defendant testified that he was drunk at the time and had broken into the store to look for his tape player which he believed the victim had taken.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error defendant argues that the court erred in allowing the prosecutor to question him regarding his status as a probationer.

During cross-examination, following the defendant’s admission to a prior burglary conviction, the prosecutor was permitted, over objection, to elicit from the defendant that he was on probation at the time of the offenses for which he was on trial.

Defendant argues that the trial court’s ruling was an impermissible extension of this Court’s jurisprudential rule allowing impeachment of a witness’s credibility by cross-examination as to the details of other crimes of which he has been convicted. State v. Carter, 363 So.2d 893 (La.1978); State v. Dupar, 353 So.2d 272 (La.1977); State v. Elam, 312 So.2d 318 (La.1975). Three members of this Court think the jurisprudential rule itself is contrary to La.R.S. 15:495 and the historical reasons for impeachment by prior conviction, see, e. g., State v. Carter, 363 So.2d 893, 901 (La.1978) (Tate, J., dissenting); State v. Williams, 339 So.2d 728 (La.1976). Nevertheless, by majority vote it is the rule of this Court, and although the trial judge applied it too liberally in the instant case, we ultimately conclude that he did not commit reversible error. The questioning of a defendant as to his probation goes far afield from a legitimate inquiry into facts which have a bearing upon his credibility as a witness, and the practice should not be permitted by trial judges. However, in the instant case the inquiry was very limited and was no more prejudicial than questioning about the details of violent crimes which has been approved by a majority of this Court in other cases. See, State v. Williams, supra; State v. Elam, supra; State v. Jackson, 307 So.2d 604 (La.1975).

ASSIGNMENT OF ERROR NO. 2

In assignment of error number two defendant contends that the trial court erred in instructing the jury that armed robbery is an offense requiring only general intent.

Following the presentation of the evidence the trial court instructed the jury as to the statutory definitions of simple burglary, armed robbery, simple robbery, attempt, murder and criminal intent. The trial judge also read La.R.S. 14:15 explaining the effect of intoxication at the time of the offense. Shortly after the jury retired to deliberate the jury returned to court and requested further instructions as to the definitions of simple robbery and armed robbery and the criminal intent essential to these crimes. Following an off the record discussion with counsel the court announced that it would instruct the jury that the crimes of armed robbery and simple robbery are crimes dealing with general intent. Despite defendant’s objection, the trial court then charged the jury:

“Now, criminal intent. Criminal intent may be specific or general. One, specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. Now, that’s specific criminal intent. Now, the crimes of armed robbery and simple robbery come under the category of general criminal intent. General criminal intent is present whenever there is specific intent. just like I read to you before, and also when the circumstances indicate that the offender in the ordinary course of human experience must have overted Fsicl to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. All right.
“Foreman: Would that same intent apply to attempted first degree and attempted second degree and manslaughter?
“No. sir, attempted murder, attempted first degree murder, attempted second degree murder, attempted manslaughter. in any attempt it is required that there be a specific criminal intent to commit the crime charged. Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. In an attempt to commit that crime, it is necessary that you find that there was a specific criminal intent.” (emphasis supplied)

The trial court’s supplemental instruction was erroneous. The jury should not have been told that armed robbery and simple robbery are general intent crimes.

Armed robbery is “the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” La.R.S. 14:64. Simple robbery is identical to armed robbery except that the perpetrator is “not armed with a dangerous weapon.” La.R.S. 14:65.

Specific intent is a state of mind in which “the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1). Proof of specific intent is required where the statutory definition of a crime includes the intent to produce or accomplish some prescribed consequence (the frequent language being “with intent to . .”). State v. Elzie, 343 So.2d 712 (La.1977) (possession of a controlled dangerous substance with an intent to distribute). See, e. g., State v. Lewis, 288 So.2d 348 (La.1974) (burglary); State v. Fontenot, 256 La. 12, 235 So.2d 75 (1970) (obscenity); and State v. Daniels, 236 La. 998, 109 So.2d 896 (1959) (public intimidation), (overruled insofar as a procedural point, State v. Gatlin, 241 La. 321, 129 So.2d 4, 7-8 (1961), but not as to its substantive holding). See also, LaFave and Scott, Criminal Law, § 28 (1972). The crime of theft, which is an essential element of both simple and armed robbery, is a non-consensual taking of anything of value with “[a]n intent to deprive the other permanently” of the thing taken. La.R.S. 14:67. Thus, proof of specific intent is required to convict an accused of theft because its statutory definition includes the intent to accomplish a prescribed consequence, i. e., to permanently deprive the victim of the thing taken. Cf. State v. O’Neal, 328 So.2d 100 (La.1976); State v. Rives, 193 La. 186, 190 So. 374 (1939).

Since the crime of theft, which is an essential element of both simple and armed robbery, La.R.S. 14:64, 65, is a specific intent crime, proof of a specific intent to deprive the owner permanently of whatever may be the subject of the theft is also essential to proof of either armed or simple robbery. See, State v. May, 339 So.2d 764 (La.1976); State v. Calloway, 324 So.2d 801, 812 (La.1976). Cf. State v. Bardar, 353 So.2d 713 (La.1977); State v. Anderson, 343 So.2d 135 (La.1977) (specific intent is an element of the offense of simple burglary); accord: State v. Jones, 315 So.2d 650 (La.1975); State v. Lewis, 288 So.2d 348 (La.1974).

Because the general charge correctly instructed the jury that the crimes of armed robbery and simple robbery required the state to prove that the taking had been with the intention of depriving the victim permanently of the thing taken, the state argues that the further erroneous charges given the jury were harmless error. However, the argument must be rejected. The error complained of was prejudicial to the substantial right of the accused to put the state to its proof of an essential element of the crime charged and probably resulted in a miscarriage of justice. See, La.C.Cr.P. art. 921.

The record clearly reflects that the jury foreman specifically asked the court to compare and define the intent element essential to the robbery and attempted murder verdicts. It appears likely that some members of the jury thought defendant’s testimony describing his intoxication tended to negative his specific intent to kill Trask or to deprive him of anything of value at the time the defendant allegedly used force upon him. Under these circumstances, whether the defendant had a specific intent to deprive Trask permanently of his money was a decisive issue, and any jury instruction concerning the required proof as to the defendant’s state of mind at the time of the crime was crucial. See, State v. Dardar, 353 So.2d 713 (La.1977). Compare, State v. Anderson, 343 So.2d 135 (La.1977) (incorrect instruction of intent element of burglary inconsequential where defendant’s ability to form specific intent was not put at issue).

The judge’s further charges drew a sharp distinction between the proof of intent required for the jury to convict under the respective charges on trial. In effect, the jury was told that it must find a specific intent to convict the defendant of an attempted homicide but that it need only find a general criminal intent to convict him of a robbery. The jury acquitted the defendant of attempted murder and convicted him of armed robbery. Therefore, under these circumstances, the judge’s erroneous charge informing the jury that it could convict the defendant of armed robbery without finding a specific intent to deprive Trask permanently of his money was probably decisive and cannot be classified as non-prejudicial.

Accordingly, for the reasons assigned, defendant’s conviction and sentence relative to the simple burglary charge are affirmed. However, the armed robbery conviction and sentence are reversed, and the case is remanded for a new trial on these charges..

SIMPLE BURGLARY CONVICTION AND SENTENCE AFFIRMED.

ARMED ROBBERY CONVICTION AND SENTENCE REVERSED AND REMANDED FOR NEW TRIAL.

       Judge Cecil C. Cutrer, Louisiana Court of Appeal, Third Circuit, participated in this decision as an Associate Justice Ad Hoc.

      . La.R.S. 14:15 provides:
      “The fact of an intoxicated or drugged condition of the offender at the time of the commission of the crime is immaterial, except as follows:
      “(1) Where the production of the intoxicated or drugged condition has been involuntary, and the circumstances indicate this condition is the direct cause of the commission of the crime, the offender is exempt from criminal responsibility.
      “(2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.”


author: TATE, Justice

text:
    Marie Cowart HEAD v. BRADLEY & BRAUD, INC., et al.
    No. 64019.
    Supreme Court of Louisiana.
    March 16, 1979.
   In re: Marie Cowart Head, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Ascension.

Writ denied.

TATE, J., dissents for the reasons assigned.

CALOGERO, J., would grant the writ.

TATE, Justice

(dissenting from the denial of writs).

After a divorce, the husband conveyed the wife’s community interest in property acquired during the community in fraud of her rights. The public records doctrine does not protect the sale by one not the owner of property conveyed. Redmann, The Louisiana Law of Recordation, 39 Tul.L.Rev. 491, 495, 500 (see footnote 36), 1965. Humphreys v. Royal, 215 La. 567, 41 So.2d 220 (1949) should be reconsidered, if it is in conflict with these principles.


author: SCHOTT, Judge. LEMMON, Judge, PER CURIAM.

text:
    John W. WARD, Jr., et al. v. DOUGLAS PUBLIC SERVICE CORP.
    No. 8426.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    On Rehearing April 6, 1979.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans (Robert S. Black, New Orleans), Attorney-Curator Ad Hoc, for plaintiff-appellant.
    Glenn L. Morgan, New Orleans, for plaintiffs-appellants.
    Law office of Bruce J. Borrello, Stephen L. Huber, George J. Riehaud, A. Miles Pratt, III, Denise M. D’Aunoy, Metairie, for defendant-appellee.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiffs have appealed from a judgment maintaining an exception of prescription and dismissing their suit.

In their original petition filed on Wednesday, August 13,1975, plaintiffs alleged that the automobile accident which gave rise to their claim occurred on August 12, 1974. After being met with an exception of prescription they amended their petition to include the following:

“VIII
Agents of defendant Douglas’s insurer acting on behalf of Douglas and the insurer acknowledged the obligation to make plaintiffs whole several times, even into 1975, were aware of plaintiff John Ward’s medical problems, assured him that all expenses were to be taken care of and in fact paid for some expenses. By such actions prescription was interrupted as to all defendants.”

The trial on the exception was submitted on the record and the argument and memo-randa of counsel. The record contains written interrogatories addressed by the parties to each other with their answers, but no further evidence was taken at the trial.

At the time of the trial the use of the interrogatories and answers was controlled by LSA-C.C.P. Arts. 1492 and 1428, as they read prior to the passage of Act 574 of 1976. Defendant’s answer to plaintiffs’ interrogatories may be considered by us pursuant to Art. 1428(2). However, the record does not disclose that any of the circumstances contained in Art. 1428(3) were present so as to authorize plaintiffs to offer their answers to the interrogatories as evidence in their behalf. Neither does the record suggest that they attempted to offer them as evidence in the first instance. Finally, there is no stipulation between the parties with respect to plaintiffs’ answer to the interrogatories.

In answer to plaintiffs’ interrogatories defendant Douglas Public Service Corporation stated as follows: Liberty Mutual Insurance Company was its liability insurer. A collision between its truck and plaintiff’s automobile occurred on August 12, 1974, and Liberty Mutual was notified the following day. On August 13 Liberty Mutual first contacted plaintiff. It caused an appraisal of plaintiff’s automobile to be made on August 14 and paid property damage of $161.58 on August 19, 1974.

Plaintiffs, whose claim prescribed on the face of their petition, had the burden to prove that prescription was interrupted. Wooden v. Hartford Insurance Company, 335 So.2d 742 (La.App. 2nd Cir. 1976); Tassin v. Allstate Insurance Company, 310 So.2d 680 (La.App. 4th Cir. 1975) writs refused La., 313 So.2d 836. The evidence properly before us including defendant’s answer summarized above is not sufficient proof of plaintiffs’ case.

Nevertheless, since plaintiffs have referred to their answer to defendants’ interrogatories and insisted that these facts establish an interruption of prescription, in the interest of making a full disposition of the issues we will consider them.

In these answers plaintiffs stated: Several times in 1974 a Miss Beaver said the insurance company would pay for the automobile repairs and medical expenses; Miss Beaver and others told plaintiff he didn’t need a lawyer and the insurance company would pay the bills no matter how long it took; the insurance company made one payment on the car; plaintiff talked to an attorney around October, 1974, but after Miss Beaver said they would pay for everything and that he didn’t need an attorney he thought it would be “silly” to get one.

On the basis of these answers plaintiffs contend that there was an acknowledgment of the obligation under C.C. Art. 3520 or that the maxim contra non valentem agere nulla currit praescriptio applies.

In the Wooden and Tassin cases it was held that an acknowledgment sufficient to interrupt prescription must be a clear, concise and express recognition of the right which the creditor claims. In the Tassin case is a lengthy discussion of the doctrine of contra non valentem which provides an insight into the quality of the evidence necessary to support the application of the doctrine.

Even if the answers to the interrogatories were properly before us they are self serving, they were not made with the benefit of cross examination, they are vague and they are not descriptive of all the circumstances which accompanied these contacts between plaintiff and the representative of defendant’s insurer.

We have concluded that plaintiffs have not borne their burden of proof to defeat prescription.

Accordingly, the judgment is affirmed at plaintiffs’ cost.

AFFIRMED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Judge,

dissenting and assigning reasons.

The legal issue in this appeal is whether an unconditional payment, as debtor, of part of the damages caused by a tort constitutes a tacit acknowledgment of the debt by the person in favor of whom prescription runs and serves to interrupt prescription. I vote in the affirmative. C.C. art. 3520, 3551.

The undisputed payment in this case by defendant’s liability insurer was five days after the insurer’s appraisal of the automobile damage caused by defendant’s tort, and this payment could not reasonably be construed as anything but an unconditional payment by a debtor of part of the debt. If plaintiff had been holding a promissory note executed by defendant in the amount of the tort-caused damages, there would be no argument that payment on the note of the amount attributable to property damage interrupted prescription as to the entire note. I see no valid basis for distinction, for purposes of interruption of prescription, between payment on a liquidated debt and payment on an unliquidated debt. 2 Civil Law Translations — Aubry & Rau, Property, § 215, no. 304 (La.St.L.Inst.Trans.1966); 2 Planiol, Treatise on the Civil Law, § 665 et seq. (La.St.L.Inst.Trans.1959); 5 Civil Law Translations — Baudry-LaCantinerie & Tissier, Prescription, §§ 476, 527-535 (esp. 531), 647.

On the problem of evidence plaintiff’s amended petition alleged, among other things, interruption of prescription by payment of part of the damages. Defendant, while denying this allegation in its answer, admitted in answers to interrogatories that its insurer appraised and paid the automobile damage. While technically the record does not show that the answers to interrogatories were introduced into evidence, I would not affirm an otherwise incorrect judgment of dismissal on the basis of this technical deficiency. I would at worst remand to allow defendant to rebut this evidence.

ON REHEARING

PER CURIAM.

We granted a rehearing in this case because it came to our attention that appellant John W. Ward, Jr. had died. His legal representative did not appear voluntarily and the identity and residency of any such legal representative was not known to the court and was not furnished by the attorney who formerly represented the deceased appellant and who still represents Mrs. Ward.

Accordingly, on October 27, 1978, we ordered the publication of a summons pursuant to Rule XVIII, § 3, of the Uniform Rules-Courts of Appeal. Following the publication of this summons on November 1, 20, and December 8, 1978, in the New Orleans States-Item and on November 2, 21, and December 9, 1978, in the New Orleans Times-Picayune, and having gotten no response from the legal representative of the deceased John W. Ward, Jr., on January 3, 1979, we appointed a Curator Ad Hoc to represent the unknown legal representative of the deceased John W. Ward, Jr. against whom further proceedings herein could be contradictorily conducted.

On March 28, 1979, the Curator made a return to this court in which he outlined his efforts to contact the representative of the deceased appellant and reported that he was unable to make such contact.

We are satisfied that every effort has been made to locate a representative of the deceased appellant, and having reconsidered our opinion of November 10, 1977, we reinstate that opinion, with notice of our action to be given to the attorney for Mrs. Ward as well as the Curator Ad Hoc for John W. Ward, Jr.

ORIGINAL OPINION REINSTATED.

      . Obviously, the tortfeasor’s debt for the property damage could not exist separately from the debt for all of the tort-caused damages.

      . There is a difference, perhaps, for purposes of determining whether payment constitutes an admission conclusive of liability, but that is not at issue in this appeal from a judgment maintaining an exception of prescription prior to trial on the merits.