author: OTT, Judge.

text:
    Nancy STEWART, a minor, by and through her mother and next friend, Bertha Stewart, and by and through her father and next friend, Henderson Stewart, and Henderson and Bertha Stewart, Individually, Appellants, v. Jeff ADERHOLT, a minor, by and through his mother and next friend, Christine Aderholt, and Mark Elliot, by and through his parents and next friends, Wayne and Grace Elliot, and Royal Globe Insurance Company, Appellees.
    No. 76-1858.
    District Court of Appeal of Florida, Second District.
    July 15, 1977.

      David A. Maney of Gordon & Maney, P.A., Tampa, for appellants.
    John R. Bush of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellees/Ader-holt and Royal Globe Ins. Co.
   OTT, Judge.

Plaintiff/Nancy Stewart appeals a final summary judgment in favor of defendants/Jeff Aderholt and his insurer, Royal Globe Insurance Company. We think the facts, if considered in the light most favorable to the plaintiff, are sufficient to raise material issues of negligence and contributing negligence that preclude summary judgment, and we therefore reverse.

The pleadings and depositions show at least the following facts. On the afternoon of May 1, 1973, Jeff Aderholt, age 8, met his friend Mark Elliot, age 12. They decided to ride around on Jeff’s bicycle. Mark, the larger of the two boys, pedaled the bicycle. Jeff was either behind Mark on the banana seat (Jeff’s testimony) or on the handlebars (Mark’s testimony). While traveling west on the right hand side of Terrace Drive in Plant City, they came upon appellant/Nancy Stewart, age 13, who was walking in the same direction on the grass along the right hand side of the street. She heard Jeff say “beep, beep” and started to turn around, stepping into the street as she did so. The bicycle hit her, knocking her to the ground. She felt something go into her leg and lost consciousness; when she recovered consciousness, she was in the hospital emergency room.

Summary judgment may not be granted if, resolving all disputed facts and inferences therefrom against the moving party, the pleadings, depositions, and affidavits before the trial court evince the existence of a genuine issue of material fact. Of course, the inferences in favor of the nonmoving party may disappear in the course of trial, in which case a directed verdict may properly be granted. See, e. g., Radice v. Morris, 135 So.2d 231, 232 (Fla.2d DCA 1961).

The above facts sufficiently suggest to us that material allegations and denials are at least presented on:

(1) Whether or not the two boys acted in concert or were effectively asserting joint control of the bike’s operation. (We note in passing that we are not to be construed as holding that joint control is synonymous with joint enterprise.)
(2) Whether or not independent acts of Jeff, an 8 year old, constitute actionable negligence; either independently or in concert with others.
(3) Whether or not the acts of Nancy were reasonable — constituted negligence.

We have not been cited to any authority nor do we know of any which holds a simple bicycle to be a dangerous instrumentality. Consequently, nothing herein is to be construed as indicating vicarious liability of Jeff solely on the basis of ownership of the bicycle.

Reversed and remanded for further proceedings not inconsistent with this opinion.

McNULTY, Acting C. J., and GRIMES, J., concur.


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    Mary GROSSE, Appellant, v. William Henry GROSSE, Appellee.
    No. 76-1855.
    District Court of Appeal of Florida, Second District.
    July 15, 1977.
    Quillian S. Yancey, State Atty. and Kelley W. Collier, Asst. State Atty., Bartow, for appellant.
    C. Ray McDaniel of McDaniel & Smith, Lake Alfred, for appellee.
   SCHEB, Judge.

This is an appeal by a divorced wife from an order of the trial court suspending support payments secured by the wife from her former husband under the Uniform Reciprocal Enforcement of Support Act, Chapter 88, Florida Statutes (1975).

The question here presented is: Can the trial judge condition support under the Uniform Support Act on the mother permitting her child who resides with her in another state to visit his father in this state? The trial court answered the question affirmatively. We disagree and reverse.

Appellant Mary Grosse and appellee William Henry Grosse were divorced in Texas in 1967. Mrs. Grosse was awarded custody of their then three-year-old son, Eric, and Mr. Grosse was ordered to pay $40 per week child support. In 1976 Mrs. Grosse brought an action under the Uniform Reciprocal Enforcement of Support Act and obtained an order from the trial court here in Florida requiring Mr. Grosse (now a Florida resident) to pay $21 support on the first and fifteenth of each month. Payment, however, was conditioned upon Mrs. Grosse permitting their now twelve-year-old son, who resides with her in Texas, to visit with his father here in Florida.

Although Mrs. Grosse recognizes her former husband’s right to visit Eric in Texas, she complains that he is not sufficiently mature to travel from Texas to Florida to visit his father whom he has not seen for many years.

In October 1976, the trial court granted the father’s motion to suspend child support payments until Mrs. Grosse complies with the visitation provision of the court’s previous order of support. This appeal by the mother ensued.

We think the trial court erred. The law under which Mr. Grosse proceeded focuses on only one aspect of domestic relations— support. The purpose of the Act, as stated in Section 88.021, Florida Statutes (1975), is to “extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto.” It is a reciprocal law which has now been adopted by all fifty states, the District of Columbia, and several territories.

In Vecellio v. Vecellio, 313 So.2d 61 (Fla. 4th DCA 1975), a mother in Pennsylvania initiated proceedings under the Uniform Reciprocal Enforcement of Support Act to compel the father in Florida to support his children. The circuit court in Florida entered a judgment requiring the father to pay $50 per month child support. Subsequently the father sought to terminate the payments because the mother refused to allow him visitation privileges with the children. The trial court ordered payments terminated. On appeal by the mother the Fourth District Court of Appeal reversed, stating:

A reading of the whole Support Law indicates that it furnishes a uniform, informal and rather speedy remedy, reciprocally, whereby the duties of support may be enforced. See particularly Fla.Stat. §§ 88.021, 88.201 and 88.271 (1973). The only subject matter covered in the Support Law is the duty of support. Nowhere is mentioned child custody or child visitation or any other item subject to adjudication as are commonly found in domestic relations cases.
Thus, it is our view that the trial court erred when it enlarged its jurisdiction to adjudicate and enforce child visitation rights as we hold that the only matter susceptible of adjudication was that of the duty of support. 313 So.2d at 62 (citations omitted) (emphasis by the court).

We agree with our sister court. In fairness to the trial judge we note that it does not appear he had the benefit of the Vecel-lio opinion when he entered .his original order of support nor his order of suspension of same.

Accordingly, the order appealed from is vacated and the case is remanded for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and McNULTY, J., concur.


author: ERVIN, Judge. BOYER, Acting Chief Judge.

text:
    Joseph A. ROSIER and Janice C. Rosier, his wife, Appellants, v. GAINSVILLE INNS ASSOCIATES, LTD., d/b/a Holiday Inn of Gainesville and State Farm Fire & Casualty Company, a Foreign Corporation, Respondents.
    No. DD-199.
    District Court of Appeal of Florida, First District.
    July 20, 1977.

      Dennis J. Hightower, Whitaker & Koepke, Orlando, for appellants.
    W. C. O’Neal, Chandler, O’Neal, Gray & Lang, Gainesville, for respondents.
   ERVIN, Judge.

The Rosiers, plaintiffs in this personal injury action, seek review of a final judgment directing verdict for appellees. We reverse.

The Rosiers attended the University of Florida homecoming weekend in 1974. They were guests at the Gainesville Holiday Inn where they had two rooms, one for their children and one for them. Before retiring for the night, the Rosiers secured their children’s room, locked their , outside door but did not secure the chain latch. At about 1:30 a. m., they awoke to find a ski-masked burglar in the room at the foot of their bed. Mr. Rosier jumped from the bed and tackled the intruder. A struggle ensued, Mr. Rosier was stabbed twice, though not seriously, and Mrs. Rosier received a shattered right finger before the intruder escaped through the open outside door. While Mrs. Rosier was closing the door, she saw a key on a long leather strap on the floor. Mr. Rosier also saw the key strap. To her horror, Mrs. Rosier then saw the intruder return and as she pushed on the door to keep him out, the intruder snatched the key from the floor and again fled.

This negligence action was then brought. The complaint alleged a breach of duty by the motel in that: (1) A passkey was available to the assailant. (2) The locks provided for the room were inadequate. (3) No security guard was provided.

During the presentation of their case, both Mr. and Mrs. Rosier identified the key strap used by the intruder as identical to keys worn by the motel maids around their necks. A security expert testified on behalf of the Rosiers that the type lock used in the exterior door was the lowest grade, a normal residential lock. He testified the in-dustrywide standard in 1974 was a mortise lock, which when locked from the inside, secured the door with a dead bolt, and could not be opened by a maid’s passkey or a duplicate room key. Mortise locks were used in the newer units of the Gainesville Holiday Inn. The motel manager testified passkeys were distributed at the beginning of each day and returned at the end of the day and deposited in a safe overnight. At the time of this incident, no passkeys were missing.

Following the presentation of Rosiers’ case, the trial court directed a verdict for appellees. We need only consider one specific allegation of negligence on the part of the Gainesville Holiday Inn to find that a prima facie case has been made.

The court stated the failure by the Gainesville Holiday Inn to use adequate locks could not reasonably be considered the cause of the Rosiers’ injuries. He found that since the Rosiers failed to secure the chain latch to the outside door, one could not reasonably assume the Rosiers would have used the dead bolt latch had the mortise lock been available. Such a conclusion could only be reached by the jury. It is clear that upon a motion for directed verdict, all reasonable inferences are construed in favor of the nonmoving party. Rodi v. Florida Greyhound Lines, 62 So.2d 355 (Fla. 1952). Reasonable inferences could be drawn from the above facts to satisfy the “but for” test of causation set forth in Florida Standard Jury Instruction 5.1(a).

There is of course the question of foreseeability. Could the motel reasonably foresee that the failure to use adequate locks would lead to the sort of injury sustained here? Here there was some evidence of illegal entries into unoccupied motel rooms. Indeed, the motel manager was questioned concerning a police incident report stating that persons unknown entered a nearby room of the motel, probably with the aid of a passkey. That report was made some five months before this incident. It is clear that the motel licensee had knowledge of prior burglaries of guests’ rooms carried out in a manner similar to that shown by plaintiffs. A registered guest in a hotel or motel is a business invitee to whom the innkeeper owes a duty of reasonable care for his safety. Americana of Bal Harbour Inc. v. Kiester, 245 So.2d 121 (Fla.3rd DCA 1971).

The Rosiers additionally allege as error the trial judge’s refusal to admit into evidence a deposition of a former motel guest whose room was broken into. The deposee apparently testified the motel manager at that time admitted such entries were weekly occurrences. This court is however unable to say the trial judge erred as a matter of law since the deposition is not a part of the record on appeal. Since the Rosiers, as appellants, have the duty to oversee the preparation of the record, Fla. App.Rule 3.6(b), such a failure can only lead to a presumption of correctness on appeal. Appellants’ remaining points are without merit.

Reversed and remanded for further proceedings not inconsistent herewith.

MILLS, J., concurs.

BOYER, Acting C. J., dissents.

BOYER, Acting Chief Judge.

I respectfully dissent. In my view the learned trial judge did not err. I would affirm.

      . While the question of proximate cause in a negligence action is one for the court where there is an active and efficient intervening cause, Nance v. James Archer Smith Hospital, Inc., 329 So.2d 377 (Fla.3rd DCA 1976), still if such intervening cause is either foreseeable or might reasonably have been foreseen by the defendant, his negligence may be considered the proximate cause of the injury notwithstanding the intervening cause. 23 Fla.Jur. Negligence § 39 (1959).


text:
    ZEMOUR, INC., Petitioner, v. STATE of Florida DIVISION OF BEVERAGE, Respondent.
    No. FF-345.
    District Court of Appeal of Florida, First District.
    July 20, 1977.

      Charles L. Curtis, Tallahassee, for petitioner.
    Charles F. Tunnicliff, Tallahassee, for respondent.
   DREW, E. HARRIS (Ret.), Associate Judge.

Zemour, Inc. seeks review of an order of the Division of Beverage denying its application for a beverage license.

Section 561.15(1), Florida Statutes, limits the issuance of a beverage license to persons of good moral character not less than 21 years old and to corporations whose officers are of good moral character and not less than 21 years old.

Section 561.15(2), Florida Statutes, describes certain persons who are automatically excluded from obtaining such license.

In White v. Beary, 237 So.2d 263 (Fla.lst DCA 1970), this court, in disposing of the contention that Section 561.15(1), Florida Statutes, failed to prescribe standards for “good moral conduct”, said:

“ . . . We doubt that the legislature could in its infinite wisdom detail each salient standard for good moral character. What constitutes good moral character is a matter to be developed by facts, evaluated by the agency, with a judicial review of same ever available. The subject statute is constitutional . .

Zemour, Inc.’s application for such a license was denied by the Director. Review of such order was taken and an administrative hearing held. The hearing officer found the owner of the applicant was not of good moral character, making the following findings from evidence submitted by the applicant:

“The Petitioner, Zemour, Inc., through its owner Edgard Zemour, purchased the restaurant known as Left Guard Restaurant located at 7444 Biscayne Boulevard, Miami, Florida. After making the purchase the Petitioner made application to transfer the beverage license held by the Left Guard Restaurant, which license is no. 23-2612-SRX series 4-COP. In addition application was made to change the name of the restaurant from Left Guard Restaurant to La Bonne Maison. These applications to transfer the license and change the name were filed with the State of Florida, Division of Beverage. By letter of February 15, 1977, the Director of the Division of Beverage has denied the transfer and the change of name applications. The denial was premised upon the statement that the application corporate officer, Edgard Zemour was not believed to be of good moral character, as required by § 561.15, F.S.
“In addressing the question of his moral character, the owner and President of Zemour, Inc., Edgard Zemour filed a personal data sheet with the State of Florida, Division of Beverage. This data sheet lists arrests and/or inquiries made by the French Government against Ed-gard Zemour. Edgard Zemour gave testimony in the subject hearing on the application for transfer and change of name of the licensed premises, which augmented the personal data sheet.
“In 1956, Edgard Zemour was charged by the French Authorities with car theft or using the car without the permission of the owner. At the time, Edgard Zemour was 18 years of age and he and a friend decided to go dancing and stole someone’s car and went to a discotheque to dance. He was arrested and sent to jail for two weeks, followed by four months probation.
“During this same year, 1956, Edgard Zemour was arrested for assault and battery for a fight which he had with an American sailor in a bar in Brest, France. Edgard Zemour was fined approximately $25.00 for that incident.
“From 1953 thru 1963, Edgard Zemour was in the wine business as a salesman, until the French Police told him to not operate in such a capacity, and Edgard Zemour responded by ceasing his activities. In 1958, while in the wine business, as a salesman ‘door to door’, Edgard Zem-our was charged with wine fraud. This incident involved his company placing approximately 30 gallons of wine in a cask when a customer wanted 25 gallons, and the customer being charged for the full 30 gallons. Zemour was not convicted of this charge. In 1959, Zemour was charged with abuse of trust while operating the wine business, due to the late arrival of wine which had been purchased by customers. He was not convicted of this offense. In 1960, he was charged on two separate occassions [sic] for wine fraud, in that Zemour was allegedly responsible for the customer paying for 30 gallons of wine when in fact only 25 gallons had been ordered. Edgard Zem-our was found not guilty on those two occassions [sic].
“In 1960, Edgard Zemour was charged with indecent conduct with a female for an incident which occurred with a girl in an automobile. This case did not go to court. Edgard Zemour was released from the charge. (This incident relates to the no’s 6 and 7 found in his personal data sheet answers.)
“In December 1961, Edgard Zemour was charged with possession of weapons, but was not responsible since this weapon belonged to his father who served in World War I. This charge had been placed by the French Authorities.
“During May 1967, Edgard Zemour was charged with fraud while operating in the textile business. The textile business would mean the clothing business. This charge was placed by the French Authorities and pertained to the activities of one of the salesmen working for a company in which Edgard Zemour was part owner. The salesman had lied about the type of materials used in the clothing and the clothing did not properly fit the customers to whom he had sold the clothing. Zemour, as owner of the corporation for whom the salesman worked, was charged with complicity which is apparently some form of conspiracy. Edgard Zemour had a trial on the issue and the judge found him guilty and placed him on two years probation. Zemour appealed the sentence and the appellate court upheld the conviction and sentenced Zemour to two years in prison. Edgard Zemour learned of the actual sentence before going back to court to face the sentence and fled France until 1972. When Edgard Zemour left France, he went to Isreal [sic]. “While in Isreal [sic], Edgard Zemour was in the restaurant business. On one occasion while Zemour was in the restaurant business, a homicide occurred in his restaurant and the Isreali [sic] police took him to jail and kept him there for 23 to 25 days, after which time he was released when the police found the actual assailant. On one other occasion while living in Isreal [sic] Zemour tried to stop a fight in his restaurant and the police took him to the police station as a part of their investigation of the fighting incident, but subsequently released Zemour from charges.
“In 1973, Edgard Zemour s father became ill and Edgard Zemour left Isreal [sic] by way of Frankfurt, Germany to return to France to see his father who was thought to be dying. Zemour took the passport of one of the employees in the restaurant in Isreal [sic], and had someone in Frankfurt, Germany place Zemour’s picture on the French passport belonging to the restaurant employee. This was done to avoid detection by the French authorities who would arrest Zemour to serve the two year sentence for the fraud case in 1969. When Zemour arrived in France he was arrested for having a false identification and for showing the false identification passport to the French Authorities. He went to court and was given a one month sentence for having a false identification and a one month sentence for showing a false passport to the French Police, in addition to the two year sentence which was pending on the fraud case of 1969. Zemour served between 8 and 9 months on these cases and was placed on probation.
“Edgard was with his brother and uncle and some friends in a bar in France between 4:00 p. m. and 4:15 p. m., during the year 1975. At this time Zemour was on probation and did not wish the police to see him in the bar, although he felt his probation would allow him to be in that bar. A group of policemen entered the bar and shot and killed his brother and uncle and one friend. The police also shot Zemour five times. Zemour claimes [sic] that this incident involved some political dispute in France. Zemour was charged with fighting with the police. Before standing such charge, he spent one year in the hospital most of which time was spent in the prison hospital. Zemour was aquitted [sic] of the offense of fighting with the police and left France.
“In March 1976, Edgard Zemour went to Brussels, Belgium for one week and from there to Martinque for two weeks and subsequently to Miami, Florida, in April of 1976, and has remained in Miami, Florida, since that time.”

Moral character, as used in this statute, means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence. An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral character. But, as shown by the evidence here, repeated acts in violation of law wherever committed and generally condemned by law abiding people, over a long period of time, evinces the sort of mind and establishes the sort of character that the legislature, as Judge Rawls said in Beary, supra, “in its infinite wisdom”, has determined should not be entrusted with a liquor license. The applicant here is shown to be one which, in our judgment, falls within that category. The petition for review is denied.

BOYER, Acting C. J., and MASON, ERNEST E. (Ret.), Associate Judge, concur.

      . When not one included in the prohibitions of Section 561.15(2), Florida Statutes.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Gerald EGENA and Billy Ray Jacob.
    No. 58618.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Tilden H. Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    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.
   DIXON, Justice.

Defendants, Gerald Egena and Billy Ray Jacob, were charged jointly by bill of information with the September 23, 1972 armed robbery of Henrietta Thormah-len, in violation of R.S. 14:64. The defendants were jointly tried on March 15, 1973 and, after a short deliberation, the jury returned the following verdict: “Guilty as Charge (sic) of Arm (sic) Robbery.” Each defendant was sentenced to forty years at hard labor. Defendants base this appeal upon two assignments of error but discussion of these alleged errors is pretermitted because of an error patent on the face of the record. See C.Cr.P. 920(2).

C.Cr.P. 818 provides:

“If there is more than one defendant on trial, the verdict shall name each defendant and the finding as to him.” (Emphasis added).

The Official Revision Comment to article 819 (a succeeding provision requiring a separate verdict as to each count) expressly states the rationale of this provision. These articles “require the jury to consider each defendant and each count independently and to return a verdict, if they can agree upon one, as to each defendant and as to each count.” As we stated in State v. Comeaux, 277 So.2d 647, 648 (La.1973) “[t]he intent was thus to encourage particularized consideration of the guilt or not of each co-defendant and on each count, and to inhibit a generalized finding which might be less indicative of individual guilt than of guilt by association.”

The verdict in this case clearly does not comply with the quoted statutory provision. The jury’s illegal verdict was at least partially induced by the list of verdicts possible submitted to the jury by the trial judge. This list provided in part: “You may render one verdict as to one defendant, naming him, and a different verdict as to the other defendant, naming him; or you may render the same verdict as to both defendants.”

C.Cr.P. 920(2) provides that this court shall consider on appeal “an error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” The jury’s verdict is part of the pleadings which this court must review for errors. See, e. g. State v. Craddock, 307 So.2d 342 (La.1975); State v. Comeaux, supra; State v. Sanford, 248 La. 630, 181 So.2d 50 (1965). Since the trial did not result in a valid verdict finding either defendant guilty, nor did the sentences imposed rest upon a valid verdict, C.Cr.P. 872, the convictions and sentences must be set aside and the case remanded for a new trial.

For the foregoing reasons, the convictions and sentences of both defendants are reversed and the case is remanded for a new trial.


text:
    LOUISIANA STATE BAR ASSOCIATION v. Bernard A. HORTON.
    No. 59004.
    Supreme Court of Louisiana.
    March 29, 1977.
   ORDER

The foregoing Petition, the premises, and the law considered:

IT IS ORDERED, ADJUDGED, AND DECREED

That BERNARD A. HORTON be and he is hereby suspended from the practice of law in the State of Louisiana for a period of six (6) months from May 1, 1977.


text:
    Howard A. KIDDER v. Bob ANDERSON and Capital City Press, Inc.
    No. 59975.
    Supreme Court of Louisiana.
    June 17, 1977.
   In re: Howard A. Kidder applying for certiorari, or writ of review, to the Court of Appeal, 345 So.2d 922, First Circuit, Parish of East Baton Rouge.

Writ denied. On the facts found, no error of law.

DENNIS, J., would grant the writ.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Robert KING.
    No. 59207.
    Supreme Court of Louisiana.
    June 20, 1977.

      Robert Zibilich, 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., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Robert King was charged by bill of information with the second degree murder of Michael Shields in violation of La.R.S. 14:30.1. On November 4, 1975, after trial by jury, defendant was found guilty of the responsive verdict of manslaughter. Thereafter defendant was sentenced to serve ten years at hard labor in the custody of the Department of Corrections. He appeals his conviction and sentence to this Court, relying upon one assignment of error.

Defendant admitted that he shot and killed the victim,' Michael Shields, outside Kelley’s Bar on D’Hemecourt Street in the City of New Orleans at about one o’clock on the morning of July 23,1974. His purported justification was that he did so in self-defense. He testified that on the evening in question Shields walked up to him in the bar flashing a gun and told him to step outside. He said that when he started going outside, Shields went behind him with a pistol. He ducked into the alley behind the bar, heard Shields expressing dismay over his whereabouts, and then he exited the alley and started shooting at Shields.

Defendant also presented the testimony of one Gregory Mascaro, who more or less verified his story. Mascaro said that on the night in question Michael Shields walked up to him, put a gun in his side and stated to him that he was “down on me.” He said he heard Shields also threaten defendant King, and that Shields asked both Mascaro and the defendant to step outside. The state presented seemingly contrary evidence in the testimony of three women. One of these, Lynn Harmon, said that the victim did not have a gun or a knife, that she did not see him threaten the defendant in any way, and that when she and Shields walked out of the bar, Shields had a can of beer in his hand. Gladys Albert, another state witness, testified that she did not see the victim with a gun and she did not see the victim threaten the defendant. A third woman, Peggy Greer the barmaid at Kelley’s Bar, testified that she saw the defendant and the victim in the bar on the evening in question and did not see anything unusual happen prior to the shooting other than the victim had bumped into the defendant at one point. The state also emphasized that no weapon was found on the victim after the shooting.

In support of King’s contention that he acted in self-defense, defense counsel sought to question the defendant regarding prior threats made by the victim. And defense counsel sought to introduce the criminal record of the victim.

Evidence of prior threats made by the victim of a homicide and of his prior criminal record are relevant in a case where the plea of self-defense has been raised to show that the victim was the aggressor and that defendant’s apprehension of danger was reasonable. State v. Green, 335 So.2d 430 (La.1976); State v. Lee, 331 So.2d 455 (La.1976); I Wigmore on Evidence, § 63 (3rd ed. 1940); McCormick on Evidence, § 295 (2nd ed. 1972). However, evidence of dangerous character or threats against the accused is not admissible in the absence of evidence of hostile demonstration or of an overt act on the part of the person slain. La.R.S. 15:482. Overt act in this context means any act of the victim which manifests to the mind of a reasonable person a present intention on his part to kill or do great bodily harm. See State v. James, 339 So.2d 741 (La.1976); State v. Green, supra; State v. Lee, supra; State v. Brown, 172 La. 121, 133 So. 383 (1931).

When the state objected to the introduction of Shields’ criminal record and the defendant’s testimony concerning Shields’ threats, the trial judge sustained the objections, apparently concluding after evaluating the evidence that he did not believe that an overt act had occurred. It should be noted that this case was tried before our decision in State v. Lee, supra, was handed down, and that the judge’s ruling was not inconsistent with one line of cases which we subsequently overruled in Lee. See citations in Lee, supra at 460, note 4.

Nonetheless, as we now view that ruling, in light of State v. Lee, supra and the line of cases it followed, including State v. Burkhalter, 319 So.2d 392 (La.1975), the ruling was incorrect. In Lee, supra at 459, we held that a 1952 amendment to Louisiana Revised Statute 15:482 required that “when appreciable evidence is in the record relevantly tending to establish the overt act, the trial court cannot exercise its discretion to infringe on the fact-determination function of the jury by disbelieving this defense testimony and thus, deny the accused a defense permitted him by law.” See also State v. James, supra; State v. Green, supra. The statute and jurisprudence do, however, require that the overt act be established before the dangerous character and threat evidence concerning the decedent may be introduced. See State v. Lee, supra and cases cited therein; La. R.S. 15:482. But once the overt act is established, this type of evidence is admissible in support of a plea of self-defense in a murder prosecution for two distinct purposes: to show defendant’s reasonable apprehension of danger which would justify his conduct; and to help determine who was the aggressor in the conflict. See I Wigmore on Evidence, § 63 (3d ed. 1940); McCormick on Evidence, § 295 (2d ed. 1972). When the evidence is introduced for the first purpose, as it was in this case, it is admissible to show the accused’s state of mind, based on what he himself knew of the decedent’s reputation or threats. Such evidence would tend to negative intent and would be relevant and admissible under La. R.S. 15:441 which provides that relevant evidence is that “tending to negative the commission of the offense and the intent.” The reason for the overt act foundation requirement has been expressed as follows:

“There ought, of course, to be some other appreciable evidence of the deceased’s aggression, for the character-evidence can hardly be of value unless there is otherwise a fair possibility of doubt on the point; moreover, otherwise the deceased’s bad character is likely to be put forward to serve improperly as a mere excuse for the killing, under the pretext of evidencing his aggression, and it is often feasible to obtain untrustworthy character-testimony for that purpose.”

I Wigmore on Evidence, § 63 (3d ed. 1940). See State v. Young, 344 So.2d 983 (La.1977); State v. Lee, supra.

In the case at hand, there was appreciable evidence in this record relevantly tending to establish the overt act. Defendant put forth evidence that he was forced to leave the bar on Shields’ order, and with Shields armed, that he and Masca-ro had been threatened by Shields at that time. Although the state introduced contradictory evidence as to the victim’s actions at the bar, the trial judge could not properly have weighed the evidence of overt act, and thereby have infringed on the jury’s function as fact-finder. Defendant King had presented evidence of an overt act by the victim at the time of the incident, an act which would have caused a reasonable man to fear that he was in imminent danger of great bodily harm. That showing was sufficient to make admissible his evidence as to the victim’s prior threats, and as to his reputation.

We recognize, of course, that had the jury been given this evidence that it still might have returned a verdict of manslaughter, as it did without the excluded evidence. Nevertheless, it was for the jury, not the judge, to make that fact-finding decision (should it have chosen to disbelieve defendant’s witnesses and to believe the state’s witnesses).

Finally, it is noted that the state argues in brief that the Court’s decision in State v. Lee, supra, should not be applied retroactively and that because the trial in this matter occurred prior to that decision the conviction and sentence in this case should not be reversed. The state contends that the trial judge’s ruling was made in good faith and in keeping with the decisions of this Court at the time the trial took place, and that to require retrial of these cases would create “an administrative chaos.”

This Court has indicated that where a newly-announced rule goes to the very integrity of the fact-finding process, the rule will be given retroactive application. See State v. Liesk, 326 So.2d 871 (La.1976); State v. Rester, 309 So.2d 321 (La.1975). See also Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). It is only where the rule does not go to the integrity of the fact-finding process that the balancing of such considerations as the purpose to be served by the new standards, the extent of the reliance by law enforcement authorities on the old standards, and the effect on the administration of justice of a retroactive application of the new standards, should be explored. See Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Linkletter v. Walker, supra; State v. Liesk, supra.

In the instant case, the failure of the trial court to properly admit evidence relative to the defendant’s plea of self-defense substantially impaired the truth-finding function and raised serious questions relative to the accuracy of the guilty verdict. As stated in Williams v. United States, supra, 401 U.S. at 653, 91 S.Ct. at 1152, in such cases “[njeither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.”

For the foregoing reasons the conviction of defendant Robert King is reversed, his sentence is vacated, and the case is remanded to the district court for new trial.

DENNIS, J., concurs.

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

      . Louisiana Revised Statute 14:20(1) provides that homicide is justifiable “when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.”

      . Defendant’s testimony presented outside the presence of the jury was to the effect that a few days before the night in question Shields had gotten out of a car, called to him, stuck a pistol in his stomach, and told him that he would kill him the next time he saw him if he did not pay for some heroin that had been stolen from his home.

      . With respect to the admissibility of the decedent’s criminal record, the traditional rule is that character evidence is established by general reputation, not by specific acts. La.R.S. 15:479. Nevertheless, evidence of specific acts is relevant when a plea of self-defense is raised to show the defendant’s state of mind, which is a material issue in such cases. La.R.S. 14:20. See State v. Lee, supra. Therefore although prior threats and violent acts, whether against the accused or against others, might be inadmissible as character evidence, they are admissible if the defendant knew of them at the time of the offense. Thus, in the instant case, the victim’s prior record would be inadmissible unless there was a showing that the defendant knew of the record at the time of the homicide.


text:
    STATE of Louisiana v. Aaron Wayne BRENT.
    No. 59092.
    Supreme Court of Louisiana.
    June 20, 1977.

      Frank J. Gremillion, Hynes & Gremillion, Baton Rouge, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., A. J. Marabella, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Brent was indicted in January, 1976, with first degree murder of Ledell Mac Harrison which took place on April 23, 1976 in Baton Rouge, Louisiana. Thereafter the state on its own motion amended the indictment for first degree murder to murder in the second degree. Jury trial was had in October of 1976, and defendant Brent was found guilty as charged and sentenced to mandatory life imprisonment. Defendant relies on eleven assignments of error to assert that his conviction should be reversed and his sentence vacated. The assignments are in four groups and will be treated accordingly.

There is no doubt that defendant killed Ledell Harrison; he admits that. The version of the facts that he advances, however, is one of a killing in self-defense, an assertion which, if accepted, would exculpate him from criminal responsibility for that act.

The shooting incident took place in this way. Ledell Harrison (the decedent) was walking down a sidewalk beside his sister Georgia Mae Harrison (who uses the name of “Pie” or “Gangster Pie”). They were accompanied by Lisa Hatch and Joyce Hatch who were walking side by side ahead of them. They heard a loud sound, like the hitting of brakes, and turned to see a car pulled up beside them and defendant Brent standing beside the back door holding a gun in his hand. Three other people were in the car. Brent ordered them to halt; Lisa reached for her purse; Brent ordered them to halt again, pointing the gun at Lisa. She took her hand away from her purse, and then defendant turned and shot Harrison, killing him. He also shot Georgia Harrison three times (she survived), apparently as she came to the aid of, or stepped in front of, her brother. These events took place in the space of a very few seconds, and afterward all the participants, except, of course Ledell Harrison, scattered. Later, when Brent learned from a news broadcast that Harrison had died, he turned himself in to police.

Defendant took the stand at trial and testified that as he stood facing the group he heard Harrison call for a gun, and (a bit incongruously) he saw a gun on Harrison. He fired at Harrison, he said, when Harrison made a turning motion to the right, and he struck “Pie” when she jumped between him and Harrison. Additional defense evidence as to the precipitating cause of the altercation will be discussed hereinafter in our discussion of the major assignments of error in this case.

ASSIGNMENT OF ERRORS NOS. 1 and 2.

Defendant argues that the trial court erred in instructing the jury as to the penalty provision of the crime, and in excusing for cause a prospective juror who indicated that she would not return a guilty verdict because of the severity of the penalty.

It is established in Louisiana law that a trial judge may, if he chooses to, instruct jurors on the applicable penalty in the event of conviction. State v. Blackwell, 298 So.2d 798 (La.1974). His so informing the jurors of the penalty on voir dire examination rather than later, in his instructions, is likewise permissible. Defendant does not argue that the rule is otherwise. Instead he takes the position that if the penalty is properly placed before the jury for its consideration in deciding the case (as was done in this case), then the trial court erred when it excused for cause a prospective juror (Ms. David) who stated that she could never vote guilty even if the state had proved beyond a reasonable doubt that defendant was guilty because she would not want to see the accused sentenced to life imprisonment. Defendant argues that when the judge refused to allow on the jury a person who would likely acquit, irrespective of the facts, rather than find guilt with its attendant mandatory life sentence, he effectively deprived defendant of a meaningful utilization of an argument otherwise available to him. We assume, although, the defendant does not so state, that he bases this argument on the theory that the excusal of this juror for cause was a denial of due process of law.

The juror was questioned at length by both the state’s attorney, the defense attorney, and the judge. She stated several times that she could not vote for a guilty verdict even if she believed that the state had carried its burden beyond a reasonable doubt. She said that she could not vote for any guilty verdict, even a responsive verdict, knowing the defendant would go to prison. Although she was “rehabilitated” somewhat and did finally say that she could come up with a decision that was right regardless of the penalty, we are of the view that this prospective juror was so consistently adamant about not returning a guilty verdict no matter what the state proved, that she was properly excused for cause. We so conclude notwithstanding the fact that our decision in State v. Blackwell, supra, affords the trial judge the discretion to allow or disallow instructions and arguments to the jury relative to penalty. This result is neither unfair nor a violation of due process, and it is a reasonable one considering the predominant need to have fair yet open-minded jurors.

ASSIGNMENTS OF ERROR NOS. 3, 4, 5, 6, 9 and 10.

Each of these assignments deals with the appellant’s attempt to introduce evidence of threats upon his life by the decedent and his companions. He wanted to introduce the testimony in order to support his contention of self-defense. In order to appreciate this argument, we must put it in the context of the other facts brought out at the trial. The incident which eventually led to the shooting of Ledell Harrison evidently began one week before, apparently on a Saturday night, when Sandra Collins, defendant Aaron Brent’s girl friend, was cut in a knife fight with decedent’s sister Georgia Mae Harrison. In the following week, defendant was approached and berated by Georgia Mae Harrison; he allegedly received, communicated through others (see footnote two above) apparent threats upon his life; and he more or less remained confined to his house, purportedly in fear. He testified that he was in effect tired of running or hiding so he went out and bought a gun and on the day of the incident, a Friday, he was advised by his sister that Georgia Mae Harrison, and her brother Ledell (the victim) and two others had come by his house looking for him. That knowledge, coupled with the various threats communicated to him, prompted him, he said, to look for the two Harrisons so as to confront them with his gun and scare them into letting him alone. It was this background, particularly the information that some twenty minutes before, Ledell and Georgia Mae Harrison had gone by his house looking for him, which precipitated the shooting incident.

In a homicide case, evidence of the victim’s reputation for violence or aggression may be introduced in support of the accused’s claim of self-defense. The evidence of decedent’s character is introduced, not to prove the acts of the deceased, but to establish the accused’s apprehension and the reasonableness of his defensive measures. 2 Weinstein’s Evidence, § 404[06] (1976); McCormick, Evidence § 160 at 339 (1954). Defendant in this case wanted to reveal to the jury the threats made against him by the victim and the victim’s sister, as well as the victim’s reputation for aggression (see assignment number eight) so as to convince the jury that he shot at Ledell Harrison, and killed him, as a reasonable response to his own fear of being gravely injured or killed by Harrison.

Under our statutes and jurisprudence, such evidence is not admissible until defendant has made a showing with appreciable evidence that the victim made a hostile demonstration or overt act against him at the time of the incident which would have manifested to a reasonable person that he was in danger of grave bodily harm or of being killed. La.R.S. 15:482; State v. King, 347 So.2d 1108 (La.1977); State v. James, 339 So.2d 741 (La.1976); State v. Lee, 331 So.2d 455 (La.1976). Once that showing has been made, then the evidence can be brought to the attention of the jury which can then serve as fact-finder and believe or disbelieve any or all of this evidence. Although the trial judge may not usurp the jury’s function by choosing to disbelieve defendant’s evidence of hostile demonstration or overt act, and thereby disallow evidence which should have gone to the jury of the victim’s reputation or violent nature, see State v. King, supra, State v. Green, 335 So.2d 430 (La.1976), and State v. Lee, supra, the judge must determine whether any evidence shows that decedent was the aggressor in the conflict and that defendant honestly acted in self-defense. See State v. James, supra; United States v. McIntire, 461 F.2d 1092 (5th Cir. 1972); Black v. State, 230 Ga. 614, 198 S.E.2d 314 (1973); Chacon v. People, 175 Colo. 437, 488 P.2d 56 (1971); Allen v. State, 38 Fla. 44, 20 So. 807 (1896); 1 A.L.R.3d 571 (1965).

The record before us contains no evidence tending to show that at the time in question defendant would have been in any danger had he not precipitated the incident by approaching the foursome and pointing a loaded gun at them. Self-defense is relative. It is available as an exculpation, or an excuse for assault, to an assaultee, not an assailant. And the time frame for assessing or characterizing the combatants commences at incipience of the confrontation. In a situation like the present, where a party searches for another, finds him, approaches with a loaded and pointed pistol (a menacing rather than indifferent act in light of, the apparent bad blood existing between the parties), it is incongruous to label as self-defense a shooting by the assailant even if such shooting were to follow the victim’s reaching for a pistol (a fact probably not shown by the evidence here but assumed for the purpose of argument). Self-defense in such a circumstance may be urged (and might have been, had the decedent rather than the defendant prevailed in the conflict) by the victim of the initial assault, not by the assailant. In a civilized society the law cannot permit even a harassed and threatened individual to take the law into his own hands, track down his enemy, assault him with a pistol, and then claim justification for a homicide which follows because of prior threats.

For these reasons defendant here may not invoke R.S. 15:482 and attempt to prove the victim’s reputation for violence or prior threats even if he is able to show the victim’s overt act at the time of this type of confrontation. The assignment lacks merit.

ASSIGNMENT OF ERROR NO. 8.

The immediately preceding assignments of error had to do with defendant’s efforts to prove prior threats. This assignment, number eight, has to do with efforts to prove the reputation of the victim, Ledell Harrison. It arose when the court refused to allow defendant to question one Donald Ray Gaines about whether or not he had ever heard Ledell Harrison’s reputation for violence discussed in the East Baton Rouge Parish jail where both the witness and the decedent had spent some time together. For the same reasons which we related hereinabove as to the assignments relating to prior threats, evidence of decedent’s dangerous character was properly disallowed in this case.

ASSIGNMENT OF ERROR NO. 11.

Defendant complains that the trial court erred in allowing the state to introduce the testimony of Officer E. Altazin to impeach defendant’s testimony. When he took the stand, defendant described the stabbing of his girl friend Sandra Collins by Georgia Mae Harrison which occurred about a week before the fatal shooting for which he was on trial, and was one of the incidents which precipitated the homicide. He testified that when he took her to the hospital he was questioned by police but that he made no statement. He was asked if he had occasion to speak with Officer Dan Altazin that night; if he spoke with any police officers that night; whether he told anyone what he was going to do to “Pie.” He insisted that he made no statement. On rebuttal, the state introduced the testimony of Officer Altazin who stated that at the hospital defendant Brent said that Pie Gangster and an unknown subject by the name of Slim “had signed their death warrants.” “Gangster Pie” is, as previously stated, a nickname used by Georgia Harrison, decedent’s sister.

Defendant argues that the statement was improperly admitted because it was an in-culpatory statement introduced absent prior notice and, alternatively, because it was incompetent as impeachment being a “collateral fact or irrelevant matter.” La.R.S. 15:494.

Article 768 of the Code of Criminal Procedure provides that, should the state fail to give notice of its intention to use a confession or inculpatory statement at trial, it is inadmissible. For purposes of this article, the term “inculpatory statement” refers to defendant’s out-of-court admission made after a crime has taken place which implicates defendant in its commission. State v. Brumfield, 329 So.2d 181 (La.1976); State v. Wells, 306 So.2d 695 (La.1975). Because defendant made the challenged statement one week before the crime took place, Article 768 does not govern its admission into evidence.

Defendant, however, also argues that the statement was improperly elicited in an attempt to impeach his credibility as a witness because the statement raised an issue collateral to his guilt of the crime charged.

Louisiana Revised Statute 15:493 and 494 allow impeachment of a witness’ credibility by use of prior inconsistent statements, but they require that a proper foundation be laid before impeachment and they disallow impeachment “as to collateral facts or irrelevant matter.”

There can be no question here but that the state laid a proper foundation because the prosecutor supplied the witness with the date of the statement, the occasion, the place, the name of the person to whom it was given, and a reference to the substance of the statement. Additionally, the statement was relevant to a material issue in the case. At the time of the shooting of Ledell Harrison, he was walking with his sister, Georgia Mae Harrison. When defendant Brent shot and killed Ledell Harrison he also fired several bullets which wounded, but did not kill, Georgia Mae Harrison. Therefore, defendant’s threat to kill her, made to a police officer one week before, was relevant to defendant’s guilt of the crime for which he was being tried, the murder of Ledell Harrison.

The assignment lacks merit.

ASSIGNMENT OF ERROR NO. 12.

Originally, defendant was. indicted for first degree murder. Thereafter the state amended the grand jury indictment to charge him with second degree murder. Defendant argues that this action on the part of the state improperly curtailed his right to a preliminary hearing.

When a criminal defendant feels that he has a right to a preliminary hearing, he should assert that right before trial by means of an application for supervisory writs to this Court. On appeal after conviction he can no longer allege that he was improperly denied a preliminary hearing.

This assignment lacks merit.

For the reasons assigned, the conviction and sentence of defendant Brent are affirmed.

DENNIS, J., concurs.

      . One assignment, number seven, was not argued in brief and will be deemed abandoned. State v. Jones, 340 So.2d 563 (La.1976). In any event the assignment is non-meritorious. Defendant complains in his formal assignment that the state improperly cross-examined the defendant who took the stand, by asking him if he had ever been convicted of a crime. Such an inquiry is proper. La.R.S. ,15:495

      . Assignment of error number three arises out of the trial court’s refusal to allow defendant to cross-examine a state witness, Georgia Harrison, for the purpose of proving that that witness, along with the decedent, had made threats against the life of the defendant prior to the commission of the offense. Assignment of error number four arose out of the court’s refusal to allow defense counsel to elicit from the defendant a statement made to him by defendant’s sister shortly before the occurrence of the offense. Defendant’s sister had apparently told the defendant that decedent and his companions had gone to defendant’s house and threatened to kill him.
      Assignment of error number five arose out of the trial court’s refusal to allow counsel to elicit from the defendant testimony to the effect that several days before the alleged offense the defendant was told by a third party that the decedent and his companions were searching for the defendant, were armed, and intended to kill the defendant. Assignment of error number six arose out of the court’s refusal to allow defendant to testify that Nelson Perkins had told him shortly before the commission of the offense that the decedent and his companions had threatened to kill the defendant, were searching for him, and were armed.
      Assignment of error number nine arose out of the court’s refusal to allow defendant to call to the stand Nelson Perkins and attempt to elicit from him testimony concerning a threat made by the decedent upon the life of the defendant and communicated by that witness to the defendant. Assignment of error number ten arose out of the court’s refusal to allow defendant to call as a witness his sister, Sheri Palmer, and ask her to describe threats made to him and to other members of their family shortly before the offense.


author: TATE, Justice.

text:
    LIBERTY MUTUAL INSURANCE COMPANY and South Louisiana Contractors, Inc. v. Mabel H. CEASAR and Lula Mae Hurks.
    No. 60005.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Lula Mae Hurks, applying for certiorari, or writ of review, to the Court of Appeal, 345 So.2d 64, Third Circuit, Parish of St. Landry.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in its judgment.

TATE, Justice.

I respectfully dissent: (1) The holding that a dependent woman is not a member of the decedent’s family for purposes of our workman’s compensation act, merely because she is not married to him, is an erroneous interpretation, for the reasons more fully stated by my dissenting opinion in Humphreys v. Marquette Casualty Co., 95 So.2d 872, 875 (La.App. 1st Cir. 1957); (2) The denial of compensation to the dependent lady living with the deceased wage earner represents an irrational and invidious legislative classification which offends equal protection guarantees of the federal constitution under interpretations thereof by the United States Supreme Court.

DIXON, J., dissents from the denial.

CALOGERO, J., is of the opinion the writ should be granted.


author: PER CURIAM.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Harold B. McSWEEN.
    No. 57805.
    Supreme Court of Louisiana.
    July 1, 1977.

      John B. Scofield, Lake Charles, Chairman, Sam J. D’Amico, Baton Rouge, Wood Brown, III, New Orleans, Leonard Puhrer, Alexandria, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, Henry A. Politz, Shreveport, John F. Pugh, Thibo-daux, A. Russell Roberts, Metairie, Thomas 0. Collins, Jr., New Orleans, Counsel for Louisiana State Bar Association Committee on Professional Responsibility, for petitioner.
    Camille F. Gravel, Jr., Dee D. Drell, Gravel, Roy & Burnes, Alexandria, for respondent.
   PER CURIAM.

On November 5, 1975, Harold B. McSween, former president of the Rapides Savings and Loan Association and a member of the Louisiana State Bar Association since 1950, was indicted under a four-count indictment returned by the grand jury of the United States District Court for the Western District of Louisiana. Count I was dismissed. McSween entered guilty pleas to counts II, III, and IV, each of which charged him with the violation of 18 U.S.C. § 1006 (receiving money from a federally insured savings and loan association with intent to defraud). He was sentenced to prison for a period of one year on each count, to be served concurrently, and ordered to pay a fine of $10,000 on each of the three counts. Execution of the sentences of imprisonment was suspended and McSween was placed on supervisory probation for a period of five years. As a special condition of probation he was ordered to refrain from the practice of law for one year from January 31, 1976.

On April 2, 1976, the Louisiana State Bar Association, through its Committee on Professional Responsibility, filed in this Court a petition charging McSween with professional misconduct and seeking disciplinary action. We appointed Cecil E. Ramey, Jr. Commissioner to conduct a hearing and make recommendations.

After reviewing the transcript of the evi-dentiary hearing at which McSween was the only witness, as well as all other affidavits and documents of record, we adopt the Commissioner’s findings of fact which, in pertinent part, provide:

“At the hearing Respondent’s attorney gave as Respondent’s reasons for the guilty plea his business involvements and, for a number of personal and financial reasons, his inability to go through long, drawn-out judicial proceedings without financial disaster.
“Count II charged that Respondent, as President of Rapides Savings & Loan Association, a duly authorized savings and loan association, the deposits and accounts of which were insured by the Federal Savings & Loan Association, and another officer of said Association, with intent to defraud said Association, unlawfully and wilfully did participate, share in, and directly and indirectly receive monies and benefit by means of a check in the amount of $36,000, dated November 18, 1970, payable to S. Conrad Weil, Jr., and purportedly representing proceeds and disbursements of a loan to S. Conrad Weil, Jr., all in violation of Title 18, United States Code, Section 1006.
“Count III of said indictment charged that, on or about January 29, 1971, Respondent, and another officer of said Association, with intent to defraud said Association, unlawfully and wilfully did participate, share in, and directly and indirectly receive monies and benefits by means of a check in the amount of $27,-000, dated January 29, 1971, payable to J. E. Fryar and purportedly representing proceeds and disbursements of a loan to E. M. Glynn, Inc., all in violation of Title 18, United States Code, Section 1006.
“Count IV charged that Respondent, on or about May 4, 1972, with intent to defraud said Association, unlawfully and wilfully did participate, share in, and directly and indirectly receive monies and benefits by means of a disbursement by said Association of a cheek in the amount of $26,561, dated May 4, 1972, payable to E. M. Glynn, Inc., and purportedly representing proceeds and disbursements of a loan to E. M. Glynn, Inc., all in violation of Title 18, United States Code, Section 1006.
“In the course of his testimony, at the hearing, Respondent admitted that he received the funds referred to in Count II, that they came from the proceeds of a loan to Mr. Weil and others, and that said payment was not disclosed. He contended that the funds were paid by personal check of Mr. Weil, that he was not aware at the time that he had a duty to disclose the indirect payment, and that the funds were paid to him as a fee for rezoning a piece of property in Alexandria. Respondent first testified that the fee was based on a percentage of the loan, but later stated that his fee had been fixed at $20,000, of which he received only $18,-000.
“He admitted receiving at least part of the funds referred to in Count III, contending that the funds represented a 2% brokerage fee for attempting to obtain participation by another lending institution in a loan to which Rapides Savings & Loan Association was committed.
“In connection with Count IV, he admitted receiving the funds referred to in said Count, but contended that they came directly from his associate, Mr. Asher, in settlement of some business between them and not from the proceeds and disbursements of any loan by Rapides Savings & Loan Association.”

Article XV, § 8, paragraph 7 of the Articles of Incorporation of the Louisiana State Bar Association, under which this proceeding was brought, provides in pertinent part:

“(c) At the hearing before the Commissioner, the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.
“(d) At the hearing based upon a respondent’s conviction of a crime, the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.”

An essential element of the crime for which respondent was convicted was the “intent to defraud” Rapides Savings and Loan Association. See, 18 U.S.C. § 1006. The issue of respondent’s criminal intent was concluded against him by his plea of guilty and could not be tried anew in this proceeding. The only question before the Commissioner, and that with which we are here faced, is whether the crime warrants discipline, and if so, to what extent.

The offense in question, a felony involving intent to defraud, trenches upon at least two basic precepts of the Code of Professional Responsibility:

Disciplinary Rule 1-102 provides in part:

“(A) A lawyer shall not:
u * * *
“(3) Engage in illegal conduct involving moral turpitude.
“(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Respondent notes that the criminal charges did not arise out of his law practice and urges that, in reaching a decision as to the appropriate disciplinary action, we be mindful of our decree in Louisiana State Bar Association v. Ponder, 340 So.2d 134, 148 (La.1976), that “a disciplinary action is not so much for the punishment of the attorney as it is for the preservation of the integrity of the courts and the salutary effect it has upon other members of the bar.” We adhere to this view, but find at the heart of respondent’s conduct a breach of fiduciary duty so serious that it casts doubt upon his ability to represent legal clients with undivided loyalty. See, Code of Professional Responsibility, Canon 5. Finding that respondent’s conduct reflects adversely upon his ability to practice law, we conclude that disciplinary action is warranted.

Nevertheless, evidence of mitigating circumstances properly introduced before the Commissioner convince us that the harshest penalty, disbarment, is not in order. Respondent has been a member of the bar for many years and despite his present difficulties, has maintained a good reputation among many of his professional associates and members of the lay community. Furthermore, since January 31, 1977, when respondent was no longer required as a condition of his probation to refrain from practicing law, he has voluntarily done so in a spirit of contrition.

The Commissioner recommended that McSween be suspended from the practice of law for a period of at least two years from January 31, 1977.

We have considered all of the mitigating evidence of record, not as tending to disprove McSween’s guilt, but for the sole purpose of determining whether the crime warrants discipline, and if so, the .extent thereof. Article XV, § 8(7)(d) of the Louisiana State Bar Association Articles of Incorporation. In our opinion, the criminal behavior of the respondent warrants a three-year suspension from the practice of law.

Accordingly, it is ordered that Harold B. McSween be suspended from the practice of law for a period of three years, dating retroactively from his suspension on January 31, 1976 by federal court order, at respondent’s cost.

       Citations to the transcript and footnotes are omitted from the Commissioner’s findings of fact.


author: TATE, Justice. SUMMERS, Justice

text:
    Minerva B. FUTCH and Clebert Mouton, Plaintiffs-Relators, v. Ida B. COUMES et al., Defendants-Respondents.
    No. 58963.
    Supreme Court of Louisiana.
    July 1, 1977.

      J. Minos Simon, Ltd., J. Minos Simon, Lafayette, for plaintiffs-relators.
   TATE, Justice.

We granted certiorari, 341 So.2d 413 (La. 1977), to review the refusal of the district court to consider the application of the plaintiff-relators to proceed in forma pau-peris, as well as to determine the validity of the local court rule upon which the district judge based his refusal.

The plaintiffs, domiciled in Lafayette Parish, filed this tort suit to recover for personal injuries. They attached to their petition affidavits of their poverty, furnished by themselves and a third person, in support of their allegation that they were entitled to prosecute the action without prepayment of costs or furnishing bond therefor, as authorized by La.C.Civ.P. arts. 5181-85.

The district judge refused to consider the requested order to permit the litigants to proceed in forma pauperis. It did so, in reliance upon Rule 20 of its local rules.

Insofar as pertinent, Rule 20 requires an applicant who desires to proceed in forma pauperis, together with his attorney and his third person affiant, to appear personally before the clerk of court to execute the affidavits. The rule also provides that the clerk shall then inquire into the litigant’s financial status and shall sign an order permitting the litigant to proceed as a pauper, if the clerk is satisfied that the litigant is entitled to do so.

We granted certiorari primarily because we felt that the local court rule might be in conflict with legislative provisions regulating the institution of pauper suits. Courts may not adopt rules “contrary to the rules provided by law.” La.C.Civ.P. art. 193. (Italics ours.)

We have concluded that local Rule 20 conflicts with the statutory procedure provided by Article 5183 of the Louisiana Code of Civil Procedure, by which the legislature provided the procedure by which a litigant may exercise the privilege of proceeding in forma pauperis.

The conflict results from the rule’s requirement that the litigant and his affiant appear in person at the clerk’s office to execute the affidavits statutorily entitling him to exercise the privilege granted by La.C.Civ.P. arts. 5181 et seq. Further, as administered, the rule requires these persons to be subject to interrogation by a deputy clerk (a non-judicial officer) concerning the litigant’s lack of means.

The statutory procedure provided by Article 5183 contemplates that a party may secure the privilege upon presenting an ex parte written motion to which are attached affidavits showing that the party is entitled to exercise the privilege. The statutory procedure does not involve a personal appearance at the courthouse. The simple statutory procedure provided is designed to assure efficient and non-technical exercise of the privilege by those entitled to it.

To the contrary, by requiring personal appearance at the courthouse, Rule 20 routinely requires the litigant and his affiant to participate personally at a quasi-judicial “hearing”, not authorized by law, at which they are formally interrogated (contrary to statute) by a non-judicial officer. Apparently, the litigant is required to appear in person, no matter how clear is his right to exercise the privilege, and no matter how distant from the courthouse does he reside.

The statutory purpose and procedure is contravened by converting an ex parte written motion and affidavit procedure into an inquisitorial mini-hearing routinely required in all cases'. One could well argue that a result of the rule is to inhibit access to the privilege by those entitled by law to exercise it, as well as to those not so entitled.

The statutory protections against abuse of the privilege are as follows:

(1) “When the application and supporting affidavits are presented to the court, it shall inquire into the facts” to satisfy itself of the litigant’s entitlement. La.C.Civ.P. art. 5183. The statutory procedure designated is presentation to the court of a written motion and affidavits; no personal appearance by the litigant is required. However, the court may inquire into the facts at the time the motion is presented to him, either of the applicant’s attorney or (presumably) through a questionnaire required of the litigant; and, if then not satisfied, the court may deny the privilege sought by the applicant.

(2) The only personal appearance contemplated as required of a litigant to maintain his exercise of the privilege is that provided by La.C.Civ.P. art. 5184. If the opposing party desires to traverse the facts alleged in the litigant’s affidavits, he may provoke a rule to show cause. To require a litigant routinely to appear personally at a mini-hearing at the courthouse, before being permitted to exercise his statutory privilege, is inconsistent with this statutory scheme.

We therefore hold that Rule 20, to the extent noted, is invalid because it is in conflict with the procedures provided by statute to permit persons with lack of sufficient means to proceed in forma pauperis. La.C.Civ.P. arts. 5181-85. Further, insofar (as administered) the rule permits the clerk of court to deny a litigant the privilege to proceed in forma pauperis, it is in conflict with La.Civ.P. art. 283(4), which confers upon the clerk the power to grant (but not to deny) such applications.

Nevertheless, we expressly note that, by so holding, we do not intend to invalidate the local court rule, insofar as by it the district court has merely delegated to the clerk of court any administrative duty with regard to processing applications to proceed without prepayment of costs.

Rule 20’s requirement that the application be initially presented to the clerk rather than to a judge, for instance, does not by itself invalidate the rule. Nor is the rule invalidated simply by its requirement that the clerk make the preliminary determination of whether to grant the application, La.C.Civ.P. art. 283(4), on the basis of that official’s inquiry into the litigant’s financial ability (see footnote 5 above) — providing that the inquiry is on the basis of the affidavits, inquiry personally (or by telephone) of the litigant’s attorney, or even possibly by examination of a reasonable questionnaire (if required by a court rule), instead of on the basis of mandatory personal appearance for a mini-hearing at the courthouse routinely required of all litigants contrary to the statutes establishing the procedures by which poor litigants are permitted to proceed in forma pauperis.

Rule 20 as presently drafted, however, is invalid for the reasons stated. Therefore, in accordance with their prayer, the plaintiffs-relators are entitled to the order, hereby granted, that the respondent judge consider and act immediately upon their application to proceed in forma pauperis, in accordance with the principles and holding set forth in our opinion.

RESPONDENT JUDGE ORDERED TO CONSIDER AND ACT UPON APPLICATION TO PROCEED IN FORMA PAU-PERIS.

MARCUS, J., concurs.

SUMMERS, J., dissents and assigns reasons.

SANDERS, C. J., dissents for the reasons assigned by SUMMERS, J.

SUMMERS, Justice

(dissenting).

Clebert Mouton and Minerva B. Futch are citizens of the State of Louisiana, domiciled in Lafayette Parish in the Fifteenth Judicial District. They filed this suit for damages incurred as a result of an automobile collision in Lafayette Parish on October 31, 1975.

A joint petition asserts their claims were filed with the Clerk’s office in Lafayette Parish on October 27, 1976. Affidavits of poverty, attesting that petitioners were without means to pay court costs as they accrued or to give bond or security therefor were attached to the petition.

Rule 20 of the Court Rules of the Fifteenth Judicial District Court relating to proceedings in forma pauperis provides:

“Before any judicial proceedings are permitted to be prosecuted or defended pursuant to Louisiana Code of Civil Procedure, Article 5181, et seq. (Waiver of Costs for Indigent Party) the applicant, his attorney and the affiant attesting to the applicant’s inability to pay the costs of court, shall appear before the Clerk of Court to execute the required affidavits. The Clerk shall inquire as to the financial ability of the litigant and shall obtain litigant’s affidavit of financial status. If the Clerk is satisfied that the party is entitled to proceed without the payment of costs, he shall sign an order permitting the party to proceed in forma pauperis.”

Without complying with the foregoing rule, petitioners’ counsel presented the petition and affidavit directly to the trial judge instead, who refused to consider and act upon plaintiffs’ application to proceed with the prosecution of the case as paupers. Counsel then gave notice to the trial judge of plaintiffs’ intention to apply for writs of certiorari, mandamus and prohibition and/or review of the judge’s refusal to consider and act upon their application to proceed in forma pauperis.

Plaintiffs’ application to the Third Circuit was denied. Without expressing an opinion on the validity of Court Rule 20, that court noted that plaintiffs had not been denied the privilege of proceeding in forma pau-peris, and they had failed to show irreparable injury. In the opinion of the Court of Appeal, plaintiffs had been instructed by the district judge to follow the procedure prescribed by Court Rule 20, which they refused to do. Plaintiffs, therefore, had not exhausted all remedies available to them in the district court. One member of the three-judge panel was of the opinion that Court Rule 20 was an unauthorized delegation of judicial authority to the Clerk of Court. In his view irreparable injury resulted by requiring the plaintiffs, their attorney and the persons signing the supporting affidavits to appear before the Clerk of Court for interrogation. Certiorari was granted by this Court on plaintiffs’ application. 341 So.2d 413 (La.1977).

Plaintiffs’ application is accompanied by an affidavit from which it is learned that litigants in Lafayette Parish applying to proceed in forma pauperis are required to appear in person in the Clerk’s office accompanied by counsel and the affiants who attest to his lack of means. A deputy clerk, who is not necessarily chief deputy, then interrogates the litigant, requiring answers to a two-page questionnaire. Thereafter the deputy clerk consults the Clerk in his office who either permits or denies the application to proceed in forma pauperis.

It is the position of plaintiffs that Court Rule 20 is contrary to the laws of this State on the same subject, and in that respect the rule is ineffective and cannot be enforced. It was error, therefore, according to plaintiffs’ contention, for the trial judge to insist on compliance with that rule.

Rule 20, it is argued, is contrary to the principles announced in Articles 5181 and 5182 of the Code of Civil Procedure, is an unconstitutional delegation of judicial authority and deprives these litigants of due process of law.

Article 5181:

“An individual who is unable to pay the costs of court, because of his poverty and lack of means, may prosecute or defend a judicial proceeding in any trial or appellate court without paying the costs in advance, or as they accrue, or furnishing security therefor.”

Article 5182:

“The privilege granted by this Chapter shall be restricted to litigants who are clearly entitled to it, with due regard to the nature of the proceeding, the court costs which otherwise would have to be paid, and the ability of the litigant to pay them or to furnish security therefor, so that the fomentation of litigation by an indiscriminate resort thereto may be discouraged, without depriving a litigant of its benefits if he is entitled thereto.”

A person who wishes to exercise the privilege granted by Articles 5181 and 5182 shall “apply to the court” for permission to do so, annex his affidavit of poverty and lack of means and the affidavit of a third person who knows his financial condition and believes he is unable to pay the costs of court. La.Code Civil Pro. art. 5183.

When the application and supporting affidavits are “presented to the court, it shall inquire into the facts”, and if satisfied it shall render an order permitting applicant to litigate without paying the costs. Id. art. 5183. The right of the applicant to exercise the privilege of proceeding in for-ma pauperis may be traversed by “an adverse party.” Id. art. 5184.

Article 5183 requires that applicants who wish to proceed in forma pauperis “shall apply to the court.” While this language is mandatory and may arguably be read to indicate that the application must be made to the judge, the article is not to be so narrowly construed. As already pointed out, this same article provides that when the application is “presented to the court, it shall inquire into the facts.” In this same context Article 283 of the Code of Civil Procedure permits the clerk of a district court to sign orders “to permit a party to institute and prosecute, or to defend, a suit without the payment of costs” under the provisions of Articles 5181 through 5188. The duties and power thereby conferred upon clerks of court by the Legislature fall within permissible constitutional limits. La.Const. art. V, § 28 (1974). Consideration of these articles in pari materia commands the inference that the reference to “the court” in Article 5183 also contemplates presentation of the application to the clerk of court.

Furthermore, the requirement that the court “inquire into the facts” logically recognize the right of the judge to delegate by court rule the fact-finding function of inquiry to the clerk. Basically Rule 20 is an exercise of this authority by the judges of the Fifteenth Judicial District.

Nothing in this record, which is admittedly sketchy, indicates that the procedure employed by the clerk is oppressive or results in irreparable harm or injury to the litigant or counsel.

The record does indicate, however, that the clerk of court does in some instances deny the applicant the right to proceed in forma pauperis. This cannot be approved. Although Rule 20 does not specifically authorize the clerk to deny the right to proceed in forma pauperis, if the rule has been construed to permit the clerk to deny the applicant that right, such a construction would place the rule in conflict with legislative enactments on the subject. The clerk’s authority under Article 283 is to “permit” a party to institute and prosecute, or to defend a suit, in forma pauperis. Only the judge may deny that right when he is not “satisfied” that the applicant is entitled to the privilege, or “[a]n adverse party” may by rule to show cause traverse the facts alleged in the affidavits of poverty. The court (the judge) may then rescind its order if it finds the litigant is not entitled to proceed in forma pauperis. La.Code Civil Pro. art. 5184. Because the power to deny is only conferred upon the judge, he may not delegate that authority to the clerk.

When the clerk’s inquiry brings him to the conclusion that the applicant is not entitled to proceed, the application, together with the information acquired by the clerk, must be referred to the district judge for further consideration and action.

Requiring the applicant, his attorney and the affiant attesting to the applicant’s inability to pay to appear before the clerk of court to execute the required affidavits is apparently an effort to carry out the legislative policy declared in Article 5182 to make inquiry; and to restrict the privilege of litigating without the payment of costs to litigants who are clearly entitled to it so that fomentation of litigation by an indiscriminate resort thereto may be discouraged. The rule does not offend the constitution or conflict with Article 193 of the Code of Civil Procedure. To the contrary, the rule is in keeping with the authorization in Article 193 to “adopt rules for the conduct of judicial business,” to better carry out the legislative policy to restrict the for-ma pauperis privilege to those clearly entitled to it so that fomentation of litigation may be discouraged, and to conserve the time of the trial judge in carrying out the necessary inquiry.

I would uphold the rule as expressed in this dissent.

      .Rule 20 of the Fifteenth Judicial District Court provides:
      “Before any judicial proceedings are permitted to be prosecuted or defended pursuant to Louisiana Code of Civil Procedure, Article 5181, et seq. (Waiver of Costs for Indigent Party), the applicant, his attorney and the affi-ant attesting to the applicant’s inability to pay the costs of court, shall appear before the Clerk of Court to execute the required affidavits. The Clerk shall inquire as to the financial ability of the litigant and shall obtain litigant’s affidavit of financial status. If the Clerk is satisfied that the party is entitled to proceed without the payment of costs, he shall sign an order permitting the party to proceed in forma pauperis.”

      . The showings made in the record indicate that the rule is administered by the clerk’s office as follows: A deputy clerk, who is not necessarily the chief deputy, interrogates the litigant, requiring answers to a two-page questionnaire. Thereafter, outside of the presence of the litigant and his attorney, the deputy consults the clerk in the latter’s personal chambers, who then either permits or denies the application to proceed in forma pauperis.

      . The definitions section of the code provides, La.C.Civ.P. art. 5251(9):
      “ ‘Law’ as used in the phrases ‘unless otherwise provided by law’ or ‘except as otherwise provided by law’ means an applicable provision of the constitution, a code, or a statute of Louisiana.”

      . La.C.Civ.P. art. 5183 provides:
      “A person who wishes to exercise the privilege granted in this Chapter shall apply to the court for permission to do so in his first pleading, or in an ex parte written motion if requested later, to which he shall annex:
      “(1) His affidavit that he is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor, because of his poverty and lack of means; and
      “(2) The affidavit of a third person other than his attorney that he knows the applicant, knows his financial condition, and believes that he is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor.
      “When the application and supporting affidavits are presented to the court, it shall inquire into the facts, and if satisfied that the applicant is entitled to the privilege granted in this Chapter, it shall render an order permitting the applicant to litigate, or to continue the litigation of, the action or proceeding without paying the costs in advance, or as they accrue, or furnishing security therefor.”

      . If the application is presented to the clerk, La.C.Civ.P. art, 283(4), he may before granting it make the same examination as may the judge. Presumably, the chief deputy clerk may also do so, La.C.Civ.P. art. 286; but this latter code article specifically prohibits exercise of the clerk’s power by any other deputy clerk: “ * * * No deputy clerk of a district court, except the chief deputy clerk, may exercise any of the powers and authority granted the clerk of the court under Articles 282 and 283. •* * * >>

      . Neither the respondent clerk nor the opposing party has made any appearance in this court to oppose the applicant’s proceeding in forma pauperis. From this we infer that the respected clerk of court recognizes that his public office, constitutionally created to serve litigants, is not properly concerned with contesting the privilege of a litigant entitled to proceed in forma pauperis, insofar as the grant or denial of the right means less or more revenues for his office.

      . La.Code Civil Pro. art. 5183 provides:
      “A person who wishes to exercise the privilege granted in this Chapter shall apply to the court for permission to do so in his first pleading, or in an ex parte written motion if requested later, to which he shall annex:
      “(1) His affidavit that he is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor, because of his poverty and lack of means; and
      “(2) The affidavit of a third person other than his attorney that he knows the applicant, knows his financial condition, and believes that he is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor.
      “When the application and supporting affidavits are presented to the court, it shall inquire into the facts, and if satisfied that the applicant is entitled to the privilege granted in this Chapter, it shall render an order permitting the applicant to litigate, or to continue the litigation of, the action or proceeding without paying the costs in advance, or as they accrue, or furnishing security therefor.”