author: CALOGERO, Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. Robert WALKER.
    No. 56968.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    James J. Gleason, III, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Robert Walker was charged by bill of information with attempting to commit a burglary in violation of R.S. 14:27 and 14:62. Walker was tried by jury on April 10, 1975 and found guilty as charged. He was sentenced as a multiple offender to fifty years at hard labor with credit for time served. His appeal is based upon three assignments of error.

ASSIGNMENT OF ERROR NO. 1

At the defendant’s trial, the state offered into evidence a pair of black pants and a red shirt which defendant was allegedly-wearing at the time of his apprehension. Over defendant’s objection that the clothing was irrelevant, the court allowed the items to be introduced. Defendant argues in brief that the items were irrelevant because at the time of their introduction the arresting police officer had already identified defendant Walker as the man he had arrested without the necessity of referring to the clothes to make the identification.

At the trial, Officer John Loper testified that he and his partner were on routine patrol in the French Quarter in New Orleans, Louisiana, when they observed a man “prying on a protected wire screen” with a long rod. Patrolman Loper stopped to question the man and then arrested him. The officer testified that the man was wearing the black pants and red shirt which he identified. He and his partner transported defendant to Central Lockup where the shirt and trousers were seized.

In order for evidence to be admissible, of course, it must be “relevant to the material issue.” R.S. 15:435. The identity of the person who committed the crime is always a material issue; therefore, facts tending to establish that the defendant was the person who committed the crime are relevant and hence, admissible. R.S. 15:441. The clothes at issue here were identified as those which the defendant was wearing at the time he was arrested and booked. The clothes were also identified as being those worn by the man committing the crime in question. Certainly, then, the clothes were probative in establishing that defendant Walker was the man who committed the crime. Hence, they were relevant and therefore admissible. State v. Freeman, 306 So.2d 703 (La. 1975); State v. Giles, 253 La. 533, 218 So. 2d 585 (1969); McCormick on Evidence § 184 (2nd ed. 1972). The fact that defendant was also identified by Patrolman Loper independent of the clothes defendant was wearing does not make the clothes themselves irrelevant because, as we stated in State v. Stokes, 250 La. 277, 195 So.2d 267, 270 (1967), “[t]he evidentiary fact offered ‘does not need to have strong, full, superlative, probative value * * * or to produce persuasion by its sole and intrinsic force, but merely to be worth consideration by the jury * * *

Therefore the clothes here at issue were certainly relevant evidence, and the trial court properly permitted their introduction into evidence.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant Walker assigns as error the trial court’s denial of his motion for a directed verdict. He argues that the state introduced no evidence to establish that defendant possessed the requisite criminal intent needed in order to be found guilty of attempted simple burglary.

In order to be found guilty of attempted simple burglary, a person must have been shown to have the specific intent to enter a “structure . . . with the intent to commit a felony or any theft therein.” R. S. 14:27, R.S. 14:62. In the trial of defendant Walker, Patrolman Loper testified that in the early morning hours he saw defendant prying with a long rod on the protected wire screen of the door to a business office. He observed “large pieces of broken glass lying on the concrete stoop and between the screen and the front door.”

On appellate review, this Court must find no evidence of an element of the crime charged before it reverses a trial judge’s denial of a motion to direct a ver-diet. State v. Douglas, 278 So.2d 485 (La. 1973). Patro’man Loper’s testimony that defendant was prying open the front door of a business office in the early hours of the morning is some evidence that defendant had the requisite intent so that he could be found guilty of the crime of attempted simple burglary.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

Defendant assigns as error the trial judge’s denial of his motion to quash the state’s bill of information against defendant charging him as a multiple offender under the provisions of R.S. 15:529.1. Defendant had two bases for his motion to quash.

First, defendant argues that the fifty year sentence given to defendant pursuant to his conviction for a crime which can ordinarily be punished for up to four and one-half years constitutes “cruel, excessive, or unusual punishment” in violation of Article I, Section 20 of the Louisiana Constitution of 1974. The defendant argues that the “imposition of this penalty for the conviction of the relatively minor offense of an attempt to commit a simple burglary constitutes cruel and unusual punishment, and is surely ‘excessive.’ ”

Secondly, defendant argues that because the offender could have been given a life sentence under the provisions of the multiple offender law that the charge should have been brought by grand jury indictment.

As to defendant’s first argument, it has been held repeatedly by this Court that the enhancement of a defendant’s sentence under the multiple offender provision does not constitute cruel and unusual punishment. See State v. Williams, La., 322 So. 2d 177 (decided October 1, 1975) and authorities cited therein.

Nor was defendant’s punishment so disproportionate to the offense he committed as to be “excessive” under Article I, Section 20 of the Louisiana Constitution of 1974. This provision of the Constitution guarantees that “No law shall subject any person to cruel, excessive, or unusual punishment.” We do not find defendant’s punishment of fifty years to be too severe a punishment for committing a fourth felony, in this case attempted simple burglary.

Defendant’s second argument is that Article I, Section 15 of the Louisiana Constitution of 1974 requires that the charge against him as a multiple offender be brought by means of a grand jury indictment because as a multiple offender he was exposed to life imprisonment.

Article I, Section 15 of the Louisiana Constitution of 1974 provides that “no person shall be held to answer for a crime punishable by life imprisonment except on indictment by a grand jury.” We have recently held on two occasions that this provision does not require a charge for an enhanced penalty to be brought by grand jury indictment because the enhanced penalty is not a “crime.” See State v. Williams, supra; State v. Alexander, La., 325 So.2d 777 (decided January 19, 1976). In these decisions we have determined that the word “crime” means only crimes which the legislature has classified as punishable by life imprisonment; it does not refer to a charge brought to enhance the penalty given to a multiple offender. The charge against defendant as a fourth offender was, therefore, properly brought by way of information without need for grand jury indictment.

The assignment of error lacks merit.

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

CALOGERO, J., assigns additional concurring reasons.

DENNIS, J., concurs for the reasons stated by CALOGERO, J.

CALOGERO, Justice

(concurring).

Because I am constrained to follow the recent jurisprudence in this area, I concur in the foregoing opinion prepared for the Court’s majority. My personal view, however, is that defendant Walker’s charge as a fourth offender which exposed him to life imprisonment probably should have been brought by grand jury indictment. My reasons for this view follow.

As this Court has held many times, the multiple offender statute does not provide for the charging of a new crime, nor does it make a person’s status criminal. Instead, it merely provides an enhanced penalty against a multiple offender for the basic crime. State v. Williams, supra; State v. Rowell, 306 So.2d 668 (La.1975); State v. Boatner, 304 So.2d 661 (La.1974); State v. Jackson, 298 So.2d 777 (La.1974). In defendant’s case, as a fourth offender he was exposed to possible life imprisonment upon conviction of the crime of attempted simple burglary. Article I, Section 15 of the Louisiana Constitution of 1974 provides that “no person shall be held to answer for . a crime punishable by life imprisonment except on indictment by a grand jury.” Until the multiple offender charge was filed, defendant was not exposed to a possible life term. Under the 1974 Constitution, then, it would seem clear that defendant’s charge as a multiple offender should have been by grand jury indictment.

The multiple offender statute, however, provides that the charge shall be by bill of information. R.S. 15:529.1. Because this provision does not, as it stands, require grand jury indictment in cases when defendants are exposed to life imprisonment, it conflicts with the newer constitutional guarantee.

When I try to resolve this conflict between constitution and statute, I look first to the great flexibility that the district attorney is given under the multiple offender statute. He has the discretion not to charge a defendant as a multiple offender even though he knows of defendant’s previous convictions. He may know about the previous convictions and not intend to charge him as a multiple offender, and later, even after defendant is convicted but still within a reasonable time, decide to multiple bill him. State v. McQueen, 308 So.2d 752 (La.1975). The district attorney might discover defendant is a multiple offender only after he has been convicted and sentenced and, within a reasonable time, have the sentence vacated and defendant re-sentenced under a multiple bill. Given all of the options the district attorney holds in relation to the time he can file the charge, and his discretion in deciding to file the charge at all, it is clear to us that, as a practical matter, the accused becomes exposed to the enhanced penalty only at the time the multiple bill is filed, not at the time the substantive crime is charged.

Even though the multiple offender charge does not accuse a person of the commission of a substantive crime, it does enhance his penalty for the substantive crime. The only realistic way, then, to read meaning into the constitutional mandate that “no person shall be held to answer for ... a crime punishable by life imprisonment except on indictment by a grand jury” is to require that, when a multiple offender charge is filed against a person who will be exposed to the possibility of life imprisonment, the charge as a multiple offender be by grand jury indictment.

      . The provision in pertinent part guarantees that “Prosecution of a felony shall be initiated by indictment or information, but no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury.”
      Prompted by that constitutional provision, the legislature amended C.Cr.P. art. 382 so as to comport with the new constitutional directive.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Jerry GHORAM.
    No. 56586.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      Grisbaum & Kleppner, Ferdinand J. Kleppner, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Jerry Ghoram was indicted by the grand jury for the Parish of East Baton Rouge for the murder of George Davis committed on December 27, 1972. After trial by jury, defendant was convicted and sentenced to life imprisonment. On appeal, Ghoram’s conviction and sentence were reversed and the case remanded for a new trial. State v. Ghoram, 290 So.2d 850 (La.1974). Ghoram’s retrial again resulted in a verdict of guilty and a sentence of life imprisonment. On this appeal, defendant relies on four assignments of error for reversal of his conviction and sentence.

FACTS

About 2 o’clock in the morning on December 27, 1972, the Hernandez Ice Company in Baton Rouge was robbed by three black men, Jerry Ghoram, Robert Kennard and Billy Ray Self. Just prior to the robbery, these men proceeded to a location in close proximity to the ice company in a vehicle belonging to and driven by Ghoram. One of the men other than Ghoram went into the ice company to see how many employees were present. Ghoram had a .32 caliber automatic gun in his car. Two of the men, one of whom was armed with this gun, proceeded to enter the store to commit the robbery while Ghoram stayed in the car to act as a lookout. An employee of the ice company, Joseph Doucet, was on the platform assisting a customer, George Davis, purchase ice. The gunman pulled the gun on Doucet and ordered him into the store. He also ordered Davis to go inside, but apparently Davis did not hear him. It was at this time that the gunman shot Davis in the head causing him to fall to the platform floor. Doucet was taken at gunpoint into the store where the cashier, Arthur Rogers, was busy transferring change in the cash register. Doucet and Rogers were ordered to the floor. An accomplice was heard at the cash register. An unsuccessful search was made for a safe in the back room. Both Doucet and Rogers saw a third man telling the other two to hurry as someone was coming. This man was allegedly Jerry Ghoram. After taking a little less than $300.00 from the cash register, the men left. The gunman lost the gun on the way to the automobile in which the three men departed. The robbery was reported to the police. Davis was taken to the hospital where he died shortly thereafter from a gunshot wound to the head. A .32 caliber shell casing was found within three or four feet from where Davis lay. A young girl later saw a gun in a ditch near the ice company. She reported this to her uncle who retrieved it. The gun was later recovered from the uncle in Mississippi by the police. Ghoram was arrested a few days after the crime. In his car was found a pair of black gloves and a box of .32 caliber bullets. He gave a taped confession to the police and was separately charged with the murder of Davis.

It was determined that the shell casing found near the body was from a bullet fired from the recovered gun; however, due to the damaged condition of the bullet removed from the victim’s head, it could not be determined whether or not the bullet was fired from the gun in question. Nevertheless, it had similar class characteristics. Both Doucet and Rogers were able to identify the gun and black gloves as being similar to those used by the gunman. However, they were unable to identify Ghoram or any one of his companions. Robert Kennard and Billy Ray Self were also charged with the murder of Davis. Kennard entered a plea of guilty and was sentenced to serve fifteen years. Self was convicted and sentenced for the offense. Kennard testified as a witness for the state at Ghoram’s first trial.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

Robert Kennard, who had testified as a state witness at Ghoram’s first trial, was called as a witness for the state in this trial. Kennard had previously pleaded guilty to the murder of George Davis and was then serving a fifteen-year sentence. He steadfastly refused to testify. The state asked to have him held in contempt of court and sought to introduce the transcript of his testimony at the prior trial on the ground that Kennard was “unavailable” as a witness at this trial. Kennard was found in contempt of court and sentenced therefor. The court ruled that his prior trial testimony was admissible, and the transcript of this testimony was read to the jury. Objections made by defense counsel form the basis of Assignments of Error Nos. 3 and 4. '

Defendant argues that the trial court erred in permitting the introduction of Kennard’s prior trial testimony, as he was not “unavailable.” He urges that this denied him his right of confrontation, citing Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). He further complains about the manner in which the refusal of Kennard to testify was presented to the jury.

This case differs from Barber where the witness whose preliminary hearing testimony was sought to be introduced at trial was, at the time of trial, incarcerated in a federal prison and the government had not made a good faith effort to produce the witness at trial. That witness was held not to be “unavailable,” and the transcript of his prior testimony was held inadmissible despite the availability of cross-examination at the earlier hearing. Here, although Kennard was present at trial, he refused to testify. We held that a witness who asserted his fifth amendment right was “unavailable” in State v. Dotch, 298 So.2d 742 (La. 1974). Cf. La.Code Crim.P. art. 295 (1966). We perceive no appreciable difference between asserting a fifth amendment privilege and refusing to testify, insofar as the “unavailability” of the witness is concerned. In either instance, the testimony of the witness cannot be produced at trial — such a witness is “unavailable.” The Dotch ruling is applicable here. As in Dotch, the right of cross-examination was exercised at the earlier trial; consequently, defendant’s right of confrontation was not violated. Barber, relied upon by defendant, is clearly distinguishable from the instant case. Hence, we find no error in the trial judge’s ruling allowing introduction of Kennard’s prior trial testimony.

Likewise, we find no substance in defendant’s other contention regarding the manner in which Kennard’s refusal to testify was presented before the jury. It was necessary for the state to first establish this witness’ refusal to testify before admission of his prior trial testimony could be requested. Prejudicial effect, if any, was unavoidable. We find no undue emphasis by the state in its questioning of Kennard and in establishing his refusal to testify.

In sum, Assignments of Error Nos. 3 and 4 are without merit.

ASSIGNMENT OF ERROR NO. 5

The state called Arthur Rogers as a witness. Rogers was cashier at the ice house at the time of the murder-robbery. He testified that he was unable to identify defendant or the other two perpetrators of the crime. On cross-examination, he reiterated his inability to identify the three robbers. On rebuttal, the state first brought an unidentified person (presumably Billy Ray Self) and then Robert Ken-nard before the witness and asked him if he could identify them. Rogers replied in the negative in each case. Defendant’s objection on the ground of relevancy was overruled. He claims prejudice resulting from the procedure employed by the state. This forms the basis of Assignment of Error No. 5.

We are unable to understand the purpose for which the district attorney confronted the witness (Rogers) with these two parties. The witness had been steadfast in his testimony that he was unable to identify defendant or the other two men who had robbed him. Therefore, being confronted with two of the alleged perpetrators of the crime and being unable to identify them only corroborated his previous testimony that he was unable to identify any of the robbers. We can perceive of no possible prejudice to defendant resulting from this procedure. Hence, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

During the trial of this matter, the state introduced a tap'ed confession given by defendant two days after his arrest. Defendant objected to its admission, urging that he was not informed of his Miranda rights before making the statement and that the statement had not been freely and voluntarily obtained.

Before a confession can be introduced in evidence, the state must affirmatively show that it was made freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Defendant’s first contention that he was not informed of his Miranda rights before making his confession is completely without substance. Defendant was arrested on December 28, 1972 at approximately 10:20 p. m. At about 7:00 p. m. on December 30, 1972, defendant, after being fully advised of his Miranda rights and executing a waiver of rights form, made a brief oral statement to police officers about his involvement in the alleged crime. This statement was never introduced into evidence. Later that evening, defendant made a more detailed taped confession which confession was begun at 11:25 p. m. and completed at 11:47 p. m. Prior to making this statement, Ghoram acknowledged that he had been previously advised of his rights and had signed the waiver form. He was again advised of his rights and acknowledged his understanding of them. All of the foregoing is clearly reflected in the transcript of the taped confession as well as by the testimony of the police officers involved. Moreover, defendant did not even claim that he had not been advised of his rights or that he did not understand them when he took the stand outside the presence of the jury. Thus, we conclude that the record fully supports the finding that defendant was advised of his Miranda rights prior to making the custodial taped confession.

Secondly, defendant contends that the taped confession was not free and voluntary because it was obtained by a promise that he would either be turned over to the juvenile authorities or released to his parents. At the time, Ghoram was sixteen years of age.

According to the testimony of the police officers, no such promise or inducement was used in obtaining the confession. Rather, they testified that the confession was freely and voluntarily made. The officers further testified that Ghoram had questioned them about the possibility of his being released to the juvenile authorities or his parents and that they had notified him that such an inquiry would be made. Inquiry was made to the Family Court Center, and defendant was advised that this could not be done even though he was a juvenile since he was charged with a capital offense (murder). The officers testified that defendant was informed of this prior to making the confession.

Outside the presence of the jury, defendant testified that the officers had promised him that, if he told them what they wanted to know, he would be turned over to the juvenile authorities or released to his parents. He claimed that this is what induced him to make the statement. In rebuttal, the police officers denied that they made any such promise and reiterated their assertion that it was defendant who had initiated the inquiry about the possibility of being released to the juvenile authorities or his parents and that they had informed him that it could not be done.

Upon reviewing the entire record, we believe, as did the trial judge, that the state satisfied its burden of affirmatively showing that the confession was made freely and voluntarily and was not made under the influence of fear, duress, intimidation, menaces, threats, inducement or promises. La.R.S. 15:451 (1966). Hence, the confession was properly received into evidence. Assignment of Error No. 6 is without merit.

DECREE

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

DIXON and CALOGERO, JJ„ concur.

      . Bills of Exceptions Nos. 1, 2, 7, 8 and 9 were neither briefed nor argued before this court and are therefore considered abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

      . As stated in McCormick on Evidence:
      Preliminarily it may be observed that while the rather general practice is to speak loosely of unavailability of the witness, the critical factor is actually the unavailability of his testimony. [footnote omitted] As will be seen, the witness m.ay be physically present in court but his testimony nevertheless unavailable. . . .
      (7) Refusal to testify. If a witness simply refuses to testify, despite the bringing to bear upon him of all appropriate judicial pressures, the conclusion that as a practical matter he is unavailable can scarcely be avoided, and that is the holding of the great weight of authority, [footnote omitted]
      C. McCormick, Law of Evidence, § 253 at 608, 612 (2d ed. 1972).


author: CALOGERO, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Michael Wayne BOLEYN.
    No. 57036.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Rehearing Denied March 26, 1976.

      William H. Ledbetter, Jr., Polk, Foote, Randolph, Percy & Ledbetter, Alexandria, for defendant-appellant.
    William J. Guste, Jr.,'Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Alfred B. Shapiro, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Michael Wayne Boleyn was charged by bill of information with simple escape in violation of La.R.S. 14:11o. After trial by jury on August 11 and 12, 1975, defendant was found guilty as charged. He was thereafter sentenced to serve four years at hard labor, said sentence to run consecutively with any other sentence the accused may be required to serve. On appeal, defendant relies on eight assignments of error for reversal of his conviction and sentence. Because we find reversible error in certain of the first four assignments of error, we do not find it necessary to discuss assignments of error five through eight.

On February 19, 1975, at approximately 2:30 p. m., defendant Michael Wayne B’o-leyn and another, A. C. Manuel, were discovered missing from the Camp Beauregard Work Release Center, located near Pine-ville, Louisiana. The Camp Beauregard Work Release Center is a unit of the Louisiana Department of Corrections which houses prisoners who are participating in the work release program as well as prisoners classified as maintenance inmates. Maintenance inmates are not participants in the work release program, but rather live and work at Camp Beauregard and do maintenance work for the Department of Corrections as part of a cooperative program with the National Guard. Defendant and A. C. Manuel were maintenance inmates. At approximately 12:30 a. m. on February 20, 1975, less than twelve hours after they were discovered missing, defendant and A. C. Manuel were stopped by state troopers for a traffic violation while headed westbound on I—10 approximately two and one-half miles east of Lake Charles, Louisiana. Defendant was driving an automobile, which was owned by his brother.

At the trial defendant sought to present to the jury, testimony relating to his state of consciousness at the time of the purported escape, evidence of the alleged perpetration of a sodomous rape upon him the night before the escape, and evidence of his consumption of alcohol and drugs immediately prior to the escape. The trial judge heard such testimony out of the presence of the jury and ruled all such evidence inadmissible, on several grounds.

First, he ruled that the foundation laid by defendant was insufficient to permit evidence to be presented before the jury as to a defense of necessity of escape. This Court has previously held that evidence of the conditions at a prison at the time of an escape is not relevant to the crime charged and is therefore properly excluded. State v. Woodfox, 263 La. 935, 269 So.2d 820 (1972). See La.R.S. 15:435, 15:441. However, there is a recognized but extremely limited defense of necessity of escape. People v. Lovercamp, 43 Cal.App. 3d 823, 118 Cal.Rptr. 110 (1974); People v. Harmon, 53 Mich.App. 482, 220 N.W.2d 212 (1974). In People v. Lovercamp, supra, a California court held that this defense is available only in the following situation:

“(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;
(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;
(3) There is no time or opportunity to resort to the courts;
(4) There is no evidence of force or violence used towards prison personnel or other ‘innocent’ persons in the escape; and
(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.”

Before submission of this defense to the jury, an accused must lay an appropriate foundation. Although in the instant case defendant and another inmate testified out of the presence of the jury that defendant had been homosexually raped the night before the escape, there was no testimony to support the other prerequisites. The offer of proof in this case was therefore insufficient, and the trial judge was correct in excluding evidence of the alleged sodo-mous rape as immaterial. La.R.S. 15:435; 15:441.

The trial judge also ruled that evidence of an intoxicated or drugged condition of defendant at the time of the escape was inadmissible because the foundation laid by defendant indicated that when consuming the beer and the pain pills defendant had acted voluntarily. The offer of proof relative to defendant’s state of consciousness included defendant’s testimony that the morning after he was allegedly raped, i. e., the day of the escape, he took some “toanol” (sic) pills and also consumed a substantial quantity of beer; that at about 2:00 p. m., not feeling well, he went and sat in a truck; that the next thing he remembers was finding himself in the back of his brother’s Toyota with A. C. Manuel at the wheel; and that because A. C. Manuel was drunk defendant took over the driving. Defendant’s story was partially supported by the testimony of James Harris, another inmate at the Camp Beauregard Work Release Center, who stated that on the morning after the alleged rape he saw defendant drinking beer and that when he saw defendant again, somewhat later, he appeared to be drunk and groggy. Harris further testified that at about 2:30 or 3 :00 p. m. he saw defendant slumped over on the seat on the passenger side of a truck and that he noticed A. C. Manuel using a pay telephone, although he did not hear any of the conversation. Despite defense counsel’s argument that the proffered evidence tended to show or was relevant to indicate that defendant, in an unconscious condition, was moved by another party and did not walk or drive himself away, the trial judge ruled that such evidence was not admissible.

Under La.R.S. 14:15, evidence of an intoxicated or drugged condition of an accused at the time of the alleged commission of the offense is immaterial and, therefore, inadmissible, except as follows:

(1) Where the production of the intoxicated or drugged condition has been involuntary, and the circumstances indicate this condition is the direct cause of the commission of the crime, the offender is exempt from criminal responsibility.
(2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.”

Thus voluntary intoxication can be considered as a defense only in cases where specific intent is a necessary element of the crime. In defining the crime of escape, La.R.S. 14:110 uses the word “intentional” without the qualifying provision “specific,” thus indicating that only general criminal intent is required. La.R.S. 14:11. See State v. Epperson, 289 So.2d 495 (La.1974). General criminal intent is present when “the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La.R.S. 14:10.

In cases where the accused is voluntarily intoxicated at the time of the commission of the offense, the necessary criminal intent is generally found in the accused’s intention to become intoxicated, i. e., the accused is held to have intended, in law, all the consequences of his intoxicated condition. Annotation, Modern Status of the Rules as to Voluntary Intoxication as Defense to Criminal Charges, 8 A.L.R.3d 1236 (1966). Thus in a situation where an inmate voluntarily becomes intoxicated or drugged and while in that condition walks out of an incarcerated area or gets into an automobile and drives himself away, voluntary intoxication would not be a defense. The main thrust of defense counsel’s argument in the case before us, however, is that defendant did not by his own physical or conscious actions depart from the lawful custody of the Department" of Corrections, but rather that, while in an unconscious condition and without his knowledge or consent, he was removed from the prison area by another inmate.

The allegation that defendant was removed or “carried away” by another prisoner and did not depart by his own physical actions adds a new dimension to a request for introduction of evidence in the presence of the jury relative to the state of consciousness of defendant, and, as it relates thereto, to his alleged intoxicated and drugged condition. La.R.S. IS :444 state that “[i]f a statute had made it a crime to do a particular act, no further proof of intent is required than that accused voluntarily did the act . . ..” (Emphasis added). Evidence that defendant was unconscious at the time of the escape and evidence tending to show that he was removed by another party while in that state and without his knowledge or consent would indicate to the jury that defendant did not voluntarily escape, thus negating even general criminal intent.

Under the circumstances of this case, evidence of the state of consciousness of defendant and of his intoxicated or drugged condition should have been submitted to the jury. The impact of the introduction of such evidence should be modified by careful instruction to the jury that voluntary intoxication alone is not an appropriate defense to the charged crime. But defendant’s asserted defense of being removed by another party while he was unconscious and the evidence presented in support thereof is for the jury to evaluate. It was therefore error for the trial court to exclude the proffered evidence in this respect.

For the reasons assigned, the conviction and sentence are reversed and the case is remanded for a new trial.

SANDERS, C. J., and DENNIS, J., dissent.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

In my view, a person who voluntarily becomes intoxicated or drugged is responsible for all criminal consequences unless the crime involves specific intent. La. R.S. 14:15. Under the circumstances of the instant case, defendant’s criminal intent is found in the accused’s intention to become intoxicated or drugged, i. e., the accused is held to have intended, in law, all the consequences of his intoxicated or drugged condition. Therefore, the criminal act of escape is a consequence of defendant’s voluntary intoxicated or drugged condition. I respectfully dissent.

      . “A. Simple escape is:
      (1)The intentional departure of a person, while imprisoned, whether before or after sentence, under circumstances wherein human life is not endangered, from lawful custody of any officer of the Department of Corrections or any law enforcement officer or from any place where he is lawfully detained by any law enforcement officer; or
      (2) The failure of a criminal serving a sentence and participating in a work release program authorized by law to report to or return from his planned employment or other activity under said program; or
      (3) The failure of a person who has been granted a furlough under the provisions of R.S. 15:833 and fails to return to his place of confinement at the appointed time.”

      . The proffered evidence relative to the sodomous rape was the testimony of defendant that he was raped by an inmate who stuck a knife at his throat, as well as the testimony of James Harris, also an inmate at the Camp Beauregard Work Release Center, which supported defendant’s theory. James Harris, who had a bed in the same dormitory as defendant testified that he saw a man put a knife to defendant’s neck or head; saw defendant remove Ms shorts and lay down on the bed with that man; and noticed that they remained there for 15 to 25 minutes. Shortly thereafter James Harris went to the bathroom and saw defendant crying and attempting to clean himself. Defendant indicated that he did not go to the doctor the next day for fear of reprisals by the inmate who had raped him or his friends. The alleged escape did not take place until twelve or fifteen hours later.

      . Defendant testified that these pills were given to him by the man who raped him in order to ease his pain. In brief to this Court, the state indicates that these were tuinal capsules, “a frequently abused and quite popular central nervous system depressant which is described (sic) by physicians as sleeping pills.”

      . It was not unusual for defendant to be inside a truck. According to testimony by witnesses for the state, the normal procedure at the Camp Beauregard Work Release Center was for maintenance inmates to catch “carpool” rides in trucks back and forth from the inmate center to areas of Camp Beauregard where they were currently assigned.

      . As indicated earlier in this opinion, evidence of the alleged sodomous rape of defendant is, however, inadmissible, and defense witnesses upon retrial will be required to testify relative to defendant’s state of consciousness without reference to the alleged reason for defendant’s taking the pills and consuming alcoholic beverages.


author: CALOGERO, J.,

text:
    STATE of Louisiana ex rel. William DOYLE v. Hon. Israel AUGUSTINE, Judge, Section “I”, Criminal District Court, New Orleans, Louisiana.
    No. 57609.
    Supreme Court of Louisiana.
    March 16, 1976.
   In re: William Doyle applying for Writ of Mandamus and Remedial Writs.

Granted; the case is remanded to the district court for the correction of the sentence. The 14-month sentence must be set aside, and the 30-year sentence as a multiple offender must be credited with time served, as was the expressed intention of the trial judge. Otherwise applicant’s contentions are dismissed as unmeritorious.

CALOGERO, J.,

is of the opinion that the writ should be granted and the case brought up for review.


author: DIXON, J.,

text:
    Mrs. Delphine Ramp, wife of/and Emmet PUDERER v. CITY OF NEW ORLEANS.
    No. 57534.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: City of New Orleans applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 323 So.2d 835.

Writ denied. The judgment of the court of appeal is correct.

SANDERS, C. J., and TATE and CAL-OGERO, JJ., are of the opinion that a writ should be granted.

DIXON, J.,

concurs in the denial, being of the opinion that the application does not establish that the court of appeal was in error.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Wes O’NEAL.
    No. 56994.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    liebearing Denied March 26, 1976.

      Alvis J. Roche, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Gregory D. Lyons, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant was charged with the attempted theft of $1306.61 (later reduced to $1256.61) from Wilford Broussard. After a trial by the judge he was convicted and sentenced to pay a fine of $200 and costs, or serve 60 days in the parish jail, plus one year in the parish jail, which was suspended during a one year probationary period. From this conviction he appeals, raising ten assignments of error.

On July 7, 1973 Wilford Broussard was injured, allegedly while in the course of his employment. Based on this injury, he filed suit against his employer, Jake’s Produce.

Defendant is an agent for a disability insurer whose policy, issued to Jake’s Produce, covered defendant’s injury. However, the suit filed by Broussard was independent of the claim under this disability policy. Moreover, defendant was unaware that he was covered by such a policy.

A recapitulation of each witness’ testimony helps to understand the case.

Broussard testified: he could neither read nor write, though he could read numbers ; defendant came to his house to ask if he would sign a claim form which would enable defendant’s company to pay him a sum of approximately $800; Broussard informed defendant that he would sign nothing without the authorization of his attorney, Mr. Bond; they proceeded to Bond’s office where Broussard signed the claim form; later, defendant again visited Broussard at his home with other forms to sign; Broussard’s son informed him Bond had left a message that Broussard was to sign the forms and go to the bank with defendant to receive payment. Prior to arriving at the bank, Broussard said he endorsed a check without looking at its face. In fact, because the check was among many other papers and was attached face down to a clip board, Broussard said he was not aware he was signing a check. At the bank they first approached a drive-in window, and the teller informed them that a bank official would have to approve the check. They entered the bank and got the necessary approval. When the check was presented for payment, Broussard testified that he noticed the check was for $2106.61, much more than the $800 he expected, and he told the teller, not to cash it. Accordingly, she stamped the check “void” and returned it to defendant. Defendant went directly to the bank official and handed him the check. Broussard told the bank official the check was his and demanded it be given to him. The official complied, and Broussard went to Bond’s office with the check. The attorney notified the sheriff’s department.

Mr. Bond testified that neither he nor Broussard was aware of the coverage afforded by defendant’s company’s policy. Defendant contacted Broussard to sign claim forms which would allow the collection process to begin. It was Broussard’s custom to sign nothing without Bond’s approval. None of the forms revealed the amount of the recovery. Later, on October 22, 1974, defendant called Bond and told him he had a check made out to Broussard in the amount of $800 or $900, as nearly as Bond could recall at trial. Defendant asked Bond to arrange to have Broussard sign the check without having to visit Bond’s office a second time. In compliance, Bond called his client’s home and left word with his older son that Broussard was to sign the check and take the proceeds. Bond had no more to do with the matter until Broussard appeared at his office with the crumpled check stamped “void” and told him of the incident at the bank. It was not until two days later that defendant told Bond that the check was an overpayment and that he was going to return the excess to his company. After charges were filed, defendant’s company reissued to Broussard a check for $2106.61.

The bank teller who was asked to cash the draft testified defendant and Broussard came to her window and she told them they would have to get the approval of one of the bank officials in order to cash the draft. This was done, and, when they returned to the window, defendant asked her to divide the proceeds of the check into two envelopes. Broussard was to get $850, defendant the rest. She refused. Brous-sard then told her not to cash the check, so she stamped it “void.”

The bank official testified that only after the teller had stamped the check “void” did defendant mention to him that he wanted to buy a cashier’s check for the alleged excess portion of Broussard’s check.

Defendant testified he initially went to Broussard’s home to have him sign the claim form, but, because he would not, they proceeded to Bond’s office to get his approval. Bond approved. Defendant went to Broussard’s home the second time to have him sign the closing forms and endorse the check. He testified that he told Broussard that the check was excessive and that he would be paid only $850. He arrived at this amount, he said, due to his personal investigation into Broussard’s claim and his conclusion that the policy did not cover “partial disability, loss of time.” After they had obtained the bank official’s approval of the check and presented it for payment, Broussard, said defendant, for the first time objected that the check was for an amount exceeding the $800 he had been promised. Defendant said it was his intention to return the excess to his company in the form of a cashier’s check.

After, the incident had been reported to the sheriff’s office, defendant was charged with the attempted theft of $1256.21, the amount of the alleged overpayment which he alleged he was going to return to his company.

Assignments 1, 2, 3 and 9 stem from the trial court’s refusal of defendant’s motion for a directed verdict. In Assignment 3, defendant contends the State did not prove its case beyond a reasonable doubt. In Assignments 1, 2 and 9, defendant contends the State failed to prove he had the requisite specific intent to commit the crime of attempted theft.

A motion for a directed verdict under C.Cr.P. 778 does not lie unless the State introduces no evidence at all from which the trial jury could reasonably conclude that the defendant was guilty of the offense charged. State v. Cloud, 319 So.2d 793 (La.1975); State v. Butler, 322 So.2d 189 (La.1975); State v. Douglas, 278 So. 2d 485 (La.1973). Hence, where, as in the case before us, (considering only the evidence of the prosecution), there is some evidence of each essential element of the crime, this court will not weigh the sufficiency of the evidence.

To commit the crime of attempted theft, defendant must have the specific intent to commit theft, and do an act for the purpose of and tending directly toward the theft. R.S. 14:27. To commit the crime of theft, he must have the intent to deprive permanently. R.S. 14:67.

The evidence introduced by the State indicates defendant sought to cash a check made to the order of Broussard without informing him of the full amount and without giving him the entire proceeds. From this and other evidence adduced, the specific intent to permanently deprive may be reasonably inferred. Hence the motion for a directed verdict was properly denied.

Assignments 1, 2, 3 and 9 are without merit.

In Assignment 4, defendant complains that the sentence imposed was in excess of that allowed by law. He was sentenced to pay $200 and costs, or to serve 60 days in the parish jail, plus one year in the parish jail, which was suspended for a probationary period of one year. The applicable penalty provision is found in R.S. 14:27(D)(2):

“. . .If the offense so attempted is theft or receiving stolen things, and is punishable as a felony, he shall be fined not more than two hundred, dollars, or imprisoned not more than one year, or both;”

Clearly, the sentence imposed is within the statutory limitations.

Assignment 4 lacks merit.

Assignments 5, 6, 7 and 8 concern defendant’s allegation that he was deprived of his statutory right to a three day delay between conviction and sentencing and that his motion for a new trial was therefore improperly refused.

Defendant was found guilty on July 31, 1975; he was informed at that time that sentencing would be held the following morning. On August 1, 1975 he was sentenced, and on August 5, 1975 he submitted his motion for a new trial.

C.Cr.P. 873 provides the following right to a delay:

“If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.”

The record clearly reveals that the trial court inquired whether defendant was prepared for sentencing and counsel responded in the affirmative. Thus, by the terms of the statute, any right to a delay was waived.

Nevertheless, defendant had no right to a three day delay. C.Cr.P. 873 grants such a right only to persons convicted of a felony; defendant was convicted of a misdemeanor. Sentencing was properly imposed.

C.Cr.P. 853 requires a motion for a new trial to be filed prior to sentencing:

“A motion for a new trial must be filed and disposed of before sentence. The court, on motion of the defendant and for good cáuse shown, may postpone the imposition of sentence for a specified period in order to give the defendant additional time to prepare and file a motion for a new trial.”

Defendant’s motion for a new trial, submitted four days after sentencing, was therefore untimely. The article gives the trial court the discretion to postpone sentencing while defendant perfects his motion. Yet when asked by the trial court if he was prepared for sentencing, defense counsel responded that he was.

Assignments 5, 6, 7 and 8 lack merit.

Defendant’s tenth assignment concerns the trial court’s alleged refusal to provide defendant with a complete record of the trial and proceedings. Because a complete record has been lodged with this court this assignment is without merit.

The conviction and sentence are affirmed.

      . Because the amount defendant was convicted of attempting to misappropriate was not less than $100, the offense he attempted is a felony.

      . R.S. 14.2 defines felony as “any crime for which an offender may be sentenced to death or imprisonment at hard labor.”
      Because the crime of which defendant was convicted does not provide for “imprisonment at hard labor,” his conviction is a misdemeanor.


text:
    Succession of Clifford J. TROXLER.
    No. 57525.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Joyce Marks Troxler, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. John the Baptist. 323 So.2d 924.

Writ refused. No error of law.

DENNIS, J., is of the view that the writ should be granted.

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


author: TATE, J.,

text:
    Glenn JENKINS v. CITY OF ALEXANDRIA.
    No. 57549.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Glenn Jenkins, applying for Cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides, 324 So.2d 924.

Writ denied. The result is correct.

TATE, J.,

dissents: The City’s violation of its duty to maintain the visibility of the stop sign was the proximate cause of the accident. As against the city which created the risk, the motorist’s conduct in proceeding into the intersection does not bar his recovery. The trial court’s determination of his freedom from negligence is not manifestly erroneous.

CALOGERO, J., dissents from refusal to grant this writ.


text:
    Robert A. AINSWORTH, III, and Diane Delaney Ainsworth v. ASSOCIATION LIFE INSURANCE COMPANY, INC. and Professional Mass Marketing of America, Inc.
    No. 57585.
    Supreme Court of Louisiana.
    March 16, 1976.
   In re: Robert A. Ainsworth, III, and Diane Delaney Ainsworth applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 325 So.2d 708.

Writ denied. The judgment is correct.

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

DENNIS, J., is of • the opinion writ should be granted.


author: DENNIS, Justice. SUMMERS, Justice

text:
    P. O. P. CONSTRUCTION COMPANY v. STATE FARM FIRE AND CASUALTY COMPANY.
    No. 56910.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      David L. Dawson, Jr., Baton Rouge, for plaintiff-applicant.
    Anthony J. Clesi, Jr., Lane & Clesi, Baton Rouge, for defendant-respondent.
   DENNIS, Justice.

This is a suit on a fire insurance policy.

On March 25, 1973, a house located at 5472 Dickens Drive, Baton Rouge, Louisiana, owned by Mr. and Mrs. Rodney B. Powell, and insured by State Farm Fire and Casualty Company, was destroyed by fire. State Farm paid a holder of a mortgage on the property, American Bank & Trust Company, the sum of $35,000.00 on September 12, 1973. Although the Powells filed a timely proof of loss claim, State Farm did not make payment on their claim. The assignee of the Powells, P.O.P. Construction Company, filed this suit asserting the claim on April 11, 1974. State Farm pleaded prescription and denied liability because of untimely suit. The trial court sustained State Farm’s exception of prescription based on the fact that the action was not commenced within twelve months next after inception of the loss, as required in the policy and by statute. This ruling was affirmed by the court of appeal, and we granted certiorari to consider whether it was correct.

The issues presented for review are:

(1) Did prescription commence to run on the date of the fire ? and

(2) Was the running of prescription waived by the payment made to the mortgagee under the loss payable clause ?

1.

Prescription

The policy was written in conformity with La.R.S. 22:691 and provides:

“The amount of loss for which this Company may be liable shall be payable sixty days after proof of loss, as herein provided, is received by this Company and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this Company of an award as herein provided.
“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.”

Plaintiff contends that “inception of the loss” refers not to the actual casualty but to the accrual of liability under the policy. It is argued that prescription should not run against the insured during the sixty day period provided for the insurer to pay the loss since during this time the insurer is clothed with immunity from suit. Under the construction urged by plaintiff, the twelve month limitation clause in the policy would begin to run sixty days after ascertainment of the loss.

In Gremillion v. Travelers Indemnity Company, 256 La. 974, 240 So.2d 727 (1970), we expressly overruled the case of Finkelstein v. American Insurance Co. of Newark, N.J., 222 La. 516, 62 So.2d 820 (1952) which had adopted the construction urged by plaintiff. We noted that the limitation provision is not in the language of the insurance company; it is in the language of the legislature and expressed in words which the statute requires to be inserted in the policy. Therefore, the phrase should not be construed liberally in favor of the insured, but must be inter-* preted according to the principles of statutory construction, without leaning toward one side or the other. We conclude that the most reasonable interpretation of the provision is that arrived at in the Gremil-lion case where we said:

“ ‘Inception’ is defined in Webster’s New World Dictionary, College Edition, as ‘a beginning or being begun; start; commencement. — SYN. see origin.’ We are constrained to conclude that the phrase ‘inception of the loss’ means the time of the fire and not the time of the ascertainment of the loss from fire damage.” 240 So.2d 727, at p. 731.

Our opinion is bolstered by a review of the legislative history of the provision in question. La.R.S. 22:691 is modeled after the New York Standard Fire Insurance Policy of 1943. The explanation of the language in that policy and its proper construction are to be found in Margulies v. Quaker City Fire & Marine Insurance Co., 276 App.Div. 695, 97 N.Y.S.2d 100 (1950). Prior to 1943, the standard fire insurance policy provided that no suit or action on the policy should be maintained “unless commenced within twelve months next after the fire.” A number of decisions interpreted this clause to mean that it was not necessary to bring an action within twelve months after any other type of casualty covered by the policy, for instance, damage by lightning. Consequently, the suit clause in the standard policy was changed in 1943 to provide that no suit could be maintained “unless commenced within twelve months next after inception of the loss.” The New York courts found that the legislature intended the limitation to commence from the date of the destructive event, as it had under the previous wording:

“Do the words ‘inception of the loss’ mean the date of the happening of the loss or damage out of which the claim arose? It is clear from the history of the limitation provisions in standard fire insurance policies that the use of the words ‘inception of the loss’ was intended to refer to the occurrence of the event giving rise to the claim of liability and not to the accrual of liability. ‘Inception of the loss’ was used in the 1943 standard fire insurance policy in the sense that ‘after the fire’ was used in the standard fire insurance policy prior to 1943, except that it was to apply also to additional coverages by indorsements on the 1943 standard fire insurance policy.” Margulies v. Quaker City Fire & Marine Insurance Co., supra, 97 N.Y.S.2d at 104.

In addition, it was found that the legislature had expressed its intent clearly:

“But the intention of the draftsmen of the standard fire insurance policy form does not alone suffice unless words are used that fairly and reasonably make that intention clear to the ordinary business man who purchases a policy of insurance. Although perhaps more apt language could have been used, it must be borne in mind that extended coverage authorized by the statute might deal with a wide variety of types of insurance and that the draftsmen of the 1943 statutory form sought, by the language they employed, to have .the period of limitation start from the occurrence of the casualty, the event or the situation, whatever it might be, that was insured against. We believe that the words ‘inception of the loss’ convey that intention with reasonable clarity. ‘Inception’ means the beginning, the commencement, the origination. ‘Inception of the loss’ is equivalent to the occurrence of the casualty or event insured against.” Id.

The great majority of courts which have considered the issue adhere to the position taken in Gremillion. See, Adams v. Northern Ins. Co., 16 Ariz.App. 337, 493 P.2d 504 (1972); Bollinger v. National Fire Ins. Co., Cal., 147 P.2d 611, subsequent op. on reh. 25 Cal.2d 399, 154 P.2d 399 (1944); Bell v. Quaker City Fire & Marine Ins. Co., 230 Or. 615, 370 P.2d 219 (1962); Boyd v. Bankers & Shippers Ins. Co., 245 N.C. 503, 96 S.E.2d 703 (1957); Longe’s Estate v. Assurance Co. of America, 107 N.Y.S.2d 961 (1951 Sup.); McGuire v. Continental Ins. Co., 39 Mich. App. 612, 197 N.W.2d 846 (1972); Margulies v. Quaker City Fire & Marine Ins. Co., 276 App.Div. 695, 97 N.Y.S.2d 100 (1950); Olson Enterprises, Inc. v. Citizens Ins. Co., 255 Iowa 141, 121 N.W.2d 510 (1963); Ramsey v. Home Ins. Co., 203 Va. 502, 125 S.E.2d 201, 95 A.L.R.2d 1019 (1962); Rottier v. German Ins. Co., 84 Minn. 116, 86 N.W. 888 (1901); Skylark Enterprises, Inc. v. American Central Ins. Co., 13 A.D.2d 707, 214 N.Y.S.2d 68 (1961); Stansburg v. Smith, 424 S.W.2d 571 (Ky.1968); Townsend v. Milwaukee Ins. Co., 15 Wis.2d 464, 113 N.W.2d 126 (1962); Wever v. Pioneer F. Ins. Co., 49 Okl. 546, 153 P. 1146 (1915); 95 A.L.R.2d 1023. But see, Fireman's Fund Insurance Co. v. Sand Lake Lounge, 514 P.2d 223 (Alaska 1973); and Peloso v. Hartford Fire Ins. Co., 56 N.J. 514, 267 A.2d 498 (1970). Plaintiff has advanced no clear or compelling reason why we should overturn the decision, and since it is the established jurisprudence of our state, we will continue to follow it.

2.

Waiver of the running of prescription

Plaintiff contends that State Farm’s payment of the mortgage indebtedness to American Bank lulled it into a false sense of security that its claim would be paid. Accordingly, it argues that State Farm thereby waived the prescriptive period in the policy.

There is authority for finding a waiver where an insurance company has indicated by its conduct that it would not invoke the limitation provision. Brocato v. Sun Underwriters Ins. Co. of New York, 219 La. 495, 53 So.2d 246 (1951); O’Neal v. American Equitable Assurance Co. of New York, 162 So.2d 384 (La.App. 2d Cir. 1964); Gremillion v. Travelers Indemnity Company, 256 La. 974, 240 So.2d 727 (1970).

However, these authorities are inapposite to the present case because the record is devoid of any evidence which would support a finding that plaintiff had been misled by State Farm’s action. Payment was made under the option provided in the policy:

“If this Company shall claim that no liability existed as to the mortgagor or owner, it shall, to the extent of payment of loss to the mortgagee, be subrogated to all the mortgagee’s rights of recovery, but without impairing mortgagee’s right to sue; or it may pay off the mortgage debt and require an assignment thereof and of the mortgage.”

Nothing in this action indicated either that the time limitations were being waived or that payment wotdd be forthcoming without the necessity of filing suit.

For the reasons assigned, we affirm the judgments of the courts below maintaining defendant’s plea of prescription.

SUMMERS, J., concurs with reasons.

TATE, J., joins in the concurring opinion of SUMMERS, J.

SUMMERS, Justice

(concurring).

In 1970, by the decision in Gremillion v. Travelers Ins. Co., 256 La. 974, 240 So.2d 727, this Court overruled Finkelstein v. American Ins. Co., 222 La. 516, 62 So.2d 820, which had stood as the law of this State since 1952. I dissented in the Grem<-illion Case because it reversed the then settled law. Although I still believe the Fin-kelstein Case represents the better rule, I subscribe to this decision in the interest of stability in the law.


text:
    STATE of Louisiana ex rel. Andrew SIMMONS v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57610.
    Supreme Court of Louisiana.
    March 16, 1976.
   In re: Andrew Simmons, applying for writ of habeas corpus.

Writ refused. The application has no merit.

DIXON and CALOGERO, JJ., are of the opinion the writ should be granted.


text:
    A. Russell ROBERTS v. John Peter CRISTINA, III, et al.
    No. 57537.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: A. Russel Roberts, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson, 323 So.2d 888.

Application denied; the result is correct.

SANDERS, C. J., is of the opinion that a writ should be granted.


author: CALOGERO, Justice SANDERS, Chief Justice SUMMERS, Justice SANDERS, Chief Justice. DENNIS, Justice CALOGERO, Justice

text:
    STATE of Louisiana v. Sherman NEWTON.
    No. 56186.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    On Rehearing Feb. 23, 1976.
    Rehearing Denied March 26, 1976.

      C. R. Whitehead, Jr., Whitehead & McCoy, Natchitoches, for defendant-appellee.
    William J. Guste, Jr., Atty. Gen., L. J. Hymel, Jr., Barbara Rutledge, Walter L. Smith, Jr., Asst. Attys. Gen., Ronald C. Martin, Dist. Atty., John S. Stephens, Asst. Dist. Atty., for plaintiff-appellant.
   CALOGERO, Justice

(dissenting).

The defendant Sherman Newton was indicted for bribery of voters in violation of La.R.S. 14:119. Indicted at the same time for the same offense were ten other defendants. Four of the defendants are charged with giving money to influence voters; seven are charged with accepting money for their votes. The statute makes both activities, giving and accepting, criminal offenses.

Defendants filed a motion to quash the indictments on the ground that they fail to charge an offense which is punishable under a valid statute. La.C.Cr.P. Art. 532(1). Defendants attack the statute on the grounds that it is vague and overbroad in derogation of the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution, and in contravention of Article I, Section 10 of the Louisiana Constitution of 1921 which requires that “[i]n all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him.” The trial judge sustained the motion to quash and dismissed the indictments on the ground that the statute was unconstitutional. The state appeals to this Court pursuant to La.C.Cr.P. Art. 912(B)(1).

The language-of the statute which is at issue here defined the offense of bribery of voters as “the giving or offering to give, directly or indirectly, any money, or anything of apparent present or prospective value to any voter at any . . . election . . . with the intent to influence the voter in the .casting of his ballot.” Also proscribed is the “acceptance of, or the offer to accept, directly or indirectly, any money, or anything of apparent present or prospective value, by any such voters under such circumstances.” The constitutionality of this language has never before been considered by this Court.

The dual vices of vagueness and over-breadth, although sometimes overlapping, are distinguishable. A vague statute describes conduct in a manner so unclear that it leaves intelligent people uncertain as to the limits of its application. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). See Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 Pa.L.Rev. 67 (1960).

An overbroad statute, on the other hand, is clear about what it prohibits, but it stifles expression or conduct which is otherwise protected by the Constitution. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); NAACP v. Alabama, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964). The doctrine of over-breadth is particularly applicable where a statute infringes upon behavior protected by the First Amendment. Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); NAACP v. Alabama, supra. When a statute seems to prohibit free expression, citizens may fail to speak rather than risk prosecution under the statute. N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) ; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Reinstein and Silverglate, Legislative Privilege and the Separation of Powers, 86 Harv.L.Rev. 1113 (1973); Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970). Moreover, “it gives enforcement officials the power to select certain citizens, from all of those exercising a particular right, and punish them.” Scott v. District Attorney, Jefferson Parish, State of Louisiana, 309 F.Supp. 833, 838 (E.D. La.1970), affirmed 437 F.2d 500 (5th Cir. 1971). See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L. Ed.2d 162 (1969).

R.S. 14:119 prohibits, among other things, the indict offering to give anything of apparent or prospective value to any voter with the intent to influence that voter in casting his ballot. This language is not vague; it is clear and unambiguous. But it is overbroad. The statute on its face makes it a crime for political candidates and their spokesmen to do such things as promise voters better government in return for their votes; give voters handbills, buttons, pencils, or dinners to influence them to vote for their candidate; promise to lower taxes, change assessments, or implement welfare reform after election. The speeches of political candidates and their followers are unquestionably protected by the First Amendment. These are the very forms of speech essential to a democracy. As the United States Supreme Court proclaimed in Cox v. State of Louisiana, supra, 379 U.S. at 552, 85 S. Ct. at 463,

“Maintenance of the opportunity for free political discussion is a basic tenet of our constitutional democracy. As Chief Justice Hughes stated, in Stromberg v. People of State of California, 283 U.S. 359, 369, 51 S.Ct. 532, 536, 75 L.Ed. 1117: ‘A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment.’ ”

Conduct is often a means of expression, falling under the protection of the First Amendment. See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) ; Cox v. State of Louisiana, supra; State v. Ganch, 263 La. 251, 268 So.2d 214 (1972). When a candidate offers to the voters more fiscally responsible government, he is offering them something of “apparent . . . prospective value” in derogation of R.S. 14:119 while he is exercising his unlimited right of free speech protected by the First Amendment. When a candidate offers a free pencil to a voter, he is offering him something of “apparent present . . . value” in derogation of R.S. 14:119 while he is engaging in conduct protected by the First Amendment. Because the statute on its face prohibits these protected activities along with activities which may constitutionally be proscribed, such as bribery, it is an overbroad statute.

The state argues that these defendants were indicted for giving or accepting money to influence votes, and that they cannot now be heard to challenge the over-breadth of the statute as it pertains to.activities in which they were not engaged. Certainly that is the general rule. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); City of Baton Rouge v. Norman, 290 So.2d 865 (La. 1974). However, when the statute prohibits free expression protected by the First Amendment, a litigant can attack the statute even though his particular conduct could constitutionally be made criminal by the statute. Broadrick v. Oklahoma, supra; Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Sed-ler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962). Litigants are allowed to challenge such statutes “not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, supra, 413 U.S. at 612, 93 S.Ct. at 2916. This relaxation of the general rule has been allowed in cases involving statutes which purport to regulate only “pure speech.” Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); State v. Adams, 263 La. 286, 268 So.2d 228 (1972); State v. Ganch, supra. It has also been allowed in cases involving statutes which regulate conduct which is protected by the First Amendment. United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed. 2d 508 (1967); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L. Ed.2d 992 (1964); NAACP v. Button, supra; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); City of Baton Rouge v. Ewing, 308 So.2d 776 (La. 1975).

The state urges this Court to interpret this statute so as to confine it to constitutional bounds. We refuse to do so. When a court has found that a statute on its face sweeps broadly into areas protected by the First Amendment, the proper disposition of the case is to hold the statute void on its face. Gooding v. Wilson, supra; Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Then the Legislature, the proper body for writing statutes, will be able to adopt a bribery of voters statute which is constitutional. As we stated in City of Baton Rouge v. Ewing, supra at 779, “[t]o cure such overbreadth would not so much be a matter of reasonable judicial construction as of substantial legislative revision.” In State v. Harrison, 280 So.2d 215 (La.1973) and State v. Ganch, supra, we likewise refused to rewrite overbroad statutes.

For these reasons, we affirm the trial court’s holding that R.S. 14:119 is constitutionally infirm, and its action in quashing the indictments.

BARHAM, J., concurs additionally being of the opinion that there are numerous additional constitutional infirmities in the statute.

SANDERS, C. J., and SUMMERS, J., dissent and assign written reasons.

MARCUS, J., dissents.

SANDERS, Chief Justice

(dissenting).

The majority has held that LSA-R.S. 14:119 is unconstitutional because of over-breadth. The statute provides :

“Bribery of voters is the giving or offering to give, directly or indirectly, any money, or anything of apparent present or prospective value to any voter at any general, primary, or special election, or at any convention of a recognized political party, with the intent to influence the voter in the casting of his ballot.
“The acceptance of, or the offer to accept, directly or indirectly, any money, or anything of apparent present or prospective value, by any such voters under such circumstances shall also constitute bribery of voters.
“Whoever commits the crime of bribery of voters shall be fined not less than five hundred dollars, nor more than one thousand dollars, and imprisoned for not more than one year.” (Italics ours).

Although the holding deals only with bribery of voters, it endangers the related statutes prohibiting public bribery (LSA-R.S. 14:118) and bribery of sports participants (LSA-R.S. 14:118.1), since those statutes are phrased in almost identical language.

At the threshold of the case is a question of appellate review. The motion to quash filed in the trial court alleged only that “the indictment fails to charge an offense which is punishable under a valid statute.” In presenting the motion, defense counsel attacked only the fourth paragraph, dealing with the immunity of a participant who gives evidence or makes an affidavit against another, and the penalty clause, directing payment of the fine to the informer. The trial judge sustained the motion to quash on these grounds, but also opined that the prohibition against suspension of the penalty by the court was invalid. The State appealed, assigning as error the ruling of the trial judge on each of the three grounds. Both briefs were addressed to these issues. In a closing paragraph of defendant’s brief, however, defense counsel complained that the statute was “overly broad and vague.” Apparently, this paragraph impressed the majority of the Court, but the State was not afforded an opportunity to brief this point. I am of the opinion that the matter is not before us, since it was not raised in the trial court or ruled upon by the trial judge. It is well settled that the grounds for unconstitutionality of a statute must be specially pleaded in the trial court to be available on appeal. See State v. Campbell, 263 La. 1058, 270 So.2d 506 (1972); State v. Broussard, 263 La. 342, 268 So.2d 248 (1972); State v. Kavanaugh, 203 La. 1, 13 So.2d 366 (1943). See also City of Shreveport v. Pedro, 170 La. 351, 127 So. 865 (1930).

Assuming, however, that the matter is properly before us, I address the merits.

The language found to be constitutionally objectionable is this:

“. . . the giving or offering to give, directly or indirectly, any money, or anything of apparent present or prospective value to any voter at any . . . election . . . with the intent to influence the voter in the casting of his ballot.”

A statute is presumed to be constitutional, and the burden of clearly establishing unconstitutionality rests upon the party who attacks the statute. State v. Guidry, 247 La. 631, 173 So.2d 192 (1965); Johnson v. Collector of Revenue, 246 La. 540, 165 So.2d 466 (1964).

In testing the constitutionality of a statute, the statute must be given “a genuine construction, according to the fair import of [its] words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” LSA-R.S. 14:3; State v. Heck, La., 307 So.2d 332 (1975); State v. Truby, 211 La. 178, 29 So.2d 758 (1947).

When the Court can reasonably do so, it must construe a statute so as to preserve its constitutionality. Pearce ex rel. Structural Pest Control Com’n v. Sharbino, 254 La. 143, 223 So.2d 126 (1969); Buras v. Orleans Parish Democratic Executive Committee, 248 La. 203, 177 So.2d 576 (1965); Borden v. Louisiana State Board of Education, 168 La. 1005, 123 So. 655, 67 A.L.R. 1183 (1929); 16 Am.Jur.2d, Constitutional Law, § 144, p. 345.

As I view the holding, it isolates a portion of the statutory sentence and gives to those words an unrealistic construction. In so doing, it fails to consider the context and purpose of the statute.

The statute is designed to prohibit the corruption of voters. It criminalizes the giving or offering to give money or anything of value to a voter at any election with the specific intent to influence his official vote by this corrupt pecuniary device. LSA-R.S. 14:10 defines specific intent as follows:

“Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”

It is an intent to subject the vote of the recipient to the influence of personal gain rather than the public good. See State v. Begyn, 34 N.J. 35, 167 A.2d 161 (1960).

In the statute, the word “bribery” is used four times. The word “bribe-giver” is used once, and the word “bribe-taker” is used once. The word “bribe” has a well-understood meaning. It means a price or reward to pervert the judgment or conduct of a person. See State v. Smith, 252 La. 636, 212 So.2d 410 (1968); R. Perkins, Criminal Law 474-475 (2nd ed. 1969); Webster’s Third New International Dictionary Verbo bribe.

In upholding the constitutionality of the public bribery statute in State v. Smith, supra, this Court stated:

“. . . [B]ribery is a term of well understood meaning in the criminal law. As pointed out in this same authority, the gist of the offense is that it tends to corrupt . . .”

Significantly, the word “bribe” has such a well-known meaning that the short form indictment for bribery of voters under Article 465 of the Louisiana Code of Criminal Procedure merely reads:

“A. B. bribed C. D., a voter, by giving him (or offering him)-dollars.”

The official comment under that article describes bribery of voters as one of the “well-understood crimes.”

In the light of the statutory purpose and context, it is incorrect to say, as the majority does, that:

“The statute on its face makes it a crime for political candidates and their spokesmen to do such things as promise voters better government in return for their votes; give voters handbills, buttons, pencils, or dinners to influence them to vote for their candidate; promise to lower taxes, change assessments, or implement welfare reform after election.”

A platform promise of better government, lower taxes, or welfare reform made generally to a group of voters is not a giving or offering to give money or a thing of value to a voter within the meaning of the statute. Handbills, buttons, pencils, or dinners are commonly accepted methods of publicizing a candidate’s name and qualifications, but they do not violate the statute. Most, if not all, of these items confer no pecuniary benefit, are offered to voters generally, and the intent is to publicize the candidate, not to buy a vote.

In State v. Di Paglia, 247 Iowa 79, 71 N.W.2d 601 (1955), the Supreme Court of Iowa held a similarly phrased statute relating to bribery of sports participants constitutional. The court stated:

“One challenging a statute has the burden to overcome the presumption it is constitutional and to negative every reasonable basis upon which it may be sustained. Knorr v. Beardsley, 240 Iowa 828, 38 N.W.2d 236. Appellant has not met this burden. There is no showing the provisions of this statute which are involved in this case, are indefinite or uncertain. On the contrary, such provisions are explicit and the language clear.”

When the words are given a genuine construction in the context of the entire statute, as must be done, the statute does not impinge upon protected speech or other First Amendment rights.

For the reasons assigned, I respectfully dissent.

SUMMERS, Justice

(dissenting).

I join with the Chief Justice in the reasons he has assigned in his dissenting opinion.

ON REHEARING

SANDERS, Chief Justice.

The State charged Sherman Newton and ten other defendants with bribery of voters in violation of LSA-R.S. 14:119. Four of the defendants allegedly gave money to voters to influence their votes; the other seven allegedly accepted money for their votes. The defendants filed a motion to quash the indictments on the ground that they fail to charge an offense which is punishable under a valid statute. The trial judge sustained the motion to quash and dismissed the indictments, holding the statute unconstitutional.

The State appealed to this Court pursuant to Article 912(B)(1) of the Louisiana Code of Criminal Procedure. On original hearing, a majority of this Court affirmed the trial court’s judgment, holding that the statute was overbroad. On application of the State, we granted a rehearing to reconsider the serious constitutional issues presented.

LSA-R.S. 14:119 provides:

“Bribery of voters is the giving or offering to give, directly or indirectly, any money, or anything of apparent present or prospective value of any voter at any general, primary, or special election, or at any convention of a recognized political party, with the intent to influence the voter in the casting of his ballot.
“The acceptance of, or the offer to accept, directly or indirectly, any money, or anything of apparent present or prospective value, by any such voters under such circumstances shall also constitute bribery of voters.
“Whoever commits the crime of bribery of voters shall be fined not less than five hundred dollars, nor more than one thousand dollars, and imprisoned for not more than one year.
“In the trial of persons charged with bribery of voters either the bribe-giver or the bribe-taker may give evidence, or make affidavit against the other, with immunity from prosecution in favor of the first informer, except for perjury in giving such testimony.
“Any fine imposed and collected from the convicted person or persons under the provisions of this Article shall be paid to the informer or informers who shall give information resulting in the conviction of said person or persons. No penalty imposed under the provisions of this Article shall be suspended or remitted by any court or other authority, provided that this provision shall not be construed against the right of suspensive appeal granted by the Constitution and laws of this State.”

A statute is presumed to be constitutional, and the burden of clearly establishing unconstitutionality rests upon the party who attacks the statute. State v. Guidry, 247 La. 631, 173 So.2d 192 (1965); Johnson v. Collector of Revenue, 246 La. 540, 165 So.2d 466 (1964). In testing the constitutionality of a statute, the statute must be given “a genuine construction, according to the fair import of . . . [its] words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” LSA-R.S. 14:3; State v. Heck, La., 307 So. 2d 332 (1975); State v. Truby, 211 La. 178, 29 So.2d 758 (1947). When the Court can reasonably do so, it must construe a statute so as to preserve its constitutionality. Pearce ex rel. Structural Pest Control Comm’n v. Sharbino, 254 La. 143, 223 So. 2d 126 (1969); Buras v. Orleans Parish Democratic Executive Committee, 248 La. 203, 177 So.2d 576 (1965); Borden v. Louisiana State Board of Education, 168 La. 1005, 123 So. 655, 67 A.L.R. 1183 (1929); 16 Am.Jur.2d, Constitutional Law, § 144 at 345. With these principles in mind, we now review the several constitutional issues.

Overbreath Issue

On original hearing, the majority found the following language overbroad and unconstitutional :

“ . . . the giving or offering to give [and acceptance or offer to accept], directly or indirectly, any money, or anything of apparent present or prospective value to any voter at any . . . election . . . with the intent to influence the voter in the casting of his ballot.”

The majority held that this language infringed upon freedom of expression protected by the First Amendment of the United States Constitution, by making it a crime for political candidates to do such things as promise better government to voters for their votes; give voters handbills, buttons, pencils, or dinners to influence them; or promise to lower taxes, change assessments, or implement welfare reform.

We now discern that in so holding, we failed to adequately consider the context and the purpose of the statute. LSA-R.S. 14:3; State v. Heck, supra. The purpose of the statute is to prohibit the corruption of voters, which it seeks to do by criminalizing the giving or accepting of money or anything of value at any election with the corrupt intent to influence the elector’s vote.

The words “bribery” and “bribe” are used throughout the statute. The word “bribe” is well, understood to mean a price or reward corruptly given to pervert the judgment or conduct of a person. See State v. Smith, 252 La. 636, 212 So.2d 410 (1968); R. Perkins, Criminal Law 474-75 (2nd ed. 1969) ; Webster’s Third New International Dictionary verbo bribe.

In upholding the constitutionality of the public bribery statute in State v. Smith, supra, this Court stated:

“ . . . bribery is a term of well understood meaning in the criminal law. As pointed out in this same authority, the gist of the offense is that it tends to corrupt . . . .”

As used in the statute, value is determined by the application of a subjective, rather than an objective, test. The requirement of value is satisfied if the thing has sufficient value in the mind of the person to whom it is corruptly offered to influence his actions. See 12 Am.Jur.2d, Bribery § 7 at 752-53; Winckler, Drafting an Effective Bribery Statute, 1 Am.J.Crim.L. 210, 214 (1972). Bribery statutes in most jurisdictions use general terms because of the common understanding of bribery and its elements. See, e. g., Ariz.Rev.Stat. § 13-283 et seq.; Iowa Code § 739.1; N.Y. Penal Law § 215.15.

Contrary to our first impression, it is clear that a platform promise of better government, lower taxes, or welfare reform made generally to a group of voters or to individual voters is not bribery within the meaning of the statute. Similarly, handbills, buttons, pencils, and dinners are commonly accepted means of publicizing a candidate’s name and qualifications, but neither do they violate the statute. Most, if not all, of these items confer no pecuniary benefit, are offered to voters generally, and most important, are offered with the intent to publicize a candidate and his views, not to buy a vote. The restriction achieved by the requirement of a corrupt intent to influence the recipient’s vote effectively prevents the statute from infringing upon a candidate’s freedom of expression. It also defeats any allegations of vagueness. See State v. Smith, supra.

We now address the constitutional issues not reached on original hearing.

Immunity of First Informer

At issue is the following language from the statute:

“In the trial of persons charged with bribery of voters either the bribe-giver or the bribe-taker may give evidence, or make affidavit against the other, with immunity from prosecution in favor of the first informer, except for perjury in giving such testimony.”

The defense argues that by granting immunity on an allegedly arbitrary first-come, first-serve basis, this provision discriminates against any co-defendants seeking similar immunity, denying them equal protection of law. The defense also argues that it unduly limits the prosecutor’s discretion in the granting of immunity. We find no merit in these arguments. The statute must be read in pari materias with LSA-R.S.' 14:121 and 15:468, which provide respectively:

LSA-R.S. 14:121:

“The offender, under the public bribery, bribery of voters or corrupt influencing articles, who states the facts under oath to the district attorney charged with the prosecution of the offense, and who gives evidence tending to convict any other offender under those articles, may, in the discretion of such district attorney, be granted full immunity from prosecution in respect to the offense reported, except for perjury in giving such testimony.”

LSA-R.S. 15 :468:

“Any person may be compelled to testify in any lawful proceeding against another charged with commercial bribery, public bribery, bribery of voters or corrupt influencing, and shall not be permitted to withhold his testimony upon the ground that it may incriminate him or expose him to public infamy; but such testimony shall not afterwards be used against him in any judicial proceeding, except for perjury in giving such testimony.”

The Reporter’s Comment under LSA-R.S. 14:121 states that the granting of complete immunity to the informer is necessary for proper enforcement of the section because “[cjonvictions in such cases will rarely be secured unless one party testifies against the other.” It should be noted that LSA-R.S. 14:121 vests the district attorney with discretion as to the extent of immunity granted, thus curing the omission in LSA-R.S. 14:119 of which the defendants complain.

Additionally, we find our holding in State v. Rodrigues, 219 La. 217, 52 So.2d 756 (1951) to be controlling:

“The conclusion is inescapable that our State has the right to grant immunity to its citizens from being compelled to give testimony that will incriminate them, or to withhold that right, or to give it under certain conditions or subject to certain exceptions. The people of this State have chosen to give it subject to the exception with which we are here concerned [bribery of voters]. We cannot adjudicate on the wiseness of their action. The provisions are plain, unambiguous and subject to effective enforcement.”

We conclude that this attack on the statute lacks merit.

Payment of Fine to Informer

The second premise upon which defendants base their challenge to- the statute’s constitutionality is the last paragraph of the statute which provides in pertinent part:

“Any fine imposed and collected from the convicted person or persons under the provisions of this Article shall be paid to the informer or informers who shall give information resulting in the conviction of said person or persons.

However, no constitutional arguments are advanced; defendants merely contend that the provision is “contrary to American legal tradition and encourages a person with unclean hands to testify against his fellow perpetrator of the bribe, then collect his thirty pieces of silver from the State.” While we acknowledge that this provision is subject to abuse, that is a matter that addresses itself to legislative rather than judicial remedy. A defendant is safeguarded against false testimony by the reiteration in the statute that immunity to the informer does not extend to perjury. We find no deficiency of constitutional dimensions in the provision.

Prohibition against Siispension or Remission of Penalty

The third issue raised in the trial court’s judgment is whether or not the statutory language providing that no penalty imposed “shall be suspended or remitted by any court or other authority” infringes upon the function of the court to sentence or the power of the governor to pardon. Since the defendants in this case have not been convicted or sentenced, the issue is before us prematurely, and we pretermit any resolution of it at this time.

For the reasons assigned, the judgment of the district court is reversed; the motion to quash the indictment is overruled; and the case is remanded to the district court for further proceedings consistent with the views herein expressed.

TATE, J., dissents and adheres to our original opinion.

DIXON, J., dissents.

CALOGERO, J., dissents with reasons.

DENNIS, Justice

(concurring).

Although the paragraph of the statute providing for payment of fines to informers is probably unconstitutional, it is also severable from the remainder of the statute. Therefore, the indictment should not be quashed.

CALOGERO, Justice

(dissenting).

I dissent for the reasons assigned in the majority opinion on original hearing.

      . La.R.S. 14:119 provides:
      Bribery of voters is the giving or offering to give, directly or Indirectly, any money, or anything of apparent present or prospective value to any voter at any general, primary, or special election, or at any convention of a recognized political party, with the intent to influence the voter in the casting of his ballot.
      The acceptance of, or the offer to accept, directly or indirectly, any money, or anything of apparent present or prospective value, by any such voters under such circumstances shall also constitute bribery of voters.
      Whoever commits the crime of bribery of voters shall be fined not less than five hundred dollars, nor more than one thousand dollars, and imprisoned for not more than one year.
      In the trial of persons charged with bribery of voters either the bribe-giver or the bribe-taker may give evidence, or make affidavit against the other, with immunity from prosecution in favor of the first informer, except for perjury in giving such testimony.
      Any fine imposed and collected from the convicted person or persons under the provisions of this Article shall be paid to the informer or informers who shall give information resulting in the conviction of said person or persons. No penalty imposed under the provisions of this Article shall be suspended or remitted by any court or other authority, provided that this provision shall not be construed against the right of suspensive appeal granted by the Constitution and laws of this State.

      . The charges arise out of transactions in which . Sherman Newton purportedly gave money to Lizzie Jones and Sentell Jones; Leslie Newton purportedly gave money to Joe Sloan and Lance Kirts; Mariah Palmer purportedly gave money to Raymond Beavers and Yerna Lee Harris; Ella Eaye Bonner purportedly gave money to Flora Bell Harris. The cases of all of these defendants were argued jointly before this Court. Because the issue is identical in each of the cases, this opinion controls the others in which separate opinions are being rendered this day.

      . Other provisions of the statue were also challenged by the defendants and held unconstitutional by the trial judge: the immunity, fine, and penalty provisions. Since we hold the statute unconstitutional for over-breadth, we need not review trial court’s ruling as to the constitutionality of these other provisions.

      . In the case of State v. Smith, 252 La. 636, 212 So.2d 410 (1968), this Court upheld a section of the public bribery statute, La.E.S. 14:118, before an attack that the statute was vague and overbroad. The language challenged was this: “with the intent to influence his conduct in relation to his position, employment or duty.” Defendant had not attacked the statutory language at issue here, “anything of apparent present or i>rospeetive value,” although identical language appears in both statutes, R.S. 14:118 and 119. The Court in Smith did not consider the language now at issue before us.


author: CALOGERO, Justice. SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Leslie NEWTON.
    No. 56187.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    On Rehearing Feb. 23, 1976.
    Rehearing Denied March 26, 1976.
    C. R. Whitehead, Jr., Whitehead & McCoy, Natchitoches, for defendant-appel-lee.
    William J. Guste, Jr., Atty. Gen., L. J. Hymel, Jr., Barbara Rutledge, Walter L. Smith, Jr., Asst. Attys. Gen., Ronald C. Martin, Dist. Atty., John S. Stephens, Asst. Dist. Atty., for plaintiff-appellant.
   CALOGERO, Justice.

Defendant Leslie Newton was indicted for bribery of voters in violation of La.R. S. 14:119. For the reasons assigned in State v. Newton, La., 328 So.2d 110, decided this day, the trial court’s action in declaring the statute constitutionally infirm and its action in quashing the indictment is hereby affirmed.

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

ON REHEARING

SANDERS, Chief Justice.

For the reasons assigned in State of Louisiana v. Newton, La, 328 So.2d 110, decided this day, the judgment of the district court is reversed; he motion to quash the indictment is overruled; and the case is remanded to the district court for further proceedings consistent with the views therein expressed.

TATE, DIXON and CALOGERO, JJ, dissent.

DENNIS, J, concurs for the reasons stated in State v. Newton, La, 328 So.2d 110, decided this day.


text:
    STATE of Louisiana v. Mariah PALMER.
    No. 56188.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    On Rehearing Feb. 23, 1976.
    Rehearing Denied March 26, 1976.
    William J. Guste, Jr, Atty. Gen, L. J. Hymel, Jr, Barbara Rutledge, Walter L. Smith, Jr, Asst. Attys. Gen, Ronald C. Martin, Dist. Atty, John S. Stephens, Asst. Dist. Atty, for plaintiff-appellant.
    C. R. Whitehead, Jr, Whitehead & McCoy, Natchitoches, for defendant-appel-lee.
   CALOGERO, Justice.

Defendant Mariah Palmer was indicted for bribery of voters in violation of La.R. S. 14:119. For the reasons assigned in State v. Newton, La, 328 So.2d 110, decided this day, the trial court’s action in declaring the statute constitutionally infirm and its action in quashing the indictment is hereby affirmed.

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

ON REHEARING

SANDERS, Chief Justice.

For the reasons assigned in State of Louisiana v. Newton, La., 328 So.2d 110, decided this day, the judgment of the district court is reversed; the motion to quash the indictment is overruled; and the case is remanded to the district court for further proceedings consistent with the views therein expressed.

TATE, DIXON and CALOGERO, JJ., dissent.

DENNIS, J., concurs for the reasons stated in State v. Newton, La., 328 So.2d 110, decided this day.