author: SANDERS, Chief Justice. DIXON, Justice

text:
    John A. KYLE, Rosemary Deig, wife of/and George E. Godbey v. CITY OF NEW ORLEANS, New Orleans Police Department, “A and B” Insurance Companies, Lieutenant Eugene Fields, Officers Wilson, Bruno, and John Doe.
    No. 59683.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      Leroy J. Falgout, Kenner, for plaintiff-applicant.
    Philip S. Brooks, City Atty., Joseph J. Laura, Jr., Freeman R. Matthews, Asst. City Attys., for defendants-respondents.
   SANDERS, Chief Justice.

Three New Orleans apartment dwellers shot by police officers during their arrest brought this civil action for damages.

The plaintiffs, John A. Kyle, Rosemary Deig Godbey, and George E. Godbey, sue for damages for pain and suffering, false arrest and imprisonment, and medical expenses. They named the City of New Orleans, New Orleans Police Department, Travelers Insurance Company, Lieutenant Eugene Fields, Detective Charles Miller, Detective Fred Williams, Detective Gerald De-Rose, and Detective Lorenzo Knight as defendants. Charity Hospital of Louisiana at New Orleans intervened for medical services rendered to plaintiff Kyle.

The district judge entered judgment for plaintiffs and intervenor against the City of New Orleans and Lieutenant Fields, in soli-do, and dismissed the claims against the remaining defendants. Substantively, the court found the arrest legal, but the force used in its execution excessive.

The plaintiffs appealed, challenging the legality of the arrest and the quantum awarded. The defendants cast in judgment also appealed, alleging that the force employed in making the arrest was reasonable. The Court of Appeal reversed. Although it upheld the district court’s finding the arrest legal, the court held the force used reasonable under the circumstances. La.App., 342 So.2d 1257 (1977).

We granted plaintiffs’ application for writs to review the propriety of this judgment. La., 345 So.2d 507 (1977).

The case presents two issues: (1) Are the plaintiffs entitled to damages for false arrest and imprisonment? (2) Did the officers use excessive force in arresting the plaintiffs?

False Arrest and Imprisonment

False arrest and imprisonment occur when one arrests and restrains another against his will without a warrant or . other statutory authority. Simply stated, it is restraint without color of legal authority. Barfield v. Marron, 222 La. 210, 62 So.2d 276 (1952); De Bouchel v. Koss Const. Co., lnc., 177 La. 841, 149 So. 496 (1933); Tillman v. Holsum Bakeries, Inc., La.App., 244 So.2d 681 (1971), writ refused, La., 258 La. 352, 246 So.2d 199 (1971). Thus, if police officers act pursuant to statutory authority in arresting and incarcerating a citizen, they are not liable for damages for false arrest and imprisonment. See Martin v. Magee, 182 La. 263, 161 So. 604 (1935); Cerna v. Rhodes, La.App., 341 So.2d 1157 (1977), writ refused, La., 343 So.2d 1067 (1977); 35 C.J.S. False Imprisonment § 22, p. 649, 650. The law exempts the officers from liability even if the statute upon which they rely is later declared unconstitutional as long as the officers reasonably believed it valid at the time they acted. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Mitchell v. Drake, lnd.App., 360 N.E.2d 195 (1977); McCray v. City of Lake Louisvilla, Ky., 332 S.W.2d 837 (1960).

Louisiana Code of Criminal Procedure Article 213(3) is the authority for the arrests in the instant case. That article provides that an officer may make a warrant-less arrest for an offense committed out of his presence if he has “reasonable cause to believe that the person to be arrested has committed an offense. . . ” Reasonable cause exists when the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonable trustworthy information, are sufficient to justify an average man of caution in the belief that a felony has been committed. State v. Phillips, La., 347 So.2d 206 (1977); State v. Linkletter, La., 345 So.2d 452 (1977); State v. Johnson, 249 La. 950, 192 So.2d 135 (1966).

The following are the facts leading to the plaintiffs’ arrests:

On February 19, 1972, a Saturday morning, two white males, masked and armed, robbed the A & P Supermarket on Magazine Street in New Orleans. Witnesses provided police with a general description: one was tall and heavy, and the other shorter and slimmer.

During the investigation, Ralph Lozier, a security guard, told the detectives that another security guard, Kenneth Hodel, knew something about the robbery. Interviews with Lozier and Hodel revealed the following: The Tuesday prior to the robbery, Hodel had dinner with Godbey and Kyle at Kyle’s Josephine Street apartment. Hodel was an acquaintance of Godbey’s. (Hodel identified Godbey by name to the police, but could only describe Kyle.) Kyle offered to pay Hodel for information concerning the security at the A & P on Magazine Street and for" two guns. They told Hodel that they needed the information and guns to rob that store.

On Thursday, during their security patrol, Hodel told Lozier that his friends planned to rob the A & P on Magazine Street that Saturday. He then asked Lozier for two guns and some information concerning the security in that store. (Lozier’s wife worked at that A & P.)

Hodel’s description of Kyle and Godbey fit the one given of the armed robbers.

The night of the robbery, Hodel led the officers to Kyle’s apartment, in the vicinity of the A & P store. Based upon Hodel’s and Lozier’s statements, the officers arrested the plaintiffs. During the arrests, the plaintiffs sustained gunshot wounds. The Godbeys were booked and incarcerated after receiving medical treatment. However, due to the extensive nature of Kyle’s wounds, he remained at Charity Hospital under police guard.

Subsequently, the true perpetrators, two penitentiary escapees, were apprehended in Mobile, Alabama.

Both lower courts found that the officers had reasonable cause to make the warrant-less arrests and thus rejected plaintiffs’ demands for false arrest and imprisonment damages. We agree. The statements by Hodel and Lozier gave the officers reasonable cause to believe that Kyle and Godbey had robbed the supermarket. Hodel and Lozier were security officers. Their statements corroborated each other. A police check of their prior records revealed no basis for discrediting their statements. Moreover, the descriptions given of the plaintiffs matched those of the armed robbers. Therefore, we hold that the plaintiffs are barred from recovering damages for false arrest and imprisonment since Louisiana Code of Criminal Procedure Article 213(3) authorized the arrest.

Excessive Force

To effectuate an arrest, officers may break open an outer door of a dwelling if they are refused or otherwise obstructed from admittance. However, they must first announce their authority and purpose if such announcement would not imperil the arrest. LSA-C.Cr.P. Art. 224. In addition, Louisiana Code of Criminal Procedure Article 220 provides:

“A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.”

The use of force by law enforcement officers must be tested by the “reasonable force” standard established by this article. The test precludes “clearly inappropriate force.” LSA-C.Cr.P. Art. 220, Official Revision Comment (b).

The use of force when necessary to make an arrest is a legitimate police function. But if the officers use unreasonable or excessive force, they and their employer are liable for any injuries which result. LSA-C.C. Art. 2320; Picou v. Terrebonne Parish Sheriff’s Office, La.App., 343 So.2d 306 (1977), writ refused, La., 345 So.2d 506 (1977); Cheatham v. Lee, La.App., 277 So.2d 513 (1973); Bourque v. Lohr, La.App., 248 So.2d 901 (1971); Taylor v. City of Baton Rouge, La.App., 233 So.2d 325 (1970).

Whether the force used is reasonable depends upon the totality of the facts and circumstances in each case. A court must evaluate the officers’ actions against those of ordinary, prudent, and reasonable men placed in the same position as the officers and with the same knowledge as the officers. Picou v. Terrebonne Parish Sheriffs Office, supra; 6A C.J.S. Arrest § 49(a), p. 112; 6A C.J.S. Assault and Battery § 97, p. 491. The degree of force employed is a factual issue. Picou v. Terrebonne Parish Sheriff’s Office, supra; Castriotta v. Cronvich, La.App., 277 So.2d 744 (1973); Espenan v. Carona, La.App., 179 So. 119 (1938). As such, the trial court’s finding is entitled to great weight. Canter v. Koehring Co., La., 283 So.2d 716 (1973).

Several factors to be considered in making this determination are the known character of the arrestee, the risks and dangers faced by the officers, the nature of the offense involved, the chance of the arres-tee’s escape if the particular means are not employed, the existence of alternative methods of arrest, the physical size, strength, and weaponry of the officers as compared to the arrestee, and the exigencies of the moment. See Picou v. Terrebonne Parish Sheriff’s Office, supra; Logan v. Swift, La.App., 327 So.2d 168 (1976); Crawford v. Maryland Casualty Co., La.App., 169 So.2d 612 (1964); Restatement (Second) of Torts, Volume 1, § 132, comment c, p. 237 (1965); Comment, Tort Liability of Law Enforcement Officers: State Remedies, 29 La.L.Rev. 130.

The following are the facts surrounding the plaintiffs’ injuries:

Hodel led the officers to Kyle’s apartment thé night of the armed robbery. The apartment manager told them that Kyle’s second floor apartment had only one entrance, the front door, and that the apartment had windows, but no balconies or porches at the windows.

The police barricaded the block with police cars. Outside the building, two officers covered the exits. Inside, five officers, under the direction of Lieutenant Fields, went to the apartment. These officers wore civilian clothes. Each carried their .38 cali-bre service revolver. In addition, Fields and Knight carried shotguns.

The apartment door fronted on a narrow, dimly lit hallway. It hinged on its right and opened inwards. Officer Williams stood in front of the doorknob and Officers Fields, Knight, and Miller stood in a line to his left. Officer DeRose was behind and to the left of Williams.

The adversaries in this litigation offer different versions of the events surrounding the shooting. The officers testified as follows: Williams, who stood in front of the doorknob, held his police identification and badge folder open in his left hand. (His revolver was hidden.) One of the officers knocked. Kyle opened the door. Williams flashed his identification and said “Police.” Kyle immediately slammed the door. The hurried movement and voices within the apartment convinced them that they were the robbers attempting to escape or secure weapons. To prevent this and for self-protection, Williams kicked the door. When it opened about one foot, it was immediately slammed. Someone shouted “Police, open the door or we will blow it open.” Williams, DeRose, and Fields then hit the door with their shoulders. It opened again, but was immediately shut. With his shotgun, Fields then fired twice at the area below the lock to disengage it. Using his service revolver, DeRose fired a third time through the uppermost top of the door. The force of the bullets opened the door to give the officers access to the apartment. When the officers entered, Kyle lay injured directly behind the door. The Godbeys were also wounded. The officers arrested them.

The plaintiffs’ version is as follows: Kyle heard someone knock at the door. Although Godbey was closer to the door, he did not hear it. Kyle answered the door. He opened it about eighteen inches for approximately three seconds. Seeing three strangers, one armed with a pump shotgun, he slammed the door and braced himself against it. He saw no identification nor heard any. Kyle reacted so quickly because he thought the men were robbers. (He had been recently robbed outside the apartment building.) Kyle called to Godbey for help to secure the door. As Godbey approached the door, he heard someone say that they were going to blow the door open. Mrs. Godbey also ran to assist the men. Fifteen seconds after he slammed the door, the officers fired through it.

We hold that the facts and circumstances support the trial court’s finding that the police used excessive force in making the arrest. The officers stated that they rushed the door for self-protection and to prevent escape. They had good cause to believe that the suspects were armed. However, there was no evidence of immediate danger. The officers saw no weapons when the door opened. Lieutenant Fields testified that:

“We had sufficient manpower to cover the apartment, we had the type of weapons we felt we may need to meet any force.” [Tr. p. 185.]

The officers knew the apartment had only one door and several windows. They covered each of these outlets. Thus, an escape was highly improbable.

The five officers at the door had five revolvers and two shotguns. Kyle the only man the officers saw, was sixty-five years old and weighed one hundred and forty pounds.

We recognize that police officers serve and protect the public at great risks to themselves. A felony arrest is often an emergency confrontation, requiring instantaneous, on-the-spot decisions. Hence, in these situations, police officers are not expected to act with the same clarity of judgment as others in the calm atmosphere of home or office. Nonetheless, under all the circumstances shown here, the use of deadly force was excessive. The apartment exits were covered; there was little chance of escape; the occupants made no attack on the officers. The officers could have delayed the arrest without great risk. Under these circumstances, we conclude that firing a shotgun blindly through the unlocked apartment door, knowing that someone was directly behind that door was unreasonable force.

We hold, therefore, as did the district court, that the police officer and his employer, the City of New Orleans, are liable for damages.

We now reach the issue of quantum. The amount of damages was a major issue in the plaintiffs’ brief to this Court and to the Court of Appeal. It is our practice to remand cases to the Court of Appeal to assess damages when that court has not passed upon the issue and when the issue is an important one. Holland v. Buckley, La., 305 So.2d 113 (1974); Welland v. King, La., 281 So.2d 688 (1973); Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). Thus, we remand to the Court of Appeal to assess the damages.

For the reasons assigned, the judgment of the Court of Appeal is reversed and set aside. The judgment of the district court is reinstated in such sum as may hereafter be fixed; and the case is remanded to the Court of Appeal for the assessment of damages according to law.

DIXON, J., concurs with reasons.

DENNIS, J., concurs fully in the holding that excessive force was employed and, therefore, does not reach or concur in the decision relating to probable cause.

DIXON, Justice

(concurring).

I concur. I approve the result reached, but would hold further that if the police had probable cause to make a warrantless arrest, they could have obtained a search warrant, and, since no exigency is shown, should be required to obtain the warrant before breaking in a private residence. See State v. Ranker, 343 So.2d 189 (La. 1977), and the cases cited therein.

      . The court awarded the following amounts: Kyle-$25,000; Godbey-$750; Mrs. Godbey-$750; Charity Hospital-$3,448.

      . In State v. Smith, La., 352 So.2d 216 (1977), and State v. Ranker, La., 343 So.2d 189 (1977), the majority indicated that Louisiana Code of Criminal Procedure Article 213(3) may be constitutionally infirm when officers enter a dwelling to make a warrantless arrest based on probable cause, but absent exigent circumstances. However, the constitutionality of the statute has never been squarely presented or decided. Under the principles cited, the officers had a right to rely on the statute.

      . The trial judge held only Lieutenant Fields and the City of New Orleans liable. He did so presumably because Fields fired the shotgun, which produced the injuries. No one challenges or complains of the other officers’ dismissal.


source: Caselaw Access Project

author: SANDERS, Chief Justice.

license: Public Domain

text:
    James L. FIRMIN v. Kenneth R. GARBER.
    No. 59736.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    B. J. Rawls, Morgan City, for defendant-respondent.

      Kenneth W. Ford, Morgan City, for plaintiff-applicant.
   SANDERS, Chief Justice.

This case presents important questions concerning judicial review of arbitration awards.

Kenneth Garber contacted architect James Firmin to prepare plans and specifications for the construction of a residence. A dispute arose and, in compliance with the contract, they submitted the dispute to arbitration. The arbitrator found in favor of Firmin, .the architect, in the amount of $7,821.60, plus all administrative fees and expenses. Pursuant to LSA-R.S. 9:4209, the architect petitioned the district court to confirm the award. In response, the owner sought to vacate the award. The district court confirmed the award. Garber then appealed to the Court of Appeal, which vacated the arbitrator’s award and remanded the matter for further arbitration. Firmin v. Garber, La.App., 343 So.2d 245 (1977). We granted the architect’s application for review. Firmin v. Garber, La., 345 So.2d 905 (1977).

On September 16, 1968, Garber contracted with Firmin, the architect, to prepare plans and specifications for the construction of a residence. The contract is on the standard form of the American Institute of Architects. It provides for the arbitration of disputes. The contract fixes the architect’s fee at 10% of the construction cost, with 80% of the fee due upon the receipt of bids. For a building not constructed, Article 3 provides that the. construction cost is “the lowest bona fide bid received from a qualified bidder.”

Both parties concede that the cost of construction was discussed during the negotiation of the contract. The architect testified that Garber suggested $60,000 as a goal but that no maximum was established. Instead, the owner suggested that he could reduce the costs, since he operated an electrical and air conditioning company. The owner, on the other hand, testified that the $60,000 amount discussed was a binding cost limitation. The testimony is conflicting as to whether the $60,000 referred to the entire cost or just the cost of the living area. The contract, however, contained no construction cost limitation. During the preparation of the plans and specifications, the architect informed the owner that the cost would exceed the cost range sought. The owner, however, made no request that the preparation of the plans be halted. Upon completion of the plans, the lowest qualified bid received was $105,320. The owner did not object to the plans, but requested that discussions be initiated to reduce the cost to the $60,000 range. After discussions, the architect prepared a second set of plans, which drew a low bid of $79,-240, in 1971. This bid was within the range of $60,000, based on 1969 costs.

The owner then informed the architect that he would postpone building for two years. He declined to pay the architect’s bill of $3,800, based upon a construction cost of $60,000.

Under the contract provision, the architect invoked arbitration. Following a hearing, the arbitrator awarded the architect $7,821, based on the low bid of $110,270 ($110,270 X 10% X 80% - $1,000 [already paid] = $7,821.60). The award was on the standard form and contained no reasons.

The issue presented is whether the Court of Appeal correctly vacated the arbitrator’s award under LSA-R.S. 9:4210, which provides as follows:

“In any of the following cases the court in and for the parish wherein the award was made shall issue an order vacating the award upon the application of any party to the arbitration.
“A. Where the award was procured by corruption, fraud, or undue means.
“B. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
“C. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced.
“D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
“Where an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.” (Emphasis supplied.)

The Court of Appeal held that “the award of the arbitrator is so grossly irrational as to be tantamount to ‘undue means’ and ‘evident partiality’ ” under Subsections A and B of the statute. Thus, the court vacated the award. We disagree.

Arbitration is a mode of resolving differences through the investigation and determination of one or more individuals appointed for that purpose. The object of arbitration is the speedy disposition of differences through informal procedures without resort to court action. Housing Authority v. Henry Ericsson Co., 197 La. 732, 2 So.2d 195 (1941). In recent years, arbitration has experienced a phenomenal growth. 10 Vand.L.Rev. 649-651.

Subsections A and B of the Louisiana statute are substantially the same as Section 12(a)(1) and (2) of the Uniform Arbitration Act. See 9 Uniform Acts Annot. pp. 78, 82. The Uniform Act has been adopted in nineteen states. Am.Jur.2d Desk Book Doc. No. 129. Many other states have similar statutory provisions restricting the judicial challenge of arbitration awards. Domke on Commercial Arbitration, § 33.02, p. 305 (1968). The Louisiana statute is almost identical to the federal statute, 9 U.S.C. § 10.

It is well settled in both state and federal courts that an award may be challenged only on the grounds specified in the statute. The court cannot substitute its conclusion for that of the arbitrator. United States v. Gleason, 175 U.S. 588, 20 S.Ct. 228, 44 L.Ed. 284 (1900); Housing Authority v. Henry Ericsson Co., supra; Greer v. Lowe, La.App., 94 So.2d 560 (1957); Ogden v. Baile, 73 Fla. 1103, 75 So. 794 (1917); 5 Am.Jur.2d, Arbitration and Award, § 188, p. 659.

In Housing Authority v. Henry Ericsson Co., supra, confirming an arbitration award, we stated:

“An award, ordinarily, concludes and binds the parties as to the merits of all matters, properly within the scope of the award and intended by the arbitrators to be finally decided. 6 C.J.S. Arbitration and Award § 95 page 240. In this case, the only restriction placed upon the powers of the arbitrators was as to the procedure and admission of evidence; in all other respects, they were vested with plenary power.
“Nothing in the award relative to the merits of the controversy as submitted could justify the Court in setting aside the award, in the absence of fraud, misconduct, or other objections as set forth in the Louisiana Arbitration Act.
“There is nothing in the record, made up before the arbitrators and submitted to this Court for review, which shows (a) that the award was procured by corruption, fraud or undue means; (b) that there was evident partiality or corruption on the part of the arbitrators, or either of them; (c) that the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or any other misconduct by which the rights of any party have been prejudiced; or (d) that the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. Section 10 of Act No. 262 of 1928 [the source provision of LSA-R.S. 9:4210].”

Under subsection A, the term undue means takes color from the words with which it is associated: corruption and fraud. Undue means denotes the use of misconduct or other gross deviation from normal arbitration to procure an award. It does not embrace a questionable conclusion drawn from conflicting evidence. See International Ass’n of Mach. v. Bergen Ave. Bus O. Ass’n, 3 N.J.Super. 558, 67 A.2d 362 (1949); Domke on Commercial Arbitration, § 33.02, p. 306 (1968).

Under Subsection B, the evident partiality of the arbitrator is a ground for vacating the award. To constitute evident partiality, it must clearly appear that the arbitrator was biased, prejudiced, or personally interested in the dispute. Giddens v. Board of Education of City of Chicago, 398 Ill. 157, 75 N.E.2d 286 (1947). Examples are a blood relationship with one of the parties or a pecuniary interest in the outcome of the dispute. See St. Paul Insurance Companies v. Lusis, 6 Wash.App. 205, 492 P.2d 575, 56 A.L.R.3d 687 (1971); Rothstein, Alan H., Vacation of Awards for Fraud, Bias, Misconduct and Partiality, 10 Vand.L.Rev. 813, 821; Annot., Setting Aside Arbitration Award on Ground of Interest or Bias of Arbitrators, 56 A.L.R.3d 697. The burden of proof rests upon the party attacking the award.’ Von Langendorff v. Riordan, 147 Conn. 524, 163 A.2d 100 (1960); 5 Am.Jur.2d, Arbitration and Award, § 186, p. 657.

In the present case, the arbitration respondent offered no independent evidence to establish that the award was procured by undue means or that the arbitrator had a disqualifying relationship with either of the parties or the subject matter. He relies solely on the arbitration evidence and the award.

It is true that the arbitrator’s award is debatable. Unlike the Court of Appeal, however, we do not find it to be “grossly irrational.” The applicable rule, we think, is that misconduct and partiality are not to be attributed to an arbitrator solely because a different award could be sustained. To hold otherwise would defeat the purpose of arbitration: the speedy resolution of disputes outside the court system.

We conclude, as did the district court, that the award should be confirmed.

For the reasons assigned, we reverse the judgment of the Court of Appeal and reinstate the judgment of the district court. All costs are assessed against respondent.

SUMMERS, J., dissents for the reasons assigned by the Court of Appeal. See 343 So.2d 245.

DENNIS, J., dissents for the reasons assigned by the Court of Appeal.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Louis QUALLS, Jr.
    No. 59994.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied Jan. 27, 1978.

      Bobby L. Culpepper, Baker, Culpepper & Brunson, Jonesboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whit-ten, Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Louis Qualls, Jr. was charged by bill of information with attempted first degree murder of Marjorie Walker in violation of R.S. 14:30 and R.S. 14:27. After a trial by jury, he was found guilty of attempted manslaughter and was sentenced to three years at hard labor. Defendant appeals his conviction and sentence based upon seventeen assignments of error. Finding no error, we affirm.

Between the late evening hours of September 3,1976 and the early morning hours of September 4, 1976 the following events took place. Before leaving home to join William Ray Tilley, Mrs. Marjorie Walker received a phone call from the defendant, whom she had been seeing over an eighteen month period. When she refused to meet him, he hung up in anger. Mrs. Walker then spent approximately three hours with Mr. Tilley driving around town and drinking. Mr. Tilley dropped Mrs. Walker off around eleven o’clock and joined his friends Ronnie Potts and Vernon Vines. Later Mrs. Walker was seen with the defendant at a local bar.

At approximately one-thirty a. m. Tilley, Potts and Vines came upon Mrs. Walker, apparently in a drunken state, driving erratically. They pulled her over and Mr. Tilley offered to drive her home while Potts and Vines followed. Both vehicles stopped for a short while at a filling station. Defendant pulled in, got out of his car, and fired three shots in the direction of the Walker vehicle. Tilley immediately drove off at the sound of the gun fire, and, speeding over a rain slicked road, drove off the road and hit a tree. Mrs. Walker sustained serious injuries in the accident. A police officer at the scene of the accident retrieved a bullet from inside the car and noticed a bullet hole above the rear window.

Assignment of Error No. 1

Defendant contends the trial court erred in ruling that the State’s answer to his motion for bill of particular was adequate. The trial judge’s per curiam reveals that defendant failed to note any objection to the answers or to the court’s ruling finding them sufficient. C.Cr.P. 841. The basis for an objection cannot be raised for the first time on appeal.

This assignment is without merit.

Assignment of Error No. 2

Defendant argues that a motion to quash the bill of information should have been granted. Among the various complaints, he argues that he should have been charged by grand jury indictment. Attempted first degree murder carries a maximum possible punishment of fifty years at hard labor. Only when a crime is capital or punishable by life imprisonment is a grand jury indictment mandated. Louisiana Constitution of 1974, Art. 1, § 15; C.Cr.P. 382. That fifty years might equal life imprisonment is not controlling, because of the system of classification of crimes employed in Louisiana. The other allegations raised in the motion to quash have no arguable merit.

This assignment is without merit.

Assignment of Error No. 3

Defendant contends the trial court erred in determining at a preliminary examination that there was probable cause to hold defendant for trial. We have consistently held that the question of probable cause is moot once a defendant has been tried and convicted by a jury. See, e. g., State v. Walker, 344 So.2d 990 (La.1977).

Assignment of Error No. 4

Defendant asserts as error the trial judge’s refusal to excuse a juror for cause. The juror was excused by defendant’s peremptory challenge and thus did not serve, but defendant is nevertheless allowed to raise the issue on appeal since he later exhausted his peremptory challenges. State v. Ballard, 337 So.2d 481 (La.1976).

On voir dire defense counsel asked the juror if she could assume the defendant was just as innocent as she. She responded yes but, sensing the trouble she had answering the question, the prosecutor pursued the inquiry. She then explained her feeling that if defendant were as innocent as she, he would not be on trial. The juror also revealed she would be more inclined to believe a law enforcement officer than other witnesses (her husband is a law enforcement officer). On further questioning by the trial judge, she indicated she could believe certain witness testimony over contradictory testimony by a police officer, and also accepted the proposition that the defendant was innocent until proven guilty.

The trial judge was satisfied the juror could serve impartially and would not be influenced by her husband’s employment. We cannot say that his failure to excuse her was an abuse of his discretion. C.Cr.P. 797(2) and (3); State v. Wilkerson, 326 So.2d 353 (La.1976); State v. Dupuy, 319 So.2d 294 (La.1975); State v. Blanton, 312 So.2d 329 (La.1975).

This assignment has no merit.

Assignments of Error Nos. 5, 10 and 11

Defendant argues in Assignments of Error Nos. 5 and 11 that the notice required by C.Cr.P. 768 of the State’s intention to use inculpatory statements or confessions of defendant was inadequate under State v. Sneed, 316 So.2d 372 (La.1975). Therefore, he contends, the trial court erred in admitting in testimony regarding two statements made by defendant when he arrived at the scene of the accident.

State v. Sneed, supra, held that C.Cr.P. 768 notice must specify the date or occasion of the statement and the persons to whom it was given in order to sufficiently notify defendant to be able to meet the issue. The notice provided by the State in the instant case was the same “bare bones” notice found objectionable in Sneed — “. .the State . . . intends to introduce inculpatory statements, exculpatory statements, and/or confessions made by the defendant . . . ”

In Assignment of Error No. 10, defendant asserts that a statement he made to Potts and Vines immediately after the shooting was immaterial, irrelevant and highly prejudicial to him, and therefore should not have been admitted.

The State argues, in response to all these assignments, that the statements were res gestae, and that, in regard to Assignments Nos. 5 and 11, 768 notice does not apply. See, e. g., State v. Davis, 336 So.2d 805 (La.1976); State v. Fink, 255 La. 385, 231 So.2d 360 (1970). Regarding Assignment No. 10, the State contends that the statements would be independently admissible as an exception to the hearsay rule. R.S. 15:447, 448.

The subject of these assignments is testimony regarding the following statements by the defendant. Mr. Vines testified that immediately after the shooting and after Mr. Tilley sped off with Mrs. Walker, defendant opened the door to the truck where Vines and Potts were sitting, asked what they were doing, held a gun at them, and told them they “had better get to moving.” Vines also testified that at the scene of the accident defendant drove up still holding a gun, and upon seeing Potts and Vines said “I told you to get out . . . get to moving a while ago, boy.” Vines then overheard defendant responding to Mrs. Walker’s complaints of pain by stating, “Well, that’s good for you ... I ought to have went ahead and killed you.”

Res gestae is defined as “events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events.” R.S. 15:447. “To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitant of it, or form in conjunction with it one continuous transaction.” R.S. 15:448.

The statement made to Potts and Vines at the filling station immediately after the shooting was part of a continuing transaction and properly admitted as res gestae. The statement was closely related in time and, in qualifying or characterizing it, became part of the act. State v. Curry, 263 La. 997, 270 So.2d 484 (1972). Therefore, there was no error in admitting that statement. Assignment of Error No. 10 is without merit.

The res gestae exception, however, does not reach defendant’s statements made to Potts and Vines and to Mrs. Walker at the accident scene. The State argues that the statements were all part of a continuous transaction. R.S. 15:448. The evidence is otherwise. The accident itself, which occurred within fifteen to thirty minutes after the shooting and one-half to one mile down the road, might have resulted from efforts to leave the scene of the shooting quickly. But between the time of the shooting and defendant’s appearance at the scene of the accident, defendant drove to Mrs. Walker’s home, and had time to change automobiles. No evidence indicated defendant chased Mrs. Walker’s car from the filling station to the scene of the accident. Therefore, the statements were not made under the “immediate pressure of the occurrence,” R.S. 15:447, and were not res gestae; the State erred in failing to include a more particular description of same in the 768 notice.

Nevertheless, a violation of this codal requirement does not warrant a reversal absent a showing of prejudice. State v. Dupuy, supra. As defense counsel himself asserted in oral argument, defendant’s statement to Mrs. Walker that he should have killed her would not by itself be evidence of defendant’s intent to kill her at the time of the shooting. Nor would defendant’s statement to Vines and Potts that he told them to move along awhile ago reflect directly on defendant’s guilt or innocence. No prejudice has been shown by the admission of the statements. There is no reversible merit to Assignments of Error Nos. 5, 10 and 11.

Assignment of Error No. 6

When the prosecuting attorney moved to file the article 768 notice into evidence, the trial judge asked, “That’s a notice of statement to be used.” Defendant contends that that amounted to a comment on the evidence in violation of C.Cr.P. 772. There is no merit to this contention. Although not so punctuated in the transcript, the words constituted a question by the trial judge about the subject matter of article 768. Moreover, defendant failed to object to the judge’s remarks and is therefore barred from asserting the objection here. C.Cr.P. 841.

Assignment of Error No. 7

Defendant contends there was error in allowing Mrs. Walker to testify about her injuries received in the accident following the shooting. He asserts that such testimony was irrelevant to the case. The State responds that the injuries were so related to the shooting as to be part of the res gestae.

The accident, itself, appears from the record to have been the result of excitement arising from the shooting. The car into which the shots had been fired sped from the scene of the shooting and overturned a short distance away in a one-car accident. The accident was relevant to the state of mind of the victims and the effect upon them of the shooting. The State did not dwell on this testimony and made clear that the injuries did not result from the gunshots.

This assignment is without merit.

Assignment of Error No. 8

Defendant objects to the admission of Mrs. Walker’s testimony that defendant had previously threatened her as being immaterial and highly prejudicial. Testimony regarding previous threats is admissible as declarations of the accused tending to establish motive or intent. R.S. 15:446; State v. Leming, 217 La. 257, 46 So.2d 262 (1950); State v. Nix, 111 La. 812, 35 So. 917 (1904).

There is no merit to this assignment.

Assignment of Error No. 9

Defendant contends the trial court erred in allowing the prosecuting attorney to go beyond the proper scope of redirect examination.

R.S. 15:281 provides:

“The redirect examination must be confined to the subject matter of the cross-examination and to the explanation of statements elicited on cross-examination; but the application of this rule is within the discretion of the trial judge, provided that the opportunity be not denied to recross on the new matter brought out on the redirect.”

Cross-examination by defense counsel of Mrs. Walker had been limited to questions regarding where she had been before eight o’clock p. m., her meeting that night with Mr. Tilley, and her relationship with defendant. On redirect, the assistant district attorney showed Mrs. Walker a photograph of an automobile which she identified as her own.

Although interrogation regarding Mrs. Walker’s car improperly went beyond the subject matter of the cross-examination, defendant was given the opportunity to again cross-examine Mrs. Walker, and did so. The conditions of R.S. 15:281 having been fulfilled, there has been no showing of abuse of discretion by the trial judge permitting extension of the scope of redirect. See, e. g., State v. Smith, 340 So.2d 247 (La.1976); State v. Sneed, 328 So.2d 126 (La.1976). Nor was there any prejudice to the accused by Mrs. Walker’s identification of the car in the photograph as her own.

This assignment is without merit.

Assignment of Error No. 12

While examining the arresting officer about having booked the defendant into jail, the prosecuting attorney asked, “Did he make any statement to you at that time?” After defense counsel objected to the question on the ground that no foundation had been laid, the prosecutor withdrew the question. The witness never responded to it. Defendant then moved for a mistrial alleging the statement to be prejudicial.

There is no merit to this contention. The assistant district attorney’s remark does not fit within any of the categories warranting a mistrial, C.Cr.P. 770, nor is it the kind of statement that would prejudice the jury against the defendant. C.Cr.P. 771.

Assignment of Error No. 13

There is no merit to defendant’s contention that there was an improper foundation laid or an insufficient chain of evidence for the introduction of a bullet a police officer retrieved from Mrs. Walker’s car.

Assignment of Error No. 15

Defendant contends a mistrial should have been granted when the prosecuting attorney made the following statement in closing argument:

“[W]e generally like to feel that we have a person charged with the right charge when we send them before the grand jury and the grand jury indicts them or in this case, the District Attorney’s Office files a bill of information. We just don’t write something down. We have to know what the facts and the evidence are in the case and then we can make the decision of what to charge someone with.”

The State argues the statement was offered in rebuttal to defense counsel’s argument that the State had charged defendant with the wrong crime. C.Cr.P. 774.

We find the prosecutor’s remarks could have been interpreted as an opinion of defendant’s guilt, an opinion which might have been based upon something outside the evidence admitted at trial (see, e. g., State v. Kaufman, 304 So.2d 300 (La.1974), but was not intended by the prosecution to have that effect. Although defendant’s motion for a mistrial was denied, the trial judge admonished the jury to disregard the assistant district attorney’s statement. We are of the opinion that the effect of the prejudicial remark was cured by the admonition. We reach this conclusion because the argument and rebuttal on this point were both irrelevant. At any rate, the jury found defendant guilty of attempted manslaughter, not attempted murder, which was the crime charged.

There is no merit to this assignment.

Assignment of Error No. 16

Defendant alleges error was committed in denial of his motion for a new trial. In addition to again alleging all of the assignments of error previously discussed, defendant contends there was no evidence of any of the essential elements of attempted manslaughter. The record reveals some evidence of the crime of which defendant was convicted and therefore we may not set aside the conviction. State v. Anthony, 347 So.2d 483 (La.1977). The particular argument advanced by defendant was discussed and dismissed in State v. Cooley, 260 La. 768, 257 So.2d 400 (1972). There we held that, if there is sufficient evidence to convict defendant of a greater offense which includes the offense for which defendant was convicted, the evidence will necessarily and automatically, because of our statutory system of responsive verdicts, support the conviction for the lesser offense.

This assignment is without merit.

Assignment of Error No. 17

Defendant contends the trial court erred in denying his motion in arrest of judgment basing his argument upon several grounds. C.Cr.P. 859.

Defendant first alleges that the bill of information is substantially defective in that it omits reference to the applicable subdivision of R.S. 14:30. The offense was committed on September 4,1976, one month after 14:30 was amended to omit the various subdivisions defining the offense. La. Acts 1975, No. 657, § 1.

Defendant next makes various constitutional challenges on the statutes under which he was prosecuted. He alleges R.S. 14:30 is unconstitutional without setting forth any grounds for the purported unconstitutionality. We presume he contests the death penalty to which one convicted of first degree murder is subjected. We need not reach this question, however, since defendant was not threatened with the imposition of such a penalty, having been charged only with attempted first degree murder. Defendant further contends that the attempt statute, R.S. 14:27, is unconstitutional in that part of the statute providing that “lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt” is a comment on the evidence. There is no prohibition against such a “comment” in a statute.

Defendant also contends that the allowance of a responsive verdict of attempted manslaughter for a charge of attempted first degree murder is unconstitutional. See C.Cr.P. 814(A)(2). We have previously held our responsive verdict system to be constitutional. State v. Smith, 322 So.2d 197 (La.1975); State v. Hill, 297 So.2d 660 (La.1974).

Therefore, there was no error in the trial court’s denial of defendant’s motion in arrest of judgment.

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

SANDERS, C. J., concurs.

      . Defendant’s counsel at oral argument specifically abandoned Assignment of Error No. 14, acknowledging that a motion for directed verdict is no longer available. See C.Cr.P. 778.


author: CALOGERO, Justice.

text:
    Maureen MORRIS v. Joseph GERACE, Administrator of the Dept. of Employment Security and Morton Salt Co.
    No. 60021.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied Jan. 27, 1978.
    J. Minos Simon, J. Minos Simon, Ltd., Lafayette, for plaintiff-applicant.
    Joseph Onebane, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, for defendant-respondent.
   CALOGERO, Justice.

Plaintiff, president of Local 29 of the International Chemical Workers Union and a discharged employee of Morton Salt Company, where she was also the union’s shop steward, sought unemployment compensation following her discharge from employment.

Based upon a finding by an Appeals referee that her discharge was for misconduct, a disqualification for benefits under the Louisiana Employment Act, R.S. 23:1601(2), she has successively been denied unemployment compensation benefits by the Louisiana Department of Employment Security, the Board of Review for that department, the Sixteenth Judicial District Court, Parish of Iberia, and the Court of Appeal, Third Circuit.

We granted writs upon relator’s timely application, which cited two specifications of error, one protesting impingement upon first and fourteenth amendment rights, the other complaining that her conduct in question was not misconduct as contemplated by R.S. 23:1601(2) and as construed in the case law of this state.

We pretermit consideration of the former, and finding merit in the latter assignment, we reverse the judgment below.

The facts are not in dispute. They are set out in the Court of Appeal opinion, 345 So.2d 538 (La.App. 3d Cir. 1977).

Briefly related, those facts are:

1) Management at the Morton Salt Company (a division of Morton-Norwich Products, Inc.) at Weeks Island, Louisiana had become concerned about fights which had been taking place between employees on plant premises.
2) The company posted a memorandum on a number of bulletin boards located at various locations at the plant notifying its employees that henceforth, rather than a one day disciplinary layoff, participants in a fight would be subjected to much more severe disciplinary action, up to and including discharge from employment.
3) Plaintiff, acting as president of the Local and protesting that this notice of change in company policy was not authorized by the Collective Bargaining Agreement, initiated a grievance procedure under that agreement.
4) With such grievance in arbitration and unresolved, plaintiff, after procuring the advice and assistance of the union’s attorney, secured a copy of the company notice and typed on the bottom of it a notice of her own over her signature as president of the Local, indicating that she rejected the company’s notice as not authorized by the Collective Bargaining Agreement. She expressed that the union members were not bound thereby and she suggested that anyone so disciplined report the matter to her.
5) While off duty (at the time she normally worked the day shift) she procured the consent of the company’s night mill superintendent and posted on various bulletin boards alongside the company notices copies of the instrument she had prepared.
6) The following morning the plant manager asked her to remove her notice. She refused. Several hours later she was called in and suspended.
7) Several days later Morris was called to the plant manager’s office and told that she was being discharged from her job for having refused to remove from the company bulletin boards the notices she had placed there.

The Appeals referee found plaintiff’s refusal to remove the notices insubordination and a disregard of the employer’s interest, concluding that her discharge was for misconduct in connection with employment. The Board of Review affirmed the decision of the Appeals referee noting that the “Union President should have followed the grievance procedure rather than disregarding orders to remove the notice on the bulletin board.”

The district court affirmed the action of the Board of Review for the reasons stated by the Appeals referee.

The Court of Appeal concluded that no error of law had been committed by the district court and relied heavily upon unquestionable insubordination as plaintiff’s disqualifying misconduct.

As earlier indicated we do not agree that plaintiff’s conduct in refusing personally to physically remove the notice she had placed there in her capacity as union president and shop steward was that character of employee misconduct as is contemplated by R.S. 23:1601(2).

Plaintiff occupied a dual status. On the one hand she was a salaried employee of Morton Salt Company whose job was that of a can line inspector. On the other, she was President and shop steward for Local 29 International Chemical Workers Union. In these positions her status (and that of her union) was legally sanctioned by a duly executed and legally binding Collective Bargaining Agreement.

Plaintiff similarly had dual functions and duties. She was obliged as elected president of the Local to represent her members and her union, oftentimes in opposition to the company, in a wide variety of matters including not only compensation, seniority, holidays and vacations, retirement, insurance, job classification, and wage rates but also company-imposed disciplinary sanctions, as well as grievances associated with all of the foregoing. See 29 U.S.C. 185 et seq.; Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976).

No contention is made here of employment connected misconduct in plaintiff’s placing her notice on the bulletin board. Rather she is charged with misconduct in desisting from removing the notice at the request and/or direction of the plant manager.

Since the manager had at his disposal innumerable alternative means of having the notice removed, one appropriate assumption is that his directing plaintiff to remove it was because she, as president of the Local, had placed it there. His directing plaintiff to remove the notices, under this construction, suggests that plaintiff’s position as union president rather than as Morton Salt employee earned plaintiff the removal chore.

Misconduct sufficient to disqualify a claimant from receiving unemployment compensation has been consistently defined to mean an act of willful or wanton disregard of the employer’s interest; a deliberate violation of the employer’s rules; a disregard of standards of behavior which the employer has the right to expect of his employee; or negligence in such degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligation to the employer. Horns v. Brown, 243 La. 936, 148 So.2d 607 (1963). But in every case the misconduct must be employment related. R.S. 23:1601(2).

Under these circumstances we conclude that plaintiff’s conduct in refusing to remove the notices was union related rather than employment connected.

While there are no cases in the jurisprudence directly on point we believe that generally supportive of plaintiff’s position herein are such cases as these: Johnson v. Brown, 134 So.2d 388 (La.App. 3rd Cir. 1961) (derogatory remarks about the company made to a supervisor did not constitute serious cause sufficient to deny unemployment compensation); Williams v. Brown, 157 So.2d 237 (La.App. 3rd Cir. 1963) (engaging in a fight not sufficient cause for compensation disqualification); Turner v. Brown, 134 So.2d 384 (La.App. 3rd Cir. 1961) (violations by cook of instructions given on a previous day not sufficient misconduct to deny unemployment compensation), and Atkins v. Doyal, 274 So.2d 438 (La.App. 1st. Cir. 1973) (employee’s good faith attempt at a meeting to discuss fact that he had been previously cursed by his supervisor did not constitute misconduct within meaning of unemployment statute).

Having concluded that plant manager-union president dispute was not employment connected, rather related to union-management concerns, it is axiomatic that the president’s refusal to remove the notices, however else it might be described, could not have been insubordinate as found by the Court of Appeal. Insubordination presupposes inferiority, an appellation not appropriate to. plaintiff acting in her role as union president.

Decree

For the foregoing reasons we find that the claimant-appellant is entitled to the unemployment compensation benefits to which she makes claim. The judgment of the Court of Appeal is reversed, and the case is remanded to the Board of Review for further proceedings in accordance with our decision. Plaintiff’s employer, Morton Salt Company, is cast for all costs.

REVERSED AND REMANDED.

SUMMERS, J., dissents for the reasons assigned by the Court of Appeal, La.App., 345 So.2d 538.

      . Louisiana Revised Statute 23:1601 provides that an individual shall be disqualified for benefits for specified reasons including the one pertinent here, as specified in section (2): “If the administrator finds that he has been discharged for misconduct connected with his employment.”

      . Louisiana Revised Statute 23:1634 provides in pertinent part: “In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.”

      . Morris’ notice read as follows:
      “LOCAL 29 REJECTS THIS NOTICE AS NOT AUTHORIZED BY THE COLLECTIVE BARGAINING AGREEMENT. UNION MEMBERS ARE NOT BOUND BY THIS. ANY ONE DISCIPLINED ON THIS ACCOUNT IS TO REPORT TO ME IMMEDIATELY! ”

      . She testified at the hearing before the Appeals referee that she posted her notice because she felt that failure to challenge the company’s posted policy change could be interpreted as an acquiescence in the policy change in future arbitrations involving the new policy.

      . In the hearing before the Appeals referee the plant manager acknowledged that there was a standing policy by which the company assented to use of company bulletin boards for the posting of “routine” union notices. Interestingly, the United States Supreme Court in N.L.R.B. v. Magnovox Company of Tennessee, 415 U.S. 322, 325, 94 S.Ct. 1099, 1102, 39 L.Ed.2d 358 (1974), said “[t]he place of work is a place uniquely appropriate for dissemination of views concerning the bargaining representative and the various options open to the employees.” In Gale Products, 142 N.L.R.B. 1246, 1249, the National Labor Relations Board stated thusly:
      “Their place of work is the one location where employees are brought together on a daily basis. It is the one place where they clearly share common interests and where they traditionally seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.”

      . In this position, Ms. Morris earned $3.40 per hour.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Walter BURNETTE and James Granger.
    No. 60053.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied Jan. 27, 1978.

      James J. Gleason, III, Public Defender, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendants Walter Burnette and James Granger were charged by indictment with the aggravated kidnapping of Tracey Johnson. La.R.S. 14:44. After a trial by jury, defendants were found guilty and were sentenced to the custody of the Department of Corrections for the rest of their natural lives. Defendants have appealed, relying upon forty assignments of error.

We find reversible error in assignment number 21 and thus pretermit consideration of the other assignments.

On the evening of December 8, 1972 the two defendants and several other persons were in the Black Hat Lounge on Highway 190, south of Covington. Among those present, besides the defendants, were the victim, Tracey Johnson, a woman of about thirty, and her companion, Bill Mulvey, as well as Larry Saltzman and Lucille Gibbons. The State’s theory of the case was that the defendants, who suspected that Johnson and Mulvey had been sent to kill them by a third person, lured the victims away from the lounge to a remote spot where Mulvey was killed and Johnson was kidnapped. Johnson was taken to Mississippi and murdered, but this case involves only a prosecution for kidnapping.

Defendants contend that the trial court erred in refusing to declare a mistrial when the prosecuting attorney referred twice in rapid succession to other crimes allegedly committed by the defendants. During his opening statement to the jury, the prosecuting attorney stated:

“A few days after the kidnapping, the trailer of Lucille Gibbons, who was present at the time, the night of December 7, in the Black Hat, was shot up with more than 60 bullet holes in it while she and her young daughter were in it.
“Sometime during the year 1973, the defendant, Walter Burnette, came from Houston, Texas to Ponchatoula, Louisiana, for the expressed purpose of killing Larry Saltzman.”

At this point, defense counsel moved for a mistrial under Louisiana Code of Criminal Procedure Article 770, which provides that “a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the . . . district attorney, . during the trial or in argument, refers directly or indirectly to; . another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible; * * * The trial judge’s denial of the motion forms the basis for the instant assignment of error.

On appeal, the State urges that the remarks of the prosecutor were not sufficient to mandate a mistrial because attempts on the lives of witnesses are admissible to show the defendant’s consciousness of guilt. Although this exception to the inadmissibility of other-crimes evidence has never been expressly recognized in Louisiana, an analogous situation was presented in State v. Graves, 301 So.2d 864, 866 (La.1974). In that case, the defendant contended that the trial court erred in allowing introduction of evidence tending to show that he had attempted to influence the testimony of witnesses. This Court upheld the ruling of the trial court, stating:

“Defense counsel argues that the remark of the prosecutor referring to the alleged intimidation of a witness is evidence of another crime, inadmissible at the trial because of its unduly prejudicial effect. He relies upon State v. Moore, 278 So.2d 781 (La.1973) and State v. Prieur, 277 So.2d 126 (La.1973). Generally speaking, these cases stand for the proposition that evidence of other crimes to prove knowledge, system or intent is inadmissible when its relevance is outweighed by its prejudicial effect. To support its position, the defense also urges that Article 770 of the Code of Criminal Procedure requires that a mistrial be ordered when a remark or comment, made within the hearing of the jury by the district attorney, refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.
“The authority relied upon is not pertinent here. Although an attempt to bribe or influence a witness is a criminal offense under Louisiana law, La.R.S. 14:118, an attempt by an accused in a criminal prosecution to induce a witness to testify falsely may be introduced in evidence against him. This evidence is admissible since it leads to an inference that, if admitted, it would operate unfavorably to the accused. Similarly, an attempt to fabricate evidence is receivable in a criminal prosecution as evidence of one’s guilt of the main facts charged, such fabrication being in the nature of an admission. State v. Rohfrischt, 12 La. Ann. 382 (1857); Staggs v. State, 51 Ala.App. 203, 283 So.2d 652 (Ala.Cr.App. 1973); Curtis v. State, 44 Ala.App. 63,202 So.2d 170 (1967); Davis v. Commonwealth, 204 Ky. 601, 265 S.W. 10 (1924); People v. Hooper, 50 Mich.App. 186, 212 N.W.2d 786 (1973); State v. Ettenberg, 145 Minn. 39, 176 N.W. 171 (1920); State v. Christian, 245 S.W.2d 895 (Mo.1952); State v. Minton, 234 N.C. 716, 68 S.E.2d 844 (1952); State v. Reuschel, 131 Vt. 554, 312 A.2d 739 (1973); 29 Am.Jur.2d, Evidence, ¶¶ 292 & 293. Before such attempts are admissible, however, there must be some evidence to connect the accused therewith or to show that the attempt by a third person was made with the authorization of the accused. People v. Terry, 57 Cal.2d 538, 21 Cal.Rptr. 185, 370 P.2d 985 (1962), cert. denied, 375 U.S. 960, 84 S.Ct. 446, 11 L.Ed.2d 318 (1963).”

Further, an examination of the relevant jurisprudence from other jurisdictions reveals that evidence of threats or attempts on the lives of witnesses is a well-recognized exception to the general rule that evidence of other crimes is not admissible. See, United States v. Grillo, 468 F.2d 1233 (2d Cir. 1972); United States v. Howard, 228 F.Supp. 939 (D.Neb.1964); State v. Valenzuela, 109 Ariz. 1, 503 P.2d 949 (1973); State v. Hill, 47 N.J. 490, 221 A.2d 725 (1966); State v. Johnson, 394 S.W.2d 344 (Mo.1965); People v. Terry, 21 Cal.Rptr. 185, 370 P.2d 985 (1962); State v. Arnold, 130 Wash. 370, 57 Cal.2d 538, 227 P. 505 (1924); People v. Spaulding, 309 Ill. 292, 141 N.E. 196 (1923); Sapp v. State, 87 Tex.Cr.R. 606, 223 S.W. 459 (1920); State v. Matthews, 202 Mo. 143, 100 S.W. 420 (1907); State v. Rozuiii, 8 N.D. 548, 80 N.W. 477 (1899); Wigmore on Evidence, § 278 (3d ed. 1940).

As these cases indicate, actions by the defendant which are designed to prevent witnesses from testifying give rise to an inference that the defendant acted from an awareness or consciousness of his own guilt. Such evidence, much like the bribery attempt in Graves, supra, has substantial probative value in a proceeding designed to test the guilt or innocence of an accused. For this reason, the question of whether the evidence should be admitted has been almost universally answered in the affirmative.

Recognizing, however, that the admission of such other-crimes evidence poses a substantial threat of prejudice to the accused, other jurisdictions which allow the admission of the evidence have imposed certain strictures upon its use. Generally stated, the prevailing rule is that the state must present substantial evidence tying the threats, intimidation, or acts of physical violence to the accused. McCormick explains the standard to be applied:

“In the first place, it is clear that the other crime, when it is found to be independently relevant and admissible, need not be established beyond a reasonable doubt, either as to its commission or as to defendant’s connection therewith, but for the jury to be entitled to consider it there must of course be substantial evidence of these facts, and some courts have used the formula that it must be ‘clear and convincing.’ And it is believed that before the evidence is admitted at all, this factor of the substantial or un-convincing quality of the proof should be weighed in the balance.” [footnotes omitted]

Moreover, even where the trial judge finds the other-crimes evidence has substantial independent relevance, he is empowered to exclude such evidence if in his judgment its probative value for this purpose is outweighed by the danger that it will “stir such passion in the jury as to sweep them beyond a rational consideration of guilt or innocence of the crime on trial.” McCormick on Evidence, § 190, p. 454 (2d ed. 1972); People v. McKinney, 24 N.Y.2d 180, 299 N.Y.S.2d 401, 247 N.E.2d 244 (1969); State v. Gilligan, 92 Conn. 526, 103 A. 649 (1918); cf. State v. Frederick, 340 So.2d 1353 (La.1976); State v. Gaines, 340 So.2d 1294 (La.1976); State v. Clark, 338 So.2d 690 (La.1976); State v. Moore, 278 So.2d 781 (La.1973). A clearly erroneous decision on this question of balancing probative value against danger of prejudicial effect will be corrected on appeal as an abuse of discretion.

Thus, a trial court in determining the admissibility of evidence of other criminal acts of the accused, constituting admissions by conduct, intended to obstruct justice or avoid punishment for the present crime, must decide outside the jury’s presence and in advance of the introduction of the evidence whether (1) the evidence fits the class of evidence constituting such admissions by conduct; (2) there is substantial evidence that the defendant committed the other crimes; and (3) the probative value of such other crimes evidence will outweigh its prejudicial effect. If the other crimes evidence fails to pass any of these three tests it must be excluded.

The correct application of this three-pronged inquiry, in advance of the introduction of the other crimes evidence and out of the jury’s presence, is crucial in a situation such as is presented in the instant case. For if evidence is referred to in the jury’s presence which does not meet the criteria outlined above, it will constitute a reference by the prosecuting attorney to “another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible” and a mistrial will be mandatory upon motion of the defendant.

In the case at bar, the prosecuting attorney referred to two crimes allegedly committed by the defendants: the shooting which occurred at the trailer of the witness, Lucille Gibbons, and an attempted murder of the accomplice-witness Larry Saltzman by Walter Burnette. At the trial on the merits, no evidence was introduced to link the defendants to either offense. In fact, no evidence was presented to establish that Burnette actually made the alleged trip from Houston or that he ever took any step with the intent to kill Saltzman so as to constitute an essential element of the crime of attempted murder. Further, during the testimony of Mrs. Gibbons, in a discussion out of the presence of the jury, the prosecuting attorney conceded to the court that he had no evidence whatever which would in any way connect the defendants with the trailer shooting incident. Under these circumstances, the evidence as to the alleged attempts on witnesses was inadmissible, and the trial judge fell into error when he failed to declare a mistrial pursuant to the mandate of Article 770. Since the other crimes evidence referred to in the State’s opening statement was never introduced, we do not reach the question of whether its prejudicial effect would have outweighed its probative value.

The State argues that its groundless accusations in the presence of the jury that the defendants had made attempts on the lives of prosecution witnesses should be disregarded as “harmless error.” In considering such an argument we are bound by the legislative intention of Louisiana Code of Criminal Procedure Article 921, which provides:

“A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.”

Although this law is expressed in the negative, it clearly imposes an affirmative obligation upon this Court to reverse a conviction whenever it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right. Since the defendants were deprived of a mistrial which the legislature has expressly stated “shall be ordered,” La.C.Cr.P. art. 770, there undoubtedly was a substantial violation of a statutory right. The prosecution’s ease relied heavily on the testimony of Larry Saltzman, who claimed to have been with the defendants at the time of the crimes, but whom the State freely admitted had been granted immunity for his testimony. Saltzman’s testimony alone, if believed by the jury, would have been sufficient to form the basis of the convictions. However, Saltzman was forced to admit in the jury’s presence that he had been convicted of burglary seven times, that he had been engaged in marijuana trafficking, that Bur-nette had “ripped him off” for more than $15,000, that he would lie if it were to his advantage, and that he had been granted immunity in return for his testimony against Burnette and Granger. In short, there were reasonable grounds for jurors to question Saltzman’s credibility as a witness, and if the jurors did not believe Saltzman’s story there was a substantial basis for them to have reasonable doubts as to the guilt of the defendants. Therefore, the prosecuting attorney’s remarks to the jury in which he broadly implied that the defendants had attempted to kill two prosecution witnesses in order to obstruct justice and avoid punishment for the crimes for which they were on trial can hardly be regarded as insignificant. Although the State did not in fact have any substantial evidence that defendants had made such attempts, the jury was in all likelihood led to believe that such evidence did exist. None of the other evidence in the case corroborated Saltzman’s testimony as directly or as effectively as the prosecuting attorney’s remarks which in effect accused the defendants of attempting to cover up cold blooded homicides with even more deliberate murders. None of the other evidence presented as great a danger of inflaming the passion of the jury. Accordingly, we cannot in all candor say that the remarks of the prosecuting attorney were not prejudicial or that they could not have been the deciding factor in the jury reaching verdicts of guilty.

The State’s brief, nevertheless, seemingly urges us to weigh the evidence and affirm the convictions because the evidence is overwhelmingly in favor of conviction. But our constitution prohibits this Court from deciding the factual question of guilt or innocence and restricts our scope of review to questions of law in criminal cases. La.Const.1974, Art. 5, § 5. Thus, it would be a violation of the constitution and our oaths to weigh the evidence or to decide upon the question of guilt or innocence or to disregard reversible errors of law. Consequently, we are not allowed to speculate as to what verdict the jury would or should have reached had the prosecuting attorney not made his improper remarks referring to the inadmissible, but nevertheless very damning, other crimes evidence; instead, we are required to review the record for reversible errors of law and to declare them when found.

Accordingly, we conclude that the prosecuting attorney’s remarks referring to other offenses supposedly committed by the defendants, in support of which the State actually was not prepared to prove or even present substantial evidence, were unlawful and highly prejudicial, and that the trial judge fell into reversible error in refusing to grant a mistrial as required by law. For these reasons the defendants’ convictions and sentences are reversed and the case is remanded for a new trial consistent with this opinion.

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

      . An early Illinois case, People v. Spaulding, 309 Ill. 292, 305-6, 141 N.E. 196, 202 (1923), discussed the historical antecedents of the exception:
      “From the days of Moses to the present time it has been the law that a person who fabricates, suppresses, or destroys evidence must take the consequences of the honest indignation which his conduct naturally excites. Moses declared, ‘Cursed be he that removeth his neighbor’s landmark.’ Deut. 27, 17. Modern decisions establish the rule that all efforts by either party to a suit, directly or indirectly, to destroy, fabricate, or suppress evidence, may be shown as a circumstance indicating that the party’s cause is an unrighteous one. Winchell v. Edwards, 57 Ill. 41; Chicago City Railway Co. v. McMahon, 103 111. 485, 42 Am.Rep. 29; Tanton v. Keller, 167 Ill. 129, 47 N.E. 376; 1 Wigmore on Evidence (2d Ed.) § 278; Burrill on Circumstantial Evidence, 419. Evidence that the accused has attempted to destroy evidence against himself is always admissible for the purpose of showing consciousness of guilt (People v. Fox, 269 Ill. 300, 110 N.E. 26), as is also evidence tending to show an attempt to bribe witnesses (State v. Constantine, 48 Wash. 218, 93 P. 317; Commonwealth v. Min Sing, 202 Mass. 121, 88 N.E. 918; State v. Huffman, 86 Ohio St. 229, 99 N.E. 295, Ann.Cas. 1913D, 677). In People v. Roberts, 306 Ill. 240, 137 N.E. 802, evidence showing that the defendant arranged for the conveyance out of the state of the prosecuting witness and gave her money to remain away from the county during the trial was considered admissible for the purpose of showing consciousness of guilt. State v. Keith, 47 Minn. 559, 50 N.W. 691, and Blair v. State, 72 Neb. 501, 101 N.W. 17, are similar cases, and the holdings are the same. In Bowman v. United States, 50 App.D.C. 90, 267 F. 648, the defendant was convicted of murder. It was held proper to prove that he had threatened to kill the only eye-witness to the murder and that he had assaulted the witness with intent to kill.”

      . In Louisiana, a similar standard was applied by this Court in Graves, supra. There, the majority noted that “before such attempts are admissible . . . there must be some evidence to connect the accused therewith.” 301 So.2d at 866.

      . McCormick on Evidence, § 190, at 451-2 (2d ed. 1972).

      . Louisiana Code of Criminal Procedure Article 770 provides:
      “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      “(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      “(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      “(3) The failure of the defendant to testify in his own defense; or
      “(4) The refusal of the judge to direct a verdict.
      “An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”

      . We are cognizant of the fact that, in discussing the attempt on Mrs. Gibbons, the prosecutor did not refer directly by name to the defendants. Further, it is at least arguable that coming “from Houston, Texas, to Ponchatoula, Louisiána, for the expressed purpose of killing Larry Saltzman” may not involve sufficient proximity to completion of the offense to constitute attempted murder. Article 770, however, expressly speaks of comments which refer “directly or indirectly” to other crimes allegedly committed by defendants, and a reading of the transcript of the opening statement imparts the unquestionable impression that the defendants are being accused, in the presence of the jury, of two separate instances of attempted murder.

      .The State’s only evidence even related to such an attempt by Burnette was by direct examination of Saltzman:
      “Q. Did Walter ever threaten you?
      A. Yes, me and my family and everything.
      Q. How did he threaten you?
      A. Going to have me killed, and have my family killed, my little girl, things like that.”
      This evidence of a threat to have Saltzman killed is insufficient to qualify as substantial evidence of the attempted murder at least indirectly or impliedly referred to by the prosecuting attorney in his opening statement to the jury-


author: TATE, Justice. SANDERS, Chief Justice

text:
    CITY OF SHREVEPORT, Plaintiff-Appellant, v. David P. KAUFMAN, Defendant-Appellee.
    No. 60102.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied Jan. 27, 1978.
    John Gallagher, City Atty., Lawrence K. McCollum, Charles R. Scott, Asst. City At-tys., Shreveport, for plaintiff-appellant.
    Jack H. Kaplan, Gamm, Greenberg & Ka-plan, Shreveport, for defendant-appellee.
   TATE, Justice.

This case raises important issues concerning the effect of the Louisiana Constitution of 1974 upon local-subdivision home rule charters. Specifically, we must decide whether the 1950 charter of the City of Shreveport, in the light of the 1974 constitution, may validly grant to that municipality the authority to punish conduct as gambling which is not included within the state legislature’s definition of the crime.

On an appeal from city court, the district court reversed defendant’s conviction for a 1976 violation of a city gambling ordinance. The court held the ordinance unconstitutional. The city appeals the judgment declaring the ordinance unconstitutional directly to this court. La.Const. of 1974, Art. 5, Section 5(D)(1).

I.

Before examining the precise issue before us, we deem it advisable to summarize the historical and constitutional context in which it arises.

By a 1948 amendment of the 1921 constitution, the people of Shreveport were granted the right to draft, vote upon, and adopt a charter. La.Const. of 1921, Art. 14, Section 37 (1948). Pursuant to this authority, the Shreveport City Charter was adopted and became effective on November 14, 1950.

However, the constitutional provision (Article 14, Section 37) authorizing Shreveport home rule failed to specify particular delegations of authority, unlike the counterpart provisions authorizing home rule charters in East Baton Rouge Parish, La.Const. of 1921, Art. 14, Section 3(a) (1946), and in Jefferson Parish, Art. 14, Section 3(c) (1956). As a consequence, in distinguishing decisions relating to the latter home rule charters, we held that, while their constitutional authorizations granted the local governments of these parishes certain powers, the 1921 constitution as amended withheld these powers from Shreveport by its failure expressly to delegate them. Bradford v. City of Shreveport, 305 So.2d 487 (La.1974).

The 1974 constitution’s Article 6 sets forth only broad general rules regulating local government. They replace the intricate detail of the 1921 constitution’s Article 14, which included, for instance, specific authorizations for each local subdivision empowered to adopt a home rule charter.

Thus, Article 6, Section 4 of the new constitution provides for continuation of home rule charters and powers then in effect, “except as inconsistent with this constitution.” It also provides that these local home-rule governments, if their charter permits, “also shall have the right to powers and functions granted to other local governmental subdivisions.” The powers of “other” (i. e., non-home rule) local governments, if approved by their electorate, extend to all those “necessary, requisite, or proper for the management of its affairs, not denied by its charter or by general state law.” Art. 6, Section 7(A).

The new constitution’s approach thus represents a broad change in the philosophy of local government as formerly expressed by the 1921 document. Rather than granting local governmental subdivisions only such powers as were expressly granted to them by the constitution or the legislature, the new constitution grants them broad residual powers. If authorized by their home rule charter (or by vote of the people, if no home rule charter is adopted), the local governments are authorized to exercise any power necessary, requisite or proper for local government — providing that such powers are not (a) inconsistent with the 1974 constitution or (b) denied them by general legislation. Art. 6, Sections 4, 5(E), 7(A).

As the idea was subsequently articulated by a leading delegate in the constitutional convention, Kean, “Local Government and Home Rule,” 21 Loy.L.Rev. 63, 66 (1975): “Thus, the concept embodied in Article VI completely reversed the theory of local government as a ‘creature of the state’ with only delegated authority. The old strict constructionist theory is also replaced by one which recognizes that so long as the Legislature does not deny a power, local government possesses it, thereby rendering any further enabling legislation unnecessary.”

II.

Section 2.04(d) of the Shreveport City Charter, adopted by vote of the people of that city, authorizes the enactment of an ordinance prohibiting gambling. For present purposes, we will assume no general statute prohibits Shreveport from adopting an ordinance regulating gambling. Nevertheless, the ordinance, as adopted, is inconsistent with Article 12, Section 6, of the 1974 constitution, for reasons to be stated.

This provision reads: “Neither the state nor any of its political subdivisions shall conduct a lottery. Gambling shall be defined by and suppressed by the legislature.” (Italics ours.)

The legislature has defined gambling in R.S. 14:90: “Gambling is the intentional conducting, or directly assisting the conducting, as a business, of any game, contest, lottery, or contrivance whereby a person risks the loss of anything of value in order to realize a profit.” (Italics ours.)

To the extent that a local government seeks to punish as “gambling” conduct which falls outside the definition enacted by the legislature (now La.R.S. 14:90), it attempts to exercise authority which is inconsistent with Article 12, Section 6 of the Constitution.

As (solely) authorized by the constitution, the legislature has defined certain conduct as gambling when conducted “as a business.” A local government may be authorized to punish the offense of gambling, as thus defined by the legislature; it may not, however, similarly punish non-business conduct as “gambling”, since the legislature alone is given the constitutional power to define what conduct shall be suppressed as constituting gambling.

The district court correctly held the Shreveport gambling ordinance unconstitutional, in the light of the principles stated, because: “ * * * by legislative definition, the prohibited activities must be conducted as a business. The city ordinance at issue includes the definition, but goes far beyond that and prohibits [social] activities which would not be classified as a ‘business.’ ”

Decree

Accordingly, for the reasons stated, we affirm the judgment of the district court holding Section 21-30 of the Ordinances of the City of Shreveport to be unconstitutional, and reversing the defendant’s city-court conviction for violation thereof. The costs of these proceedings are assessed against the plaintiff-appellant, insofar as permitted by law.

AFFIRMED.

SANDERS, C. J., dissents with written reasons.

SUMMERS; J., dissents for the reasons assigned by the Chief Justice.

SANDERS, Chief Justice

(dissenting).

Shreveport is a Home Rule City. In its Home Rule Charter, it is granted the authority to enact ordinances “necessary or desirable to promote the general welfare safety, health, good order . and morals of its inhabitants.” Specifically, the Charter authorizes the City to make regulations for the prevention or prohibition of gambling for money or property, by any method or device.

By virtue of the Home Rule Charter, there can be no doubt that Shreveport had the power to define and regulate gambling under the 1921 Constitution. City of New Orleans v. Stone, 221 La. 133, 58 So.2d 736, 738 (1952).

In the City of New Orleans v. Stone, supra, dealing with a similar Home Rule Charter, this Court stated:

“It is seen from the foregoing that the city of New Orleans has been invested with sweeping police power, entitling it to legislate on all matters affecting the community irrespective of whether the Legislature has legislated thereon and subject only to the single proviso that the ordinances of the city shall not directly conflict with the provisions of any state laws on the same matter. Thus, since it appears that the city is given the power to adopt ordinances for the suppression of lotteries, even though the Legislature itself has passed general and special laws concerning the same subject, it is difficult to perceive that the city ordinance is amenable to a charge that it is in direct conflict with the state law unless the latter can be regarded as covering ‘the entire subject matter.’ ”

The case of City of Alexandria v. LaCombe, 220 La. 618, 57 So.2d 206 (1952), on which defendant relies, pertained only to “Lawrason Act” cities and was inapplicable to cities with Home Rule Charters. See City of New Orleans v. Stone, supra. Moreover, that decision was legislatively overruled by Act No. 327 of 1952. See LSA-R.S. 33:4851.1.

I conclude, therefore, that the gambling ordinance of the City of Shreveport was valid when adopted under the 1921 Constitution.

The key question, then, is whether the 1974 Constitution divested Shreveport of power which it had under the former constitution. I think not.

As the majority notes, Article 6, Section 4 of the 1974 Constitution continues in effect all existing home rule charters. Significantly, it further provides:

“Except as inconsistent with this constitution, each local governmental subdivision which has adopted such a home rule charter or plan of government shall retain the powers, functions, and duties in effect when this constitution is adopted. If its charter permits, each of them also shall have the right to powers and functions granted to other local governmental subdivisions.” [Emphasis added.]

As a basis of inconsistency, the majority cites Article 12, § 6, providing:

“Neither the state nor any of its political subdivisions shall conduct a lottery. Gambling shall be defined by and suppressed by the legislature.” [Emphasis added.]

This section makes it mandatory for the Legislature to define and suppress gambling. I find no language, however, to indicate that the power to define gambling is granted exclusively to the Legislature.

In fact, the section appears to be only an editorial revision of Article 19, Section 8 of the 1921 Constitution, which admittedly did not bar municipal definition and suppression of gambling. The 1921 section provided in pertinent part:

“Gambling is a vice and the Legislature shall pass laws to suppress it.”

Although there is some inconclusive language in the debates, the weight of the delegates views indicate that the rephrasing was intended to make no change in the powers of municipalities to define and regulate gambling.

For example, Delegate Duval stated that the provision “does not change the law at all.” XXXVI Constitutional Convention, Verbatim Transcripts, 112th day, p. 127.

Speaking of the provision, Delegate Gravel stated:

“This does not prohibit the legislature from doing what it has already done— and I think this is very important — right now there’s a law on the statute books that authorizes municipalities to define gambling in a manner different from the manner that it’s defined in Article 90 of the Criminal Code. This could not in any way adversely effect that right of the legislature.” XXXVII, 113th day, p. 26.

The same delegate later stated:

“Well, I’ll have to answer you the same way I answered Mr. Kean. If you have the same problem, my answer to you is the same as the answer I gave to him that this sentence mandates the legislature to define and prohibit commercial gambling. It does not prohibit the legislature from defining gambling otherwise, or from authorizing local government authorities to define gambling on a different basis which they presently do.” Id. p. 27.

For other statements that Article 12, Section ' 6 of the 1974 Constitution was not intended to change the law, see XXXVII, Verbatim Transcript, 113th day, pp. 4, 8, 9, 13, 19-22, 24-35, 55-57.

The general thrust of the new constitution, especially Article VI, was to strengthen municipal home rule. See Kean, Local Government and Home Rule, 21 Loy.L.Rev. 63. If the delegates had intended to divest municipalities of substantial powers, they would have undoubtedly used specific language.

The effect of the present decision is not limited to Shreveport, or even to home rule cities like it. It also effects non-home rule municipalities with a population of one hundred thousand or less. Although the Legislature has expressly authorized these smaller municipalities to define gambling (LSA-R.S. 33:4851.1), this decision has the effect of invalidating that statute.

The case of Bradford v. City of Shreveport, La., 305 So.2d 487 (1974), cited generally by the majority, dealt with an entirely different issue under a different portion of the Home Rule Charter. Clearly, it has no application to the issue in the present case.

For the reasons assigned, I respectfully dissent.

      . Thus, unlike municipal governments authorized solely by legislative act, the home rule charter of Shreveport and other home-rule subdivisions were founded upon constitutional grant, in many respects independent of subsequent legislative modification or restriction.

      . Article 6, Section 4 declares: “Every home rule charter or plan of government existing or adopted when this constitution is adopted shall remain in effect and may be amended, modified, or repealed as provided therein. Except as inconsistent with this constitution, each local governmental subdivision which has adopted such a home rule charter or plan of government shall retain the powers, functions, and duties in effect when this constitution is adopted. If its charter permits, each of them also shall have the right to powers and functions granted to other local governmental subdivisions.”

      .Amendments to existing home rule charters, as well as home rule charters adopted pursuant to the new constitution’s general provisions, were authorized to include “the exercise of any power and performance of any function necessary, requisite, or proper for the management of its affairs, not denied by general law or inconsistent with this constitution.” Article 6, Section 5(E). (Italics ours.)

      . Section 2.04 of the Charter, entitled “Powers Relating to the Preservation of the Public Peace, Good Order, Safety, Health, and Morals,” provides, in pertinent part:
      “In addition to the powers granted by other sections of this plan of government, the city shall have power:

      (d) To make all necessary regulations for the prevention and prohibition of gaming for money or property, by any method or device, . . ."
      A basis under the 1921 constitution for police regulations of this nature, where the home rule authorization is silent, is found at Article 14, Section 40(d) (1952).

      . See LSA-Const. (1921), art. 14, Sect. 37.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. ALLIED SUPERMARKETS, INC., d. b. a. K-Mart Food Stores.
    No. 60132.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied Jan. 27, 1978.

      Hayes L. Harkey, Jr., Hayes, Harkey, Smith & Cascio, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., Stephanie W. Dawson, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Allied Supermarkets, Inc., doing business as K-Mart Food Stores, was charged by bill of information with 127 separate counts of misrepresenting the price and quantity of a commodity, to-wit: 127 different packages of beef, pork and poultry, sold and offered for sale to actual and prospective customers in violation of La.R.S. 55:15(A). Defendant corporation pleaded guilty as charged through counsel and was sentenced to pay a fine of $150 on each of the 127 counts or a total sum of $19,050, plus court costs. Defendant objected to the sentences at the time of imposition and appeals therefrom asserting a single assignment of error.

Defendant contends that the sentences imposed by the trial judge are illegal in that they amount to the imposition of multiple punishments for a single offense and exceed the maximum fine prescribed for the charged offense in La.R.S. 55:19. Defendant argues that the bill of information charged only a single offense since the statute pursuant to which defendant was charged, La.R.S. 55:15(A), merely provides for a single offense and the packages of meat, whose weights were misrepresented by defendant, were sold at the same counter in the same grocery store and were inspected on the same day to determine if their weights had been misrepresented, a practice commonly known as shortweighing meat.

The sole issue presented for our consideration is whether defendant was punished more than once for the same offense. Resolution of this issue rests upon a determination of whether the legislature in enacting La.R.S. 55:15(A) intended to make each misrepresentation of the price or quantity of a commodity, thing or service a separate offense subject to separate punishment. See, State v. McCarroll, 337 So.2d 475 (La.1976).

La.R.S. 55:15(A) provides:

A. No one shall misrepresent the price or quantity of a commodity, thing, or service sold or offered or exposed for sale, to any actual or prospective customer.

We consider that the intent of the legislature is clearly expressed in the language of the statute. The use of the singular language indicates that each misrepresentation of the price or quantity of a commodity, thing, or service sold or offered or exposed for sale, to any actual or prospective customer is an offense under the statute. Moreover, it is obvious from a reading of the statute that the purpose of the legislature in enacting the provision was to protect an actual or prospective customer from deceptive or misleading practices of a vendor by making it a punishable offense to misrepresent the price or quantity of a commodity, thing or service sold, offered or exposed for sale. Clearly, this legislative purpose can only be effectuated by making each misrepresentation of the price or quantity of a commodity, thing or service a separate offense subject to separate punishment. To hold otherwise would defeat the purpose of the statute.

Accordingly, we conclude that the legislative intent in enacting La.R.S. 55:15(A) was to punish each misrepresentation as a separate offense.

In the instant case, the cuts of beef, pork and poultry, whose weights were misrepresented by defendant, were individually weighed, packaged and priced by employees of defendant corporation. The packages of meat were each marked with the price per pound and the total content of meat weight. In each case, the marked content of meat weight was more than the actual weight. Each package was offered or exposed for sale to-any prospective customer in the display counter of a retail store opened for business to the public. Ultimately, during the ordinary course of business, these packages of meat would be sold to actual customers. Hence, each of defendant’s misrepresentations of the quantities of the 127 packages of beef, pork and poultry constituted a separate offense under La.R.S. 55:15(A), which offenses were properly charged in the same bill of information in separate counts in accordance with La.Code Crim.P. art. 493. As separate offenses, defendant was subject to separate punishment for each offense. We therefore conclude that the trial judge did not err in sentencing defendant to a separate punishment on each of the 127 counts charged in the bill of information and to which defendant pleaded guilty. Hence, defendant’s contention that the sentences imposed in this case were illegal iyi that they amounted to multiple punishments for a single offense is without merit.

DECREE

For the reasons assigned, defendant’s convictions and sentences are affirmed.

      . La.R.S. 55:19 provides that whoever violates La.R.S. 55:15(A) or any other provision contained in Chapter 1 of Title 55 of the Revised Statutes entitled “State Commission of Weights and Measures” shall, for the first offense, be fined not less than twenty dollars nor more than two hundred dollars or imprisoned for not more than three months, or both. For each subsequent offense, he shall be fined not less than fifty dollars nor more than five hundred dollars or imprisoned for not more than one year, or both.

      . La.Code Crim.P. art. 493 provides:
      Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.