author: DIXON, Justice. DIXON, Justice. SUMMERS, Justice DENNIS, Justice,

text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General. v. LEGISLATIVE BUDGET COMMITTEE et al.
    No. 59726.
    Supreme Court of Louisiana.
    April 27, 1977.
    Reasons for Judgment May 5, 1977.
    Dissenting Opinion June 28, 1977.
    Concurring Opinion July 1, 1977.

      William D. Brown, Brown, Wicker & Lee, Monroe, Camille F. Gravel, Jr., Christopher J. Roy, Gravel, Roy & Burnes, Alexandria, for defendants-respondents.
    William J. Guste, Jr., Atty. Gen., Kendall L. Vick, Donald B. Ensenat, Asst. Attys. Gen., Ronald C. Davis, Staff Atty., Louisiana Dept, of Justice, New Orleans, for plaintiff-applicant.
   DIXON, Justice.

On the application of William J. Guste, Jr., Attorney General, plaintiff in the above entitled and numbered cause, we granted writs on the 22nd Day of April, 1977, 345 So.2d 48 to consider the ruling of the district court, which had dismissed the plaintiff’s suit on April 7, 1977. Because of representations by the applicant of the urgent nature of the issues, this case was fixed for argument on April 26, 1977.

For reasons to be assigned in a written opinion to be handed down at a later date, the judgment of the district court is affirmed.

OPINION

DIXON, Justice.

On January 3, 1977 the State of Louisiana ex rel. William J. Guste, Jr., Attorney General, filed suit for a declaratory judgment against the Legislative Budget Committee and its individual members, seeking to have the provisions of R.S. 39:311(A) declared unconstitutional. The Nineteenth Judicial District Court found the statute constitutional and entered judgment dismissing the plaintiff’s suit on the merits. The Attorney General applied to this court for a writ of certiorari to review the adverse judgment of the district court. On April 22, 1977 the State’s application for a writ of certiorari was granted. State of Louisiana ex rel. Guste, Jr., Attorney General v. Legislative Budget Committee, 345 So.2d 48 (La.). For the reasons set forth below, the judgment of the district court is affirmed.

In 1962 the legislature first created the Legislative Budget Committee. La.Acts 1962, No. 368 § 1, emerg. eff. July 18,1962, now R.S. 39:311 et seq. With some modifications the committee has been in existence for almost fifteen years. In 1976 the legislature re-enacted R.S. 39:311 et seq. La.Acts 1976, No. 538 § 1. R.S. 39:311 currently provides:

“A. The Legislative Budget Committee is hereby created. The committee shall be composed of twenty-eight members, twelve from the membership of the House of Representatives, twelve from the membership of the Senate, to be appointed by the governor; the chairman of the Appropriations Committee of the House of Representatives; the chairman of the Senate Finance Committee; the speaker of the House of Representatives and the president of the Senate; provided, however, that the speaker of the House of Representatives and the president of the Senate may each authorize one member of their respective bodies to meet with the committee in their absence which person shall serve and exercise full voting privileges as a member of the committee. Of the members appointed from each of the houses of the legislature one shall be appointed from each of the eon-gressional districts in the state; the four additional members appointed from the membership of the House of Representatives and the four additional members appointed from the membership of the Senate shall be selected at large.
“The initial appointments to be made in accordance with the provisions of this Subsection shall be made not later than the first day of September, 1976. The members of the committee shall serve for terms of four years or until their successors are appointed and take office. A vacancy for any cause shall be filled for the unexpired term in the same manner as the original appointment.
“B. The committee shall select a chairman, a vice chairman, sergeant at arms and such other officers and employees as the committee deems necessary.
“C. The members of the committee, as well as such individuals as may be authorized by the speaker of the House of Representatives and/or the president of the Senate to meet in their absence, shall receive the same per diem and travel allowance in the performance of their duties as is provided for members of the legislature.”

The functions of the committee are set down in R.S. 39:312 as follows:

“It shall be the duty of the committee, with the assistance of the division of administration and legislative fiscal office, to make such study and examination of matters pertaining to the budgeting of state funds and the revenues, expenditures and fiscal affairs of the state as it deems desirable including the authority to recommend and assist in implementing zero base budgeting by state agencies. The committee shall work with the office of the governor and the division of administration in the preparation of the state budget to be presented to the legislature for its consideration at its regular sessions. It shall make such reports of its findings and recommendations with regard thereto to the legislature as it shall deem advisable. The committee shall have any other duties and responsibilities provided or requested by law.”

In this suit the plaintiff contends that the authority of the governor to appoint twenty-four of the twenty-eight members of this “legislative” committee, as provided in R.S. 39:311(A), violates the Appointments Clause, La.Const. Art. IV § 5(H), and the Separation of Powers article, La.Const. Art. II §§ 1 and 2, of the Louisiana Constitution.

I.The Appointments Clause

Plaintiff contends that the Legislative Budget Committee solely performs legislative functions and that since the “appointments clause” of the Louisiana Constitution limits the governor’s power of appointment to the appointment of heads of departments or members of commissions in the executive branch of government, he is precluded from appointing members to this “legislative” committee. The appointments clause is contained in Article IV § 5(H) of the Constitution and provides:

“(1) The governor shall appoint, subject to confirmation by the Senate, the head of each department in the executive branch whose election or appointment is not provided by this constitution and the members of each board and commission in the executive branch whose election or appointment is not provided by this constitution or by law.
“(2) Should the legislature be in regular session, the governor shall submit for confirmation by the Senate the name of an appointee within forty-eight hours after the appointment is made. Failure of the Senate to confirm the appointment, prior to the end of the session, shall constitute rejection.
“(3) If the legislature is not in regular session, the governor may make interim appointments, which shall expire at the end of the next regular session, unless submitted to and confirmed by the Senate during that session.
“(4) A person not confirmed by the Senate shall not be appointed to the same office during any recess of the legislature.”

Plaintiff relies upon the recent United States Supreme Court decision of Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). In Buckley the United States Supreme Court construed the federal Constitution’s appointments clause (Art. II § 2, cl. 2) to limit the power to appoint officers exercising executive functions to the President. That case does not support plaintiffs position. The federal article differs from our constitutional provision and was utilized in Buckley to prohibit the legislative body from appointing officials to serve on a commission. The court found that members of the Federal Election Commission (granted by statute both rule-making, policy-making, investigative and enforcement power) could not constitutionally be appointed by the legislature, but were officers whose appointment was controlled by Art. II § 2, cl. 2 of the United States Constitution. The separation of powers question in the Buckley case was not whether the executive could appoint legislators to a “commission,” but whether the legislature could name executive officers to enforce its laws.

Plaintiff’s argument that the appointments clause limits the governor to appointing only officials exercising executive powers is based upon a misconception of the nature of our state Constitution. The federal Constitution is a document of “enumerated powers” (Amendment X, U.S. Const.). The Louisiana Constitution is different. Complete legislative power, except as limited by the Constitution, lies within the state legislature:

“A general principle of judicial interpretation of a state constitution is that, unlike the federal constitution, a state charter’s provisions are not grants of power, they are rather limitations on the power of the people exercised through the state legislature. In its exercise of the entire legislative power of the state, the legislature may enact any legislation that the state constitution does not prohibit. Thus, to hold legislation invalid under the state constitution, it is necessary to rely upon some particular constitutional provision that limits the power of the legislature to enact the statute assailed.” In re Gulf Oxygen Welder’s Supply Profit Sharing Plan and Trust Agreement, 297 So.2d 663, 665 (La.1974).

See also Hainkel v. Henry, 313 So.2d 577 (La.1975); Kane v. Louisiana Commission on Governmental Ethics, 250 La. 855, 199 So.2d 900 (1967).

Involved in this case is the legislative power to grant the governor the right to appoint a number of legislators to serve on the budget committee. Art. IV § 5(H) cannot be construed to mean that the governor can appoint to these and only these executive offices. The section does not provide that the governor may appoint executive officials; nor does it prohibit other appointments by the governor. In fact, Art. IV § 5(K) of the Louisiana Constitution provides that the governor “shall have other powers and perform other duties authorized by this constitution or provided by law" Under R.S. 39:311 the governor merely appoints legislators, already duly elected, to serve on a committee whose function is to aid in the cooperation between the legislative and executive branches on matters pertaining to the state budget. Since the appointments clause does not operate to restrict the legislative power to enact R.S. 39:311(A), and does not limit the power of the executive to appoint, it does not affect the constitutionality of R.S. 39:311 unless there is a violation of the separation of powers doctrine.

II. The Separation of Powers Article

The Separation of Powers (distribution of powers) article of the Constitution provides:

“Section 1. The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.
“Section 2. Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.” La.Const. 1974, Art. II §§ 1 and 2.

As the plain language of section 2 indicates, this provision of the Constitution is violated only if one branch of government or its members exercises power belonging to either of the others. The plaintiff alleges that the clause is violated because the governor is exercising legislative authority by appointing twenty-four of twenty-eight members of this “legislative” committee. This argument is without merit. The committee was established and exists as a result of a statute enacted by the legislature. All of the members of the committee are legislators. The legislature determined the method of selection and authorized the governor to appoint twenty-four members of the committee from its own number.

The legislative power is the power to make laws. As stated in Springer v. Government of Philippine Islands, 277 U.S. 189, 202, 48 S.Ct. 480, 482, 72 L.Ed. 845, 849 (1928): “Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions.”

In the federal system it is clear that the legislature may not appoint officers to enforce its laws (Buckley v. Valeo, supra; Springer v. Philippine Islands, supra; see Guidry v. Roberts, 335 So.2d 438 (La.1976)), because it would invade the exclusive realm of the executive. In the case before us, does the appointment of legislators by the governor invade the exclusive realm of the legislature? We think not. The exercise of such power of appointment does not make laws, nor does it so influence the law-making process that there is an indirect invasion of the legislative process.

The Legislative Budget Committee in the exercise of its duties (R.S. 39:312) gathers information about the fiscal affairs of the state, works with the executive in the preparation of the state budget (which the governor must prepare and submit to the legislature pursuant to Art. VII § 11, La.Const. 1974 and R.S. 39:41) and makes such reports and recommendations to the legislature as the committee determines. The members serve for a term of four years. R.S. 39:311.

The preparation and submission to the legislature of fiscal legislation and budgetary planning are not exclusive functions of either the legislature or the executive in Louisiana. The executive must prepare (Art. VII § 11, La.Const.1974) but only the legislature can enact the appropriations bill.

It could not have been contemplated that the doctrine of separation of powers should prevent a cooperative effort by the executive and legislative branches in fiscal planning for the state.

Since we find no violation of the appointments clause or the separation of powers doctrine, the judgment of the district court is affirmed.

DENNIS, J., concurs in the result and assigns reasons.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

The majority holds that because the Legislative Budget Committee “works with the executive in the preparation of the state budget” and “makes such reports and recommendations to the legislature as the committee determines,” the Committee is not exercising the legislative power to make laws, nor does the Governor’s appointment power “so influence the law-making process that there is an indirect invasion of the legislative process.”

In essence, the Court views the Legislative Budget Committee as a mere advisory body to the Governor and the Legislature. If this were true, then the selection of the Committee’s members by the Governor would probably not be violative of the separation of powers doctrine enshrined in Louisiana’s Constitution. However, this is not the case.

The Committee is, to the contrary, a very powerful committee sitting as an interim fiscal legislature when the Legislature is not in session. Each general appropriations bill and the capital budget outlay programs authorize the Committee to exercise discretionary powers to rewrite and modify those acts. Thus the Committee may: 1) approve all transfers of funds from one category to another; 2) approve the expenditure of unforeseen or increased federal grant monies and self-generated revenues; 3) approve the transfer of appropriations when the functions of a state agency are transferred to another agency or agencies; 4) monitor all state expenditures to assure that receipts of the Treasury do not fall short of expenditures; 5) approve all salary increases in excess of five percent; 6) approve an annual aggregate increase in excess of 25 employees for any agency; and 7) approve the use of interest earned by idle capital funds for the purpose of completing capital projects.

Obviously the Legislature cannot foresee all fiscal exigencies which may arise when it is not in session. Therefore, while it is not in session, it has granted its basic and most fundamental legislative power, the power to appropriate, to the Committee. The appointment by the Governor of 24 of the 28 members of that committee is therefore a delegation of legislative authority to the executive.

This delegation of legislative authority to the executive cannot be sanctioned on the theory of cooperation between these branches of the government. The doctrine of separation of powers directs otherwise: “[N]o one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.” La.Const. art. II, § 2 (1974). The opportunity to cooperate today is an opportunity to abuse and corrupt tomorrow.

It is the disregard of this fundamental doctrine of checks and balances which is at stake here. It has been expressed eloquently in Humphrey’s Executors v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1934):

“The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential coequality. The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there. James Wilson, one of the framers of the Constitution and a former justice of this court, said that the independence of each department required that its proceedings ‘should be free from the remotest influence, direct or indirect, of either of the other two powers.’ Andrews, The Works of James Wilson (1896), vol. 1, p. 367. And Mr. Justice Story in the first volume of his work on the Constitution, 4th ed., § 530, citing No. 48 of the Federalist, said that neither of the departments in reference to each other ‘ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers.’ ”

Under the majority’s faulty reading of the separation of powers doctrine in Louisiana’s Constitution, the Legislature may just as well relinquish to the Governor the power to name the members of its standing committees and their chairmen. While this example may seem extreme and all would recognize it as a patent surrender of legislative powers, the appointment of members of the Committee by the governor is a far more potent surrender of legislative powers affecting as it does the appropriation of funds.

I would hold this legislative surrender of authority to the executive unconstitutional.

DENNIS, Justice,

concurring in the result only.

I agree that the district court was correct in dismissing the suit of the attorney general but not for the reasons expressed in the majority opinion.

In Stoddard v. City of New Orleans, 246 La. 417, 165 So.2d 9 (1964) we held that the courts are without power to render advisory opinions on abstract questions and that a justiciable controversy is essential to the exercise of the power to render declaratory judgments.

This Court, in Louisiana Independent Auto Dealers Association v. State, 295 So.2d 796 (La.1974), quoted with approval as requisites for finding a justiciable controversy the following:

“ ‘Not only must the plaintiff prove his tangible interest in obtaining a judgment, but the action must be adversary in character, that is, there must be a controversy between the plaintiff and a defendant, subject to the court’s jurisdiction, having an interest in opposing his claim. Unless the parties have such conflicting interests, the case is likely to be characterized as one for an advisory opinion, and the controversy as academic, a mere difference of opinion or disagreement not involving their legal relations, and hence not justiciable.’ Borchard, Declaratory Judgments, p. 30 (2d Ed. 1941).”

An examination of the pleadings, briefs, attachments, and the entire record in this case fails to disclose that the attorney general has any tangible interest in obtaining the judgment he seeks or any real interest in opposing the committee’s existence or exercise of authority under the legislation in question. Nor does there appear to be any actual conflict of interest between the parties so that our decision of the question posed by the attorney general will affect their legal relations.

Accordingly, it is clear that any decision rendered in this proceeding could amount to nothing more than an advisory opinion. In my view the case should have been dismissed without adjudication of the abstract question raised. For these reasons I concur in the affirmance of the dismissal of plaintiff’s suit but cannot subscribe to the reasons for judgment below or in this Court.

      . Subsequently, the suit was dismissed as to the individual members of the committee and in its present posture the only defendant in the lawsuit is the Legislative Budget Committee.

      .The remainder of the enabling legislation for the Legislative Budget Committee appears in R.S. 39:313-16 as follows:
      “§ 313. The committee shall have the power and authority to hold hearings, subpoena witnesses, administer oaths, require the production of books and records and to do all other things necessary to accomplish the purposes of this Part, including the power to punish for contempt and to provide for the prosecution in accordance with the laws of this state of any individual who refuses to testify or who is charged with false swearing or perjury before the committee. The committee shall have such other powers and authority as are provided by law or the general appropriations or capital outlay bills."
      “§ 314. The committee shall have the authority to employ professional, clerical, and other necessary personnel; to set the compensation of the officers and employees necessary for carrying out the provisions of this part and any mandates of the legislature and governor.” “§ 315. The division of administration, legislative fiscal office, office of the governor, legislative council, legislative auditor’s office and all of the agencies, boards, commissions and departments of the state and of any of its political subdivisions are hereby directed to assist the committee in its work and to furnish such information, reports, aid, services and assistance as may be requested, all without any cost or charge of any nature to the committee.”
      “§ 316. A. The committee shall submit its recommendations to the governor and to each member of the legislature on the first of April of each year.
      “B. The governor shall submit his budgetary recommendations to the committee three weeks prior to each regular session of the legislature and the governor shall submit the executive budget for which provision is made in R.S. 39:43 to the legislature on the first day of each regular session of the legislature.”

      .Defendant filed in the district court and seriously urges before us that the plaintiff is without a right or cause of action: that he seeks an advisory opinion; that his obligation is other than attacking the constitutionality of statutes; that there is no case or controversy before the court (see In re Gulf Oxygen, infra).
      Because it seemed to us that the existence of the suit affected important governmental functions, and because the decision in the district court almost coincided with the scheduled meetings of the Legislative Budget Committee, we decided that it was more important to remove any uncertainty resulting from the suit by deciding the merits and pretermitting decisions on preliminary exceptions, as serious and important as they may be. Fully recognizing the want of logic in this procedure, the majority was of the opinion that since only slight ingenuity is required to pose the same issues with “real” parties with “standing” in a justiciable controversy, the state could be better served by answers to the basic questions of the suit than by answers to the “threshold” question.

      . Article II § 2, cl. 2 of the United States Constitution provides:
      “He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

      . The principle of Buckley v. Valeo would invalidate a statute creating a committee to perform functions exclusively executive when the legislature named the members of the committee. Here, R.S. 39:311 names four legislators as ex-officio members of the committee. The Attorney General, however, does not attack the statute for this reason. R.S. 39:311, by the terms of Act 538 of 1976, will be ineffective after March 10, 1980, when a new section, R.S. 24:651, becomes effective, providing for a joint legislative committee on the budget, composed of the House Appropriations Committee and the Senate Finance Committee.


source: Caselaw Access Project

author: DIXON, Justice. CALOGERO, Justice, DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Frank J. LAIN.
    No. 58951.
    Supreme Court of Louisiana.
    May 16, 1977.
    Dissenting Opinion July 1, 1977.

      Bernard Kramer, Law Office of Bernard Kramer, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., L. Paul Gianfala, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On July 8, 1976 Frank J. Lain was charged by bill of information with possession of marijuana with intent to distribute in violation of R.S. 40:966(A)(1) and (B)(2). Defendant pleaded not guilty and filed a motion to suppress the marijuana seized on the date of his arrest. He argued that the search was conducted without probable cause and was a warrantless search not justified by any recognized exception to the warrant requirement. After a hearing on his motion, the trial judge ruled that the evidence was constitutionally seized. Thereafter, with the consent of the State and the approval of the trial judge, defendant changed his plea to guilty conditioned upon his right to appeal the trial court’s adverse ruling on the motion to suppress. Defendant was sentenced to serve three years in the custody of the Department of Corrections which sentence was suspended, and he was placed on three years active probation. Defendant relies upon two assignments of error for reversal of his conviction. (Pursuant to our ruling in State v. Crosby, 338 So.2d 584 (La.1976), the defendant’s conditional guilty plea properly preserves the judge’s ruling for appellate review).

Assignments of Error Nos. 1 and 2

In Assignment of Error No. 1 defendant' argues that the trial judge erroneously ruled that there was probable cause for the search. The second assignment of error presents for review the existence of an exception in this case justifying the warrant-less search. At the hearing on the motion to suppress, the following facts were established.

At approximately 11:00 p. m. on April 3, 1976, Detective Jimmy Chevalier of the Alexandria Police Department, received a call from a police informant. The informant related that an individual known as Frank Lain supposedly had a “large quantity” of marijuana in the trunk of his green 1968 or 1969 Pontiac GTO. After extensive examination by both sides, Detective Chevalier candidly admitted that he could not remember whether the informant had claimed to have seen the “large quantity” of marijuana in the trunk of defendant’s car. However, he was certain that the informant told him that shortly before the call the informant had seen a “quantity” of marijuana “in the car” and that there was “supposed to be a large quantity of marijuana in the trunk.”

At the time he received this information, Detective Chevalier was off duty. However, since the informant told Detective Chevalier where he thought the vehicle might be located, Detective Chevalier called Officer Lamkin, also of the Alexandria Police Department, and conveyed the information to him. Officer Lamkin drove to the part of town where the suspect GTO was allegedly located. At approximately 12:15 a. m. on April 4, 1976 Officer Lamkin noticed the suspect vehicle and began to follow it. The driver, Frank Lain, stopped the car, got out, and walked back to the officer’s vehicle. At that point Officer Lamkin exited his car, identified himself as a police officer, and stated: “I [have] probable cause to search [your] car for narcotics.” Lamkin then instructed Miss Tracy Lolan, a passenger in the defendant’s vehicle, to get out of the car and he searched the passenger compartment.

In the ash tray Lamkin found five “roaches.” He then placed defendant under arrest for possession of marijuana and advised him of his Miranda rights. Officer Lamkin then asked defendant for a key to the trunk, saying: “Well, I’m going to have to get into your trunk because, you know, I’m looking for a large quantity of narcotics and they were not in the front and I’m going to get into the trunk of your car.” Defendant claimed to not have a key to the trunk. A number of people began to gather around the scene (a residential neighborhood), several backup police units had arrived and their red lights were flashing. Officer Lamkin then determined to have the defendant’s car towed to the police station where it could properly be searched.

Defendant was taken by the police to the station, and after being booked, was placed in jail. Once the wrecker delivered the car to the station, Officer Lamkin, still without a key to the trunk, removed the back seat and directed a flashlight into the trunk compartment through holes cut for speakers. He saw a large plastic bag, but was unable to determine what the contents of the bag might be. At this moment defendant’s father arrived and Mr. Lain was told that his son was arrested for possession of marijuana and that the police intended to open the trunk by forcing the lock, if necessary. Mr. Lain agreed to go home and get a spare key to the trunk of his son’s car. He returned some thirty minutes later with the key. The trunk was opened (at about 2:00 a. m.) and approximately eleven pounds of marijuana were found inside the plastic bag. (It is undisputed that valid consent was not obtained to search the trunk). On the basis of the discovery of this large amount of marijuana, defendant was charged with possession with intent to distribute and ultimately pleaded guilty to this charge.

Probable Cause

Defendant contends that the informant did not relate sufficient facts to Detective Chevalier in order to establish the reliability of his information. (It is conceded that this informant had been proved reliable by giving reliable information in the past). He argues that the allegation that marijuana was “supposed to be in the trunk” is not a sufficient statement of fact upon which probable cause can be determined.

Defendant’s argument overlooks the chronology of the search. The informant had related that he had seen a quantity of marijuana in the car. Not more than an hour after this information was related to the police, the passenger compartment was searched based upon this assertion of fact, clearly establishing the reliability of his information. This information was sufficient to give the police probable cause to believe that at least in the passenger compartment defendant had a quantity of marijuana. The discovery of the five “roaches,” when coupled with the informer’s assertion that a “large quantity” of marijuana was “supposed to be in the trunk,” sufficiently corroborated the reliability of the information. Therefore, after the discovery of the “roaches,” the officers had probable cause to search the trunk for marijuana.

Warrantless Search

The closer issue presented is whether a search warrant was required either at the time of the initial search of the passenger compartment or at the time of the search at the police station. It is clear that under the Fourth Amendment of the United States Constitution as well as Louisiana Constitution Article I § 5, a warrantless search is “per se unreasonable” unless it falls within a limited number of well delineated exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Hearn, 340 So.2d 1365 (La.1976); State v. Mora, 307 So.2d 317 (La.1975); State v. Hargiss, 288 So.2d 633 (La.1974). The only exception arguably applicable on these facts is the existence of probable cause and “exigent circumstances” make the securing of a search warrant impracticable. E. g. State v. Hearn, supra; State v. Jones, 315 So.2d 270 (La.1975); State v. Massey, 310 So.2d 557 (La.1975). The rationale of the automobile exception is that “the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting . . . ” Chambers v. Maroney, 399 U.S. 42, 50-51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, 428 (1970). See also, State v. Hearn, supra.

In this case it is clear that at the time of the search of the passenger compartment, the opportunity to search was fleeting and, thus, there were exigent circumstances justifying the warrantless search. However, it is strongly contended that once the defendant was arrested and the automobile was in police custody at the station, there ceased to exist exigent circumstances, and the police could have obtained a warrant. (That the second search might be unconstitutional is important; without the discovery of the large quantity of marijuana defendant could only have been prosecuted for simple possession, a misdemeanor). If this is so, the large quantity of marijuana should have been suppressed. U.S.Const. Amend. IV; La. Const. Art. I, § 5; C.Cr.P. 703.

“Exigent circumstances” normally exist when a moving vehicle is the subject of a search because of its mobility and the possibility that it could quickly be removed from the jurisdiction and the evidence destroyed. Faced with these possibilities, police armed with probable cause are justified in stopping the vehicle. At this point, in order to preserve the evidence and make an effective search, the police must either immediately search the car or seize it until a warrant can be obtained. Since both the warrantless seizure and the warrantless search constitute significant invasions of privacy, it may be difficult to ascertain which is the “lesser” intrusion. Chambers v. Maroney, supra; State v. McQueen, 278 So.2d 114 (La.1973). Normally, however, if the police decide to hold the car under police custody so that a warrant can then be safely obtained, there is no justification, after custody is effected, for a later war-rantless search. See State v. Jones, supra; State v. Massey, supra; State v. Hargiss, supra. Cf. State v. Gordon, 332 So.2d 262, 265 (La.1976) (the warrantless search was authorized “while it [the automobile] was still located on the highway”); State v. Thomas, 310 So.2d 517 (La.1975).

Under exceptional circumstances it has been held that if there is a reasonable basis for moving the vehicle from the place where it was initially stopped, and at the time of the arrest the police had the legal right to search where the police eventually searched, and a relatively short time elapses between the decision to move the vehicle to a safer location and the ultimate search, then the search is constitutional. Chambers v. Maroney, 399 U.S. 42, 52 n. 10, 90 S.Ct. 1975, 1981 n. 10, 26 L.Ed.2d 419, 429 n. 10 (1970); State v. Thomas, supra; State v. McQueen, supra. Cf. also, Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975) (dissenting opinion). The search under these circumstances is said to be constitutional. State v. McQueen, supra.

All of the important factors are present in this case. The car was stopped late at night (12:15 a. m.), in a residential neighborhood; people were gathering, flashing lights on a number of police cars were creating a disturbance, and defendant claimed not to have a key to the trunk. Thus, the police acted reasonably in taking the car to a calmer, better lighted location with the hope of avoiding breaking the trunk open. The car trunk could have been searched where the car had originally stopped, and at the time of the arrest for possession of marijuana the police could have searched the trunk in connection with that charge. Finally, less than two hours elapsed between the decision to move the car and the ultimate search (a substantial part of which was due to the unexpected delay in towing the car to the station and the defendant’s father’s delay in securing the trunk key). Under these circumstances, the subsequent search of the trunk, as the initial search of the passenger compartment, was made under “exigent circumstances” and was constitutional.

For the foregoing reasons, the conviction and sentence are affirmed.

SANDERS, C. J., concurs in the decree.

CALOGERO, J., dissented and filed an opinion in which DENNIS, J., concurred.

MARCUS, J., concurs.

DENNIS, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I disagree with the majority’s holding that probable cause existed for the search of the trunk of defendant Lain’s automobile, and also with the holding that demands of exigency vitiated the need for obtaining a warrant to search the trunk of the car where the car had been taken into police custody. La.Const. art. I, § 5 (1974).

DENNIS, Justice,

dissenting.

I respectfully dissent for the reasons assigned by CALOGERO, J.

      . The author is of the personal view that exigent circumstances do not exist when the automobile is lawfully (R.S. 40:989) in custody of police at the station. If there is an opportunity to obtain a search warrant, the circumstances are not exigent, and we should require that a warrant be obtained. Nevertheless, that is not the state of the law.


author: PER CURIAM.

text:
    STATE of Louisiana v. Charles Lee JACKSON.
    No. 58861.
    Supreme Court of Louisiana.
    May 25, 1977.
    James W. Brodtmann, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant can raise the issue of the constitutionality of the identification by application for writ of habeas corpus. However, on appeal, his conviction and sentence are affirmed.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Billy TAYLOR.
    No. 58915.
    Supreme Court of Louisiana.
    June 20, 1977.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Kurt F. Sins, Asst. Dist. Atty., for plaintiff-appellee.
    James J. Gleason, III, Director, Public Defender Office, 22nd Judicial District Court, New Orleans, for defendant-appellant.
   SANDERS, Chief Justice.

In 1971, a grand jury indicted the defendant, Billy Taylor, for aggravated kidnapping, a violation of LSA-R.S. 14:44. A jury found the defendant guilty, and the court imposed the death penalty. This Court affirmed the conviction, but remanded with instructions to sentence him to life imprisonment. La., 282 So.2d 491 (1973). The United States Supreme Court reversed. 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

In 1975, another grand jury indicted him for the same offense. However, due to an error in the Clerk of Court’s office, the State sought a new indictment.

On February 9, 1976, a grand jury indicted him for the aggravated kidnapping of Mrs. Louise Willie, Ernestine Willie, and Andrew Jenkins. On February 16, 1976, the District Attorney’s office amended the indictment, reducing the charge to the simple kidnapping of Mrs. Louise Willie. LSA-R.S. 14:45. The defendant pled not guilty and not guilty by reason of insanity. A five-man jury returned a unanimous guilty verdict. The court found the defendant to be a fourth offender and sentenced him to fifty years imprisonment at hard labor. LSA-R.S. 15:529.1

The defendant appeals. He relies on twenty-one assignments of error for reversal of his conviction and sentence.

We adduce the following context facts:

The defendant entered a parked car in which Mrs. Louise Willie, her daughter, Ernestine, and her grandson, Andrew Jenkins, were passengers. By threatening Ernestine with a butcher knife, he forced Mrs. Willie to drive to Mandeville. There, on an abandoned road, he raped Mrs. Willie. Later, he took their money and identification and released them.

ASSIGNMENT OF ERROR NO. 1

The defense moved for the appointment of a sanity commission to examine the defendant. The court appointed Dr. Healy, a coroner, and Dr. Bloom, a psychiatrist, to the commission.

At the sanity hearing, the court qualified Dr. Healy as an expert to testify to the defendant’s present mental condition. Defense counsel objected' without assigning any specific ground.

In State v. Sosa, La., 328 So.2d 889 (1976), we stated:

“However, it is well settled that counsel must state the basis for his objection when he makes it, pointing out the specific error which the trial court is allegedly making so that the trial judge has an opportunity to rule upon it. An assignment of error reserved to a trial court ruling where no basis for objection has been stated presents nothing for this Court’s review. LSA-C.Cr.P. Art. 841; State v. Burgy, La., 320 So.2d 175 (1975); State v. Preece, La., 270 So.2d 850 (1972); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967).”

As defendant failed to state a ground for his objection, this assignment of error is not reviewable.

Assuming, however, that we may treat this allegation, we find it ill-founded. The defendant’s principle contention in brief is that Dr. Healy is not qualified under Louisiana Code of Criminal Procedure Article 644, since he has no expertise in the psychiatric field.

Article 644(A) requires only that a physician be licensed to practice medicine in Louisiana and actually practice medicine for three consecutive years prior to his appointment on a sanity commission. This article authorizes the court to appoint a coroner. See Official Revision Comment (a). A physician need not be a psychiatrist to be a member of the commission. State v. Vince, La., 305 So.2d 916 (1974); State v. Cloud, 246 La. 658, 166 So.2d 263 (1964).

Dr. Healy met the requirements of Article 644(A). See also LSA-C.Cr.P. Art. 647.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

At the conclusion of the sanity hearing, the trial court found the defendant competent to stand trial. Defense counsel objected. We find no error in the ruling.

The evidence strongly supports the finding that the defendant possessed the capacity to understand the proceedings and assist in his defense. See LSA-C.Cr.P. Art. 641.

The assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

The defendant complains of the admission of the sanity report into evidence at the sanity hearing. In brief he raises two grounds: that Dr. Healy was not qualified to sign the report and that the report was not the best evidence of its contents.

The defense advances the best evidence argument for the first time on appeal. Our law prohibits counsel from expanding his appellate argument to add a ground not raised at the trial level. LSA-C.Cr.P. Art. 841; State v. Rossi, La., 273 So.2d 265 (1973); State v. Jones, 250 La. 1007, 201 So.2d 105 (1967).

The defendant avers that Dr. Healy was unqualified to sign the sanity report because Dr. Bloom’s diagnosis influenced Dr. Healy’s diagnosis.

Initially, we note that Dr. Healy did make independent findings of the defendant’s present mental ability.

The fact that Dr. Bloom’s diagnosis admittedly influenced Dr. Healy’s medical conclusions does not affect Dr. Healy’s competency to sign the report. Rather, it goes to the weight given his testimony and diagnosis. The members of the sanity commission sign and issue the sanity report. See LSA-C.Cr.P. Art. 645.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

The court ordered Dr. Healy and Dr. Bloom to examine the defendant and report on his present mental condition and his mental status on the date of the offense. See LSA-C.Cr.P. Arts. 643, 850. Dr, Bloom evaluated the defendant’s sanity at both points in time, but Dr. Healy only determined his present sanity.

The defendant alleges that the court erred in ruling that the commission satisfactorily discharged its duty for Dr. Healy failed to evaluate the defendant’s mental capacity at the time of the offense.

A defendant is not entitled of right to an examination and evaluation of his sanity at the time of the offense. LSA-C.Cr.P. Art. 650. Whether a sanity commission is directed to investigate his sanity at that time lies within the discretion of the trial judge. State v. Link, La., 801 So.2d 339 (1974) and the cases cited therein.

The issue of the defendant’s sanity at the time of the offense is a jury question. The defendant could, as the trial judge noted, interrogate Dr. Healy on that issue at the trial. Defense counsel chose not to call him. See State v. Link, supra. However, he did extensively question Dr. Devillier, a psychiatrist called by the defense, and Dr. Bloom concerning sanity at the time of the offense.

The effect of the trial judge’s ruling was to dispense with a supplemental report by Dr. Healy on sanity at the time of the offense. We find no abuse of discretion.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 5 AND 6

The defendant avers that the trial court erred in refusing to quash the 1971 and 1975 indictments.

Subsequent to trial, the State dismissed them. Thus, these complaints are moot.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 7

The defendant’s fourth motion to quash contests the validity of the February 9,1976 indictment. He alleges that women and blacks were systematically excluded from, or alternatively included in, the grand and petit jury venires.

To support his allegation, he introduced the latest St. Tammany Parish census figures and data concerning the prospective juror’s questionnaires. In addition, he called the St. Tammany Parish Clerk of Court for testimony.

This evidence indicates the following:

Females comprise 52% plus of the parish population and males 47% plus. Of the females, 82% plus are white, and 17% plus are black. Of the males, 83% plus are white, and 16% plus are black.

The Parish Jury Commission routinely selects every fifth or sixth name from the voting list, the telephone directory, and the Louisiana Gas Company’s customer list. The Clerk of Court testified that there was no discrimination for or against any race or sex. She further explained that the persons canvassing the lists blindly select the names, that is, the persons choose prospective jurors by their numerical order on the lists. These lists make no reference to race. However, because of the prefix Mr. or Ms. or of the gender of the given name, the sex of a prospective juror is often ascertainable.

Each name selected receives a prospective juror’s questionnaire. In this case, the commission sent out 776 questionnaires, 30% plus to females and 69% plus to males. When the questionnaires were returned, they were placed in the jury box. It is from this box that the Jury Commission picked the grand jury and petit jury ve-nires. Thirty names were drawn for the grand jury venire, 6% plus females, 93% plus males; and 100 names for the petit jury venire, 35% females, 65% males.

The grand jury was composed entirely of males. Of the 5 jurors chosen for trial, 3 were women, 2 were men.

To support a challenge made to the composition of a jury venire, the defendant must demonstrate that the State has not complied with the statutory procedures for the selection of the venire or that there has been systematic discrimination affecting that class in the selection of the jury panel. See State v. Haynes, La., 339 So.2d 328 (1976); State v. Jones, La., 332 So.2d 461 (1976); State v. Brown, La., 319 So.2d 409 (1975).

The only evidence introduced to support his allegation of exclusion, or alternatively inclusion, of blacks are the census figures. These figures reflect that approximately 17% of the total population is black. The record does not reflect the percentages of blacks sent the questionnaire, chosen for the grand or petit jury venire, or selected for grand or petit jury service. Without this evidence, comparison of percentages concerning blacks is impossible. State v. Nix, La., 327 So.2d 301 (1975). Clearly, defendant has fallen short of proving historic exclusion or inclusion of blacks.

As to women, the defendant contends that the selection of the jury venires from voting lists, telephone books, and utility subscribers denies him a fair cross section of the community since the latter two sources are predominately listed in male names.

We have approved of the compilation of jury panel names by random selection from voting registration rolls, telephone books, and utility lists. State v. Lynch, La., 323 So.2d 781 (1975); State v. Evans, La., 304 So.2d 338 (1974); State v. Foy, La., 278 So.2d 38 (1973); State v. Millsap, 258 La. 883, 248 So.2d 324 (1971). The defendant has failed to present specific evidence to support his allegation that these lists are predominately male.

This Court will not set aside a jury venire on a disparity between the percentages of women chosen for that venire and women comprising the parish population. Evidence of systematic exclusion, or inclusion, of a class, not mathematical variations of their percentages, is the determinative factor. State v. Bastida, La., 310 So.2d 629 (1975); State v. Watson, La., 301 So.2d 653 (1974).

We conclude that the defendant has not proven a systematic exclusion or inclusion of women in the jury venires.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 8, 9, 13, 14, AND 15

The defendant complains of the denial of his motion to suppress and the admission of the following three items: S — 1, a note the defendant handed to Mrs. Willie; S-2, blue rubber gloves the defendant wore during the perpetration of the crime; S — 3, a butcher knife the defendant held on Ernestine Willie.

Additionally, he contends that the trial judge erred in refusing to suppress the victims’ identifications of the defendant.

On the night of the crime at approximately 11 p.m., Deputy Bulloch and Deputy Griffin saw the defendant walking on the side of a road. He wore large, loose boots, tight pants, and a shirt. He carried an airline flight bag. On the basis of the similarity between the radio description of the perpetrator and the defendant, they stopped him. He allowed them to search his flight bag. They found nothing significant. The officers neither searched nor patted down the defendant’s person. The defendant willingly accompanied them to the police station. The officers had not yet arrested him.

En route to the station for identification, the defendant sat on the passenger’s side of the rear seat of the police car. The officers placed the flight bag on the driver’s side of the rear seat.

During this time, the Willies were at the police station. The police exhibited a suspect to them, but they stated that he was not the offender. When the deputies brought the defendant into the station, they placed him in the interrogation room. He was alone. The Willies stood in an adjacent room and viewed him through a two-way glass. Both victims positively identified him as the perpetrator.

Based on this identification, Officer Bul-loch arrested and booked him. Pursuant to the officer’s demand, the defendant emptied his pockets. He surrendered his wallet, keys, money, and a.small notebook. When advised that he had the right to make a telephone call, he asked Deputy Bulloch for his notebook which held a phone number. The officer secured the notebook and opened it. Inside, he found a note which read:

“I have just committed a robbery. I need a ride. No harm will come to you — I do have a gun and will kill you.”

Subsequent to defendant’s arrest, Deputy Bulloch asked Captain Badon to retrieve any of the defendant’s personal belongings from the police ear. Deputy Griffin accompanied the captain. The deputy entered the car through the driver’s side rear door. Because of the darkness, he flashed a light over the back seat area. He saw the rubber gloves and butcher knife under the passenger’s side of the front seat. He alerted the captain and the captain gathered the articles. Captain Badon called Deputy Bulloch to advise him of the discovery of the gloves and knife. Then, the three items were turned over to Deputy Bulloch.

Deputy Griffin testified that the knife and gloves could be seen through the rear windows.

Deputy Bullock testified that the knife and gloves were not in his car prior to the apprehension of the defendant.

The defendant contends that the note was inadmissible as it was the result of a warrantless, unreasonable search and seizure.

The defendant surrendered his notebook to Deputy Bulloch during the normal booking procedure. Louisiana Code of Criminal Procedure Article 228 affirms the booking officer’s authority to remove, inventory, and retain any of the arrestee’s personal property. See also LSA-C.Cr.P. Art. 228.2.

In dealing with the inventorying and securing of personal property in an impounded automobile in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the United States Supreme Court stated:

“When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger. The practice has been viewed as essential to respond to incidents of theft or vandalism.” [Citations deleted.]

See also State v. Jewell, La., 338 So.2d 633 (1976).

Similarily, we find that the securing of an arrestee’s property during booking is a reasonable incident of his arrest. This procedure is designed to protect the arrestee’s property, the security of his incarceration, and the personal safety of those who come in contact with him. It is consistent with constitutional safeguards.

Moreover, it is well settled that an arresting officer has the right to search a person and seize evidence incident to a lawful arrest. State v. Breaux, La., 329 So.2d 696 (1976); State v. Tarver, La., 324 So.2d 382 (1975); State v. Williams, La., 304 So.2d 311 (1974).

We conclude that the trial court properly admitted the note into evidence.

The defendant contends that the butcher knife and blue rubber gloves found in the police car were inadmissible as the result of an illegal search and seizure. In State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970), we held that evidence discarded on the floor of the police car in which the defendant rode was abandoned property. As such, it was not within the ambit of the Fourth Amendment’s protection.

We hold that the trial court properly admitted the butcher knife and blue rubber gloves into evidence.

Additionally, he complains of the denial of his motion to suppress the out-of-court identification and all evidence stemming from such identification. He avers that the out-of-court identification violated his due process guarantee and his constitutional right to counsel.

We note that the defendant failed to object to the testimony related to either the Willies’ out-of-court or in-court identifications.

Neither the federal or state constitution guarantees the accused the right to counsel at a pre-indictment line-up. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Ball, La., 328 So.2d 81 (1976); State v. Johnson, La., 327 So.2d 388 (1976). Here, the Willies identified the defendant prior to indictment. Hence, he had no right to counsel at the out-of-court identification.

Assuming, without deciding, that the two-on-one identification was impermissibly suggestive, the defendant’s due process rights were not infringed for the Willies’ in-court identifications were properly admitted. State v. Williams, La., 341 So.2d 370 (1976); State v. Newman, La., 283 So.2d 756 (1973), and the cases cited therein.

A trial court properly admits an in-court identification if it has a source independent of the out-of-court identification. In this determination, three factors are relevant: (1) the prior acquaintance of the witness with the accused; (2) the length of time the witness observed the perpetrator before, during, and after the commission of the offense; (3) the circumstances under which the observation was made, i. e., the illumination at the scene, the witness’s physical capacities, and the witness’s emotional state at the time of the observation. State v. Frank, La., 344 So.2d 1039 (1977); State v. Fortenberry, La., 307 So.2d 296 (1975); State v. Moseley, La., 284 So.2d 749 (1973).

Neither Mrs. Willie or Ernestine knew the defendant prior to the commission of the offense. At their initial encounter with him, street lights and store lights illuminated the area. The defendant held the victims in a car for approximately one hour. During this time the defendant turned the dome light on twice: once to search purses, and another time to examine a cut on Ernestine’s arm. The majority of the time, he sat in the back seat with Ernestine, holding the butcher knife to her side. Mrs. Willie saw the defendant at close range when he raped her. Although sometimes frightened and emotionally upset, Ernestine positively identified the defendant as the perpetrator. At all times Mrs. Willie remained calm.

We are convinced that the in-court identifications had sources independent of the out-of-court identifications. Therefore, the admission of the out-of-court identifications did not violate the defendant’s due process rights.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 10

Near the close of the State’s opening statement, the following exchange occurred:

[ASSISTANT DISTRICT ATTORNEY]:
“I made a lot of promises to you, and after every incident, I said we will prove, and I did that for a reason.
“The burden is on the State. When I stand up here, in closing argument, I am going to say not that we will prove, but that we have proved.”
[DEFENSE COUNSEL]:
“I object. This goes beyond the scope of the opening argument.”
THE COURT:
“It doesn’t carry the weight; proceed.”
[ASSISTANT DISTRICT ATTORNEY]:
“What I said to you just now is not evidence; don’t accept it as such. It is me telling you the manner we will prove the offense that he is charged with.
“The burden is on me to do what I have said through the State of Louisiana.
“Ladies and gentlemen, if you listen intently and if you judge wisely, we submit that we will offer proof of guilt of the defendant as he is charged. Thank you.”

(Trial transcript pp. 100-101.)

Louisiana Code of Criminal Procedure Article 766 reads:

“The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge. [Emphasis supplied.]

The above article contemplates statements as to what the State intends to prove. Thus, the prosecutor’s remarks were entirely proper. See State v. Dowdy, 217 La. 773, 47 So.2d 496 (1950).

The assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 11 AND 12

The defendant complains of the trial court’s rulings on two defense objections made during the examination of Deputy Bulloch.

Deputy Bulloch, the arresting and booking officer, testified that after the booking he asked Captain Badon to search the police car for any of the defendant’s personal belongings. The prosecutor then asked:

“Based upon the search of the [police] vehicle, was any evidence turned up?” Deputy Bulloch replied:
“Yes, sir.”

(Trial transcript p. 146.)

Defense counsel objected on the basis that such testimony was hearsay as the witness did not search the vehicle.

Louisiana Revised Statute 15:463 provides:

“Except as otherwise provided in this Code, the witness can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have.”

A witness may testify as to a nátu-ral inference from something he has observed. State v. Neal, La., 321 So.2d 497 (1975); State v. Davalie, La., 313 So.2d 587 (1975); State v. Kirklin, La., 283 So.2d 713 (1973).

Deputy Bulloch asked Captain Ba-don to check the police car for any of the defendant’s personal articles. Approximately forty minutes later, Captain Badon displayed the flight bag, knife, and gloves to the deputy. Deputy Bulloch had prior knowledge of the presence of the flight bag in the car. Therefore, Deputy Bulloch’s answer was a natural inference.

Assuming that the testimony constituted inadmissible hearsay, the judge’s ruling did not prejudice the defendant. On re-direct examination, the prosecutor elicited the same testimony from Deputy Bulloch without defense objection. Moreover, Deputy Griffin, the officer who accompanied Captain Badon in searching the vehicle, testified that he and the captain removed the knife and gloves from the car. Therefore, Deputy Bulloch’s testimony was merely cumulative. LSA-C.Cr.P. Art. 921; State v. Miles, La., 339 So.2d 735 (1976).

We conclude that the defendant’s first objection was ill-founded.

His second objection occurred when the prosecutor asked Deputy Bulloch the following question:

“May I see the knife.
“Was this subsequently turned over to you on the evening of the 28th of September, 1971?”

(Trial transcript p. 147.)

Defense counsel objected on the ground that this was a leading question.

The witness never answered the question propounded. Hence, there is no valid ground to complain. LSA-C.Cr.P. Art. 921; State v. Sharp, 174 La. 860, 141 So. 859 (1932). See State v. Brantley, 169 La. 315, 125 So. 257 (1929).

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 16

At trial two physicians testified that the defendant suffered from a severe personality disorder, anti-social type, at the time of the offense. Both opined that the defendant was not psychotic.

On the State’s rebuttal during the defense’s cross-examination of Dr. Bloom, counsel asked him if he was familiar with medical cases in which a patient’s psychotic condition was remissive and, therefore, not readily apparent. Dr. Bloom answered yes. Defense counsel then asked:

“Let me give you an example. Are you familiar at all with the Boston Strangler case?”

(Trial transcript p. 277.)

The State objected on the ground of irrelevance, and the court sustained the objection. The trial judge noted that this line of questioning dealt with possibilities, not probabilities, and that this testimony would only confuse the jury.

The defendant complains of this ruling.

The trial judge has wide discretion in controlling the examination of witnesses on collateral matters. LSA-R.S. 15:275. The determination of the relevancy of any testimony also lies within the discretion vested in the trial judge. State v. Nero, La., 319 So.2d 303 (1975); State v. Owens, La., 301 So.2d 591 (1974). See LSA-R.S. 15:435, 441.

The similarity between the re-missive psychotic condition of another person and the defendant’s mental disease is irrelevant to the defense of insanity. The law exempts an accused from criminal responsibility only if, because of a mental disease or defect, he was incapable of distinguishing between right and wrong at the time of the offense. LSA-R.S. 14:14. Both doctors testified that the defendant possessed the facilities to distinguish right from wrong. Defendant’s questioning of Dr. Bloom on a possible mental disease previously undiagnosed does not tend to negate the necessary mens rea. See LSA-R.S. 15:441. Thus, the trial judge did not abuse his discretion.

Moreover, the court, without any objection from the State, allowed defense counsel to examine Dr. Bloom on the probability of the defendant being in a state of re-missive psychosis. As the defendant obtained the information sought, we find he was insulated from any prejudice if, in fact, the ruling was erroneous. LSA-C.Cr.P. Art. 921; State v. Nero, supra.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS.

17 AND 18

During the State’s closing rebuttal argument, the State urged the jurors to reject the insanity argument advanced by the defense in closing argument. The prosecutor then stated:

“Let’s do two things: First of all, for the next few moments, let’s forget about the doctors and what they said about him, and let’s look at what Ernestine said and what Mrs. Willie said.”

(Trial transcript p. 327.)

The defendant objected on the basis that this statement exceeded the scope of his closing argument as he did not comment on the Willies’ testimony, and therefore, was improper rebuttal.

The court stated:

“I am overruling the objection. It seems to me what we are talking about now is the insanity aspect; talking about the facts that led up to this position, and the knowledge of the jury, . . ”

(Trial transcript p. 328.)

The defendant then moved for a mistrial alleging that the trial judge impermissibly commented on tfye evidence.

Louisiana Code of Criminal Procedure Article 774 confines the scope of the State’s rebuttal argument to “answering the argument of the defendant.”

The defense’s argument predominantly urged an insanity defense. Counsel particularly referred to the physicians’ and the defendant’s sister’s testimony to support his position. The State’s rebuttal argument refuted the defense’s stance on insanity. By referring to the Willies, he merely directed the jury’s attention to their testimony to prove his theory. Clearly, the prosecutor’s comment in closing rebuttal argument was proper. See State v. Cole, 161 La. 827, 109 So. 505 (1926).

Louisiana Code of Criminal Procedure Article 772 prohibits a judge from commenting on the facts of the case in the presence of the jury. However, in his statement, the judge simply pointed out that the closing arguments concentrated on the insanity issue. This was not a comment on the facts.

Moreover, we believe that his remarks were proper as they fall within an exception to Article 772. A trial judge’s remarks made while giving reasons for a ruling are not objectionable as comments on the case provided they are not unfair or prejudicial to the accused. State v. Lane, La., 302 So.2d 880 (1974); State v. Hills, 241 La. 345, 129 So.2d 12 (1961). As these statements made by the judge while ruling on an objection are not unfair or prejudicial, the judge correctly denied his motion for a mistrial.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 19

In his closing argument the court permitted over a State objection, defense counsel to read Louisiana Code of Criminal Procedure Articles 654-657 to the jury. These articles explain the effect of acquittal on the ground of insanity. At that point, defense counsel announced that he would not submit any special jury instructions to the court.

After the judge charged the jury, the defendant orally requested that the court instruct the jury as to the consequences of a not guilty by reason of insanity verdict. The court denied the request. The defendant complains of this ruling.

Counsel has the right to submit to the court special written charges for the jury before argument. The court in its discretion may receive such charges after argument has begun. LSA-C.Cr.P. Art. 807.

In this instance the denial of an oral request for special charges made after the court instructed the jury was not an abuse of the court’s discretion. See State v. Senegal, La., 333 So.2d 639 (1976); State v. Blanton, La., 325 So.2d 586 (1976). This is especially true where, as here, the defense counsel had read the applicable law and assured the court that he would not submit any special instructions.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 20 AND 21

The defendant contends that the trial judge erred in denying his motion to quash the multiple offender charge and in ruling that he was a fourth offender.

The State attributed the following crimes to the defendant in the habitual offender prosecution:

1. Theft (guilty plea entered February 19, 1964).

2. Theft (guilty plea entered February 19, 1964).

3. Simple escape (guilty plea entered December 7, 1964).

4. Simple kidnapping (convicted June 7, 1976).

The judge found the defendant to be a fourth offender and sentenced him to fifty years imprisonment at hard labor.

Two of our recent decisions, State v. Schamburge, La., 344 So.2d 997 (1977) and State v. Cox, La., 344 So.2d 1024 (1977), warrant our vacating defendant’s sentence.

Under our holding in Sehamburge, both theft offenses must be treated as one offense in applying the multiple offender statute because the defendant had not been convicted of the first theft prior to the commission of the second. LSA-R.S. 15:529.1 B; State ex rel Jackson v. Henderson, La., 283 So.2d 210 (1973). Hence, as the defendant pled guilty to both offenses on the same date, the trial court improperly considered them as separate offenses.

In Cox, we recognized that a simple escape conviction (a violation of LSA-R.S. 14:110 A(l)) enhances a prior conviction, as the status of felon is a prerequisite to this simple escape conviction. Thus, the State may not use that simple escape conviction as a basis for charging the defendant as an habitual offender. To do so would enhance that previous conviction twice. In Cox, we stated:

“The Habitual Offender Law was enacted in 1956 and amended in 1958. Since then the simple escape statute has been amended numerous times, most recently in 1976, and the legislature has given no indication that it should be applied in tandem with the recidivist law. The escape statute itself causes an enhancement of penalty by requiring consecutive sentences and because of a defendant’s previous felony conviction. Although the legislature chose to make the enhancement to a felony dependent upon a defendant’s escape from the Department of Corrections instead of relating the enhancement directly to his previous commission of a felony, we see no real difference because only convicted felons may be sentenced to the Department of Corrections. In any event, there is sufficient doubt that the penalty for a simple escape should be escalated twice by what may be an unforeseen combination of two criminal statutes, and in the absence of an explicit legislative authorization, we will construe the law strictly by refusing to give it such an expansive interpretation.” [Footnote deleted.]

See also State v. Sanders, La., 337 So.2d 1131 (1976).

Thus, the trial court improperly considered the offense of simple escape in determining the defendant’s multiple offender status.

For the reasons assigned, the conviction is affirmed. The sentence is vacated and set aside. The case is remanded to the trial court for sentencing consistent with the views herein expressed.

      . The Court held that Louisiana law governing jury service by women violated the defendant’s Sixth and Fourteenth Amendments rights.

      . The defendant failed to brief or argue the other grounds asserted in the motion. Hence, we consider them abandoned.


author: SUMMERS, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Charles E. WILLIAMS.
    No. 58974.
    Supreme Court of Louisiana.
    June 20, 1977.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   SUMMERS, Justice.

In a bill of information filed on July 19, 1974 the District Attorney of Orleans Parish charged that Charles E. Williams “did wilfully and unlawfully distribute a controlled dangerous substance, to-wit: Heroin.” After a trial by jury on October 2, 1974 Williams was found guilty as charged and sentenced to hard labor for life.

Four assignments of error are urged on this appeal.

Assignment 1

On the day of trial the defense filed a motion to quash. The motion alleged that the bill of information was fatally defective in that it failed to inform the accused of the nature and cause of the accusation against him by not naming the person to whom the heroin was distributed; the motion also alleged that the bill of information violated Articles 465 and 532 of the Code of Criminal Procedure.

Whereupon the State moved to amend the bill of information by adding that the heroin was distributed “to John Felts”. Finding that this amendment met the objections alleged in the motion to quash, the trial judge allowed the amendment and denied the motion to quash. Although an objection was entered to the ruling, no motion for a continuance was made by the defense, and the trial commenced.

When an indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII of the Code of Criminal Procedure pertaining to the forms and special allegations of indictments, the court may permit the district attorney to amend the indictment to correct the defect. La.Code Crim.Pro. art. 532. And before the trial begins this right extends to an amendment involving a defect of substance. La.Code Crim.Pro. art. 487. No prospective juror having been called at the time of the amendment, the trial had not begun. La.Code Crim.Pro. art. 761; Comments, La.Code Crim.Pro. art. 532.

When an indictment is amended, unless a defendant moves for a continuance on the ground that he is prejudiced thereby and requires additional time to prepare his defense, he cannot later contend that he was prejudiced by the amendment. La.Code Crim.Pro. art. 489.

Therefore, if adding the name of the person to whom the heroin was distributed could be considered a substantive change, such an amendment was permissible at the time it was made, and there was no error in the ruling of the trial judge allowing the amendment and denying the motion to quash.

Assignments 2, 3 and 4

The evidence at trial discloses that Detective Jerry Owensby with the Drug Enforcement Administration was contacted by a cooperating individual (C.I.) and his wife at approximately 6:15 p.m., on March 11, 1974 at the New Orleans Regional Office. They, together with other special agents, including Sergeant John Felts, briefly discussed narcotic trafficking in and around the intersection of Jackson and Prieur Streets in New Orleans. A plan was formulated to purchase drugs from defendant Williams to obtain evidence against him.

After recording the serial numbers of currency, Owensby gave it to Felts for use in the planned purchase. He searched the informant’s person for narcotics, or large amounts of money and found neither. Felts, the informant and his wife then departed in a government vehicle, a blue van, followed by Owensby and other special agents. They proceeded to the intersection of Jackson and Prieur Streets. When Felts, the informant and his wife left the van, Owensby and the special agents departed to avoid detection by the drug traffickers in the area, for such a disclosure would in all probability reveal the undercover role of Felts, the informant and his wife.

The three then entered the Club DeVille Bar at 3200 Jackson Avenue where they were approached by defendant Williams. Williams said he had some good stuff but wanted to talk about it outside. Once outside they learned that Williams had only ten papers of heroin for sale. With this information they drove away to contact Owensby by radio from the van, advising him what Williams had for sale. Owensby told them to go ahead with the purchase.

On their way back to Jackson and Prieur, Felts gave the informant seventy dollars for use in the transaction. Upon arrival they contacted Williams, agreed upon the price and the informant and Felts pooled their funds for the purchase in the presence of Williams so that he would not suspect that the informant was there as a witness. Felts then followed Williams around the corner and waited while he went into an alleyway. Three or four minutes later Williams returned and handed the heroin to Felts in ten aluminum foil packets. With this evidence the three undercover agents returned to the Regional Office where Felts delivered the heroin to Owensby. Owensby again searched the informant and found no narcotics or money on his person.

On three occasions during the trial defense counsel sought to have the informant’s identity furnished. The first time was during cross-examination of Detective Owensby when he was asked, “Who is the C.I. and his wife?” The State objected and the objection was sustained.

Later, during the cross-examination of Sergeant Felts, defense counsel asked if the C.I. had informed Felts of the nature of a conversation the C.I. had with a man at the Club DeVille. The State objected to this question and the objection was sustained on the ground that the question called for hearsay testimony. Defense counsel then stated, “If it’s hearsay, bring the individual in and I will ask the C.I. what went on.” Whereupon the trial judge admonished defense counsel not to try to get things in evidence by his statements. A defense objection was then made to the ruling.

Another bill of exceptions was reserved by defense, counsel when he asked Felts if he recalled the name of the C.I., the State objected and the court sustained the objection.

Again, while cross-examining Felts, defense counsel asked him what he did with the evidence (heroin) received by him from Williams. Felts replied that it was surrendered to Owensby at the office in the presence of the C.I., his wife and another agent.

Felts was then asked, “Did the C.I. supply any identification of who the person who made the transaction may be?”

Felts answered, “Yes, sir.”

“Your Honor, I think it would be very pertinent to have the C.I. here,” defense counsel asserted.

The trial judge responded that it was irrelevant to the facts of the case.

Defendant argues that it was error for the trial judge to sustain the State’s objections to identifying the confidential informant and his wife, since he was a participant in the transaction. And it was error, the defense contends, to deny the right to inquire into the conversation at the Club DeVille between the confidential informant and the unidentified male.

The informer privilege is a right which the State has to withhold the identity of one who supplies information to law enforcement officials concerning crime. It is founded upon public policy and seeks to advance the public interest in effective law enforcement. State v. Dotson, 260 La. 471, 256 So.2d 594 (1972), cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972).

In keeping with this policy, courts order the disclosure of the confidential informant’s name only under exceptional circumstances to prevent injustice. The burden is upon the defendant to show the exceptional circumstances justifying the disclosure, and much discretion is allowed the trial judge’s finding on this showing. There is no fixed rule for ordering disclosure of the informant’s identity. State v. Dotson, supra.

This can be said, however, there must be some act shown, some cogent reason advanced, why the identity of the informant is required.

In this case the defense did not make known to the trial judge the reason for wanting to know the identity of the informant or how it would affect his defense. Nor does the brief in this Court set forth the reason why the defense sought the informant’s identity.

As this Court held in State v. Dotson, supra:

“Effective law enforcement requires that the confidentiality of the names of crime-informers be safeguarded. In supplying information to a defendant in a criminal proceeding, this Court cannot sacrifice fairness to the public. Neither can it ignore the public’s interest in effective law enforcement.”

The defendant has neither alleged nor shown prejudice as a result of the failure of the trial judge to order disclosure of the informant’s identity. The proof of guilt is overwhelming, and Article 921 of the Code of Criminal Procedure denies this Court authority to reverse.

For the reasons assigned, the conviction and sentence are affirmed.

TATE, Justice,

concurring.

For the time, I concur in the disposition of Assignments 2, 3, and 4.

These assignments present a very close issue of reversible error. They concern the failure of the trial court to require the state witnesses to furnish the name of a confidential informant who was, aside from the accused, the sole non-governmental witness and participant in the transaction, the illegal sale of heroin, with which the accused is charged. The issue arose during the trial on the merits of the accused’s innocence or guilt.

The confidential informant had been approached by the defendant and had introduced him to the government agent. The defendant subsequently sold the agent the illegal substance. The informant had given the accused $70, following which the accused and the agent went around the corner, where the agent received from the defendant the aluminum foil packets containing the heroin.

The identity of the informant was thus normally discoverable. As the majority on rehearing stated in State v. Dotson, 260 La. 471, 256 So.2d 594, 606 (1971): “When the prosecution’s case shows that the informer participated in the crime, the informer’s identity should be disclosed to the defendant. In such cases, the informer does more than furnish a tip that enables the police to make an arrest. While working with the police, he takes part in the illegal transaction itself.”

Thus, if the record indicated any reason why disclosure of the identity of the informer would be helpful in preparing his defense, the accused was entitled to disclosure of the informant’s name. This would be so, whether the purpose for which the identity was sought was to subpoena the only non-governmental witness to the transaction, or just to interview him to ascertain whether his version sheds light on the transaction more favorable to the accused than that of the governmental agents.

As we summarized in State v. Dabon, 337 So.2d 502, 503 (with full citation of authority), “* * * the privilege must give way where the disclosure of an informer’s identity ... is relevant and helpful to the defense of an accused or to the fair determination of an issue before the court.”

In the present case, however, the difficulty in reversing is that, aside from formal record-curiosity as to the informer’s identity, the defendant did not and does not advance any purpose for ascertaining that individual’s name. He did not indicate at or before the trial, for instance, that he desired to subpoena him or to interrogate him. The accused’s counsel did not, for instance, allege unsuccessful attempts to ascertain the identity and whereabouts of the informant. (In fact, the record is open to the construction that the accused and the informant knew one another before the encounter leading to the sale.)

Further, aside from refusing to require identification by name of the informant, the trial court permitted rather full cross-examination on the defendant’s behalf as to the informant’s employment background, (lack of) criminal record, and method of compensation (by money) for his services.

Under all of the circumstances, I am unable to say that reversible error occurred. Nevertheless, under the principles noted above, in my opinion, the trial court committed error by its failure to require the governmental agents to identify their informant, a participant in and witness to the offense with which the accused is charged and for which he was on trial.

I respectfully concur, with the reservations so expressed.

TATE, J., concurs and assigns reasons.

DIXON and CALOGERO, JJ., concur.


author: MARCUS, Justice.

text:
    John C. SAVOIE et al. v. FIREMAN’S FUND INSURANCE COMPANY.
    No. 59075.
    Supreme Court of Louisiana.
    June 20, 1977.

      Reid K. Hebert, Plauche, Smith, Hebert & Nieset, Lake Charles, for defendant-respondent.
    J. B. Jones, Jr., Jones, Jones & Alexander, Cameron, for plaintiff-applicant.
   MARCUS, Justice.

This case involves an action by plaintiffs, John C. and Mymae Savoie, for the wrongful death of their minor daughter who was fatally injured in a farm accident when she fell off of and under a tractor and bush hog owned and operated by Edward LeBoeuf. At the time of the accident, LeBoeuf was assisting in the cutting of hay on a thirty-acre tract of land owned by plaintiffs. Plaintiffs instituted suit against Fireman’s Fund Insurance Company alone, alleging that the death of their daughter was caused solely by the negligence of Edward Le-Boeuf. They further alleged that Edward LeBoeuf was an employee covered as an insured under the terms and conditions of a Farmer’s Comprehensive Personal Insurance policy issued in favor of John C. Sa-voie by Fireman’s Fund. In answer to plaintiffs’ petition, defendant denied coverage of Edward LeBoeuf under the Savoie policy. Defendant further answered that the accident occurred through no fault or negligence of LeBoeuf and alternatively that the deceased as well as the plaintiffs in this suit assumed the risk and were contrib-utorily negligent.

The trial judge rendered judgment in favor of defendant and against plaintiffs finding that Edward LeBoeuf was not an employee within the meaning of the insurance contract and therefore was not covered under the personal liability insurance policy issued by defendant. The court of appeal affirmed the judgment of the district court. Upon plaintiffs’ application, we granted certiorari to consider the correctness of this decision.

The primary issues presented for our consideration are (1) whether Edward LeBoeuf was an employee of John Savoie and thus covered under the comprehensive personal liability policy issued by defendant and (2) if so, whether LeBoeuf was legally responsible for the death of Johnette Savoie.

The pertinent coverage provision in the policy issued by Fireman’s Fund in favor of John Savoie provides as follows:

V. PERSONS INSURED
Each of the following is an insured under this insurance to the extent set forth below.
(c) under Coverage L and M, with respect to any vehicle to which this insurance applies, any employee of an insured while engaged in the employment of the insured. (Emphasis added.)

Plaintiffs contend that, since Edward Le-Boeuf was rendering a service to John Sa-voie at the time of the accident, he should be classified and covered as an “employee” within the meaning of the insurance contract. In support of this argument, plaintiffs direct our attention to Part VIII of the policy entitled Additional Definitions wherein the term “farm employee” is defined as “an employee of an insured whose duties are principally in connection with the farming operations of the insured. . ” (Emphasis added.) In our view, the definition of “farm employee” casts little light on whether Edward LeBoeuf was an “employee” as that term is used in the coverage provision set forth hereinabove. “Farm employee” is defined only as a particular type of employee. Manifestly, an individual must in fact be an “employee” before being singled out as a “farm employee.” The policy does not, however, provide a definition of the general term “employee.”

Plaintiffs next argue that Edward Le-Boeuf’s status as a “farm employee” can be inferred from other language in the policy found in the following exclusion to Part II Coverage M Medical Payments:

This coverage does not apply:

(g) to bodily injury to . (4) any farm employee or other person engaged in work incidental to the maintenance or use of the insured premises as a farm; but this exclusion does not apply to any residence employee or insured farm employee and part (4) does not apply to any other person while on the premises in a neighborly exchange of assistance for which the insured is not obligated to pay any money; .

Plaintiffs suggest that, had the drafters of the policy not considered a person in the position of Edward LeBoeuf to be a “farm employee,” there would have been no need to specify that the exclusion of farm employees from medical payments coverage in part (4) “does not apply to any other person while on the premises in a neighborly exchange of assistance for which the insured is not obligated to pay money.” We agree that the policy reference to a neighborly exchange of assistance indicates an awareness by the drafters of the policy that farmers frequently assist one another without expectation of compensation. However, we cannot agree that this language indicates that anyone who volunteers any assistance to an insured in connection with the use or operation of a farm automatically becomes an “employee” insured for liability under the coverage provisions of the policy. In our view, the stronger argument would be that by exempting persons engaged in a “neighborly exchange of assistance” from the exclusion applying to “farm employees,” the drafters of the policy recognized a distinction between the two classes of persons and wished to clarify that neighborly assistants to whom the insured is not obligated to pay any money are eligible for medical payment benefits because they are not to be considered as “farm employees.” We do not, however, rest our decision with respect to coverage solely on the language found in the Medical Payments portion of the Savoie policy.

It is well settled that an insurance policy is a contract. It becomes the law between the parties and the rules established for the construction of written instruments apply. Theye Y Ajuria v. Pan American Life Ins. Co., 245 La. 755, 161 So.2d 70, cert. denied, 377 U.S. 997, 84 S.Ct. 1922, 12 L.Ed.2d 1046 (1964); Albritton v. Fireman’s Fund Ins. Co., 224 La. 522, 70 So.2d 111 (1954). In interpreting insurance policies, the courts of this state have frequently relied on the directive of La.Civil Code art. 1946 which provides that the words of a contract are to be understood, like those of a law, in the common and usual signification, without attending so much to grammatical rules, as to general and popular use. Taylor v. State Farm Mutual Auto. Ins. Co., 248 La. 246, 178 So.2d 238 (1965); Muse v. Metropolitan Life Ins. Co., 193 La. 605, 192 So. 72 (1939); Schwegmann Bros. Giant Super Markets v. Underwriters at Lloyd’s, London, 300 So.2d 865 (La.App. 4th Cir. 1974), writ ref., La., 303 So.2d 172; Prestenback v. Prudential Ins. Co. of America, 257 So.2d 698 (La.App. 4th Cir. 1972). Accordingly, the word “employee” in the coverage provision of the instant insurance policy must be given its ordinary and usual meaning.

There can be little doubt that the word “employee” is one used in common parlance and readily understood by men of ordinary intelligence. An employee is defined in Black’s Law Dictionary as “[o]ne who works for an employer; a person working for salary or wages. . . .” Plaintiffs rely on the following discussion of the word found at 30 C.J.S. Employee p. 672 (1965):

In its broad signification and in common or popular speech the term is defined as one who is employed; anyone who renders labor or services to another; one employed by another.

While this definition is quite broad, it nevertheless reiterates the notion that an employee is one who is a party to an employer-employee relationship. As noted at 12 Couch on Insurance § 45:605, to be an “employee”:

. it is not sufficient that a person perform a service for an insured, for such person is not an employee when, acting without compensation he performs an occasional, incidental, casual, and neighborly act.

We are satisfied that absent an indication of a different meaning in an insurance contract, the wbrd “employee,” understood in its common and usual sense, signifies one who is a party to an employment contract, express or implied.

In determining whether an employment relationship exists in other contexts, the jurisprudence of this state has uniformly held that the most important element to be considered is the right of control and supervision over an individual. Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385 (1972); Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968). Factors to be considered in assessing the right of control are the selection and engagement of the worker, the payment of wages and the power of control and dismissal. Dauzat v. Crites, 237 So.2d 697 (La.App. 4th Cir. 1970); Wambles v. State, 283 So.2d 331 (La.App. 4th Cir. 1973); Trahan v. State, 158 So.2d 417 (La.App. 3d Cir. 1963). Moreover, La.Civil Code art. 2669 provides that:

. [HJire is a synallagmatic contract, to which consent alone is sufficient, and by which one party gives to the other the enjoyment of . his labor, at a fixed price. (Emphasis added.)

Inasmuch as there is nothing to indicate any special meaning to the word “employee” in the insurance contract, we consider it appropriate to review the evidence adduced at trial in light of the above factors and in view of La.Civil Code art. 2669 in order to determine whether LeBoeuf was an employee of Savoie in the usual and popular sense of the word.

The facts relative to Edward Le-Boeuf’s alleged status as an employee are virtually undisputed. The record reflects that John Savoie and Edward LeBoeuf were neighbors, good friends and first cousins. Savoie was employed as a marsh buggy operator and LeBoeuf as an offshore crew boat worker. Both men, however, owned relatively small tracts of land which they used in sideline farming operations. The two had been raised together and for approximately thirty years they had always helped each other out whenever the need arose. On some occasions, John Savoie would help his cousin plant potatoes and work cattle. On others, Edward LeBoeuf would help John Savoie perform similar farm chores on the Savoie property. Both men acknowledged that they had assisted one another over the years because they were friends and kinsmen and that neither had ever expected anything in return. There was never any agreement as to hours or wages. Nor was there any understanding reached as to the worth of the services rendered with a view toward a future accounting. Neither man recognized any right of control over the other beyond that control which every property owner has over persons who come onto his land. Apparently each was free to help the other when and how he chose to.

On the evening before the accident, John Savoie mentioned to his cousin that he would be cutting hay the next day and asked his cousin if he would help. About 10:30 a. m. on October 4, 1975, Edward LeBoeuf arrived at the Savoie property driving his own tractor and bush hog and began cutting hay without any directions or instructions from his cousin who was cutting hay in another section of the field. The two worked independently all morning and, after lunch at the Savoie home, they returned to the field to finish the job. The fatal injuries to the Savoie’s nearly fourteen-year-old daughter, Johnette Savoie, occurred early that afternoon when she fell off of Edward LeBoeuf’s tractor where she had been riding as a passenger on the tractor’s running board.

After a careful review of the facts and circumstances presented in this case, we do not believe that the relationship which existed between John Savoie and his cousin Edward LeBoeuf could in any reasonable sense be deemed an employer-employee relationship. None of the factors usually considered in the determination of such a relationship existed in the instant case. Savoie did not “select” and “engage” LeBoeuf from potential “employees.” Nor did he pay his cousin wages for his assistance. Although LeBoeuf later received some of the hay cut on the date of the accident, the record clearly demonstrates that the hay was given not as remuneration for services rendered but because John Savoie had more hay than he needed and preferred to give the excess to his cousin rather than have it rot in his barn. Finally, the record does not indicate that Savoie considered himself to have any right to “control” or “dismiss” his cousin. Nor can the record be said to support the existence of a contract of hire, either express or implied. It was never contemplated that LeBoeuf would be given anything by way of compensation. Hence, the essential element of price was not present. Moreover, we are satisfied that the relationship of the parties exhibited no contractual intent.

Having determined that Edward LeBoeuf was not an “employee” of John Savoie in the usual and popular sense of the word,- we accordingly find that he is not an “employee” within the meaning of the insurance contract and thus is not covered as an insured under the personal liability policy issued by Fireman’s Fund Insurance Company. In view of our disposition of this issue, we do not reach the question of Edward LeBoeuf s liability vel non for the death of Johnette Savoie.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

DIXON, J., dissents.

      . 339 So.2d 914 (La.App. 3d Cir. 1977).

      . 341 So.2d 902 (La.1977).

      . This fact distinguishes the instant case from that presented for decision in St. Paul Fire & Marine Ins. Co. v. Richard, 208 So.2d 35 (La.App. 3d Cir. 1968), writ refused, 252 La. 171, 210 So.2d 54 (1968), wherein the appeal court found a father who regularly exchanged work with his son to be an employee for workmen’s compensation purposes because an agreement had been reached that a day’s work was worth six dollars and a yearly accounting was to be made. This fact indicated to the court that the father’s services were not performed gratuitously.

      . Compare Hudson v. Allstate Ins. Co., 169 So.2d 598 (La.App. 2d Cir. 1964); Kentucky
        Farm Bureau Mutual Ins. Co. v. Snell, 319 S.W. 462 (Ky.1958); Patty v. State Farm Mutual Automobile Ins. Co., 228 F.2d 363 (6th Cir. 1965).