author:
DIXON, Justice. TATE, Justice.
     SUMMERS, Chief Justice

text:
    Louie A. GATHRIGHT v. Talmadge A. SMITH and Margie S. Lawrence.
    No. 61289.
    Supreme Court of Louisiana.
    June 19, 1978.
    On Rehearing March 5, 1979.

      George M. Strickler, Jr., Paul H. Kidd, Monroe, for defendants-applicants.
    Orlando N. Hamilton, Jr., Hamilton, Carroll & Miller, Oak Grove, for plaintiff-respondent.
   DIXON, Justice.

Writs were granted in this case to review a decision of the court of appeal affirming a trial court judgment declaring the marriage of relators’ mother null and void and rejecting relators’ claims to property acquired during the relationship because of their mother’s bad faith in contracting the marriage. 352 So.2d 282 (2d Cir. 1977).

The facts of this case, as stated by the court of appeal, are as follows:

“Plaintiff, Louie Gathright, brought suit for a declaratory judgment against Margie Smith Lawrence and Talmadge A. Smith who are the only children and heirs of Clara Pearl Breland Smith (also known as Clara Gathright). He alleged that at the time of his marriage to Clara Smith she was not divorced from either of her two former husbands and was not capable of contracting a valid marriage with him. Plaintiff alleged he was unaware of this incapacity until after her death on January 14,1973. He further alleged the decedent was in bad faith in contracting the marriage with him, and under La.C.C. Art. 118 she was not entitled to the civil effects of the marriage. Accordingly plaintiff contended the defendants had no rights of ownership in any of the property acquired during the existence of the null relationship.
Defendants denied the nullity of the marriage and sought to show that in any event their mother was a good faith putative wife entitled to the civil effects of the marriage.
The facts show that prior to decedent’s marriage to plaintiff in 1942, she had contracted two former marriages. The first to Alexander F. Smith in St. Tammany Parish on April 20, 1920. Defendants were born of this marriage. Shortly after the birth of the second child, decedent and Smith separated. Smith did not obtain a divorce from decedent until March 13, 1963, in Orleans Parish.
On November 4,1930, decedent purported to marry John Turner in Arkansas and lived with him until 1933 or 1934 when they separated and decedent established her residence in Bastrop, Louisiana. The evidence clearly establishes that on August 12, 1942, when decedent married plaintiff both Alexander Smith and John Turner were living, and neither was divorced from decedent.
In a comprehensive opinion, the trial judge held that decedent was in bad faith under La.C.C. Arts. 117 and 118, and declared plaintiff to be entitled to the sole ownership of all property acquired during the null marriage to her.” 352 So.2d at 284.

Before this court relators assign five errors by the trial and appellate courts: (1) in the trial court requiring them to satisfy the burden of proving good faith; (2) in the finding by both courts that Louie Gathright was in good faith; (3) in the appellate court holding that a constitutional issue could not be raised for the first time on appeal; (4) in the appellate court failure to find that the burden of proof was unconstitutional; (5) in both courts holding that the burden of proof was not satisfied.

I. Burden of Proving Good Faith

Relators contend that the trial court erred in requiring them to satisfy a burden of proof that their mother was in good faith in contracting a marriage with Louie Gath-right.

Inquiry into whether Clara was in good faith is relevant to a determination of whether the civil effects of marriage would run in favor of her and her heirs. C.C. 117. The trial court, relying on Succession of Davis, 142 So.2d 481 (2d Cir. 1962); King v. McCoy Bros. Lumber Co., 147 So.2d 77 (2d Cir. 1962) and Succession of Theriot, 185 So.2d 361 (4th Cir. 1966), held that once Louie put forth proof of the nullity of his marriage to Clara because of Clara’s prior undissolved marriages, the burden then shifted to relators, claiming on Clara’s behalf, to prove her good faith. This burden, he held, they failed to satisfy.

Relators argue that the burden should not have been on them to prove their mother’s good faith but rather that respondent, Louie Gathright had the burden of proving Clara’s bad faith. They contend that the cases above cited are inconsistent with Lands v. Equitable Life Assurance Society of U. S., 239 La. 782, 120 So.2d 74 (1960), the case upon which they purportedly rest. Relators interpret Lands to hold that the burden of proving bad faith is always on the party attacking the second marriage; only when bad faith has been established, they allege, does the burden of proving the first marriage was no longer in existence shift to the defender of the second marriage. Their interpretation is erroneous.

In Lands, Pauline Blackwell Lands claimed proceeds from an insurance policy payable to the “widow” of the decedent, Thomas Lands. It was shown at trial that Pauline had been previously married and left her husband, Willie Blackwell, in Mississippi. Eleven years later she married the decedent. She testified that she did not know whether her former husband was living or dead, that she had obtained no divorce from him and was unaware if he ever got a divorce from her, and that she had never seen or heard from him since leaving Mississippi. The district court rejected Pauline’s claim and awarded the proceeds of the policy to the brother and half brothers of Thomas Lands, the next beneficiaries in the policy. After quoting extensively from Am.Jur., this court stated:

“We are in full accord with the majority view that a presumption exists as to the validity of a second marriage and that the burden of proof to show that it is a nullity is on the party attacking it. We do not think, however, that this presumption should be available to one who has deserted or abandoned a spouse of a prior marriage in another state and subsequently in this state remarries in bad faith and without reason to believe that the first marriage has been dissolved by death, divorce, or annulment. Whether a party in such a case is innocent and in good faith must depend upon the circumstances and facts of each case, and where innocence or good faith is once established, the burden of proof to show that the first marriage is still in existence is on the party attacking the second marriage. However, in such a case if bad faith is shown, the burden of proof to show that the first marriage was dissolved by death, divorce, or annulment prior to the second marriage is on the party whose marriage is under attack. We are mindful that as a general rule of law when a man and a woman marry and live together as husband and wife, they are presumed to have contracted the marriage in good faith. As we view the matter, however, for a party to a second marriage to be able to avail himself of the presumption of validity of such a marriage where it is shown that he has deserted his first spouse in another state, he must show that he entered into the second marriage in good faith.
In the condition of the record as made up in the instant case, we are unable to determine with any degree of certainty whether Pauline Blackwell Lands was in good faith at the time she contracted her marriage with Lands, and we have concluded to remand the case in the interest of justice. She left Blackwell in Jackson, Mississippi, but we do not think that we should declare her in bad faith just because she admitted that she did not know as a matter of fact whether Blackwell was living or dead and that she had not obtained a divorce from him. It must be remembered that about 11 years had elapsed between her leaving Blackwell and her marriage to Lands, and during this time she never saw or heard from Blackwell. If she was in good faith and had reasonable grounds to believe that her first marriage had been dissolved, the presumption of the validity of her marriage to Lands would be available and she could rely on it, and the burden of proof would then be on appellees, the brothers, to show that her marriage to Blackwell was still in existence. In the event they should fail to do so, the validity of her marriage to Lands could be presumed and she would be entitled to the proceeds of the policy of insurance as his widow. On the other hand, if she should be unable to show that she contracted her marriage with Lands in good faith, the burden would then be on her to show to the satisfaction of the court that her marriage to Blackwell had been dissolved by death, divorce, or annulment.” 239 La. at 790-92, 120 So.2d at 76-77. (Emphasis added).

Hence, the holding of Lands is the following: (1) there is a presumption of the validity of a second marriage and the burden of. proving invalidity is upon the party attacking it, (2) the presumption of validity does not run in favor of a spouse who has been shown to have a prior undissolved marriage, unless that spouse can show that he or she contracted the subsequent marriage in good faith. Therefore, the trial judge correctly applied the law by imposing the burden of proving Clara’s good faith on her heirs once Louie proved that Clara was previously married and neither widowed nor divorced.

II. Louie’s Good Faith

Relators contend that the trial court erred in holding that Louie Gathright was in good faith throughout his marriage to Clara. They refer us to a general rule which has often been expressed by the courts of this State: where a married person knows that his spouse has been previously married, he is not justified in entering the marriage solely on the spouse’s word that she is divorced, but he is under a duty to investigate to determine whether the previous marriage was actually dissolved. See Succession of Chavis, 211 La. 313, 29 So. 860 (1947); Prieto v. Succession of Prieto, 165 La. 710, 115 So. 911 (1928); Succession of Thomas, 144 La. 25, 80 So. 186 (1918); Succession of Taylor, 39 La.Ann. 823, 2 So. 581 (1887); Succession of Hopkins, 114 So.2d 742 (1st Cir. 1959); Dillon v. Traders and General Ins. Co., 183 So. 553 (1st Cir. 1938); Succession of Glover, 153 So. 496 (Orl.App.1934). The record shows that Clara told Louie prior to their marriage that she was married twice before, but that her first husband died and she was divorced from her second. There is no evidence to indicate that Louie conducted an investigation to ascertain whether, in fact, these two prior marriages had been dissolved.

From the jurisprudence on the subject, we agree with the First Circuit’s assessment that the rule stated above “is more a rule of evidence, or a means of weighing the evidence, than it is a rule of law or legal presumption.” Dillon v. Traders and General Ins. Co., supra, at 555. In other words, the fact that the party who is informed of a prior dissolved marriage relies on assurances of the dissolution without conducting an independent investigation does not preclude a finding that he was nevertheless in good faith, when there are circumstances to support that conclusion.

In the supreme court cases upon which this rule is based, there were present significant factors that negated any inference of good faith on the part of the individual claiming the status of putative spouse. In Succession of Taylor, supra, for example, the wife had information prior to her marriage that should have led her to - believe that her husband’s assurances that he was divorced were false. A few months before her marriage she spoke to the first wife who claimed there was no divorce; a few days prior to the wedding she was cautioned by one friend that her intended was not divorced, and another friend disclosed that her fiance had been refused a marriage license because he was not single. Therefore, the court held that this information was sufficient to make it the wife’s imperative duty to seek out reliable information of her fiance’s marital status before marrying.

In Succession of Thomas, supra, there was no evidence that there ever was a marriage ceremony performed between the decedent and the woman claiming to be his putative spouse. In addition, the woman took inconsistent positions, claiming first that her husband had never been married, and later alleging that if he was once married, he had been divorced; those positions the court found to be “irreconcilable” and “weaken[ed] the testimony of the witness.” 144 La. at 30, 80 So. at 188. The court then went on to say that she had access to the information of the man’s true marital status by merely asking his brother, relatives and friends. From the opinion, it is clear that the court merely disbelieved her allegations rather than intending to set out a broad rule that investigation is always required.

And in Prieto v. Succession of Prieto, supra, the court found conclusive proof in the record that the husband was aware his wife’s previous marriage was undissolved.

The decision in Succession of Chavis, supra, is significant to the instant case. The court acknowledged the rule that there is a duty to investigate when a second spouse knows of the existence of a prior marriage. However held there were “additional reasons why the second wife was led to believe that no impediment existed to her marriage to the deceased.” 211 La. at 325, 29 So.2d at 864. Those additional reasons which the court found sufficient to establish her good faith, in spite of her failure to conduct an investigation, were that the first wife who lived in the same community never told the second wife that there had been no divorce, others had told the second wife that her husband had separated from his former wife, and that the facts indicated the second wife had no knowledge or reasonable suspicion of the impediment to the marriage.

In the instant case, Clara’s children testified they were aware of the legal impediment to their mother’s marriage but concealed that fact from Louie. Further, the record is devoid of any evidence showing that Louie had received information which cast any real doubt on the validity of his marriage to Clara. The issue of Louie’s good faith raises a question of fact which must be determined by the trial judge, and his findings are entitled to great weight. We cannot say that the trial judge erred in finding that Louie was in good faith throughout his marriage to Clara.

III. and IV. The Constitutional Issues

Relators urged before the Second Circuit that the burden imposed upon a bad faith wife of a putative marriage (that of “strict and conclusive proof” that she contributed to the funds used to purchase property, and that those funds were obtained independently of the relationship or common endeavor with her putative husband) is an unconstitutional denial of equal protection because it does not apply to the bad faith husband. That allegation was not mentioned in the pleadings nor argued before the trial court but was asserted for the first time before the appellate court. The Second Circuit held that the constitutional issue could not be considered on appeal when not specially pleaded in the trial court.

Our ultimate conclusion is that relators have satisfied the “strict and conclusive proof” burden. Therefore we need not decide whether the constitutional issue is before us, since raised for the first time in the court of appeal; nor whether if before us the burden is unconstitutional because of discrimination against the wife.

V. Satisfaction of the Burden of Proof

Relators further contend that the “strict and conclusive” burden of proof was satisfied.

At issue is the ownership of four pieces (described as five tracts in the trial court judgment) of property located in Morehouse Parish, Louisiana. As stated by the appellate court:

“ . . .in 1955, decedent and plaintiff moved to California where they acquired two pieces of real property as ‘joint tenants.’ In late 1967, and early 1968, they sold the California properties, and from the money received purchased three pieces of property in and around Bastrop, Louisiana. Those properties were conveyed to ‘Louie Gathright, a married man whose wife is Mrs. Clara Gathright, nee Breland.’ They moved back to Bastrop during 1968, and in 1969 acquired a fourth piece of property which was conveyed to ‘Louie Allen Gathright and Mrs. Clara Gathright, nee Breland, husband and wife.’ . . . ” 352 So.2d at 286.

Relators argue that since the funds used to purchase the property in Louisiana were obtained from the sale of the two tracts of California property held by Louie and Clara as “joint tenants,” they have shown conclusively that one-half of the funds used to purchase the Louisiana land was Clara’s separate property.

The court of appeal held that California law was not applicable since “[t]he rule is well settled that the status of real property is determined by the law of the situs” and “common law joint tenancy rules have no application in determining ownership of real or personal property in this state.” 352 So.2d at 286. The validity of this rule of law is undisputed; however, relators’ contention is not that the legal status of the Louisiana property is established by California law. Relators’ position is that the legal status of the California property will help to determine who owned what portion of the funds that were used to purchase the Louisiana property. If California law determined the status of the property in Louisiana, which it does not, the property would be presumed to be held in joint tenancy, a species of joint ownership foreign to our law.

C.C.P. 1391 (The Uniform Judicial Notice of Foreign Law Act) governs determination of the law of other states:

“Every court of this state shall take judicial notice of the common law and statutes of every state, territory and other jurisdiction of the United States.
The court may inform itself of such laws in any manner as it may deem proper, and the court may call upon counsel to aid it in obtaining such information.
The determination of such laws shall be made by the court, and not by the jury, and shall be reviewable.
A party may also present to the trial court any admissible evidence of such laws, but, to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties either in the pleadings or otherwise.”

Respondent complains that no notice was provided of relators’ intention to rely on California law, nor was there argument to the trial judge of the need to apply California law. Nevertheless, two deeds conveying California property to Louie A. Gathright and Clara Gathright, husband and wife, as “joint tenants” were introduced into evidence, and there was argument by counsel for relators to the effect that the sale of the California property provided the source of the funds used to purchase the Louisiana property. In addition, relators briefed the question of the applicability of California law before the appellate court and again in this court. We find no prejudice from the failure of rela-tors to notify respondent of their intention to rely on foreign law.

The first two paragraphs of art. 1391, provide us with the authority to inform ourselves, on our own initiative, and take judicial notice of foreign law, even when the foreign law’s applicability has not been called to the attention of the trial court. See Strout v. Burgess, 144 Me. 263, 68 A.2d 241, 12 A.L.R.2d 939 (1949); Harry L. Shernman & Sons v. Scranton Life Ins. Co., 125 F.2d 442 (3d Cir. 1942). See also Quickick, Inc. v. Quickick International, 304 So.2d 402 (1st Cir. 1974), writ denied, 305 So.2d 123 (1974), application denied, 306 So.2d 310 (1974). But see Cambre v. St. Paul Fire & Marine Ins. Co., 331 So.2d 585 (1st Cir. 1976), writ denied, 334 So.2d 434 (1976) (where the foreign law was not cited or relied upon in brief or oral argument). Furthermore, we recognize that the reason often stated for demanding notice in those states which require that the foreign law be pleaded, see Annot., 23 A.L.R.2d 1437, 1449, is that without such notice the opponent would not be warned beforehand that the court may take judicial notice of foreign law and might not be able to prepare himself on that law. Respondent in the instant case, although not given notice of relators’ intention to rely on California law on the trial level, has been given sufficient opportunity to research the relevant law since the argument was raised in brief in the appellate court. Consequently, we may refer to California law to determine the status of funds derived from the sale of the California property.

A review of the applicable California law on joint tenancy shows:

“A joint interest is one owned by two or more persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or by transfer from a sole owner to himself and others, or from tenants in common to themselves, or to themselves and others, or from a husband and wife when holding title as community property or otherwise to themselves and others when expressly declared in the transfer to be a joint tenancy ...” Cal.Civil Code, § 683.

The fact that a deed was taken in joint tenancy establishes a prima facie case that the property was in fact held in joint tenancy. Cox v. Cox, 82 Cal.App.2d 867, 187 P.2d 23, 25 (1st Dist. 1947). Property held in joint tenancy cannot also be held as community property because certain incidents of the former would be inconsistent with the incidents of the latter. Tomaier v. Tomaier, 23 Cal.2d 754, 146 P.2d 905 (1944). Where community funds are used to purchase property, the taking of title in the name of the spouses as joint tenants is tantamount to a binding agreement between them that the same shall not thereafter be held as community property, but instead as a joint tenancy with all the characteristics of such an estate. Siberell v. Siberell, 214 Cal. 767, 7 P.2d 1003, 1005 (1932).

Property held by husband and wife as joint tenants is held by each as owner of an undivided one-half interest therein in his separate right. Barba, v. Barba, 103 Cal.App.2d 395, 229 P.2d 465 (2d Dist. 1951). Where property is acquired in the joint tenancy form it is presumed that the property was owned as joint tenants, not as the separate property of one party or the other. Donlon v. Donlon, 155 Cal.App.2d 362, 318 P.2d 189 (2nd Dist. 1957). And where the separate estate of either party provides the source of the funds for property taken in joint tenancy, it is presumed that a gift was given by the party furnishing the consideration to the other party. Donovan v. Donovan, 223 Cal.App.2d 691, 36 Cal.Rptr. 225 (2d Dist. 1964); Benam v. Benam, 178 Cal.App.2d 837, 3 Cal.Rptr. 410 (1st Dist. 1960).

The presumption arising from the form of a deed as a joint tenancy is rebut-table; however it may not be rebutted solely by evidence as to the source of the funds used to purchase the property. Gudelj v. Gudelj, 41 Cal.2d 202, 259 P.2d 656 (1953). It may only be rebutted by evidence tending to prove a common understanding or agreement between the parties that the character of the property was to be other than joint tenancy. Machado v. Machado, 58 Cal.2d 501, 375 P.2d 55, 58 (1962); Gudelj v. Gudelj, supra; Socol v. King, 36 Cal.2d 342, 223 P.2d 627 (1950).

The proceeds of property held in joint tenancy, in the absence of a contrary agreement, retain the character of the property from which they were acquired. Fish v. Security-First Nat. Bank, 31 Cal.2d 378, 189 P.2d 10 (1948); Goldberg v. Goldberg, 217 Cal.App.2d 623, 32 Cal.Rptr. 93 (2d Dist. 1963); In re Zaring’s Estate, 93 Cal.App.2d 577, 209 P.2d 642 (2d Dist. 1949).

The record discloses that while Clara and Louie lived in Bastrop, Louisiana she worked as a nurse. Prior to their move to California in 1955, their family home was sold, the $6000 proceeds of which were divided equally between Clara and Louie. While in California Clara worked at a hospital. Louie testified that they kept their finances separate, that he deposited his money in a bank and savings and loan in his own name, and that he did not know what Clara did with her money. He also testified that his money alone was used to purchase the California property and that there “was absolutely no question” but that the Louisiana property was all purchased with the proceeds of the California property.

Without the presumption of the nature of property held in joint tenancy in California, relators clearly do not satisfy the strict and conclusive burden of proof that Clara’s independent funds contributed to the purchase of the Louisiana property. (This would be so even with the benefit of relators’ proffered evidence that Clara kept checking accounts in both their names).

In applying California law to the instant facts, we find that the California property held as joint tenants is presumed to be joint tenancy property. Therefore, both Clara and Louie held an undivided one-half interest in the property. Even though Louie contended his separate funds were used to purchase the California property, he offered no proof and makes no allegation that he and Clara agreed that although the joint tenancy form would be used, the property would remain his separate property. Therefore, he failed to rebut the presumption that a joint tenancy was intended. And since the California property was held in joint tenancy, each owning an undivided one-half interest, upon the sale of the property the proceeds retained the joint tenancy character. Consequently, half of the proceeds used to purchase the Louisiana property belonged to Clara and the other half to Louie.

In light of the foregoing, relators have satisfied the burden of showing, through strict and conclusive proof, that Clara actually contributed one-half of the funds used to purchase the pieces of Louisiana property. Therefore, relators are entitled to one-half of the tracts of immovable property in Morehouse Parish awarded to Louie A. Gathright, as sole owner, by the trial court, which were at issue before this court.

For the reasons assigned, the judgments of the lower courts are affirmed insofar as they held: (1) that relators had the burden of proving their mother’s good faith; and (2) that Louie Gathright was in good faith throughout his marriage to Clara Pearl Bre-land Smith; and (3) that Clara Pearl Bre-land Smith was in bad faith. We hold that the “strict and conclusive” burden of proof was satisfied by relators, who are entitled to judgment decreeing them owners of one-half of the immovables in Louisiana acquired by Louie Gathright and Clara Pearl Breland Smith, all at the cost of respondent.

This case is remanded to the district court for the formulation of a judgment in accordance with the views expressed herein.

On Rehearing

TATE, Justice.

We granted the husband’s application for rehearing.

We did so primarily in order to afford the husband an opportunity to cite California jurisprudence allegedly contrary to our interpretation of the California law relative to the acquisition of property in joint tenancy-

The California jurisprudence cited by us in our original opinion holds:

When property is acquired in joint tenancy during a marriage or otherwise, it is presumed that the property was acquired as joint tenants, each party owning one-half individually. Even if one joint tenant provides the funds, it is presumed that a gift was given by the party furnishing the consideration to the other party. If the parties are married, the property does not fall into the community but, rather, is acquired by each spouse one-half individually. This presumption may be rebutted only by proof of a common understanding or agreement between the parties, at the time of the acquisition of the property, that the character of the property was to be other than in joint tenancy.

On rehearing, the husband does not contest these principles of California law. Rather, he cites to us three decisions which purportedly show that these principles do not apply in instances where property is acquired by joint tenancy during a bad faith marriage.

The cited decisions do not so hold, and they are not authority for the proposition advanced. They concern distinguishable situations, arising during suits for separate maintenance or annulment between living spouses, where specific evidence was held by the trier of fact (in a direct attack upon the instrument relatively soon after its execution) to prove the intent to acquire for the community or a fraudulent misrepresentation by which separate property of an innocent spouse was conveyed to the wife, thus rebutting the presumption that property acquired as joint tenants was intended to be acquired for the individual ownership of each spouse in one-half undivided interest.

Neither the rationales nor the holdings of the cited decisions are persuasive that we were in error in our appreciation of California law in our original opinion. We correctly then held that the presumption of separate ownership in each spouse (rather than of community ownership) created by the acquisition as joint tenants could not be rebutted, after one spouse’s death, by the surviving spouse’s testimony that, years earlier, the property had been acquired only with his funds, and by him with the intention that the property fall in the community — despite the express declaration of joint tenancy importing to the contrary, signed by both spouses when alive (and especially in the absence of any testimony whatsoever that the deceased spouse had entered into this agreement with the requisite shared intention that the property fall into the community, despite the express declaration to the contrary at the time of its acquisition).

We are furnished no reason to disturb our original holding.

Accordingly, we reinstate our original decree.

DECREE ON ORIGINAL HEARING REINSTATED.

SUMMERS, C. J., dissents and assigns reasons.

MARCUS, J., dissents.

CULPEPPER, J., dissents for the reasons assigned by the Chief Justice.

SUMMERS, Chief Justice

(dissenting).

Clara Pearl Breland was married to Alexander F. Smith in St. Tammany Parish, Louisiana, on April 20, 1920. Two children were born of this union: Margie, born March 19, 1922, and Talmadge, born May 24,1924. Shortly after Talmadge was born Clara and Alexander separated and were never reconciled. Clara is said to have contracted a second marriage with John Turner on November 4, 1930 in Arkansas. She lived with him until sometime during the years 1933 or 1934 at which time they too separated.

Sometime thereafter Clara moved to Bas-trop, Louisiana, where she resided continuously, holding herself out as a single woman and representing in deeds involving real estate transactions that she was the widow of Alexander Smith and also divorced from John Turner. With this official public record of her marital status and a like reputation in the community she met Louie Gath-right. A courtship followed and in two years they were married on August 12, 1942, while Louie was on furlough from the army. When Louie was discharged in 1945 he returned to Bastrop. Thereafter he and Clara lived together as man and wife. No children were born of their relationship.

In 1955 the couple moved to Pomona, California. While in California, both worked. Clara was employed as a nurse and Louie was employed at Loud Machine Works. Louie’s testimony, which the trial judge accepted, was to the effect that he and Clara kept their money separate and he did not know what Clara did with hers. The money he earned was deposited by him in the bank and in savings and loan accounts in his name. And, while the record does indicate that Clara may have deposited funds earned by her in their joint names, it was not Louie’s practice to do so.

During their residence in California, two pieces of real estate were purchased in- Pomona, the deeds reciting that the grantees were “Louie A. Gathright and Ciará P. Gathright, husband and wife, as joint tenants”. In late 1967 and early 1968, they sold the California properties. The proceeds from these sales were banked by Louie and used to acquire three pieces of property in and around Bastrop, Louisiana. In 1968 they moved back to Bastrop, and a fourth piece of property was purchased there. These deeds recited that the purchasers were “Louie A. Gathright, a married man whose wife is Mrs. Clara Gath-right, nee Breland.” These foiir purchases involve the property which is the subject of this litigation.

In 1973 Clara died. It was not until Louie sought to settle with Margie and Talmadge, the children of Clara’s first marriage, that he discovered that that first union had not been dissolved until 1963 when Alexander Smith died. He also learned at that time that Clara’s second husband, John Turner, was alive and that they were not divorced at the time of his marriage to Clara in 1942.

Acting on these disclosures Louie instituted this declaratory judgment proceeding, alleging the facts already recited and praying for a declaration that the purported marriage between Clara and him was null and void, ab initio, and of no effect, and declaring him to be the sole owner of all property acquired during the “concubinage relationship.”

The trial judge found that Clara was in bad faith and that Louie was in good faith at the time of their purported marriage, and until its termination by Clara’s death. No civil effects from the purported marriage were held to flow in favor of Clara or in favor of her heirs by virtue of the marriage ceremony. Louie was therefore declared to be the owner of all property acquired by them from August 12, 1942 until Clara’s death in 1973.

Clara’s children, Margie and Talmadge, appealed to the second circuit and the judgment was affirmed. 352 So.2d 282. Certio-rari was granted by this Court on their application. 353 So.2d 1333.

Before this Court relators assigned five errors by the trial court and Court of Appeal: 1) in the trial court requiring them to satisfy the burden of proving good faith; 2) in the finding by both courts that Louie Gathright was in good faith; 3) in the holding of the Court of Appeal that a constitutional issue could not be raised for the first time on appeal; 4) in the failure of the Court of Appeal to find that the burden of proof was unconstitutional; and 5) in both courts holding that the burden of proof was not satisfied.

In this Court’s original opinion the issues thus presented were answered seratim, and the judgment of the Court of Appeal was reversed. This Court was of the opinion that Clara’s heirs, Margie and Talmadge, had successfully discharged the burden by “strict and conclusive proof” that Clara had contributed to the funds used to purchase the Louisiana property.

1) Citing Lands v. Equitable Life Assurance Society of U. S., 239 La. 782, 120 So.2d 74 (1960), in its original opinion, this Court held that there is a presumption of the validity of a second marriage and the burden of proving invalidity is upon the party attacking that marriage. The presumption of validity, however, does not run in favor of a spouse who has been shown to have a prior undissolved marriage, unless that spouse can show that he or she contracted the subsequent marriage in good faith.

On the basis of this rule, our original opinion stated that the trial judge correctly applied the law by imposing the burden of proving Clara’s good faith on her heirs once Louie proved that Clara had been previously married and was neither widowed nor divorced at the time of their purported marriage. I restate that holding with approval.

2) Where a married person knows that his spouse has been previously married, he is not justified in entering the marriage solely on the spouse’s word that she is divorced or widowed by the death of the former spouse; he is under a duty to investigate to determine whether the previous marriage was actually dissolved. See Succession of Chavis, 211 La. 313, 29 So.2d 860 (1947); Prieto v. Succession of Prieto, 165 La. 710, 115 So. 911 (1928); Succession of Taylor, 39 La.Ann. 823, 2 So. 581 (1887).

After Clara and John Turner separated in 1934, she moved to Bastrop in 1936. She held herself out to the community as a single woman. She bought real estate in June 1936 by deed which recited that she was divorced from her former husband, John Turner. In December 1936, she sold real property by deed which recited that she was married twice, that her first husband was deceased, and her second husband divorced. Approximately four years later she met plaintiff, whom she subsequently married after a two-year courtship. Plaintiff had the benefit of both her reputation in the community and the public records to support her assertion that she was free to remarry. Plaintiff was therefore justified in the reasonable belief that there were no legal impediments to their marriage. 352 So.2d 282.

3) and 4) In these two assignments it is asserted that the Second Circuit was in error in imposing an unconstitutional burden upon a bad faith wife of a putative marriage. The burden of “strict and conclusive proof” that she contributed to the funds used to purchase the property, and that these funds were obtained independently of the relationship or common endeavor of her putative husband, is not an unconstitutional denial of equal protection. The burden applies equally to a bad faith husband when he occupies the position of the wife in the case at bar.

5) The principal issue presented by this rehearing concerns whether the wife has discharged the burden of “strict and conclusive proof” that she contributed to the funds used to purchase the Louisiana property. To discharge this burden it is essential that she also demonstrate that the funds were obtained independently of the relationship or common endeavor of her putative husband.

Because it is undisputed that the funds used to purchase the Louisiana property were proceeds from the sales of the California properties the status of those funds is critical. A reference to the narrative of facts discloses that both Louie and Clara were employed in California. Evidently the trial judge accepted as credible Louie’s testimony to the effect that he maintained his earnings separate and apart from those received by Clara from her employment. Further, Louie testified that only his funds were used to acquire the California property, and that it was his intention that the property acquired with those funds would belong to him. However, the deeds for those purchases recited that the property was sold to “Louie A. Gathright and Clara P. Gathright, husband and wife, as joint tenants.”

In deciding the case on original hearing this Court relied upon California law to determine the status of the funds used to purchase the Louisiana properties; the court reasoned that because the California properties were taken in the names of Louie and Clara, husband and wife, as joint tenants, the presumption implicit in California law was that property held as joint tenants is held by each as owner of an undivided one-half interest therein in his separate right. At the same time the Court recognized that the presumption was rebuttable.

Our original opinion also found that under California law, the proceeds of property held in joint tenancy, in the absence of a contrary agreement, retain the character of the property from which they were acquired.

Relying on this understanding of the California law, this Court held that the funds realized from the sale of the California properties retained the characteristics of joint tenancy because of the recitals in the deeds by which the property was acquired. On this basis the Court concluded that the children of Clara satisfied the burden of showing, through strict and conclusive proof, that Clara contributed one-half of the funds used to purchase the Louisiana property. Clara’s children were therefore entitled to one-half of the Louisiana property-

Upon further consideration of this question on rehearing, my attention has been called to the California decision in Turknette v. Turknette, 100 Cal.App.2d 271, 223 P.2d 495 (1950). The facts of that case are very similar to the facts in the case at bar. In Turknette the plaintiff wife married the defendant in 1939, and a child was born of the union. In June of 1948 plaintiff discovered that defendant had entered into another marriage in April of 1948. At the trial it was also revealed that defendant had married a woman named Harriet Hobbs in June of 1938 and was not divorced from her until August 1940. Plaintiff therefore instituted an action for separate maintenance, alleging extreme cruelty. An answer was filed by defendant in which he denied that the parties were ever validly married. It is conceded that when defendant married plaintiff in 1939 he was in fact married to, and not divorced from, his first wife. While plaintiff and defendant were living together as husband and wife, and while plaintiff in good faith believed that she was married to defendant, they purchased a home in San Francisco and took title in joint tenancy.

In awarding the house to the plaintiff, who was found to be a good faith putative wife, the court referred to the “well-settled” California rule stated in Jansen v. Jansen, 127 Cal.App. 294, 15 P.2d 777 (1932), quoting as follows:

“Dispensing with any academic discussion or review of the authorities, it is now generally conceded and recognized that the courts are invested with full power to determine the status of the property of both or each of the spouses, regardless of the name of either in which title to such property stands, and the recitals of whatever transfers there may have been between the spouses regarding such property or in transfers to one or the other, are merely prima facie evidence of ownership, and raise only disputable presumptions as to whether such property is the separate or community property of the parties.” 223 P.2d 500.

The Court, using as authority its inherent equity powers, held that:

“[WJhere an unmarried couple live together as husband and wife, and where one, at least, honestly and in good faith believes he or she is married, he or she is a putative spouse and his or her property rights will be protected.”

Accordingly, the California court awarded the plaintiff the entire property acquired by her and the defendant in joint tenancy.

A somewhat similar situation was involved in Crawford v. Summers, 12 Cal. App.2d 533, 55 P.2d 936 (1936), where plaintiff married defendant, a woman who had previously been married to one Charles Summers. Plaintiff testified that shortly before their marriage ceremony she told him she was divorced. Thereafter, while they were living together, plaintiff purchased California real property, stock, and an automobile, for which he paid. However, title was taken in the names of plaintiff and defendant as joint tenants.

A decree was entered declaring the marriage null and void. The trial judge found that the defendant held the property in trust for plaintiff, and that she had no interest therein. This decision was based on a finding that plaintiff was induced to marry defendant through her fraudulent representation that she was divorced, and upon the undisputed fact that when defendant received the property as joint tenant with plaintiff, she parted with nothing.

Thus the court decided that plaintiff had the right to assume he had a lawful wife, and when she acquired the property under a fraudulent pretense it was not necessary to recognize that she was the owner of a share where nothing of value had been received from her, not even the legality of her marriage with plaintiff.

As in Crawford v. Summers there is no showing that Clara parted with anything of value when she was named as a tenant in common with Louie in the California deeds. But for the fact that Clara and the two defendants in the instant case, Talmadge and Margie, willfully and intentionally perpetrated the deception on Louie, he would have been able to decide against acquiring the California property in joint tenancy. The bad faith of Clara, Talmadge, and Margie should riot be rewarded by the technicality of the representations in the deeds.

Goff v. Goff, 52 Cal.App.2d 23, 125 P.2d 848 (1942), is another case which deals with the pertinent California law on an issue similar to that involved in the case before this Court. In an action by the husband for annulment of a marriage, the court found that after cohabiting for two years the parties entered into a marriage ceremony in September 1935. The action for annulment by the plaintiff alleged as grounds that defendant falsely and fraudulently represented to him that she was a single woman when in fact she was then married to another. This case again involved an invalid marriage wherein the husband was in good faith and the wife in bad faith. Upon discovering the invalidity, the husband convinced the concubine to convey to him all of her rights, title, and interest, if any, to the property acquired by him in their joint names after the marriage ceremony. Thereafter the husband sued to annul the marriage and defendant filed a cross-complaint in which she requested an equal division of the community property previously deeded to plaintiff after he discovered her perfidy.

In answer to defendant’s contention that the court should have divided the property between her and the plaintiff, the court held:

“[I]t may be said that the authorities seem clear in their holding that a void marriage vests no rights in either of the parties to it so far as the property of the other is concerned in like manner as the rights conferred by a valid marriage .. Although we concede that the court had jurisdiction to divide the community property between the parties, nevertheless that jurisdiction did not make such action mandatory. Indeed, in the case at bar there is evidence warranting the conclusion on the part of the trial court that the property in question was not acquired through the joint efforts of the parties, but belonged solely to the respondent.”

My reading of these cases and my understanding of the facts in this record lead me to the conclusion that, under California law, Clara as a bad faith wife had no claim to the California property and for that reason she could not assert any interest in the proceeds realized from the sale of that property. Those funds belonged entirely to Louie Gathright. When he used them to purchase the Louisiana property they were his separate funds and the Louisiana property belonged to him in full ownership, for there was in fact no legal marriage between him and Clara. There is no “strict and conclusive” proof that any contribution to this transaction was made by Clara with funds acquired by her independently of the bigamous relationship.

Because Clara was in bad faith she was not entitled to the civil effects of the null marriage and this disability attaches alike to her children, issue of another marriage. La.Civil Code arts. 117 and 118.

I respectfully dissent.

      . I. e., whether she had a honest and reasonable belief that the marriage was valid and that no legal impediment to it existed. See, e. g., Funderburk v. Funderburk, 214 La. 717, 38 So.2d 502, 504 (1949); Succession of Chavis, 211 La. 313, 29 So.2d 860 (1947); Succession of Hopkins, 114 So.2d 742 (1st Cir. 1959).

      . Such rules are somewhat circular and usually of small intellectual assistance. Their mechanical application should not obscure efforts to determine validity of marriages and good faith of parties to invalid marriages.

      . See also Succession of Glover, supra (evidence showed that the woman claiming putative spouse status deliberately gave false testimony and, therefore, was unworthy of belief; she also had reason to believe her husband’s assurances he was divorced were false and therefore should have engaged in a simple inquiry to determine his marital status); Dillon v. Traders and General Ins. Co., supra (evidence of a prior inconsistent statement was introduced into the record where she admitted she knew her husband was not divorced when she married him).

      . The author was among the dissenters in Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971), which held that the court of appeal could not declare an ordinance unconstitutional if unconstitutionality had not been pleaded in the district court. This was held even though the ordinance involved was enacted after judgment had been rendered in plaintiffs favor and was relied on by defendant on its motion for a new trial, which was granted. We' required plaintiff, in spite of the prohibition against rep-licatory pleadings (C.C.P. 852) to file a pleading in the district court attacking the constitutionality of the ordinance.
      The author would overrule Summerell v. Phillips, supra, and hold that a pleading attacking the constitutionality of a rule of law or its application in the trial court is not required when the rule is relied on as a defense, and that if there is no opportunity in the trial court to plead unconstitutionality, such plea is not essential.
      Further, although we do not reach the issue, it does not appear that the “strict and conclusive proof” burden unconstitutionally discriminates against the wife.
      The burden the trial judge imposed upon rela-tors who were asserting their mother’s interest in the four pieces of property was that set out in Keller v. Keller, 220 So.2d 745, 750 (1st Cir. 1969):
      “ . . [A] concubine or a wife in bad faith in a putative marriage may recover only those funds that she has contributed to the actual purchase of assets which she now claims to be an owner in indivisión with her paramour or ‘husband’. There are two rules that burden her endeavor, namely: (1) the source of the funds which she contends were applied to the joint effort must be obtained independently of the concubinage or her common endeavor with the putative husband and, (2) she must produce strict and conclusive proof of the source of the funds before she can be afforded relief.” (Emphasis added).
      These two rules were apparently drawn from Guerin v. Bonaventure, 212 So.2d 459 (1st Cir. 1968), which thoroughly reviewed the jurisprudence on the subject of the rights of a concubine or paramour. Language in that case makes it clear that the burden of proof on the concubine is applied with equal force to the paramour:
      “Our jurisprudence appears settled to the effect that predicated upon equitable principles, the claims of a paramour and concubine will be recognized and enforced with respect to joint or mutual commercial ventures, provided such enterprises arose independently of the illicit relationship. Heatwole v. Stansbury, 212 La. 685, 33 So.2d 196; Sparrow v. Sparrow, 231 La. 966, 93 So.2d 232; Foshee v. Simkin, La.App., 174 So.2d 915.
      The rationale of the rule pronounced in the Heatwole, Sparrow and Foshee cases, supra (and the numerous authorities therein cited) is that where the concubinage is merely incidental to the business arrangement, the equitable rights of both parties will be recognized and enforced provided they be established by strict and conclusive proof.' Stated otherwise, the rule is that if the commercial enterprise is independent of the illegal cohabitation, each party may assert his rights in the common endeavor.
      In applying the rule, the courts have in effect permitted either concubine or paramour to establish what amounts to a partnership with the other party in the operation of a particular business or venture. . . . ” 212
      So.2d at 461. (Emphasis added).
      In one such case a paramour (referred to by the court as a “concubine”) was unable to produce the “strict and conclusive” proof required of him to obtain one-half of homestead savings account in his concubine’s name which was accumulated during the concubinage. Heatwole v. Stansbury, 212 La. 685, 33 So.2d 196 (1947).
      In oral argument relators referred to a case cited by respondent in his brief, The Texas Company v. Stewart, 101 So.2d 222 (Orl.App. 1958), writs denied, May 26, 1958. In that case, a husband who was found to be in bad faith in contracting a second marriage was still allowed to take one-half of the property acquired during the putative community with his good faith wife while her legal heirs took the other half. In that decision, however, the husband did not take in his own right; rather, he inherited as the surviving spouse of his legal wife, who normally would have shared the property acquired during the coexistence of the two marriages equally with the putative wife. See, e. g., Succession of Fields, 222 La. 310, 62 So.2d 495 (1952); Ray v. Knox, 164 La. 193, 113 So. 814 (1927); Patton v. Cities of Philadelphia and New Orleans, 1 La.Ann. 98 (1846). Therefore, while under the peculiar facts of The Texas Company a bad faith husband was allowed to take, the decision does not mean that a bad faith husband is not put to the same onerous burden of proof as a bad faith wife. In Keller v. Keller, supra, the male did prevail over the bad faith female, but the issue in the court of appeal was whether the trial judge erred in denying a new trial to the female, who urged that “new” evidence which had been within her knowledge for the eight years of the litigation in the trial court would show the male to have been in bad faith.

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

      . In Turknette v. Turknette, 100 Cal.App.2d 271, 223 P.2d 495 (1950), the plaintiff wife sued a husband for separate maintenance. She was awarded the family home, which had been acquired in joint tenancy. There, the trial court found that the property (which had been paid for primarily by the wife’s earnings) was intended to be acquired by the community (and, under California law, could be awarded to one spouse in equitable settlement of the community), not in joint tenancy (in which case, the bigamous husband could not be divested of his one-half interest).
      There was direct testimony that the wife had intended to acquire it for the community, which the (living) husband did not rebut. The court noted that the defendant husband “has committed a most cruel fraud upon plaintiff’ and now “wants to take advantage of a technical rule of law and claim that he has a joint tenancy interest in the property which was largely purchased from plaintiffs earnings. The circumstances and inferences from the evidence demonstrate to a certainty that the challenged finding is amply supported.” 223 P.2d 501. In the present case, although the living husband testified of his intention to use “his” funds to acquire the property for himself, he did not testify of an understanding or agreement between his wife and himself as to this intention — even assuming that California law would permit the self-serving testimony of a surviving spouse, after his wife had died, to rebut successfully the solemn and express declaration by both spouses, years earlier, that the property was acquired in joint tenancy, with its well-marked distinction under California law from property acquired for the community.

      . See Crawford v. Summers, 12 Cal.App.2d 533, 55 P.2d 936 (1936) (direct suit between living husband and bigamous wife to require reconveyance to husband of property purchased in joint tenancy with the husband’s funds not long after the marriage, because fraudulently transferred to bigamous wife solely upon her fraudulent misrepresentations that she had not been previously divorced).
      The other (third) decision cited by the husband is completely inapplicable: Goff v. Goff, 52 Cal.App.2d 23, 125 P.2d 848 (1942) (suit to annul marriage; on annulment of marriage, wjfe not permitted to have recognized ownership in property acquired solely in the husband’s name).


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    LOUISIANA STATE BAR ASSOCIATION v. James T. ADAMS.
    No. 61252.
    Supreme Court of Louisiana.
    March 5, 1979.

      C. P. Broeato, Shreveport, for defendant-respondent.
    Leonard Führer, Alexandria, Wood Brown III, New Orleans, Sam J. D’Amico, Baton Rouge, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, John F. Pugh, Thibodaux, A. Russell Roberts, Metairie, John B. Scofield, Lake Charles, Thomas 0. Collins, Jr., New Orleans, for Louisiana State Bar Ass’n Committee on Professional Responsibility.
   DISCIPLINARY PROCEEDINGS

CALOGERO, Justice.

The Louisiana State Bar Association through its Committee on Professional Responsibility has petitioned this Court seeking disciplinary action against James T. Adams, a Shreveport attorney, who was admitted to the practice of law in Louisiana in 1948. The petition was preceded by a formal investigatory hearing in the office of the Committee, motion to appoint and appointment by this Court of a Commissioner, and a hearing before and a formal report by the Commissioner.

The Commissioner by very thoughtful and competent analysis of the evidence and findings of fact concluded that respondent attorney had violated four provisions of Disciplinary Rule 1-102 of the Code of Professional Responsibility. (R.S. 37: Chap. 4-App., Art. 16, Canon 1, DR1-102). Because of several mitigating factors, each borne out by the record, the Commissioner recommended that respondent be reprimanded rather than disbarred or suspended from the practice of law. The Committee in its petition and brief in this Court suggests that at least some stated period of suspension would be in order.

We conclude that relator’s proven conduct coupled with uncontested mitigating factors, particularly evidence of relator’s good character, warrant that relator be suspended from the practice of law for a period of one year from this date.

Most of relator’s time since the year 1971, when he formed the James Taylor Adams Company has been spent in the real estate business. Because he is an attorney he has apparently handled legal matters in conjunction with his real estate business, as he did in the transaction which gave rise to these proceedings.

At some time prior to March 8, 1976, one Richard Allen Delisle listed his home for sale with James Taylor Adams Company. When later a purchaser was found by another real estate agent, Mr. Delisle’s home was sold in a sales transaction on March 8, 1976 in which Mr. Adams served as closing attorney. At that time, as closing attorney, Mr. Adams received from the vendee in cash and proceeds of a mortgage loan extended to the vendee $66,326.61. Of these proceeds $38,870.86 was to be used to pay off the vendor’s first mortgage to Home Federal Savings and Loan Association. Mr. Adams did not pay off that loan until July 29, 1976. In the interim he put at least $25,000 of those proceeds, if not all of the $38,870.86, to his own use. Likewise in the interim between March 8,1976 and July 29, 1976 Mr. Adams made the prescribed monthly payments on the vendor’s mortgage to Home Federal Savings and Loan Association.

There was not sufficient evidence, and the Commissioner so found, to establish that Mr. Adams intended during this time to permanently deprive anyone of the mortgage pay out money. Nevertheless, he did not immediately pay off the mortgage, nor did he pay it off Shortly following a telephone call from Mr. Delisle some thirty days after the sale. Rather he did so on the same date that Mr. Delisle, on July 28,1976, sent a complaining letter to Mr. Adams with acknowledged carbon copies to the vice-president of Home Federal Savings and Loan Association, the purchaser of the home, and the Board of Realtors. This payment took place before Mr. Delisle complained to the Shreveport Bar Association.

The Commissioner concluded and we accept as true that Mr. Adams’ pay out check of July 28th, credited on the mortgage holder’s books July 29th, was sent coincidentally on the same date that Mr. Delisle complained to the real estate board, and not in response to such complaint. There is no question but that respondent misused his client’s funds, nor is there any question but that misuse of a client’s funds by an attorney represents a grave form of professional misconduct. Louisiana State Bar Association v. Selenberg, 270 So.2d 848 (La.1972); Louisiana State Bar Association v. Van Buskirk, 249 La. 781, 191 So.2d 497 (1966).

The question, however, of the extent of disciplinary action which should be imposed is affected in this case by numerous mitigating factors. As the Commissioner noted respondent repaid the money before a complaint was filed with the Shreveport Bar Association and probably before receipt of the client’s letter of complaint acknowledged copy of which was sent to the Board of Realtors; he never intended to appropriate the money permanently; he voluntarily suspended himself from the practice of law shortly after this experience some two years ago; and he expressed his intent not to practice law in the future. Equally as significant as these mitigating factors, and perhaps even more so, is the evidence of respondent’s good character, which was uncontested by counsel for the Bar Association. Respondent presented testimony and/or affidavits by stipulation, of eleven persons relative to his good character, all substantial citizens of the City of Shreveport. The quality of the character evidence prompted the following remarks by counsel for the Committee in the hearing before the Commissioner. “I cannot help but be impressed with the character witnesses that have come forth to speak in behalf of Mr. Adams ... I think his reputation in this community is a fine one and does credit to the profession.” The Commissioner concluded that Mr. Adams has enjoyed and still enjoys an excellent reputation for honesty and integrity in Shreveport.

Decree

For the foregoing reasons we find that respondent James T. Adams has seriously violated Disciplinary Rule 1-102 specifically by misusing his client’s funds, and he is therefore suspended from the practice of law for one year from this date.

RESPONDENT SUSPENDED FROM PRACTICE OF LAW FOR ONE YEAR FROM THIS DATE.

       Judge James C. Gulotta, Louisiana Court of Appeal, Fourth Circuit, participated in this decision as an Associate Justice Ad Hoc.

      . The full pertinent provisions of Disciplinary Rule 1-102 are as follows:
      “(A) A lawyer shall not:
      (1) Violate a Disciplinary Rule.
      (3) Engage in illegal conduct involving moral turpitude.
      (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

      (6) Engage in any other conduct that adversely reflects on his fitness to practice law.”

      . He apparently earned a real estate commission of $3900.00 and charged $75.00 legal fee for passing the act of sale.


author: PER CURIAM.

text:
    STATE of Louisiana v. Freddie BUTLER and James Batiste.
    No. 62502.
    Supreme Court of Louisiana.
    March 5, 1979.
    Frank De Salvo, Robert Barnard, New Orleans, Orleans Indigent Defender Program for James Batiste.
    Archie C. Tatford, Jr., New Orleans, for Freddie Butler.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lindsay A. Larson, Asst. Dist. Atty., for appellee.
   PER CURIAM.

Defendants Freddie Butler and James Batiste were charged by bill of information with armed robbery in violation of R.S. 14:64. Before trial, the state’s motion to sever was granted and defendants were tried separately. Both Butler and Batiste were found guilty as charged and were sentenced under R.S. 15:529.1 as multiple offenders to serve 198 years at hard labor. Although defendants were tried separately, for purposes of this appeal the cases were assigned a single number and treated in effect as consolidated cases here. On his appeal Butler relies on seven assignments of error while Batiste relies on five assignments.

Defendants entered the Kelly Springfield Tire Company located at 3138 South Car-rollton Avenue on • January 11, 1977 and walked around the store for a while prior to arming themselves and robbing the store. Over half a dozen people were in the store at the time of the robbery, several of them entering while the offense was in progress. Defendants obtained money, filed everyone in the store into a washroom and drove away. An employee with the tire company chased defendants for a half hour and obtained their license plate number.

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

Decree

Accordingly, the convictions and sentences of defendants Butler and Batiste are affirmed.

AFFIRMED.

SUMMERS, C. J., concurs.

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


text:
    STATE of Louisiana v. William M. PEDDRICK.
    No. 62728.
    Supreme Court of Louisiana.
    March 5, 1979.

      N. Graves Thomas, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The defendant William M. Peddrick was convicted of possession of cocaine with intent to distribute, La.R.S. 40:967 and sentenced to thirteen years imprisonment at hard labor. Of the twelve assignments of error filed in the trial court, two were briefed and considered in this appeal.

The assignments do not present reversible error and are governed by clearly applicable legal principles. The assignments require lengthy factual discussion of interest primarily to the parties, but not involving circumstances likely to recur. We have therefore discussed and disposed of them in an appendix attached to this opinion, which remains a public record of this Court but which is not for publication.

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

       Judge Pike Hall, Jr., Louisiana Court of Appeal, Second Circuit, participated in this decision as an Associate Justice Ad Hoc.


text:
    STATE of Louisiana v. Mack J. ZARDES.
    No. 62766.
    Supreme Court of Louisiana.
    March 5, 1979.
    Thomas W. Mull, Robert F. 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., Maurine Carroll, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant, Mack J. Zardes was convicted after a jury trial of two violations of R.S. 40:966A(1) charged in a single grand jury indictment, possession of a controlled dangerous substance with intent to distribute and distribution of a controlled dangerous substance; the substance involved in both instances was heroin. He was sentenced on each count to life imprisonment, the two sentences to run concurrently. On this appeal defendant urges five assignments of error.

We find that none of the assignments of error have merit. Moreover, none involve legal issues not governed by clearly applicable legal principles. Because factual discussion will be of substantial interest only to the parties, we attach hereto an appendix containing a discussion and resolution of the issues which will become and remain part of this Court’s public record but which will not be published with this opinion.

Accordingly, we affirm the defendant’s convictions and sentences.

AFFIRMED.

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


author: DIXON, Justice.

text:
    STATE of Louisiana v. Johnny LAWRENCE.
    No. 63005.
    Supreme Court of Louisiana.
    March 5, 1979.
    Jerry B. Daye, Vidalia, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. C. Falken-heiner, Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On July 27, 1977 Barbara Roberts was discovered dead in her home located about a mile outside of Vidalia, Louisiana. In the course of the investigation, the police discovered that Tobe Roberts, her husband, had hired two men, Johnny Lawrence and David Albert, to stand guard over the house. When first picked up by the police for questioning on August 13, 1977, Lawrence admitted having been to Roberts house on several occasions, but stated that he had been in New Orleans on the night in question. However, at a second interview on August 26, 1977, Lawrence substantially changed his story and stated that on the night of the murder he had been guarding the Roberts house from his usual post in the barn. In this statement, Lawrence related that he had heard gunshots early in the morning and had seen David Albert climbing out of a back window of the house. Albert told the defendant that he had just killed Barbara Roberts, and the two then fled to dispose of their clothes and of the two pistols Albert had been carrying. After giving the statement, Lawrence led the police to the guns and clothing. Later that same evening he was arrested as a material witness, and on September 6, 1977 he was indicted as an accessory after the fact.

While incarcerated the defendant grew increasingly afraid that either Tobe Roberts or David Albert would attempt to harm him or his family. On November 3, 1977 the defendant, his attorney and the district attorney went to the Roberts home where the defendant gave a different account of the crime. In this version, the defendant stated that he had hidden under the kitchen table and had grabbed Barbara Roberts when she entered the house. David Albert then allegedly knocked the victim to the floor and shot her. When Lawrence asked Albert why he had killed Mrs. Roberts, Albert replied that a pending divorce had driven Tobe Roberts to contract for his wife’s murder.

On November 30 and December 1, 1977 Lawrence was called by the state to testify in the first degree murder trial of David Albert. During the second day of trial, Lawrence suffered an acute attack of anxiety while on the witness stand which rendered him incoherent. His inability to testify further resulted in the declaration of a mistrial. Soon afterward the Concordia Parish Grand Jury indicted the defendant for first degree murder, to which charge the defendant entered pleas of not guilty and not guilty by reason of.-insanity on December 7, 1977. On the same day the trial judge appointed a sanity commission composed of Dr. Hugh King and Dr. Joe B. Hayes, staff members at the Central State Hospital in Pineville. Their report declared Lawrence incapable of proceeding because he lacked the mental capacity to understand the nature of the proceedings against him and was unable to assist in his defense. C.Cr.P. 641. After reviewing the report, the trial judge on December 27 ordered the defendant to the forensic unit at the East Louisiana State Hospital in Jackson.

In late April, 1978 the hospital staff informed the concerned parties that the defendant was now thought to have the requisite capacity to proceed to trial. On May 2, 1978 the court appointed a second sanity commission composed of Dr. A. P. Abad and Dr. Retus Osborn, staff members at the Jackson facility. A contradictory hearing was held three weeks later at which the trial judge determined that Lawrence had the mental capacity to proceed. The defense noted its objection to the ruling and sought supervisory writs from this court which were denied on June 15, 1978. 359 So.2d 624 (La.1978). Defense counsel then filed a motion to suppress, a motion for a change of venue, and a motion for a continuance, but all were denied on June 19. Two days later, Johnny Lawrence pleaded guilty to second degree murder, reserving the right to appeal the question of his capacity to stand trial at that time.

Mental capacity to proceed is not present when the defendant, as a result of mental disease or defect, is unable to understand the proceedings against him or to assist in his defense. C.Cr.P. 641. However,' this court has consistently held that such incapacity must be shown by the defendant by a clear preponderance of the evidence. State v. Veal, 326 So.2d 329 (La.1976); State v. Flores, 315 So.2d 772 (La.1975). Although a trial judge’s determination of capacity to stand trial is entitled to great weight, State v. Morris, 340 So.2d 195 (La.1976); State v. Flores, supra, the trial judge may not rely so greatly on the medical testimony that he abandons the ultimate decision on competency to the medical experts. State v. Bennett, 345 So.2d 1129 (La.1977).

In State v. Bennett, supra, we articulated several factors which the trial judge should consider while evaluating the defendant’s ability to stand trial. Pertinent inquiries to determine whether the accused can understand the proceedings against him include: his awareness of the nature of the charge and his appreciation of its seriousness; his understanding of available defenses; his ability to distinguish between pleas of guilty and not guilty and the consequences of each; his awareness of legal rights; and his comprehension of the range of possible verdicts and of the consequences of conviction. In assessing the defendant’s ability to assist in his defense, the trial judge should consider: the defendant’s recall and relation of facts pertaining to his actions and whereabouts at certain times; his ability to assist counsel in locating and examining witnesses; his maintenance of a consistent defense; the defendant’s ability to inform his attorney of any distortion of misstatements in the testimony of the other witnesses; his capacity to make simple decisions in response to well-explained alternatives; the defendant’s ability to testify in his own defense; and whether his mental condition will deteriorate under the stress of trial. With these functional considerations in mind, we must evaluate the evidence put forward at the second sanity hearing and the trial judge’s decision based upon it.

Hospital records from East Louisiana State Hospital indicate that Lawrence was in a state of gross anxiety upon his arrival and could communicate only to deny any part in the murder of Barbara Roberts. Medical evaluations made in January and February, 1978 described the defendant as guarded, anxious, evasive and unable to communicate. A psychological examination conducted on February 20 placed Lawrence in the mildly retarded range with a gross score of 62 on the Wechsler Adult Intelligence Scale, which was further broken down into a verbal I.Q. of 69 and a performance I.Q. of 58. The test revealed a marked impairment of the defendant’s associative flexibility when faced with a new situation and of his ability to size up and comprehend a total situation. Lawrence also performed poorly on the Bender-Gestalt figure drawing test. The test concluded that Lawrence had the intellectual ability of a fifth grader and suggested that an organic dysfunction could be affecting his visual-motor coordination.

A second examination of the defendant was conducted on March 11, 1978. The report described Lawrence as exhibiting great anxiety and uncertainty and a poor organization of his thoughts and ideas. The defendant, who had only a third grade education and cannot read and write, displayed a very limited fund of knowledge and did not know all the months of the year or the meanings of common proverbs. On the other hand, the report indicated that Lawrence was coherent during the examination, did not make loose associations, and did not suffer from delusions and hallucinations. He was also oriented to time, place and person, and could identify the President of the United States and the Governor of Louisiana. His memory appeared fairly accurate in that he could repeat a series of numbers called out to him. The general impression of the examiner was that the defendant was more cooperative, communicative and alert and had improved since his admission to the forensic unit.

Subsequent hospital reports indicate a continuous improvement in Lawrence’s mental state. Although an initial EEG raised the possibility of some organic dysfunction, a second test conducted on March 13 was normal. A report dated April 19, 1978 stated that Lawrence understood the charges against him and their possible consequences, and that he realized his better chances of being acquitted on the first degree murder charge than on the charge of accessory after the fact. The report concluded that the defendant had the capacity to cooperate and communicate with his attorney because he was accurately measuring reality, although some problems in communication could arise because he continued to “project and isolate” to some degree.

Dr. Retus Osborn and Jerry Daye, the defendant’s attorney, were the only witnesses at the sanity hearing. Dr. Osborn testified that in his opinion the defendant was recovering from an acute hysterical breakdown although he freely admitted that the first sanity commission had diagnosed the break as psychotic rather than neurotic. The doctor admitted that Lawrence continued to project and to isolate, but indicated that this was a problem common to many people. Osborn also stated that Lawrence was unable to comprehend the entire situation before him, but again stated that this was a common problem. According to the doctor, the defendant’s ability to communicate possibly would be decreased by his lack of confidence in his own memory and by his tendency to over-guard and to be flustered easily. The doctor also stated that Lawrence could possibly slip back into neurotic anxiety if he was not given Mellaril, a drug commonly used in the treatment of mental patients. Osborn stressed the importance of gaining Lawrence’s confidence and admitted the possibility existed that the defendant would not be able to communicate outside of a clinical environment. Nevertheless, Dr. Osborn testified that the staff had conducted stress interviews with Lawrence and that the defendant was able to relate to the doctors and staff members even when angry. In Osborn’s opinion, Lawrence had the ability to be selective and could choose what he wished to tell the person interviewing him. In short, Osborn considered Lawrence to have the ability to proceed, and believed any silence on his part to be a matter of preference.

Jerry Daye’s testimony was in marked contrast to that of Dr. Osborn. Daye testified that the defendant still could not communicate effectively with him and still did not fully comprehend the charges or their consequences. In fact, Daye was of the opinion that Lawrence had practically no awareness of the consequences of the charges brought against him or of his legal rights.

A review of the evidence convinces us that the trial judge was not in error to declare Lawrence capable of standing trial. Although Lawrence is slightly retarded, mental retardation by itself is insufficient to establish the defendant’s incapacity. State v. Morris, supra; State v. Augustine, 252 La. 983, 215 So.2d 634 (1968). The defendant may also be required to stand trial even if his mental capacity is maintained only through the use of prescribed drugs. State v. Hampton, 253 La. 399, 218 So.2d 311 (1969).

Moreover, Lawrence’s inability to comprehend the entire situation confronting him does not necessarily lead to the conclusion that he could not understand the proceedings which he faced. Clearly Lawrence was possessed of sufficient intelligence to appreciate the nature of the first degree murder charge and its seriousness. His different statements to the police add credence to a conclusion that he understood what defenses could defeat the charges against him — that he either was not involved at all, or that he was unaware of the plot to kill Mrs. Roberts. According to Osborn, Lawrence also understood what pleas he could enter and was aware that the state would have a more difficult time convicting him of first degree murder than as an accessory after the fact. Considering this evidence, the trial judge’s conclusion that Lawrence understood the proceedings against him has ample support in the record before the court.

The record also contains sufficient evidence to support the trial judge’s decision that Lawrence could assist in his defense. ■ The facts of the case are not particularly complex, and Lawrence’s defense would apparently have turned on whether he knew of the murder plot and on the extent to which he actually participated in it. The defendant’s recorded statements were available to the defense, as was the testimony from the trial of David Albert. The addresses of the principal witnesses, Tobe Roberts and David Albert, were known to the defense. Although there is some evidence that Lawrence mistrusts his own memory and must have additional time to decide what response he will make to a given inquiry, the trial court apparently accepted Dr. Osborn’s testimony that the defendant could communicate with his attorney if he wished. Moreover, the defense argument that Lawrence would not be able to notify his attorney of distortions or misstatements in the testimony of other witnesses is not such an important consideration if the defendant has already made numerous statements about the events in question. Defense allegations that Lawrence could not bear the stress of a trial are undercut by Dr. Osborn’s testimony concerning stress interviews conducted by the staff at the forensic unit. It is also noteworthy that Lawrence’s anxiety at the first trial apparently stemmed in part from fears that his and his family’s lives were in danger from Roberts and Albert; the defense does not contend that this was still a possibility in June, 1978. In the light of these considerations, it appears that the trial court was correct in ruling that the defendant was capable of assisting counsel in his defense at the time of the second sanity hearing.

For the reasons assigned, the ruling of the district court finding Johnny Lawrence capable of standing trial is affirmed.

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

      . Isolating was explained by Dr. Osborn as a process in which “the thinking of the individual tends to pick out one little thing and isolate it and blame it for everything instead of taking the whole problem.”


text:
    STATE of Louisiana v. Gerald DICKERSON.
    No. 63019.
    Supreme Court of Louisiana.
    March 5, 1979.

      Paul A. Bonin, Levenson & Bonin, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Fred P. Harper, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Gerald Dickerson was arrested and charged with theft in violation of R.S. 14:67. Defendant was found guilty by a twelve person jury and was sentenced to two years at hard labor. Defendant appeals his conviction and sentence to this Court. Only assignments of error numbers five and six have been argued. Therefore, assignments of error numbers one through four and seven through nine need not be considered. State v. Collins, 362 So.2d 550 (La.1978).

The following facts were adduced at trial: Defendant and an accomplice practiced a confidence scheme known as “drop the pigeon.” In the present case, on May 7, 1977, the victim, Bernard Johnson, was approached outside the Circle Food Store at N. Claiborne and St. Bernard Avenues in the City of New Orleans by a black male with a foreign accent, who was later identified as Samuel Garfield, Jr. Johnson had just cashed a check for $170.00. The “foreigner,” Garfield, explained to Johnson that he was a seaman who had just arrived in the city. He asked defendant for directions to a motel the name of which he had written down on a slip of paper and stated that he was going to procure a prostitute there and had already paid for the name of the motel and/or the promised services. The victim had never heard of the motel and could not give directions. The defendant Dickerson then entered the conversation between the two men, and by his manner and conversation appeared to be trying to swindle the seaman of his money, which appeared to be quite a large bankroll. Actually, the large roll of money was no more than a one dollar bill wrapped around a large amount of play money. While Johnson’s motivation may not have been entirely so simple, he testified that he attempted to keep defendant from swindling the seaman. At some point it was agreed that the seaman would place all of his money in a handkerchief that would be securely tied and entrusted to Johnson’s care and that Johnson would keep the money at his home until the seaman came to get it. Johnson gave the man his name and address. To assure the money’s safety and Johnson’s trustworthiness, it was suggested that Johnson place the $170.00 he had just received upon cashing his check in the handkerchief along with the seaman’s money. Johnson reluctantly agreed, placed his money in the handkerchief and tied the money in it. The seaman said that he would tie a stronger knot, because he was familiar with such things. At some point during the conversation, the handkerchief with Johnson’s money and the fake roll of money in it was handed over to the seaman who switched handkerchiefs and returned to the victim a handkerchief in which nothing but shredded newspaper was tied. The victim unaware of the switch went home with the newspaper filled handkerchief, and without his $170.00. When he arrived at home, his brother told him that he had been tricked. Johnson then untied the handkerchief and discovered the theft. He threw the newspaper filled handkerchief away, then called the police. On November 1, 1977, defendant was arrested outside of Schwegmann Brother’s Supermarket, 2222 St. Claude Avenue. What he was doing at the time of or shortly before his arrest is not disclosed by the evidence. However, a handkerchief and shredded newspaper as well as a roll of play money were taken from him at that time.

Defendant was originally indicted on four counts of theft, all similar in modus operan-di to the instant case. Prior to trial three of the four charges were severed and were later nolle prossed.

The only assignments of error argued concern testimony relative to and introduction of evidence seized from defendant at the time he was arrested outside Schweg-mann’s Super Market, approximately seven months after the crime with which he is here charged. Defendant’s counsel objected that the evidence — a handkerchief, shredded newspaper and roll of play money — had no permissible relevance to this prosecution, that it was evidence of another crime tending to establish that the man arrested outside Schwegmann’s was the same man who had tricked Johnson outside Circle Pood Store (identity), and that the requirements of advance notice and pretrial hearing mandated by State v. Prieur, 277 So.2d 126 (La.1973) had not been complied with. After adverse rulings defendant moved for a mistrial. The trial court’s denial of the mistrial is also assigned as error.

Defendant in brief concedes that the conduct he claims to be evidence of another crime (defendant’s being in possession, at the time of his arrest outside Schwegmann’s, of the handkerchief, newspaper and play money) is “probative of guilt through proof of system in order to prove identity.” He protests, however, that the state did not give notice of its intent to use evidence of other crimes nor provoke a pretrial hearing on its admissibility which he contends are required by Prieur.

The argument is without merit. The state did not here offer evidence of another criminal offense. It is not criminal to possess a handkerchief, newspaper and play money. Nor did the testimony objected to indicate that defendant was arrested for committing a theft outside of Schweg-mann’s. As we said in State v. Elam, 312 So.2d 318, 324 (La.1975) “the Prieur notice requirement is, by the opinion itself [Pri-eur], confined to cases where the State intends to offer evidence of ‘other criminal offenses’.”

In this case where defendant never conceded his involvement in the incident outside of the Circle Food Store (he did not testify), the state had legitimate reason to try to bolster the identification testimony given by the victim and did so by showing a peculiar or distinctive characteristic. Johnson testified the man who had robbed him had in his possession at the time of the incident a handkerchief, shredded newspaper, and roll of play money.

Defendant, who was identified by the victim, but who did not concede his involvement in the Circle Food Store incident, was found by arresting officers some seven months later possessing a handkerchief, newspaper, and play money.

The evidence was independently relevant. It bore upon identification of the thief who made off with Johnson’s money. It was not evidence of commission of another crime. Therefore Prieur and its procedural requirements are not applicable.

Decree

For the foregoing reasons the conviction and sentence of the defendant Gerald Dickerson are affirmed.

AFFIRMED.

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


author: BLANCHE, Justice.

text:
    STATE of Louisiana, Appellee, v. Andrew Chrisman PITTMAN, Appellant.
    No. 63064.
    Supreme Court of Louisiana.
    March 5, 1979.

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

The defendant, Andrew C. Pittman, was charged with theft of $797.00. He was found guilty by a jury on the responsive verdict of guilty of the unauthorized use of movables in the amount of $643.00; he was sentenced to serve six months in the La-fourche Parish Jail, to pay all costs, including the costs of trial, provided that upon serving three months and paying all costs and making restitution of $643.00, the balance of the sentence be suspended on good behavior for one year. The defendant appeals the conviction based upon one specification of error, that an inculpatory statement which was used against him was obtained illegally by an honorary deputy sheriff who questioned him without giving him notice of his rights as required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Gary Guidry was owner of the Bayou Bend Nursing Home in Larose, Louisiana. Defendant was administrator of the home. While defendant was in police custody on another charge, Guidry discovered that there was a shortage in the accounts of the nursing home. He spoke to the sheriff and the district attorney about this. At his request, the sheriff permitted him to interview the defendant. For this purpose, Pittman was brought to the police station from the parish jail and left in a room with Guidry. This occurred some three or four days following defendant’s arrest on the other charge, which arrest had taken place either August 9 or 10,1977. On August 25, 1977, Guidry swore in an affidavit that Pittman had stolen money from the nursing home, the theft having taken place in May of 1977. On September 22,1977, defendant was charged by bill of information with theft of funds paid to the nursing home for the accounts of five patients. The payments had been made in cash, and there was evidence that defendant had signed receipts for the payments, but there was no further record of the money and no deposit of funds had been made to the nursing home’s account.' In November of 1977 Pittman filed a civil suit against the home for back wages due him. In February, 1978, there was the first indication of the existence of an inculpatory statement which Pittman had made to Guidry at the time of their talk in August of 1977. At a hearing on February 16,1978, Pittman withdrew his prior waiver of a jury trial upon finding out about the confession which the State intended to use. On either February 16 or the day before, the district attorney had learned from Guidry of defendant’s oral statement in which he admitted taking the money.

Guidry testified at a hearing on the motion to suppress the inculpatory statement. He outlined the interview which he had with Pittman in August of 1977. When asked why he did not go to the district attorney with the confession until the day before the trial was scheduled to start, he said: “I don’t know. I just decided to go.”

Guidry was shown to be an honorary deputy sheriff of Lafourche Parish, though he had never taken any action as a deputy or received any pay for the position. He stated that he did not give Pittman any of the Miranda warnings, and he did not know how to “read anyone his rights” so as to comply with the requisites of Miranda.

Because of Guidry’s honorary deputy status, defendant claims that his conversation with Guidry was an interrogation by a police officer in which it would be required that he be advised of his rights under the Fifth and Sixth Amendments. He was not told by Guidry that there was any question of charges being pressed in the matter of the missing funds, or that the sheriff and the district attorney had been informed that the money was missing.

Defendant makes the following assignment of error:

Defendant contends that the Trial Court erred when it denied Defendant’s Motion to Suppress the alleged inculpato-ry statement, made by the defendant to Gene Guidry, when such statement was obtained in violation of Defendant’s constitutional rights.

The question for our consideration is whether the interview between Guidry and Pittman was a custodial interrogation such as to require that defendant be informed of his rights under Miranda and its progeny, and whether Guidry was a person who, as interrogator, would be required to give the warnings.

The Louisiana statute on admissions and confessions requires that there be an affirmative showing on the part of the State that the confession was freely and voluntarily given, and that there was no influence of “fear, duress, intimidation, menaces, threats, inducements or promises” to bring about the alleged confession. LSA-R.S. 15:451. Federal and Louisiana cases require that there be a clear showing of procedural safeguards which would effectively guarantee that the constitutional privilege against self-incrimination was secured to the accused when he was questioned while in the custody of the police. Miranda, supra; State v. Roach, 322 So.2d 222 (La.1975). If the interrogation and subsequent confession are in a non-custodial situation, the only showing which the State must make is whether the confession is free and voluntary, as the Miranda warnings apply only to custodial interrogations. State v. Glover, 343 So.2d 118 (La.1977).

In this case the conversation resulted in the admission by defendant that he knew the money was missing and a statement that he would make the loss good. The sheriff permitted Guidry to speak with the defendant, who was in custody on another charge, in connection with which there is evidence that he had been informed of his rights. There is no evidence that Guidry spoke with the defendant at the request of either the district attorney or the sheriff, nor is there any evidence that anyone was aware of the status of Guidry as an honorary deputy sheriff. The fact that he did not even inform the sheriff or the district attorney of Pittman’s inculpatory statement until later also would indicate that he was not operating as an agent of the police in their investigation of the missing funds. Pittman was being interviewed by the man for whom he worked and at a time when his employer was simply questioning him for his own purposes concerning the missing money. The admission to him, therefore, cannot be said to be one which was to a police officer and resulted from a custodial interrogation. That Gui-dry was an honorary deputy is of no moment.

The district judge found that defendant’s statement to Guidry was freely and voluntarily given, and this is supported by the record. We cannot disturb a factual finding of the trial court when, as here, there is evidence to support it.

For the reasons as stated herein, the conviction and sentence are affirmed.

AFFIRMED.

DENNIS, J., concurs.

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