author: BLANCHE, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Darnell BROWN.
    No. 63171.
    Supreme Court of Louisiana.
    May 21, 1979.
    Rehearing Denied June 25, 1979.

      Robert Barnard, 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., Thomas Chester, Asst. Dist. Atty., for plaintiff-appellee.
   BLANCHE, Justice.

Defendant, Darnell Brown, was charged by bill of information with simple burglary in violation of LSA-R.S. 14:62. On August 23, 1978, after trial before a jury of six persons, defendant was found guilty as charged, the verdict being five to one. Thereafter, the State filed a bill of information pursuant to LSA-R.S. 15:529.1 charging defendant as a third felony offender. At the multiple offender hearing defendant pled guilty and was sentenced as an habitual offender to serve twenty-two years at hard labor in the custody of the Department of Corrections.

Defendant has assigned ten errors as the basis for his appeal before this Court.

In July, 1978, Levertes Dorsch and her daughter, Kenella Dixon, were living respectively at 2930 and 2932 Florida Avenue, a double shotgun house located in New Orleans. On the morning of July 20,1978, Ms. Dixon took her mother to work and then stopped to pick up some things at the supermarket. After she returned home at about 10:00 a. m., she heard noises which sounded like footsteps from her mother’s side of the double. After a brief investigation outside during which she observed that a back window had been broken, she called the police. Defendant was discovered inside Ms. Dorsch’s residence by the law enforcement officers. He had been packing various items in the house, including cameras, radio, television, et cetera, into boxes and pillow cases. Defendant was arrested and subsequently charged with simple burglary.

Before the trial court, ten assignments of error were filed on behalf of defendant. In brief, no argument has been presented relative to assignments of error numbers three and eight, and they are considered abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

Assignment No. 1

By this assignment, defendant argues that the trial court erred in denying defendant’s motion to quash the petit jury on the grounds that his due process rights were violated by statutory provisions permitting less than a unanimous vote by a jury of only six persons.

On April 17, 1979, the United States Supreme Court in Burch v. Louisiana, - U.S. -, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), held:

“. [W]e believe that conviction by a nonunanimous six-member jury in a state criminal trial for a nonpetty offense deprives an accused of his constitutional right to trial by jury.”

In holding unconstitutional that portion of Article 1, § 17 of the Louisiana Constitution of 1974 which provides “[a] case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be before a jury of six persons, five of whom must concur to render a verdict,” the Court reasoned:

“We thus have held that the Constitution permits juries of less than 12 members, but that it requires at least six. [Citations omitted] And we have approved the use of certain nonunanimous verdicts in cases involving 12-person juries. [Citations omitted] . But having already departed from the strictly historical requirements of jury trial, it is inevitable that lines must be drawn somewhere if the substance of the jury trial right is to be preserved. .
“. . . [M]uch the same reasons that led us in Ballew [Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234] to decide that use of a five-member jury threatened the fairness of the proceeding and the proper role of the jury, lead us to conclude now that conviction for a nonpetty offense by only five members of a six-person jury presents a similar threat to preservation of the substance of the jury trial guarantee and justifies our requiring verdicts rendered by six-person juries to be unanimous..."

The question presented in this assignment is whether Burch, supra, is to be applied retroactively. We think not.

Our review of decisions by the United States Supreme Court in other closely related areas leads us to the conclusion that the rule of Burch, supra, should not be applied retroactively to juries empaneled prior to the date of the Burch decision. See Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977); Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975); DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968); State v. Robinson, 361 So.2d 864 (La.1978).

Since at the time of the commission of the instant offense and the defendant’s conviction, Louisiana law authorized trial by jury composed of six persons, five of whom were required to concur in order to render a verdict in cases where the punishment may be confinement at hard labor or confinement without hard labor for more than six months, Article 1, § 17 of the Louisiana Constitution of 1974, defendant’s conviction by such a jury is valid.

This assignment is, therefore, without merit.

Assignment No. 2

By this assignment, defendant argues that the trial court erred in denying his motion in limine to prevent the State from cross-examining the defendant regarding the details of defendant’s convictions for impeachment purposes and in permitting the State to do so during trial.

During the trial, the defendant took the stand and testified in his own behalf. On direct-examination, defendant was questioned about prior convictions. He related that he had four or five prior convictions, including burglary, theft, simple escape and trespass, and at the time of trial was on probation for attempted simple burglary. On cross-examination, the following exchange took place between the prosecuting attorney and the defendant:

Q Mr. Brown, you said you ve been convicted of a couple of theft charges; is that right?
A Yes.
Q And I want to refer you to a charge from the 19th day of August, 1972, which charges you with attempt to commit simple burglary of a building and structure at 1206 Dryades Street. Do you recall being charged with that?
A Yes, I do.
Q The District Attorney in that case allowed you to plead guilty to a theft of a hundred and one dollars, is that correct?
BY THE WITNESS:
Yes, because they was supposed to have come picked me up around the corner of the place. They had nine people out there. They come and picked me out the whole crowd.
Q In other words, you had been charged with attempted burglary but they reduced the charge and let you plead to attempted theft?
¡> Yes.
.© Were you also convicted for receiving stolen property, one camera?
Yes.
And I think you did say that you pled guilty to simple escape, is that right?
Yes. i>
From the New Orleans Police Department; is that correct? <©
Huh?
That was a simple escape from the custody of the New Orleans Police Department?
No, that wasn’t in the custody. <
That wasn’t? <y
No. «i
Are you sure about that? c?
Yes. <
Didn’t you plead guilty to willfully and unlawfully departing from the lawful custody of the Police Department of the City of New Orleans? <y
I pleaded guilty to— <
And from a place where you were lawfully detained by the said Police Department? c?
I pleaded guilty to simple escape, not from no police custody.
And you also have been convicted of criminal trespass, is that correct? &
Um-hum. <
Now, weren’t you also charged on the 7th day of February, 1974— a?
Weren’t you charged on the 7th of February, 1974, of a simple burglary of the building and structure at 1423 Carondelet Street, Wilson’s Auto Repair Shop? 40
Yes.
[Q.] And didn’t the District Attorney let you . . plead to a felony theft in that case?
A. The D. A. put me down, but the man dropped the charges and they had no case.
Q. They had no case but you- pled guilty to it anyway?
A. Yes, I ain’t had no choice.
Q. And you were multiple billed on that, weren’t you?
A. No, I wasn’t.
Q. You’re sure you weren’t
A. Yes, I’m sure.
Q. Do you remember what kind of sentence you got for that theft?
•A. Eighteen months.
Q. Weren’t you also charged on the 14th day of June, 1977 with attempting to commit simple burglary of an automobile belonging to Leroy White, with the intent to commit a theft therein?
A. I was charged with attempt simple burglary.
Q. You pled guilty to that, right?
A. Yes. I got a five year probation.
Q. And you also were convicted at one time in the past of being a multiple offender; is that correct?
BY THE WITNESS:
No, I wasn’t.
Q. Did you plead guilty to being a multiple offender, after you were convicted on the attempted burglary for the automobile?
A. No.
Q. Mr. Brown, I’m going to show you what I’m going to mark for identification purposes as State’s Exhibit 9, and ask you to look at this document. Is that your name?
A. Yes.
Q. Does that say “attempted simple burglary, a felony?”
A. Yes.
Q. Does that say down here that you had also been convicted earlier in 1974 for theft of a hundred and one dollars?
A. Yes.
Q. Did you plead guilty to being the same person here that had been convicted of attempted simple burglary and the same person then?
A. Yes.
Q. So you were convicted of being a multiple offender; isn’t that correct? A. I don’t know about that. I don’t know nothing about the multiple offender law. I don’t know what that means.

BY MR. HARPER:

I don’t have any further questions.

In State v. Jackson, 307 So.2d 604 (La.1975), this Court reversed the prior jurisprudence and held that the prosecution, in impeaching the credibility of a defense witness, may not only establish prior convictions of the witness, but may also cross-examine the witness about the details of the prior convictions in order to show the “true nature” of the offenses. The Jackson holding has since been extended to defendants testifying in their own behalf. State v. Sykes, 364 So.2d 1293 (La.1978); State v. Thompson, 364 So.2d 908 (La.1978); State v. Carter, 363 So.2d 893 (La.1978); State v. Dupar, 353 So.2d 272 (La.1977); State v. Elzie, 351 So.2d 1174 (La.1977); State v. Chenier, 343 So.2d 177 (La.1977); State v. Jackson, 339 So.2d 730 (La.1976); State v. Williams, 339 So.2d 728 (La.1976); State v. Elam, 312 So.2d 318 (La.1975); State v. Jackson, 307 So.2d 604 (La.1975).

While reaffirming the principles set forth in Jackson, supra, and its progeny, we are, nevertheless, aware that a Jackson cross-examination is not without its limits. The extent to which the inquiry into past convictions can be permitted is dependent upon the facts of the particular case. The trial judge has great discretion in determining the depth and length of the inquiry. This discretion will not be disturbed absent a showing of abuse.

In the instant ease, we believe the nature and scope of the questioning was well within the limits of Jackson and the trial judge did not abuse his discretion in overruling the defendant’s motion in limine and contemporaneous objections. This assignment is, therefore, without merit.

Other Assignments

We have carefully reviewed assignments of error numbers 4, 5, 6, 9 and 10. We find that none of these assignments of error present reversible error, nor do any involve legal issues not governed by clearly established principles of law. We find these assignments to be without merit.

DECREE

Accordingly, the conviction and sentence of the defendant are affirmed.

AFFIRMED.

CALOGERO, J., concurs and assigns reasons.

TATE and DENNIS, JJ., concur for reasons assigned by CALOGERO, J.

CALOGERO, Justice,

concurring.

I again express my disagreement with the holdings of State v. Jackson, 307 So.2d 604 (La.1975) and its progeny, which approve cross-examination of a testifying defendant concerning the details of prior convictions. See my dissent in State v. Chenier, 343 So.2d 177 (La.1977). However, because. a majority of the Court presently adheres to the view that this cross-examination is permissible, I respectfully concur.


source: Caselaw Access Project

author: CALOGERO, Justice. MARCUS, Justice BLANCHE, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Andrew K. BROWN.
    No. 63210.
    Supreme Court of Louisiana.
    May 21, 1979.
    Rehearing Denied June 25 1979.

    C. Frank Holthaus, Boren, Holthaus & Perez, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.

       Summers, C. J., Marcus and Blanche, JJ., would grant a rehearing.

   CALOGERO, Justice.

The major issue presented in this appeal is whether the trial judge erred when he refused to grant a defense motion to quash the selected jury panel based upon the prosecution's systematic exclusion of blacks from this jury and prior petit juries.

Defendant, Andrew K. Brown, was found guilty of attempted manslaughter, guilty of possession of a firearm after having been convicted of a felony and guilty of carrying a concealed weapon after having been convicted of a felony; the jury returned a not guilty verdict in connection with a charge of attempted murder. The charges arose out of Brown's possession and use of a gun on October 26, 1976, when he allegedly fired numerous shots, striking a woman with whom he had formerly lived and her female companion. Brown was sentenced as an habitual offender to prison terms of ten years, five years and ten years respectively, the latter two sentences to be served without benefit of parole, probation or suspension of sentence (as prescribed by R.S. 14:95.1); all the sentences were ordered to run consecutively.

Defendant, a black man, was convicted by an all white twelve member jury. In the process of selecting the jury, the assistant district attorney, Mr. Ralph Roy, employed only five peremptory challenges, all against blacks, thereby securing the all white jury which tried this case. Before overruling defendant’s motion to quash, the trial judge allowed defense counsel an opportunity to prove systematic exclusion. The defense produced the testimony of two attorneys. An East Baton Rouge Parish attorney practicing with the Public Defender’s Office stated that in a case he recently tried against Mr. Roy, State v. Willie Joe Washington (No. 63,037 on our docket, argued March 8, 1979), Mr. Roy used his twelve peremptory challenges to exclude the first twelve blacks called on voir dire examination. In that case a thirteenth black remaining on the petit jury venire after the state had exhausted all of its peremptory challenges was selected. No state peremptory challenges were used to exclude whites.

Another Baton Rouge attorney testified it appeared to him that in recent cases he had tried against Mr. Roy that blacks were often peremptorily challenged. He could not recall Mr. Roy exercising peremptory challenges against whites in recent eases. In his last trial against Mr. Roy involving a black defendant, there were no blacks on the jury although there were blacks on the venire; Mr. Roy exercised peremptory challenges against the blacks. In another recent trial in which this witness participated which involved a white defendant, this same prosecutor also exercised his peremptory challenges against blacks in the venire with the result that no blacks served on the jury. The attorney testified that he did not exercise peremptory challenges against blacks in either trial. Asked if he had any opinion with respect to Mr. Roy’s exclusion of blacks from the jury the attorney responded, “. . . [M]y opinion would be that . . it’s systematic exclusion.”

After a short cross-examination of this attorney by the prosecutor the court noted that the last jury trial before it was a negligent homicide case in which both defendant and victim were black and that on the six person jury two blacks had served. The assistant district attorney in that case, however, was not the same as in the case at bar. Later in the course of the trial, while the jury was deliberating, further evidence regarding the composition of other East Baton Rouge Parish juries was furnished defendant’s counsel by the trial judge and read into the record. In one case, involving the trial of one Elijah Pickett before a six member jury, three blacks and three whites, the prosecution was conducted by Mr. Roy. There is no record indication of the nature of the case, the race of the defendant or other particulars. Further information furnished involved the Washington case to which this opinion has previously alluded and the previously noted negligent homicide case tried by a six person jury including two blacks in which the state was represented by a different prosecutor. The prosecutor, Mr. Roy, did not testify in this case, nor did he make any statement for the record concerning whether he had been accustomed to systematically excluding blacks from the petit jury panels.

The foregoing fully summarizes the record in the instant case. However, also pertinent to this issue are the facts noted in a concurrence to State v. Haynes, 339 So.2d 328 (La.1976). In that case, decided on November 8, 1976, we affirmed a conviction wherein a complaint was made of systematic exclusion of blacks from the petit jury through the use of peremptory challenges by the same prosecutor who tried this case. Two members of this Court concurred in connection with this issue, one of whom, noting among other things concern for the frequent recurrence of the identical complaint in many other cases appealed from East Baton Rouge Parish, stated:

“Since 1972 there have been eight cases from that district, including the present appeal, in which defendants alleged that the State exercised its peremptory challenges to exclude black veniremen from the petit jury. See, Slate v. Reed, 324 So.2d 373 (La.1976); Slate v. Curry, 319 So.2d 917 (La.1975); State v. Carter, 301 So.2d 612 (La.1974); State v. Veal, 296 So.2d 262 (La.1974); State v. Melton, 296 So.2d 280 (La.1974); Slate v. McAllister, 285 So.2d 197 (La.1973) (six blacks peremptorily challenged by the State but one black venireman accepted); State v. Smith, 263 La. 75, 267 So.2d 900 (1972).
Because these cases represent only a small number of those tried in East Baton Rouge Parish, I cannot say that this record alone indicates an historical system of discriminatory exclusion. However, these cases may trace the outlines of a pattern of exclusion, and if it can be demonstrated in a future case that the practice complained of has not been restricted to isolated instances, then the State should be required to establish that the exclusion of blacks is rooted in some other cause than racial discrimination. For, to exercise peremptory challenges solely on the basis of race without regard to legitimate trial-related objectives is to pervert the purpose of and abuse the broad discretion inherent in that procedure. See, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

Three of the seven cases to which the foregoing portion of the concurring opinion in Haynes alluded were tried by the same prosecutor involved in this case. Since that decision in Haynes, we have reviewed no less than four East Baton Rouge Parish convictions involving this issue (in addition to this case and State v. Washington, supra), in two of which the prosecutor was the same as in the instant case. It appears that the caution expressed by the concurring justice in Haynes has not been heeded.

The majority of this Court has held that a defendant is not denied equal protection when the state uses peremptory challenges to exclude blacks unless there is a systeimitic exclusion over a period of time; we impose upon the defendant the burden of establishing a prima facie showing of such exclusion. Once a defendant has done so, the state bears the burden of showing that there was no discrimination. State v. Bias, 354 So.2d 1330 (La.1978). In Bias, the Court noted its adherence to the test announced in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 959 (1965) in determining whether there was a systematic exclusion. In Swain, the United States Supreme Court held that a showing by the defense that peremptory challenges were used to exclude members of a minority in a particular case is not sufficient to establish a violation of the Fourteenth Amendment’s Equal Protection Clause. However, where defendant can show a systematic exclusion of the minority by the state over a period of time through its use of peremptory challenges a constitutional question is presented. Swain implies that defendant must demonstrate that the prosecutor continually and consciously uses peremptory challenges to exclude blacks because of their race, requiring that the record show “with [some] acceptable degree of clarity when, how often, and under what circumstances the prosecutor alone has been responsible for striking [the minority].’’ 380 U.S. at 224, 85 S.Ct. at 838.

Heretofore, less than a majority of this Court has subscribed to views expressed by Justice Dennis in his concurrence in State v. Eames, 365 So.2d 1361 (La.1979), wherein it is observed that the Swain ease has been the subject of extensive criticism because it “plac[ed] the state’s peremptory challenge beyond realistic scrutiny [and] converted the challenge from a device for protecting defendants into a tool for restricting the availability of the defendant’s constitutional right to equal protection of the law in jury selection.” 365 So.2d at 1367. The Eames concurrence opines that the right of individual dignity guaranteed by Article I, Section 3 of the Louisiana Constitution of 1974 goes beyond the protection provided by the Fourteenth Amendment, and thus beyond the Swain decision, to prohibit all discrimination because of race or religion “even though the discrimination may be reasonably related to a legitimate state objective such as a criminal prosecution.” 365 So.2d at 1369.

We need not decide whether the concurrence in State v. Eames is fully correct nor whether the standards set forth in that concurrence (see footnote four), should be adopted, for here simply under the test set forth in our jurisprudence, especially State v. Bias, supra, we determine that defendant has made a showing sufficient to establish prima facie discrimination in the state’s exercise of its peremptory challenges. More than a bare showing of prosecutorial use of a disproportionate number of challenges against blacks or an elimination of a disproportionate number of blacks considering their number in the venire has been made in this case. There has been shown in connection with this prosecutor’s use of peremptory challenges a systematic exclusion, a continual and conscious rejection of blacks. Therefore, under the procedure recognized in Bias, the burden shifted to the state to show that no discrimination simply because of race was practiced. The prosecutor made no such showing. The state therefore failed to carry its burden of proof in this regard.

For these reasons, we conclude that the defense motion to quash the jury panel based upon this prosecutor’s systematic exclusion of blacks from petit juries should in this case have been sustained. Having found reversible error in defendant’s assignment of error number six, we find it unnecessary to consider the remaining assignments of error.

Decree

For the foregoing reasons, the convictions and sentences of the defendant are reversed and set aside and the case is remanded for a new trial.

CONVICTIONS AND SENTENCES REVERSED; NEW TRIAL ORDERED.

MARCUS and BLANCHE, JJ., dissent and assign reasons.

MARCUS, Justice

(dissenting).

I do not consider that the defendant has established a prima facie showing of systematic exclusion of blacks by the use of peremptory challenges over a period of time in East Baton Rouge Parish. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 959 (1965). Accordingly, I respectfully dissent.

BLANCHE, Justice,

dissenting.

I dissent for the same reasons handed down by Justice Marcus in his dissent.

      . Interestingly, however, in State v. Washington, No. 63,037, referred to hereinabove, Ralph Roy did testify on this subject. While asserting that he has never excluded anyone exclusively on the basis of race he admitted that he had, in the exercise of his peremptory challenges, excluded blacks in a much greater proportion than whites, not because the persons were black, but because of the history of having been black. Mr. Roy testified further as follows: [B]y and large, I have found through experience, some twenty-three years in the District Attorney’s Office, that blacks, where you have a black defendant, will generally vote not guilty, in spite of the strength of the State’s case. . .”

      . State v. Eames, 365 So.2d 1361 (La.1979); State v. Rhodes, 351 So.2d 103 (La.1977); State v. Johnson, 343 So.2d 155 (La.1977); and State v. Bennett, 341 So.2d 847 (La.1977).

      . The exclusion of blacks by use of state peremptory challenge was an issue in Eames which the majority did not reach. Eames’ conviction and sentence were reversed on other grounds.

      . Concluding that Swain imposed an almost impossible burden on the defendant, the Eames concurrence set forth the standard believed to be mandated by the Louisiana Constitution:
      A presumption should exist during the selection of a jury that individual peremptory challenges by the prosecution are being properly used. Once it becomes evident, however, that the prosecution has used a disproportionate number of challenges against members of one race, or has eliminated a disproportionate number of members of a certain race, considering the proportionate number of that race included within the ve-nire after excuses, exemptions and removals for cause, in my opinion, a prima facie case of discrimination because of race has been established, and the burden of proof should shift to the prosecutor to show that his challenges were not exercised on the basis of race. The State may sustain its burden by offering evidence that its reasons for individual challenges were not because of race. Although the reasons need not be sufficient to ground a challenge for cause, they should appear to have been applied consistently to similarly situated jurors of other groups, and they should be reasonably relevant to the particular trial or to non-racial characteristics. If the trial court determines that the jury has been improperly selected, it should discharge the jury and select a new one according to constitutional procedures.
      The standards set forth in the Eames concurrence have not been adopted by the majority of the Court.


author: DENNIS, Justice. DIXON, Justice

text:
    Lawrence J. AIAVOLASITI v. VERSAILLES GARDENS LAND DEVELOPMENT CO., Edward C. Kurtz, Oliver J. Meyer, Foster Judlin, Louis L. Brothers and Dr. Frank A. Kruse. George A. AIAVOLASITI v. Edward C. KURTZ, Oliver J. Meyer, Foster Judlin, Louis L. Brothers and Dr. Frank A. Kruse.
    Nos. 63217-63219.
    Supreme Court of Louisiana.
    May 21, 1979.
    Rehearings Denied June 25, 1979.

      Arthur C. Reuter, Reuter & Reuter, New Orleans, for plaintiff-applicant.
    John Stassi, II, Edward N. George, III, Stassi & Rausch, Gary J. Rouse, Klein & Rouse, New Orleans, for defendants-respondents.

       Dixon and Calogero, JJ., would grant a rehearing.

   DENNIS, Justice.

We granted petitioners’ application for writs in these consolidated cases to review the court of appeal decision which appears to be inconsistent with the Civil Code rules governing the effects of suretyship between sureties. Ld.C.C. art. 3058.

This litigation arises from an unsuccessful land development venture in Orleans Parish. The Versailles Gardens Land Development Company was organized for the purpose of financing the venture, but its creditors insisted that the stockholders personally guarantee loans for the enterprise. When the corporation defaulted on its obligations and the creditors demanded payment, one of the stockholders, Lawrence Aiavolasiti, paid or otherwise discharged the debts of the venture and initiated these suits for reimbursement from the other stockholders. Although all of the suits involve promissory notes, each case calls for separate analysis because the stockholders’ engagements were different with respect to each debt.

Corporate promissory note personally guaranteed by stockholders

On December 30, 1970, Versailles signed a promissory note made payable on demand to the order of the Whitney National Bank of New Orleans (Whitney) in the amount of $574,000.00 with 9% interest per annum and 10% attorney’s fees. Five of Versailles’ stockholders, including the plaintiff Lawrence Aiavolasiti and defendants Meyer, Kurtz, Judlin, and Brothers, each gave a separate continuing guaranty to the Whitney for the payment of any indebtedness of Versailles up to the amount of $600,000.00. It is disputed whether a sixth stockholder, Kruse, gave a similar guaranty to the Whitney.

When the Whitney made demand on the stockholders upon their personal guaranties, Aiavolasiti paid the bank the amount due on Versailles’ indebtedness and brought suit against the corporation and the other stockholder guarantors. After a default judgment was obtained against Versailles and Kurtz, property mortgaged to secure the debt was sold and the proceeds of the sale were deducted from the amount paid on the note. The trial court rejected Aiavolasiti’s demands against Kruse entirely, finding that the latter had not agreed to become personally bound to pay the corporate debt. Aiavolasiti’s contention that he should be allowed to recover the full amount from any one of the other guarantors was also rejected, but he was awarded judgment against the remaining guarantors for one-sixth of the amount paid by him plus interest and attorney’s fees as provided by the note. The court of appeal amended the judgment to disallow the note rate interest and attorney’s fees, and to reduce from one-sixth to one-seventh the virile share for which each defendant would be liable. We conclude that the trial and appellate courts erred in part and that the judgment must be further amended.

In allowing Aiavolasiti to recover against the other guarantors the intermediate court inaccurately characterized the nature of the guarantors’ obligations between themselves and consequently fell partially into error. The court of appeal assumed that the guarantors and the principal debtor were all co-debtors in solido. Since one among co-debtors in solido who pays the whole debt can claim from the others no more than the part and portion of each, La.C.C. art. 2104, the appeal court reasoned that Aiavolasiti’s recovery must be limited to each co-debtor’s virile share, counting Versailles, the corporation, as one of the co-debtors.

It is an oversimplification of the relationship between the principal debtor, Versailles, and the individual guarantors to view them as co-debtors in solido for all purposes. Of course, each guarantor bound himself in solido with the principal debtor and agreed to make himself a party to any note signed by Versailles. However, the essential nature of each continuing guaranty was that of a contract of surety because it was an accessory promise by which each guarantor bound “himself for another already bound, and agree[d] with the creditor to satisfy the obligation, if the debtor does not.” La.C.C. art. 3035.

In Louisiana Bank and Trust Co., Crowley v. Boutte, 309 So.2d 274 (La.1975) this Court, in reviewing a continuing guaranty almost identical to those now under scrutiny, held that the effect of the application of articles 2106 and 3045 of the Civil Code is that, as between the creditor and the surety bound in solido with the debtor, the obligations of the surety are governed by the rules of solidary obligors. Between the accessory obligors, themselves, however, we held that the legal relationships may be governed by the rules of suretyship. Id. p. 279.

As this Court indicated in Boutte, the sureties’ agreements to be bound in solido with the debtor do not alter the effects of suretyship among the sureties if the continuing guaranty is in essence an accessory promise to pay the debt of a principal obligor. Of course, by clearly expressing an intention to be bound as solidary obligors even among themselves, the guarantors could totally nullify the suretyship nature of the continuing guaranty and choose to be bound purely as solidary obligors. In the instant case, however, the structure of the continuing guaranties as accessory promises, as well as the testimony of the guarantors at trial, convinces us that the parties intended that the rights and obligations between themselves should be governed by the rules of suretyship.

Louisiana Civil Code article 2206 provides that:

“What the creditor has received from one of the sureties, in discharge of his suretyship, must be imputed to the debt, and goes towards the discharge of the principal debtor and the other sureties.”

Since the evidence is clear that Aiavolasiti, in response to the Whitney’s demand, paid the entire amount owed by Versailles in discharge of his suretyship obligation under his continuing guaranty, the amount paid must be imputed to the principal obligation. The principal debtor and the other sureties were discharged by Aiavolasiti’s payment, and his recourse against them consequently must be based on law, as provided by the suretyship rules, and not on contract. The court of appeal, therefore, reached the correct result, although for different reasons, in denying plaintiff judgment based on the promissory note.

Applying the rules of suretyship in the instant case, we conclude that Aiavo-lasiti, as the surety who has satisfied the debt, has his remedy against each of the other sureties for each surety’s proportionate share of the amount paid. La.C.C. art. 3058. This remedy, of course, is separate from that of the surety who has paid the debt to recover the whole amount from the principal debtor. La.C.C. art. 3052. We agree with the court of appeal that the evidence fails to establish that Kruse was a co-obligor in that he did not execute a continuing guaranty as did the other stockholders; nor did he sign the promissory note in any capacity. Accordingly, the court of appeal judgment must be amended to award Aiavolasiti judgment against the remaining guarantors for a one-fifth share each of the debt discharged by Aiavolasiti.

Corporate promissory note endorsed by stockholders

A $19,000.00 promissory note payable on demand to the order of the Whitney was executed by Versailles on April 23, 1973. The note was endorsed by Aiavolasiti and all five stockholder defendants, including Kruse. The evidence reflects that the stockholders were accommodation endorsers since they endorsed the note solely for the purpose of giving credit to the corporation. The record also supports the conclusion that Aiavolasiti paid the note under his obligations as guarantor and endorser when called upon to do so by the Whitney.

The trial court awarded Aiavolasiti judgment against each co-endorser on the note for one-sixth of the amount required to pay the note plus interest and attorney’s fees as provided by the note. The court of appeal amended the judgment below to delete the note rate interest and attorney’s fees and to reduce the share for which each stockholder defendant would be liable to one-seventh. We conclude that the court of appeal judgment must be amended to allow Aiavolasiti to recover one-sixth of the amount he paid in discharging the $19,000.00 note from each stockholder defendant.

It is readily apparent, from our earlier discussion, that, except for Kruse, the co-endorsers are required, as co-guarantors, to reimburse Aiavolasiti proportionate shares of the debt he satisfied. With respect to the debt underlying the $19,000.00 note, however, Kruse is also a surety and liable for his virile share, not as a co-guarantor, but because of his endorsement of the note.

Since the $19,000.00 Whitney note meets the definition of a negotiable promissory note, see, La.R.S. 7:184, we turn first to the Negotiable Instruments Law for a determination of Kruse’s liability. Where a negotiable instrument is paid by a party secondarily liable thereon, it is not discharged, but the party so paying it is remitted to his former rights as regards all prior parties, except in certain instances not here pertinent. La.R.S. 7:121. This rule must be read in conjunction with La.R.S. 7:68, which provides for the order of liability among joint endorsers, as follows:

“As respects one another, indorsers are liable- prima facie in the order in which they indorse; but evidence is admissible to show that as between or among themselves they have agreed otherwise. Joint payees or joint indorsees who indorse are deemed to indorse jointly and severally.”

Thus, evidence is admissible to overcome the presumption that endorsers have chosen to be liable in the order in which they endorse and to show that between themselves they have agreed otherwise. In the instant case the evidence reflects that the endorsers all affixed their endorsements at approximately the same time and that they definitely intended, among themselves, to be bound as sureties for the debt of the corporation. The testimony revealed that they signed the note as accommodation endorsers of the corporation’s note solely to enable it to borrow money to further the land development venture. In addition to the evidence of record, it is well settled that a person who endorses a note solely for the purpose of accommodating the maker is presumed to have done so as surety for the maker. Continental Supply Co. v. Fisher Oil Co., 150 La. 890, 91 So. 287 (1927); C.I.T. Co. v. Rosenstock, 205 So.2d 81 (La. App. 4th Cir. 1967).

Accordingly, the rights and obligations among the six stockholders are governed by the rules of suretyship; and Aia-volasiti is entitled to recover one-sixth of the amount he paid in discharging the $19,-000.00 Whitney note from each of the following: Kurtz, Judlin, Meyer, Brothers and Kruse.

Promissory note made by stockholders

On January 22,1974, Lawrence Aiavolasi-ti and the five individuals named defendants in these cases executed a note in favor of the International City Bank & Trust Company (ICB) in the amount of $50,755.84. Versailles was not a party to this instrument. Although the note was acquired for value by Lawrence Aiavolasiti’s son, George Aiavolasiti, we have concluded that the court of appeal was correct in its determination that George Aiavolasiti was but a nominal party and that Lawrence Aiavolasi-ti was the true party in interest.

Plaintiff’s recovery on this note is not based on contribution from co-sureties pursuant to La.C.C. art. 3058. Lawrence Aiavolasiti and the individual defendants were primary obligors on the note, and they agreed under the terms of the note to be bound in solido rather than as accessory obligors. Plaintiff’s recovery is therefore governed by La.C.C. art. 2104, which provides for contribution from co-debtors bound in solido. Since there were six obligors bound on the ICB note, plaintiff is entitled to recover one-sixth of the total amount due from each of the individual defendants. Since Versailles was not itself a party to this note, it is not included in the computation of the virile shares due by the individual defendants.

Conclusion

For the reasons assigned the court of appeal judgment is amended in the following manner:

In case number 63,217, the court of appeal judgment is amended to award Lawrence Aiavolasiti judgment against Oliver Meyer, Foster Judlin, and Louis Brothers for their one-fifth virile share of the amount actually paid by the plaintiff on the $574,000.00 Whitney note, together with legal interest from date of judicial demand.

In case number 63,219, the court of appeal judgment is amended to award Lawrence Aiavolasiti judgment against Oliver Meyer, Foster Judlin, Louis Brothers, and Frank Kruse for their one-sixth virile share of the amount actually paid by the plaintiff on the $19,000.00 Whitney note, together with legal interest from date of judicial demand.

In case number 63,218, the court of appeal judgment is amended to award the plaintiff judgment against Oliver Meyer, Foster Judlin, Louis Brothers, and Frank Kruse for their one-sixth virile share of the amount actually paid by the plaintiff on the $50,755.00 ICB note.

The default judgments taken against Versailles and Edward Kurtz are, of course, not before this Court.

DIXON, J,, concurs in part, dissents in part and assigns reasons.

CALOGERO, J., dissents in part, concurs in part for reasons assigned by DIXON, J.

DIXON, Justice

(concurring in part and dissenting in part).

Except for the treatment of the January 22, 1974 note payable to the International City Bank and Trust Company in the amount of $50,755.84, with which I agree, I respectfully dissent from the majority opinion.

The continuing guaranty agreement executed by each stockholder except Kruse, securing the Whitney, provided that the guarantor who paid in full would become subrogated to the rights of the bank, as follows: “. . .1 agree to pay to said Bank . . . the full amount of any indebtedness . . . becoming subrogat-ed, in the event of payment by me, to the claim of said Bank . . . together with whatever security, if any, it or they may hold against said indebtedness . . . ” The Whitney Bank, on July 28, 1975, endorsed its notes to the order of Lawrence Aiavolasiti.

This and other provisions in the continuing guaranty agreement signed by each stockholder except Kruse exhibit clear and specific intent of the stockholders to waive whatever benefit that might be available under the surety provision. Sureties may waive their rights. It is not essential for all obligors to sign the same instrument in order to provide contractually for the obligations among them.

Therefore, it is clear that each shareholder who signed a continuing guaranty agreement agreed that each guarantor could pay the bank and become subrogated to whatever security rights the bank possessed.

All the obligors had the same opportunity to pay the bank. Aiavolasiti did not take undue advantage of his co-obligors. Obviously, he was not in a position to be sued, and was in a position to pay the bank.

As noted in the majority opinion, the $19,000 promissory note was executed by Versailles and endorsed by Aiavolasiti and the other five stockholder defendants. That note, as noted in the majority opinion, was governed by provisions of the Negotiable Instruments Law, Title 7 of the Revised Statutes.

Section 121 of Title 7 provides that when an instrument is paid by an endorser it is not discharged:

“Where the instrument is paid by a party secondarily liable thereon, it is not discharged; but the party so paying it is remitted to his former rights as regards all prior parties, and he may strike out his own and all subsequent indorsements, and again negotiate the instrument, except:
(1) Where it is payable to the order of a third person, and has been paid by the drawer; and
(2) Where it was made or accepted for accommodation, and has been paid by the party accommodated.”

It seems to me that Aiavolasiti, having paid the creditor because the principal debt- or could not pay when due, is entitled to whatever benefits he can derive from C.C. 2161, which provides:

“Subrogation takes place of right:
1. For the benefit of him who, being himself a creditor, pays another creditor, whose claim is preferable to his by reason of his privileges or mortgages.
2. For the benefit of the purchaser of any immovable property, who employs the price of his purchase in paying the creditors, to whom this property was mortgaged.
3. For the benefit of him who, being bound with others, or for others, for the payment of the debt, had an interest in discharging it.
4. For the benefit of the beneficiary heir, who has paid with his own funds the debts of the succession.”

That is, Aiavolasiti is subrogated to the rights of the bank by law and by contract.

      . With the phenomenal increase of the closely held corporation as a form of business enterprise, suretyship has undergone a rebirth, and it is not uncommon for a lender to advise a debtor who wants to borrow in the name of a corporation that the loan will be made only if the individual personally guarantees the loan to the corporation, i. e., becomes its surety. See, Nathan, The Civil Code and Modern Methods of Financing, 50 Tul.L.Rev. 581, 590 (1976).

      . Each continuing guaranty provides, in pertinent part:
      “ * * * I hereby give this continuing guaranty to the said Whitney National Bank of New Orleans, its transferees or assigns, for the payment in full, together with all interest, fees and charges of whatsoever nature and kind, of any indebtedness or liability, direct or contingent, of said debtor to said Whitney National Bank of New Orleans; the extent of my obligation however being limited to the amount of SIX HUNDRED THOUSAND AND NO/ lOOths ($600,000.00)_DOLLARS, plus interest, fees and charges, whether due or to become due and whether now existing or hereafter arising, and I hereby bind and obligate myself, my heirs and assigns, in solido with said debtor, for payment of any such indebtedness or liability precisely as if the same had been contracted and was due or owing by me in person, hereby agreeing to, and binding myself, my heirs and assigns, by all the terms and conditions contained in any note or notes or other obligation or obligations signed or to be signed by said debtor, making myself a party thereto and, waiving all notice and pleas of discussion and division, I agree to pay to said Bank, its transferees or assigns, upon demand at any time, the full amount of any indebtedness, obligation, liability, or sums of money that might become due, up to the amount of this guaranty, together with interest, fees and charges, as above set forth, becoming subrogated, in the event of payment by me, to the claim of said Bank, its transferees or assigns, together with whatever security, if any, it or they may hold against said indebtedness, provided, however, that such subrogation shall become effective when and only when the claim of the Bank, its transferees or assigns, shall have been paid in full; it being understood and agreed that this continuing guaranty, for the amount set forth above, is exclusive of and in addition to any other endorsements, guaranties or obligations, with respect to said debtor, signed by me or any other guarantor or guarantors separate and apart from this instrument, and irrespective of whether such other endorsements, guaranties or obligations with respect to said debtor are limited to the same amount hereinabove set forth, or otherwise. * * *”

      . In all three of these consolidated cases, the court of appeal found that there were seven co-debtors bound in solido — Versailles, Aiavo-lasiti, Kurtz, Meyer, Judlin, Brothers, and Kruse — and rendered judgment against each co-debtor for one-seventh of the whole debt paid by plaintiff. Neither of the courts below acknowledged a distinction between tlie computation of the virile shares on the $574,000 Whitney note and the smaller $19,000 Whitney note, even though both courts held that Kruse was in no way bound on the larger note. It would appear that both of the lower courts mistakenly included Kruse in the computation of virile shares due by the other co-obligors on the $574,000 Whitney note.

      . La.C.C. art. 2106 provides:
      “If the affair for which the debt has been contracted in solido, concern only one of the co-obligors in solido, that one is liable for the whole debt towards the other codebtors, who, with regard to him, are considered only as his securities.”

      . La.C.C. art. 3045 provides:
      “The obligation of the surety towards the creditor is to pay him in case the debtor should not himself satisfy the debt; and the property of such debtor is to be previously discussed or seized, unless the security should have renounced the plea of discussion, or should be bound in solido jointly with the debtor, in which case the effects of his engagement are to be regulated by the same principles which have been established for debtors in solido.”

      . For scholarly commentary on Louisiana Bank and Trust Co., Crowley v. Boutte, 309 So.2d 274 (La.1975), see, Nathan, The Civil Code and Modern Methods of Financing, 50 Tul.L.Rev. 583, 590-91 (1976); The Work of the Louisiana Appellate Courts for the 1974-1975 Term — Security Devices, 36 La.L.Rev. 437 (1976); Note, 36 La.L.Rev. 279 (1976).

      . La.C.C. art. 3058 provides:
      “When several persons have been sureties for the same debtor and for the same debt, the surety who has satisfied the debt, has his remedy against the other sureties in proportion to the share of each; but this remedy takes place only, when such person has paid in consequence of a lawsuit instituted against him.” Although this article permits contribution only if the debt was paid in consequence of a lawsuit, this does not prevent plaintiff’s recovery in the present suit. Contribution is permitted even if the debt was not paid in response to a lawsuit provided that the co-sureties had knowledge that the debt was due or consented to the payment. Leigh v. Wright, 192 La. 224, 187 So. 649 (1939). The other guarantors clearly had knowledge that the debt was due in the present case, and no possible defense was suggested at trial. Moreover, since all of the guarantors were bound in solido with the principal debtor, there is no reason to require the delay pending lawsuit. See, Louisiana Bank and Trust Co., Crowley v. Boutte, 309 So.2d 274, 279 (La.1975).

      . La.C.C. art. 3052 provides:
      “The surety who has paid the debt, has his remedy against the principal debtor, whether the security has been given with or without the knowledge of the debtor.
      “This remedy takes place both for the principal and interest, and for the costs which the surety may have been sentenced to pay; but with regard to the costs, the remedy of the surety begins only from the day he has given notice to the principal debtor, that a suit was commenced against him.”

      . The rights and liabilities of the endorsers are governed by the Negotiable Instruments Law, the law in effect at the time they undertook their respective obligations by signing the note. The N.I.L. has since been repealed and replaced. Acts 1975, No. 92 (codified as Title 10 of the Revised Statutes), effective January 1, 1975.

      . The trial court record reveals that George Aiavolasiti purchased the note with funds loaned to him by his father; that Lawrence Aiavolasiti, acting on advice of counsel, arranged for his son to purchase the note; and that no records were kept of the loan made from Lawrence Aiavolasiti to his son. Apparently there was no agreement between father and son as to terms for repayment. While transactions between family members are not presumed to be simulated or fraudulent, we conclude there was a reasonable basis for the findings of the courts below that, under the circumstances, George Aiavolasiti was acting only as an agent for his father in purchasing the $50,755 ICB note.

      . La.C.C. art. 2104 provides:
      “If one of the codebtors in solido pays the whole debt, he can claim from the others no more than the part and portion of each.
      “If one of them be insolvent, the loss occasioned by his insolvency must be equally shared amongst all the other solvent codebtors and him who has made the payment.”


author: MARCUS, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Herman GEORGE.
    No. 63244.
    Supreme Court of Louisiana.
    May 21, 1979.
    Rehearing Denied June 25, 1979.

      John W. Johnson, Eunice, Murphy W. Bell, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., Randy D. Elkins, Asst. Dist. Atty., for plaintiff-appellee.

       Dennis, J., would grant a rehearing.

   MARCUS, Justice.

Herman “Twin” George was indicted by the grand jury for the first degree murder of Henry Scott in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt, and the jury unanimously recommended that defendant be sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. The trial judge sentenced defendant in accordance with the recommendation of the jury. On appeal, defendant relies upon fifteen assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends the trial judge erred in denying his motion to quash the indictment and petit jury venire. Essentially, he argues that both the grand jury and the petit jury venire were improperly constituted in that they were not representative of a fair cross-section of the community.

A hearing was held on defendant’s motion to quash the indictment. It was stipulated that the evidence adduced at this hearing would also be applicable to the motion to quash the petit jury venire. Evidence indicates that Webster Parish has a population of about forty thousand people, consisting of twenty-six thousand whites and fourteen thousand blacks. Also, there are about twenty thousand registered voters, fifteen thousand of whom are white and five thousand of whom are black. No eligible person is denied the right to register to vote; the only requirements are that a person present some form of identification and evidence of his address and date of birth. Under the system in effect in that parish since 1976, jury commissioners place the twenty thousand names obtained from the voter registration list in a jury wheel. The list is the exclusive source of names for the general venire. Thereafter, the jury commissioners withdraw two thousand names at random from the jury wheel. Questionnaires are then sent out to these persons to determine who are qualified to serve as jurors. After the questionnaires are returned, the names of qualified persons are placed in a jury box from which the general venire is drawn. The grand jury which indicted defendant in the instant case was impaneled on September 13, 1977, and returned an indictment against defendant on January 9, 1978. Hence, the grand jury which indicted defendant and the petit jury venire from which the petit jury before whom defendant was tried were derived from a general venire selected as aforesaid. There was no evidence of any policy to systematically exclude any identifiable group from serving as jurors. At the conclusion of the hearing, the trial judge denied defendant’s motions to quash the indictment and the petit jury venire.

While a defendant has a constitutional right to be indicted by a grand jury and tried by a petit jury chosen from a fair cross-section of the community, he is not entitled to juries reflecting with mathematical precision the composition of the community. State v. Lawrence, 351 So.2d 493 (La.1977); State v. Anderson, 315 So.2d 266 (La.1975); State v. Millsap, 258 La. 883, 248 So.2d 324 (1971). A defendant who contends that he is deprived of juries which represent a fair cross-section of the community has the burden of establishing a prima facie case of discrimination. State v. Jones, 263 La. 1012, 270 So.2d 489 (1972); State v. Kilbourne, 260 La. 569, 256 So.2d 630 (1972). In State v. Daigle, 344 So.2d 1380 (La.1977), defendant contended that the exclusive use of voter registration rolls to draw up the general venire violated his right to a fair trial by a representative cross-section of the community. While expressing concern over the propriety of using voter registration lists as the single source from which the jury venires were compiled, we held, however, that “we cannot say that the use of voter lists without any showing in the record of any discrimination against a class of people establishes that the jury pool did not represent a fair cross-section of the community.” Likewise, in State v. Unger, 362 So.2d 1095 (La.1978) and State v. Lawrence, supra, we rejected similar contentions on the ground that defendant failed to demonstrate a systematic exclusion of any identifiable segment of the community.

In the instant case, defendant’s motions to quash were grounded on the sole claim that the grand jury and petit jury venire were racially imbalanced due to a systematic exclusion of blacks. On appeal, defendant abandons this contention and argues instead that the grand jury and petit jury venire were improperly constituted because of discrimination in the selection process against other classes of persons, i. e., eighteen to twenty-one year olds and non-registered voters. However, the record is devoid of any evidence tending to establish a systematic exclusion of any identifiable segment of the community. The only class excluded from consideration by the jury commission are those persons qualified as prospective jurors who are not registered to vote, a class without any distinguishable, common characteristics. Hence, we do not find that the trial judge erred in denying defendant’s motions to quash the indictment and petit jury venire.

Assignments of Error Nos. 1 and 2 are without merit.

ASSIGNMENTS OF ERROR NOS. 3-12, INCLUSIVE

Defendant contends the trial judge erroneously allowed the state eleven challenges for cause based upon the prospective jurors’ sentiments toward the death penalty, resulting in a denial of a fair cross-section of the community and in the allowance to the state of more peremptory challenges than it is entitled to by law. The state exercised eight of the twelve peremptory challenges permitted it by law in the trial of this offense punishable by death. La.Code Crim.P. art. 799.

At the outset, we note that defendant made no objection to the challenge of Mrs. Gloria J. Morse for cause (Assignment of Error No. 3). La.Code Crim.P. art. 841 provides, and this court has consistently held, that in the absence of a contemporaneous objection, an alleged irregularity or error cannot be availed of after verdict. State v. Williams, 343 So.2d 1026 (La.1977).

We also find that the state’s challenges for cause of the other ten prospective jurors were properly allowed by the trial judge. La.Code Crim.P. art. 798 provides in pertinent part:

It is good cause for challenge on the part of the state, but not on the part of the defendant that:
(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt; .

This article was amended to conform with the decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), wherein the United States Supreme Court held that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.” (footnote omitted) On the other hand, the Court found no constitutional bar to excluding jurors who stated in advance of trial that they could not even consider returning a verdict of death or that their attitude about the death penalty would prevent them from making an impartial decision as to defendant’s guilt.

After carefully examining the record on voir dire examination, we are satisfied that each of the ten jurors, after questioning by both the state and defendant, were properly excused in strict compliance with the standards set out in Witherspoon and La.Code Crim.P. art. 798(2)(a). The responses made by these prospective jurors clearly indicated that, because of their conscientious scruples against the infliction of capital punishment, they would automatically vote against the imposition of capital punishment without regard to any evidence that might have been developed in the trial of the case before them, or at the sentencing hearing in the event of conviction.

Moreover, the jury did not recommend and the trial court did not impose the death penalty. Defendant does not have a valid complaint of a Witherspoon violation. We have uniformly held that a defendant insulated from the death penalty has no valid Witherspoon complaint. State v. Drew, 360 So.2d 500 (La.1978).

Also, having concluded that the state’s challenges for cause of the ten prospective jurors were properly allowed by the trial judge under La.Code Crim.P. art. 798(2)(a), there is no merit to defendant’s contention that the state was permitted more peremptory challenges than it was entitled to by law in contravention of the second paragraph of La.Code Crim.P. art. 800.

In addition, we reject defendant’s contention that the foregoing authorities are inapplicable to the instant case since they were based upon the trial of offenses involving a mandatory death penalty and not the bifurcated procedure employed in this state since 1976. Our examination of the Witherspoon decision discloses that the statute involved therein provided for a bifurcated proceeding similar to ours, allowing the jury the discretion to impose a sentence of death or imprisonment. Witherspoon v. Illinois, supra, 391 U.S. 510, 88 S.Ct. at 1775. See also State v. Drew, supra, in which we applied the foregoing authorities in connection with a trial of an offense punishable by death pursuant to the bifurcated procedure.

In sum, Assignments of Error Nos. 3 through 12, inclusive, are without merit.

ASSIGNMENT OF ERROR NO. 13

Defendant contends the trial judge erred in allowing in evidence certain inculpatory statements and/or confessions made by defendant without having been first advised of his Miranda rights.

Prior to trial, defendant filed a motion to suppress certain inculpatory statements and/or confessions. The motion was referred to the trial on the merits. At trial, Deputy Jimmy Morgan testified that, while he and Officer Glennell Merritt were patrolling the streets of Cullen on December 28, 1977, they received a call over the radio from an unknown party at about 9:40 a. m. telling them to go to a place known as Babe Moore’s. The officers proceeded to the scene immediately and parked their car across the street from the front of Babe Moore’s. Deputy Morgan got out of the car, at which time defendant walked toward him with a gun in his hand and stated: “I got Henry.” At this point, the jury was removed from the courtroom upon the state’s request so that it could lay a foundation for the introduction in evidence of other statements made by defendant at a later time. Deputy Morgan then stated that defendant handed the gun to Officer Merritt who unloaded the gun and handed it to him. Deputy Morgan testified that he then asked defendant whom he had shot, and, after being told he had shot Henry, asked him where Henry was located. Defendant replied that Henry had been taken to the hospital. Defendant was then placed into the patrol car. Officer Morgan stated that, while defendant was “placed in custody,” he did not “actually tell him he was under arrest.” He emphatically stated that he did not interrogate defendant at this point or at any time during the period in which defendant was transported in the patrol car to the jail. Enroute to the jail, defendant talked “a good bit” making inculpatory statements as: “I didn’t know how many times I shot him, I reloaded the gun and shot him some more.” Deputy Morgan reiterated that none of the statements were made in response to questions asked by either Officer Merritt or himself and that in fact no questions at all were asked defendant enroute to jail. He stated that he did not advise defendant of his rights as he did not intend to ask him any questions. The testimony of Officer Merritt was substantially the same as that of Deputy Morgan. The trial judge ruled that the oral statements at issue were admissible, reasoning that, although he felt defendant was in custody while in the patrol car, he was not subjected to any interrogation and, therefore, no Miranda warnings were required at that point.

Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Adams, 347 So.2d 195 (La.1977). In Miranda the United States Supreme Court observed: “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Spontaneous and voluntary statements, not given as a result of police interrogation or compelling influence, are admissible in evidence without Miranda warnings even where a defendant is in custody. State v. Thornton, 351 So.2d 480 (La.1977); State v. Sockwell, 337 So.2d 451 (La.1976); State v. Thomas, 310 So.2d 517 (La.1975); State v. Higginbotham, 261 La. 983, 261 So.2d 638 (1972); State v. Hall, 257 La. 253, 242 So.2d 239 (1970).

In the instant case, the officers did not formally place defendant under arrest. However, the testimony indicates that, when defendant was placed into the patrol car, he had been taken in custody or otherwise deprived of his freedom of action in a significant way. The record is equally clear that defendant was not subjected to police interrogation while in the patrol car en-route to jail. The inculpatory statements made by defendant were spontaneous and voluntary. Defendant was not threatened, coerced, or in any way, forced to make the inculpatory statements. Under these circumstances, no Miranda warnings were required, and the inculpatory statements and/or confessions were properly admitted in evidence.

Assignment of Error No. 13 is without merit.

ASSIGNMENTS OF ERROR NOS. 14 AND 15

Defendant contends the trial judge erred in denying his motion in arrest of judgment and motion for a new trial on the same grounds as those urged in support of Assignments of Error Nos. 3 through 12, inclusive. For the same reasons assigned by this court to those assignments of error, we likewise conclude that Assignments of Error Nos. 14 and 15 are without merit.

DECREE

For the reasons assigned, defendant’s conviction and sentence are affirmed.

DENNIS, J., concurs and assigns reasons.

DENNIS, Justice,

concurring.

I reluctantly concur, not being in complete agreement with the treatment of Assignment of Error number 13 regarding the admission of defendant’s inculpatory statements made en route to jail. It appears that federal jurisprudence does not require that Miranda warnings be given an accused in custody of law enforcement officers unless he is actually interrogated. But see, Y. Kamisar, W. Lafave & J. Israel, Modern Criminal Procedure, (West 1974) at p. 572; Uniform Rules of Criminal Procedure, Rules 212, 241 (1974); A.L.I. Model Code of Pre-Arraignment Procedure, § 120.8 (Proposed Official Draft No. 1, 1972); 1974 Model Code, § 130.1. However, the Louisiana Constitution of 1974 requires that an accused be advised of certain of his constitutional liberties upon arrest or detention regardless of whether he is interrogated. La.Const.1974, art. 1, § 13. The Louisiana rule is preferable, in my opinion, because a person who has been arrested or detained must be aware of his right to counsel and privilege against self incrimination in order to effectively exercise them, regardless of whether he is actually interrogated. Although the defendant did not raise this state constitutional issue in his appeal, which causes me ultimately to concur in the decision herein, the important distinction between the requirements oí Miranda and the Louisiana constitution should be noted.

      . The second paragraph of La.Code Crim.P. art. 800 provides:
      The erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law.


author: PER CURIAM.

text:
    STATE of Louisiana v. Robert THIBODEAUX.
    No. 63246.
    Supreme Court of Louisiana.
    May 21, 1979.
    Rehearing Denied June 25, 1979.

    Ronald P. Herman, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

       Dennis, J., would grant a rehearing.

   PER CURIAM.

Affirmed.


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

text:
    Mrs. Dorothy Yarls GORDON, wife of/and James T. Gordon, Sr. v. CITY OF NEW ORLEANS, New Orleans Police Department, Donald Lagarde and Marcel David.
    No. 63477.
    Supreme Court of Louisiana.
    May 21, 1979.
    Rehearing Denied June 25, 1979.

    M. H. Gertler, Gertler & Gertler, New Orleans, for plaintiffs-applicants.
    Donald A. Hoffman, City Atty., Debra J. Fischman, Asst. City Atty., for defendants-respondents.

       Tate, Dixon and Caiogero, JJ., would grant a rehearing.

   PER CURIAM.

After carefully reviewing the testimony and other evidence in the record of this case, we conclude that the court of appeal properly affirmed the judgment of the district court. Under the facts correctly found by the intermediate court, Officer La-garde’s actions in defending himself with his service revolver against a gunman at very close range, were, under the circumstances, neither unreasonable nor wanting in skill. Accordingly, for these reasons and those expressed in the appeals court’s opinion, the court of appeal judgment is affirmed.

AFFIRMED.

TATE and DIXON, JJ., dissent with reasons.

TATE, Justice,

dissenting.

I respectfully dissent for the reasons assigned by Judge Redmann in the Court of Appeal, see 363 So.2d 235, 242.

As stated in that opinion, 363 So.2d at 242: “To categorize the policeman’s behavior as non-tortious is unsupportable. It is simply not reasonable to fire a weapon towards a group that includes innocent persons.”

However, I likewise agree with the suggestion of this dissenting opinion that, nevertheless, the police officer individually should be immune from liability (although his employing authority is not), where the harm caused the individual results from mere misjudgment by a police officer in the discharge of his official duty. While the governing authority itself is not immune for injury to persons caused through the fault of its agents or employees, see La. Const, of 1974, Art. 12, Section 10(A), nevertheless, no such constitutional bar prevents immunizing a police officer from personal liability under such circumstances, any more than there is a constitutional bar to immunization of the prosecutor or the judge for similar reasons of public policy.

As stated in the dissenting opinion, although the employing authority must be held liable, “[ejertainly the police officer should not be obliged personally to bear the damages an innocent bystander sustains from a shot the officer understandably but unskillfully fires in the reasonable discharge of his official duty.[ — ] But neither should the innocent bystander.” 363 So.2d 243.

For these reasons, I respectfully dissent.

DIXON, Justice

(dissenting).

I respectfully dissent.

If the policeman carefully killed the bystander, the city should be cast. If the bystander was shot “inadvertently” by the police, as found by the Court of Appeal, the city should be cast unless it can carry the heavy burden of proving that the wild shot was justified.


author: BLANCHE, Justice. TATE, Justice, DENNIS, Justice,

text:
    Godfred J. SCHEXNAYDER v. Sheila Granier SCHEXNAYDER.
    No. 63550.
    Supreme Court of Louisiana.
    May 21, 1979.
    Rehearing Denied June 25, 1979.

      G. Walton Caire, Edgard, for plaintiff-applicant.
    Harold J. Sonnier, Tauzin & Sonnier, Thi-bodaux, for defendant-respondent.

       Tate and Dennis, JJ., would grant a rehearing.

   BLANCHE, Justice.

Godfred J. Schexnayder and Sheila Gra-nier were married on June 20, 1970, in Kraemer, Louisiana, and subsequently established their matrimonial domicile in Vacherie, Louisiana. Of this marriage two children were born: Keith Paul and Holly Ann, ages five and three, respectively at the time this matter was tried.

On January 14, 1977, Godfred Schexnay-der, relator herein, filed a petition for separation from bed and board based upon the grounds of abandonment and requested custody of the two children. Respondent, Sheila Schexnayder, filed an answer generally denying the allegations of the petition and also sought custody of the two children. Relator subsequently filed a supplemental and amending petition seeking an immediate divorce on the grounds of adultery and again praying for custody pending the outcome of the proceedings.

On February 28, 1977, at the hearing on the issue of custody pendente lite, the trial judge awarded the custody of the minor children to the husband. The trial on the merits, held May 9, 1977, resulted in a judgment of divorce on the grounds of adultery in favor of Godfred Schexnayder. After taking the custody question under advisement, the trial court, on August 23, 1977, rendered judgment granting to the wife, respondent, the care and custody of the two minor children. The Fourth Circuit Court of Appeal, in a 3-2 decision, affirmed. 364 So.2d 1318 (La.1978). We granted writs to consider the correctness of the judgment below. 365 So.2d 1375 (1978).

The question presented is whether, under this Court’s previous rulings, the trial judge erred in failing to find the respondent wife morally unfit to have custody of the minor children. The evidence regarding the adulterous affair was not seriously in dispute.

Sheila Schexnayder was twenty-three years old at the time this matter was tried. According to her parents, she quit school in the eighth grade because she was disinterested and making failing grades in all her subjects. The wife testified that she first met her paramour at a car wash in Vacher-ie, Louisiana, in September of 1976 while she was still living with her husband. About a week later he called her at her home and they began the illicit affair. Respondent stated that they went to a hotel in Napoleonville where they engaged in sexual relations. She claimed that she only met her lover about once a week and that the affair continued from September until her husband finally found out about it in early January. On cross-examination, respondent explained that she would leave the children with her mother-in-law, who lived next door to her and the relator, on the pretext of going to play bingo. There the grandmother would bathe and feed the children and put them to bed. On these occasions, she would meet her paramour behind a school, behind a church or other such places and then they would proceed either to the hotel in Napoleonville or another location and engage in sexual relations. One time she met him in front of Mike’s Bar in Kraemer at noon on a Sunday. On this particular occasion, in full view of everyone in the area, she pulled up and parked her car, got out, walked across the parking lot and got into her lover’s maroon van. From there, they went to the levee where she admitted that they had sexual relations in the van.

Several witnesses testified that the actions of the respondent became the subject of much gossip throughout the small community and the surrounding area. The notoriety of the respondent’s actions was no doubt accentuated by the fact that her lover was a member of another race. The town talk eventually found its way back to members of her own family. Respondent, however, was apparently oblivious to the impact her actions were having on the community. She testified she was unaware at the time that her activity was the subject of widespread gossip.

According to respondent’s testimony at the trial for custody pendente lite, she was, however, aware of the impact the affair would have on her marriage and her children as the following reflects:

“Q. So, therefore, each meeting was planned and every time you met him, you knew what was going to happen, is that right?
“A. Yes.
“Q. Now, when your parents found out, did you realize that if your family, your husband found out about this it would mean the end of your marriage?
“A. Yes.
“Q. Yes?
“A. Yes.
“Q. Did you realize at that time the effect it could have upon your children?
“A. No.
“Q. You didn’t think about your children?
“A. I thought about them.
“Q. But, yet, you continued?
“A. Yes.
“Q. Did this situation become widely known throughout Kramer [sic], Vacherie and the local areas?
“A. Yes.”

Respondent testified that she had discontinued the relationship and had not seen, nor attempted to see, her paramour since January 1, 1977, and that she did not wish to see him again. However, the strength of this testimony is called into serious question by evidence which established that she attempted to contact her paramour by telephone at his residence three times during the weekend of January 7, 1977. These calls caused her paramour’s wife to confront the respondent and her parents at the latter’s home. Other testimony established that respondent’s parents found out in November, 1976, that she was having an affair and confronted her with it. She begged them not to tell her husband and promised them she would try to stop. The affair, however, continued. Respondent’s sister-in-law also became aware of the affair about five days before Christmas, 1976. Between Christmas and New Year’s, she confronted the respondent and the respondent again promised she would discontinue seeing her lover. She nevertheless continued seeing him. Respondent left her home on January 6 and moved in with her parents after her parents informed the relator that his wife was having an adulterous affair. It was the weekend after the respondent left her husband that she attempted to contact her lover at his residence by telephone. The evidence suggests that the respondent was either unable or unwilling to discontinue the relationship that was clearly against her own best interests and the best interests of her family.

While the testimony is in conflict, we think the preponderance of the evidence also established that the respondent generally neglected the legitimate needs of her husband and her children while engaged in the illicit affair with her paramour. Relator’s mother, who lived next door to the couple, testified that beginning in September, respondent would bring the children to her home in their pajamas to spend the night and tell her that she (the respondent) was going out to play bingo. As the months went by, the practice became more and more frequent and respondent would simply send the children over with their night clothes under their arms. The grandmother testified that she took “pity” on them and would bathe and feed them, then put them to bed. The husband testified that in the fall of 1976 his wife seldom spoke to him at all, that meals were irregular and that often he would come home from work and find a note saying the children were at his mother’s house and that his wife was playing bingo. The testimony also suggests that she refused to have sexual relations with him during this period. In addition, relator testified that respondent did not keep the house clean and that he did much of the housework himself. Relator’s mother testified that it took her and a maid eight days to clean the house after the respondent moved to her parents’ home.

The trial judge, in his written reasons, clearly indicated he felt the case before him was indistinguishable from Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (La.1971):

“Here the husband obtained a divorce from the mother on the ground of adultery. The mother freely admitted an affair lasting from the end of September, 1976 to January 1, 1977, during which she met another man approximately once a week and with whom she admitted having intercourse approximately ten times. She denies having any contact with him since January 1, 1977, and there is no proof of any misconduct on her part since that date. No impropriety was shown to have been committed in the presence of the children.
“The question is, is this sufficient to deprive the mother of custody? The clear answer under th’e jurisprudence is no. Numerous cases have repeatedly held that a brief affair or isolated instances of adultery not shown to have been conducted in the presence of the children are. insufficient to deny custody to a mother who is otherwise suitable.
“. . . Accordingly the court is reluctantly compelled to the conclusion that the maternal preference rule requires an award of custody to the mother. .

The Fourth Circuit Court of Appeal, in a divided opinion, affirmed, noting:

In respect to her adultery, Mrs. Schexnayder is not a worse offender than Mrs. Fulco was. . . (364 So.2d at 1318)
This Court held in Fulco v. Fulco, supra, the following:
“(1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children. [Citations omitted]”
“(2) The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases that the better interest of the children is served by changing their custody from the mother to the father. [Citations omitted]” (254 So.2d at 605)

In regard to determining whether the wife is morally unfit or otherwise unsuitable, the jurisprudence of this state is tó the effect that proof of one act of adultery or even of several acts with the same paramour, does not necessarily render morally unfit a mother who is otherwise suited for custody. Monsour v. Monsour, 347 So.2d 203 (La.1977); Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Salley v. Salley, 238 La. 691, 116 So.2d 296 (1959); Parker v. Parker, 304 So.2d 681 (La.App. 3rd Cir. 1974), writ denied 307 So.2d 641 (La.1975); Strother v. Strother, 248 So.2d 867 (La.App. 3rd Cir. 1971).

However, when the mother has consistently engaged in a course of open and public adultery in defiance of generally accepted moral principles and in disregard of the embarrassment and injuries which might be sustained by the children, then the court is justified in depriving her of the care of the children, and in awarding custody to the father or to some other party lawfully entitled to it. Monsour v. Monsour, supra; Salley v. Salley, supra; Kieffer v. Heriard, 221 La. 151, 58 So.2d 836 (1952); Beck v. Beck, 341 So.2d 580 (La.App. 2d Cir. 1977); Parker v. Parker, supra; Lambert v. Lambert, 286 So.2d 390 (La.App. 1st Cir. 1973); Johnson v. Johnson, 268 So.2d 114 (La.App. 3rd Cir. 1972); Strother v. Strother, supra; Tuggle v. Tuggle, 235 So.2d 166 (La.App. 2d Cir. 1970); West v. West, 170 So.2d 160 (La.App. 2d Cir. 1964); Brunt v. Brunt, 166 So.2d 71 (La.App. 3rd Cir. 1964); Morris v. Morris, 152 So.2d 291 (La.App. 1st Cir. 1963).

The purpose of the above jurisprudentially established rule is not to punish the mother but to protect the children. We recognize that in many cases infrequent indiscretions may be born out of human frailty rather than an absence of moral character. In such cases, the adulterous affair will not mitigate against a person’s claim for custody. However, in cases where a person consistently and over a period of time engages in a course of open and public adultery in defiance of generally accepted moral principles in total disregard of any embarrassment and injuries which might be sustained by the children of the marriage, past misconduct forms an important consideration in determining the present suitability of a parent. Beck v. Beck, supra; Monsour v. Monsour, supra; Borras v. Falgoust, 285 So.2d 583 (La.App. 4th Cir. 1973). We believe this because common knowledge and experience teaches that a child learns by example, especially from his parents, Beck v. Beck, supra, and that it is a parent’s duty to demonstrate to his or her children qualities of good moral character. Consequently, parents fail in that duty when they openly and notoriously display an utter disregard for moral and social values in the area of sexual fidelity toward each other and thus forfeit the moral leadership owed their children.

Upon appellate review, the determination of the trial judge in child custody cases is entitled to great weight and will not be disturbed unless a clear showing of abuse of discretion is made. Fulco v. Fulco, supra, and cases cited therein. However, a reading of the trial court’s reasons for judgment clearly indicates that the sole reason custody was granted to the respondent was that the trial judge felt our decision in Fulco v. Fulco compelled that result. We disagree.

While this Court today reaffirms the principles set down in Fulco, we believe that case to be distinguishable from the case at bar for three reasons.

First, the adulterous affair in Fulco occurred during the period after the couple had already obtained a judicial separation. While we recognized that the obligation of fidelity still exists during this period, we held:

. .A judicially separated wife is not required to live in monastic seclusion, without any male acquaintances (although of course if she engages in a calculated and continued public course of misconduct, such will be regarded as detrimental to the interest and welfare of her children).” (Fulco v. Fulco, 259 La. 1122, 254 So.2d at 605)

In the instant case, the parties were still married and living together when the wife engaged in her extramarital affair.

Second, in Fulco, the wife had been awarded custody pendente lite. The adverse impact upon the children by a change in custody from one parent to the other was seen as an important consideration in the overall determination of the best interest of the children. This was an element in favor of the mother in Fulco. In the instant case, however, the father had been granted temporary custody and the children had continued to live with him in the former matrimonial domicile as they did before the separation. Hence, the determination of custody pendente lite in this case acted to disfavor the wife.

Third, the majority opinion in Falco does not suggest that the affair of the wife was as open and notorious as the respondent’s activity in the instant ease. In the case at bar, the parties lived in a small, rural community. The evidence shows that the actions of the respondent were so open and notorious that the affair was the subject of widespread gossip in the towns of Vacherie and Kraemer and the surrounding areas. Further, respondent flaunted her indiscretions in public knowing the impact it would have on her marriage and clearly in disregard of any detrimental effect it could have on her children.

We acknowledge that the evidence indicates that the respondent did not engage in any sexual activity with her paramour in front of the children. While the existence of such conduct would certainly be relevant in our determination here, the lack of its occurrence does not end our inquiry. We believe that the flagrant disregard for established moral principles demonstrated by the respondent, her insensitivity to any embarrassment or injuries her conduct might inflict on her family, and her willingness to abandon motherly and wifely responsibilities in order to pursue extramarital sexual activities all combine to demonstrate that the respondent is “morally unfit or otherwise unsuitable” to have custody of the children.

The record indicates that if custody were to be given to the husband, the children would stay with the relator’s mother who would care for the children while the relator is at work. The grandmother lives with her husband in a three-bedroom home in Vacherie. She testified that she would be willing and able to help care for the children indefinitely. We are satisfied that the relator will be able to provide a healthy, stable environment in which to rear the children.

We, therefore, conclude that the trial judge erred in removing custody from the husband and awarding it to the wife based upon our ruling in Fulco.

DECREE

The judgment of the trial court is reversed and the provisional care, custody and control of the two minor children, Keith Paul Schexnayder and Holly Ann Schex-nayder, is hereby vested in the father, Godfred J. Schexnayder. All costs are assessed to respondent.

REVERSED AND RENDERED.

TATE and DENNIS, JJ., dissent and assign reasons.

TATE, Justice,

dissenting.

I respectfully dissent.

Both the trial court and the intermediate court faced up squarely to the dilemma posed by this custody dispute: Should a mother, who had otherwise been a good parent (except possibly during a brief love affair) and who would normally be awarded custody, be deprived of the custody of her children (aged 5 and 6) because, in a period extending over three months, she had engaged in a love affair and had committed adultery approximately ten times away from her home?

If, as the majority suggests, the affair had been so notorious and flagrant and long-continued, the trial and intermediate courts would not have awarded the mother custody. Nor would they have done so, if she had not been a good mother over the years, as shown by the record.

Here, we must remember, the tempestuous and justly condemned brief affair, was terminated by January 1, 1977, some 17 months ago. Since then, the mother has completely returned to her normal good character. The children have been with her following the trial court’s award of custody well over a year ago.

The effect of our judgment is to tear these young children from their mother’s custody, by whom they have been cared for since birth, because of our moral outrage at her conduct during her brief affair. However, the award of custody should be determined by the best welfare of the children, not to punish a mother for past misconduct after her reform.

I therefore would not disturb the judgment of the trial court, affirmed by the intermediate court, that under all of the circumstances the best interest of these young children is served by leaving them with their mother in accordance with the trial court’s determination.

DENNIS, Justice,

dissenting.

I respectfully dissent.

On the reasonable factual findings by the trial judge and the court of appeal, there is no valid distinction between this case and Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). The only significant factual distinction was noted, but courageously and correctly rejected, by the trial judge who stated:

“However the mother’s conduct was particularly scandalous and offensive to the sensibilities of the local community in that her lover was of another race. The court has for this reason long delayed its decision. Our laws against miscegenation have been ruled unconstitutional and insofar as the law is concerned the question of race is irrelevant. Accordingly, the court is reluctantly compelled to the conclusion that the maternal preference rule requires an award of custody to the mother. However, the court will make such custody provisional and subject to the mother’s continued good conduct.”

The majority opinion, which is based upon extensive redetermination of close issues of fact by the trial and intermediate appellate courts, will, I fear, be read as either effectively overruling Fulco v. Fulco, supra, or allowing child custody awards to be made on grounds which deny the equal protection of the laws.

      . Keith Paul was born on June 4, 1971, and Holly Ann on June 21, 1973. Hence, the children at the date of the hearing on May 9, 1977, were actually almost six and four, respectively.

      . At the trial on the merits, she claimed she did not know it would end her marriage, but this Court is inclined to discount this subsequent disclaimer.

      . The houses were only thirty or forty feet apart.

      . Testimony established that the respondent was not employed and had no other responsibilities other than the household duties.

      . Testimony indicated relator’s mother keeps the children while he is at work.


text:
    STATE of Louisiana v. John H. STAPLETON.
    No. 63562.
    Supreme Court of Louisiana.
    May 21, 1979.
    Rehearing Denied June 25, 1979.
    Ronald E. Dauterive, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-appel-lee.
   PER CURIAM.

Defendant, John H. Stapleton, was indicted for manslaughter, a violation of LSA-R.S. 14:31. Following trial by a jury of twelve, he was found guilty and sentenced to serve ten years at hard labor. The defendant has assigned three errors as the basis for his appeal before this Court.

The defendant lived with his common-law wife in a hotel adjacent to a bar and grill operated by the victim, Riley Jagneaux. On the night of April 18, 1977, the defendant and Jagneaux got into an argument in Jagneaux’s bar. Both men had been drinking and a fight ensued. The evidence was unclear as to who had thrown the first blow, although it was established that the fight ended when several other patrons pulled the victim off the badly battered defendant. The defendant and his wife then left the bar and went to their hotel room.

The evidence indicated that the defendant loaded his rifle and started back across the parking lot to the bar. However, the gun discharged before he got there. He returned to his room for another bullet and then proceeded to the bar where the victim had remained. According to testimony, the defendant opened the door and stated that the victim had hit him for the last time. The defendant then shot the victim once in the head. Jagneaux died shortly thereafter as a result of the wound.

We find that none of the defendant’s assignments of error present reversible error, nor do any involve legal issues not governed by clearly established principles of law. We have, therefore, discussed and disposed of them in an appendix attached to the opinion which remains a public record of this Court but which is not to be published in the Southern Reporter.

DECREE

Accordingly, the conviction and sentence of the defendant are affirmed.

AFFIRMED.