author: MELVIN, Judge. SMITH, Acting Chief Judge,

text:
    Jodie Lawrence SHUMAKER, Appellant, v. STATE of Florida, Appellee.
    No. GG-203.
    District Court of Appeal of Florida, First District.
    July 18, 1978.
    Robert Augustus Harper, Jr., Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   ORDER

SUA SPONTE IT IS ORDERED that this Court’s Opinion filed April 28, 1978 is hereby withdrawn and in its place is the Opinion of this .Court filed July 18, 1978.

By Order of the Court dated this 18th day of July, A. D. 1978.

MELVIN, Judge.

Appellant-defendant appeals from the final judgment entered against him based upon his plea of nolo contendere to the charge of unlawful possession of less than five grams of cannabis (marijuana) and a like plea to the charge contained in the second count of the information wherein the defendant was charged with unlawfully having in his possession a controlled substance, namely methylphenidate.

Upon acceptance of the defendant’s plea of nolo contendere to Counts One and Two, the court deferred further consideration of the case until the receipt of a presentence investigation. On June 10, 1977, the court further considered the case of the defendant, entered an order withholding adjudication of guilt, upon the plea of nolo conten-dere, to the offense of “Count One: Possession of Cannabis Over Five Grams, Count Two: Possession of Controlled Substance”. The court then placed the defendant on probation for a period of three years as to each count, the probation period as to each count to run concurrently.

The defendant contends, and the State agrees, that since the information charged him with possession of a misdemeanor quantity of cannabis, he may not be placed on probation for unlawful possession of a felony quantity of cannabis.

The defendant urges that the trial court erred in denying his motion to suppress evidence observed by the officer and seized by the officer from the defendant’s automobile. We have examined the transcript of the testimony presented at the motion hearing, and find that the same fails to meet the test as to sufficient facts and circumstances within the officer’s knowledge to determine probable cause. See Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978). It follows that the articles received as a result of the search, the same being less than five grams of marijuana, and the pills or drugs which come into classification of a controlled substance above referred to are the fruits of an unlawful search and seizure. Therefore, the trial court erred in denying defendant’s motion to suppress.

We reverse the judgment and remand with directions that the defendant be discharged.

ERVIN, J., concurs.

SMITH, Acting C. J., concurs in part and dissents in part.

SMITH, Acting Chief Judge,

concurring in part and dissenting in part:

I agree that appellant’s motion to suppress the evidence of possession of methyl-phenidate, a controlled substance, should have been granted. There being no other evidence of appellant’s guilt on that count, he must be discharged. Tiller v. State, 330 So.2d 792 (Fla. 1st DCA 1976); Brown v. State, 355 So.2d 138 (Fla. 3d DCA 1978). I disagree with the court’s conclusion that the trial court should also have suppressed the evidence that appellant was in possession of less than five grams of cannabis.

Appellant was driving an automobile, bearing one additional passenger, on a well-lit Pensacola street at about 10:30 at night. Officers in another vehicle observed appellant holding a hand-rolled cigarette to his lips by the tips of his fingers. The burning end of the cigarette glowed in a way the officer testified is characteristic of marijuana:

[I]f an individual is smoking marijuana, it has "a strange type of glow to it, more or less sort of an orangish type glow rather than a burn when an individual is puffing on it; and when the individual stops, it kind of lingers there sort of like a piece of ash, kind of burning out rather than the normal cigarette that would just normally not burn ..I have observed this on a number of occasions through binoculars and up close and firsthand experience with this sort of thing and right beside a person.

When the officers stopped appellant’s automobile and asked him and his passenger to exit, a strong marijuana aroma emanated from inside the automobile. Appellant was formally arrested and his passenger was “taken into custody.” Appellant’s vehicle was driven by an officer to the police station, where appellant’s passenger was released, appellant was charged, and the automobile was searched.

In my view the initial and limited detention of appellant and his automobile was entirely lawful, based as it was on the officers’ observations which gave rise to a founded suspicion that appellant was in possession of and was smoking a misdemeanor quantity of marijuana. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Section 901.151, Florida Statutes (1977). Contrast Whitley v. State, 349 So.2d 840 (Fla. 2d DCA 1977); Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977). When the officers’ suspicions were confirmed by smelling marijuana smoke, they had probable cause to arrest appellant for the possession they had observed. The majority appear to have disregarded the officers’ testimony concerning the characteristic burning of a marijuana cigarette, and evidently have equated the initial detention with an arrest for which probable cause would be required.

Defending the seizure and subsequent search of appellant’s automobile, the state does not here contend that appellant’s possession of a single marijuana cigarette gave the officers probable cause to believe that the automobile contained other contraband. Any such contention would in my view be unfounded. Hill v. State, 238 So.2d 608 (Fla.1970). Contrast Miranda v. State, 354 So.2d 411 (Fla. 3d DCA 1978). The state urges, instead, that the seizure was a necessary impoundment for the safety of the automobile or for other motor traffic; and that the consequent search, revealing me-thylphenidate, was but an inventory of property lawfully taken into the state’s care.

The state offered no evidence that im-poundment was reasonably necessary under the circumstances. It may be debated whether the officers were affirmatively required as a matter of law to consult appellant at the scene concerning the disposition of his automobile. Compare Chuze v. State, 330 So.2d 166 (Fla. 4th DCA 1976), with State v. Dearden, 347 So.2d 462 (Fla. 2d DCA 1977). But their failure to consult the apparent owner bears as evidence on the issue of whether the impoundment was for the lawful protection of the vehicle or the traveling public, or was instead a pretext for search. No testimony was given by the officers explaining why the vehicle could not be left lawfully parked, or why appellant’s passenger, whose custodial detention was unexplained and unjustified, could not be entrusted with the vehicle. The officers appear to have been following a general routine of seizing and searching all vehicles in which the driver has committed an offense. That practice has no sanction in the law. Benton v. State, 329 So.2d 385 (Fla. 1st DCA 1976).

I therefore agree that appellant’s conviction on count two must be reversed, and would discharge him; and I would reverse and remand for a corrective judgment on count one.


source: Caselaw Access Project

author: TATE, Justice.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Ivan WISE, Appellant.
    No. 60138.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearing Denied July 26, 1978.
    Wayne J. McDougall, J. Wayne Mum-phrey, Tonry, Mumphrey, D’Antonio & McDougall, Chalmette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Julian J. Ro-drigue, First Asst. Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., Research and Appeals Div., for plaintiff-appellee.
   TATE, Justice.

The defendant Wise was convicted of second degree murder, La.R.S. 14:30.1(1) (1975), and sentenced to life imprisonment at hard labor. His appeal raises eleven assignments of error, some of them urging several grounds.

We find that none of the assignments present reversible error, nor do any involve legal issues not governed by clearly applicable legal principle. Some of the assignments require lengthy factual discussion of interest primarily to the parties, but not involving circumstances likely to recur. We have therefore discussed and disposed of them in an appendix attached to this opinion, which remains a public record of this court but which will not be published with this opinion.

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

SUMMERS, J., concurs.


author: CALOGERO, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Leonard WILLIE.
    No. 61131.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearing Denied July 26, 1978.

      Max Mercer, Slidell, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Gretna, for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Leonard Willie was indicted on March 17, 1975, for the crime of first degree murder. After a trial by jury, defendant was found guilty as charged and was given the mandatory death penalty then required by La.R.S. 14:30(4). On this appeal of his conviction and sentence, defendant relies upon six assignments of error.

ASSIGNMENT OP ERROR NO. 3

Defendant contends that the trial court erred in denying his motion to quash the grand jury indictment on the grounds that the procedure for picking the grand jury set forth in Article 413 of the Code of Criminal Procedure is unconstitutional. Specifically, he asserts that the provision of the article which allows the court, in parishes other than Orleans, to pick the foreman of the grand jury effectively denies him his right to an impartially selected grand jury.

In Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972) the United States Supreme Court recognized that the federal constitutional right to indictment by a grand jury is not applicable in a state criminal proceeding; however, it noted that “if a state chooses ... to use a grand jury, or petit jury, due process imposes limitations on the composition of that jury.” Specifically, the court stated that “a state cannot, consistent with due process, subject a defendant to indictment or trial by a jury that has been selected in an arbitrary manner, and discriminatory manner in violation of the Constitution and laws of the United States.” In State v. Enloe, 276 So.2d 283 (La.1973), this Court recognized that due process requires that a defendant be “afforded a jury from which there has been no arbitrary exclusion of any particular group of individuals.” Again, in State v. Gage, 337 So.2d 1123 (La.1976), this Court reiterated that the empaneling of a fair and impartial grand jury is an essential element of the right of an accused to due process under the law.

Nevertheless, a defendant who claims that the method of selection of grand juries violates his constitutional rights must make an affirmative showing that the scheme has fostered discrimination, either in his case particularly, or in a historical context. See State v. Reid, 340 So.2d 551 (La.1976). A claim such as defendant makes here that the system of foreman selection offers a potential for abuse without any proof of abuse does not constitute an affirmative showing of discrimination. Thus, the assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 4, 5, AND 6

Defendant contends that the trial court erred in failing to quash the indictment because of the uneonstitutionality of the mandatory death penalty then in force under La.R.S. 14:30, and in excusing for cause two jurors who were conscientiously opposed to the death penalty.

Subsequent to the trial court’s refusal to quash the instant indictment, the United States Supreme Court, in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), declared the death penalty as it then existed in Louisiana to be unconstitutional. The proper procedure in such a case is to resentence the defendant to the most severe valid penalty established by the legislature for criminal homicide at the time of the offense. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Smith, 340 So.2d 247 (La.1976). For defendant Leonard Willie that will be life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for twenty years. Further, this court has uniformly held that a defendant insulated from the death penalty has no valid Witherspoon complaint. State v. Sheppard, supra; State v. Nicolaus, 340 So.2d 296 (La.1976); State v. Miles, 339 So.2d 735 (La.1976).

Thus, defendant’s position has merit insofar as it raises the invalidity of defendant’s death sentence; otherwise the assignments lack merit.

ASSIGNMENTS OF ERROR NOS. 11 AND 12

Defendant contends that the trial court erred when it refused his motion for acquittal based upon assertions that: (1) the state failed to introduce any evidence that the defendant had specific intent to injure or kill more than one person, an essential element of the offense of first degree murder as it then existed; and (2) the state failed to introduce any evidence to rebut defendant’s insanity defense.

Defendant was charged under Revised Statute 14:30(4) which at that time proscribed as first degree murder the killing of a human being “When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.” Defendant contends that there was no evidence of his specific intent to injure or kill more than one person.

The context facts are these. Defendant Willie knew and apparently was in love with the victim, who was his neighbor. The victim lived with her two children in a trailer behind her parents’ home near defendant’s home. Apparently angry because she had filed a civil suit to stop his harassing her, defendant wrote several letters to the victim. The letters were not mailed but discovered upon defendant’s arrest shortly after the murder. In the letters, defendant related his resolve to kill her and her mother and father. Very early in the morning of Saturday, November 23, 1974 defendant cut the exterior telephone lines, broke into the victim’s parents’ home, and shot and killed the victim. Defendant apparently knew that on that night the victim was staying in the home of her parents. The jury could also have reasonably believed from the evidence that defendant believed the victim’s parents were, by that hour, also in the home, notwithstanding the contrary defense contention to the effect that the parents customarily played cards every Friday night and that defendant knew this.

The parents were not home when defendant invaded their home and thus were unharmed. The two children for whom defendant had 'earlier expressed affection were in the house but were not harmed. When a neighbor drove up to the house in response to the shotgun fire, defendant shot either at him or at his car, but the neighbor was not struck.

The thrust of the defense contention is that under the facts, especially as they unfolded on the night of the crime, there was not and could not have been any evidence of the type of intent required by R.S. 14:30(4) (specific intent to injure or kill more than one person) at the time defendant killed the victim. With this contention we do not agree.

Considering the minimal “some evidence” limitation on our reviewing a jury verdict of guilty and the evidence in this case (including the pre-crime letters which threatened the lives of the victim and each of her parents, the victim’s presence in her parents’ home on the night in question and defendant’s knowledge thereof, the facts surrounding defendant’s invasion of the home at such a late hour which could have indicated defendant’s belief that all three intended victims were in the home) we cannot conclude that there was no evidence that defendant had the specific intent to kill or inflict great bodily harm upon more than one person when he shot and killed the victim.

Thus we find no merit to this part of defendant’s contention.

Under these assignments, defendant further challenges the Louisiana statutory rule which creates a presumption of sanity and requires the defendant to rebut that presumption. Article 652 of the Code of Criminal Procedure provides that “the defendant has the burden of establishing the defense of insanity at the time of the offense by a preponderance of the evidence.” In Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), the United States Supreme Court upheld a similar Oregon statutory provision which required that the defendant prove his insanity beyond a reasonable doubt. Subsequently, in Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976) the high court dismissed as not raising a substantial legal question an appellant’s contention that Leland was no longer valid. Consistent with these cases the United States Supreme Court held in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) that a criminal defendant may be required by state statute to prove the affirmative defense of “extreme emotional distress” without violation of the due process clause where that defense did not serve to negative any essential elements of the offense. In that case the court specifically refused to reconsider Leland and Rivera and rejected the contention that the statute was invalid under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) saying:

“In convicting Patterson under its murder statute, New York did no more than Leland and Rivera permitted it to do without violating the Due Process Clause. Under those cases, once the facts constituting the crime are established beyond reasonable doubt, based on all the evidence including the evidence, of the defendant’s mental state, the State may refuse to sustain the affirmative defense of insanity unless demonstrated by a preponderance of the evidence.” 432 U.S. at 203, 97 S.Ct. at 2325.

Under these cases it is clear that if insanity is an affirmative defense the state can without offense to the federal guarantee of due process require a defendant to preponderantly establish his insanity. Conversely, federal due process does not allow a state to require a defendant to prove his insanity if sanity is an element of the offense. An example of this latter situation would arise if the crime in question was one demanding specific intent and the law was to the effect that an insane person lacked the requisite intent. See Grave v. Hopper, 566 F.2d 507 (5th Cir. 1978).

Under Louisiana law, insanity is an affirmative defense that the accused must prove by a preponderance of the evidence. See State v. Watkins, 340 So.2d 235 (La.1976); State v. Craig, 340 So.2d 191 (La.1976); State v. Berry, 324 So.2d 822 (La.1975); State v. Toon, 172 La. 631, 135 So. 7 (1931). There is a presumption in Louisiana law that a person is sane and responsible for his actions, and to successfully rebut that presumption, a criminal defendant must preponderantly establish his insanity. See State v. Glover, 343 So.2d 118 (La.1977); State v. Craig, supra; State v. Clark, 305 So.2d 457 (La.1974). Moreover, the defense of insanity must be specially pleaded. C.Cr.P. art. 552.

Since under Louisiana law insanity is an affirmative defense, there is no federal due process violation in requiring the defendant to preponderantly prove his insanity. We have likewise found as a matter of state law that there is no state due process violation in that requirement. State v. Berry, supra; State v. Brown, 322 So.2d 211 (La.1975).

Accordingly, we find no merit in these assignments of error.

Decree

For these reasons we affirm defendant’s conviction but we vacate his sentence of death and remand the case for imposition of a sentence of life imprisonment without benefit of parole, probation or suspension of sentence for twenty years.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.

TATE, J., concurs and assigns reasons.

DENNIS, J., concurs for reasons assigned by TATE, J. See discussion at footnote 2 in State v. Tillman, 356 So.2d 1376 (La.1978).

TATE, Justice,

concurring.

The majority is incorrect, it seems to me, when it holds that there was any evidence whatsoever that the intentional killing occurred under the limited statutory circumstances permitted for imposition of the capital penalty for first-degree murder by La. R.S. 14:30, as enacted by Act 107 of 1973.

The only particularized circumstance charged and arguably applicable is 14:30(4), the killing “When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.” At the time the defendant killed the victim, whatever his aborted plans about her parents were, he plainly did not kill the victim with any such requisite intent for capital (first-degree) murder:

The victim was alone in her parents home — so the killing was made only with the specific intent to kill her, which was therefore a non-capital (second-degree) murder in the 1973 statutory scheme. See La.R.S. 14:30.1, as enacted by Act 111 of 1973.

I would not reverse the conviction, however: In fact, the accused does not receive the death penalty (due to its invalidation); whereas the sole statutory effect of proving the statutory aggravating condition was to permit imposition of the death penalty.

I recognize the intellectual difficulty (at least under the prior jurisprudence of this court) in holding the accused guilty of a responsive verdict upon appellate review, rather than ordering a new trial upon sustaining on appeal his motion that such essential element of capital murder was not proved. Nevertheless, under the peculiar non-recurring circumstances here presented — where the capital verdict has been held to be unconstitutional, with the effect being that the 1973 first- and second-degree murder are identical crimes, with identical penalties (while the 1973 capital-sentence statute has since been repealed), I would suggest that this is a permissible reasonable solution in this particularized context, since the defendant sustained no prejudice by the overcharge.

The demerit of the majority’s opinion is that it finds an aggravating circumstance, in order to uphold the conviction, where in fact there is none. If in fact the accused were going to be executed, I am certain the majority would recognize that no such requisite aggravating circumstance in fact exists.

Under the new capital-punishment scheme, in order to impose the death penalty, one of the aggravating factors a jury must find, in the bifurcated penalty hearing, is that “The offender knowingly created a risk of death or great bodily harm to more than one person.” See La.C.Cr.P. art. 905.4(d) (Act 694 of 1976). Obviously, under present facts, such an aggravating circumstance is not present; no more was it under the differing language of the 1973 first-degree murder statute (La.R.S. 14:30), which had the same intent.

For these reasons, I respectfully concur.

      . The first degree murder statute at issue here applies only to crimes committed between July 2, 1973 and October 1, 1976. Because of multiple revisions of the murder statutes in recent years, the particular provision under which defendant was tried applies to a limited number of prosecutions and is no longer in effect. See R.S. 14:30 amended by Acts 1973, No. 109, § 1; Acts 1975, No. 327, § 1; Acts 1976, No. 657, § 1.

      . Although at the time of defendant’s trial, Article 778 of the Code of Criminal Procedure had been amended to eliminate motions for directed verdicts in jury cases, the trial court did not consider this fact in making its ruling and the state has not raised it in brief. Moreover, the issues were raised again by motion for new trial, and error assigned to the judge’s refusal to grant relief on these two bases. Thus, we will consider defendant’s arguments on the merits.


text:
    Mrs. Ellove JOHNSON et al. v. The INSURANCE COMPANY OF NORTH AMERICA and Schwegmann Brothers Giant Super Markets, Inc.
    No. 61179.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearing Denied July 26, 1978.

      Melvin J. Giepert, Arnold & Giepert, New Orleans, for plaintiffs-respondents.
    Madison C. Moseley, Beard, Blue, Schmitt, Mathes, Koch & Williams, New Orleans, for defendants-applicants.
   CALOGERO, Justice.

Plaintiff Mrs. Johnson was injured while a customer in a Schwegmann’s supermarket. Cans of merchandise fell from a display shelf and struck her left leg and foot. She and her husband were awarded $2,480 for her personal injuries and medical expenses against the supermarket and its insurer. The Court of Appeal affirmed, 351 So.2d 190 (La.1977), one judge dissenting.

We granted certiorari, 353 So.2d 1038 (La.1978) because we felt that the Court of Appeal unjustifiably extended the principles enunciated in Gonzales v. Winn-Dixie Louisiana Inc., 326 So.2d 486 (La.1976) and Kavlich v. Kramer, 315 So.2d 282 (La.1975).

When a customer in a self-service store proves injury resulting from a premise hazard, the burden shifts to the store operator to exculpate himself from the presumption of fault thereby arising and to establish his own freedom from fault. Gonzales v. Winn-Dixie Louisiana Inc., supra; Kavlich v. Kramer, supra. As these cases and the jurisprudence they cite illustrate, a premise hazard is a condition of the premises or of the store operation that results in an unreasonable risk of harm to customers under the circumstances. See Restatement of Torts 2d, Sections 282, 289, and 291.

The issue in this ease is whether such a premise hazard was preponderantly proved by the evidence.

Mrs. Johnson was shopping at Schwegmann’s Westbank store. As she reached toward an upper shelf to get a small can of juice, three large cans of fruit juice fell from a bottom shelf, two of which struck her leg and caused her present injuries. The incident occurred at a section of the supermarket where canned juices were displayed on open shelving in three tiers. The cans had been removed from boxes and stacked on top of each other on the shelves. Mrs. Johnson testified that she did not notice before the accident how the cans were stacked, but after the accident she did notice that the cans were in disarray. Her husband testified that he was waiting in the parking lot for his wife and did not enter the store until after the accident had occurred. The security guard for the store testified that Mrs. Johnson told him after the accident that when she was reaching up for the orange juice the bottom portion of her leg touched the shelf the can fell from, but at trial Mrs. Johnson denied making this statement. The store manager and security guard described in detail store policy concerning methods and procedures used to insure that the floor was free of debris and the cans stacked properly on the shelves. The plaintiffs introduced a series of pictures taken on the juice aisle of the supermarket approximately one year after Mrs. Johnson’s accident which show some of the juice cans stacked so as to slightly protrude over the edge of the shelf. While there was some testimony to the effect that if cans were badly stacked they would create a dangerous condition, and the store operator admitted that customers did occasionally move cans from shelf to shelf, there was absolutely no testimony that before the accident in question the juice cans were in disarray or protruding over the shelf edge. The fact that after the accident the cans were disarranged, with three cans on the floor, does not constitute evidence that the cans were in that condition before the accident. Nor do the pictures taken a year after the accident prove that the cans were protruding a year before.

Our opinions in Kavlich and Gonzales shift the burden of proof to a store operator after a plaintiff has shown that a premise hazard caused his injury. Once the premise hazard and the injury it caused are proved by a preponderance of the evidence, the burden of proof shifts to the store owner to show that he was not negligent. But that shifting does not occur until the plaintiff preponderantly proves a premise hazard.

We find that the evidence in this case does not preponderantly (i. e., more probably than not) show that the fruit juice cans were stacked in a dangerous manner before the accident in question. While the evidence does include some evidence that cans had been stacked unsafely in the store at various times, there is no evidence that the juice cans were improperly stacked on or before this accident, and certainly there was no preponderance to that effect. This being the case, the plaintiff has failed to carry her burden of proving a premise hazard and for that reason we conclude that the courts below erred in allowing her recovery.

Decree

Accordingly, the judgments of the district court and the Court of Appeal are reversed. Plaintiff’s petition is dismissed with prejudice at her cost.

REVERSED AND RENDERED.

SANDERS, C. J., concurs.

TATE, J., dissents and assigns reasons.

DIXON, J., dissents.

DENNIS, J., dissents for reasons assigned by TATE, J.

TATE, Justice,

dissenting.

I respectfully dissent.

(1)

Here, the able and conscientious trial judge, fully aware that the primary issue concerned whether the stacks of heavy fruit-juice cans were in disarray at the time of the accident, made a considered factual determination that they were and that they constituted an unreasonable risk of harm to customers at this self-service grocery. This finding, based upon substantial evidence, was affirmed by the court of appeal.

Nevertheless, this reviewing court, ensconced in its marble tower, reaches an opposite conclusion, essentially based upon an extremely restrictive view of the paper-recorded testimony of the live witnesses seen and heard by the trier of fact.

The victim of the injury had not, of course, observed the perilously stacked cans immediately before the accident. As was the design of this self-service store in so displaying the goods, this customer’s eye was upon the cans she reached for at the top of the display case. However, immediately after the accident, she did observe the heavy cans on the bottom shelf in disarray, unsafely stacked three-high. So did her husband.

The store witnesses essentially testified that cans were never so disarrayed and that, if they did notice them so stacked, they were rearranged safely.

However, on an occasion subsequent to the accident, an investigator for the plaintiffs visited the store and took photographs of the disarray of the cans, perilously and unevenly stacked, at various places in the fruit-juice display portions of the store. The victim and her husband, who shopped at the store regularly, stated that the photographs portrayed the condition of the stacked cans witnessed by them on frequent occasions before and after the accident.

As I read their testimony (and as the trial court evaluated it), the store witnesses themselves admitted that, if so stacked in disarray, the heavy cans should have been rearranged so as to avoid the hazard of their falling onto customers. '

In evaluating this testimony as credible (and in disregarding the testimony of the store witnesses of the always-safe condition of the cans, for reasons well indicated by the record), the trial court found that the plaintiffs had proved the defective stacking of the cans by a preponderance of the evidence — that, more probably than not, the cause of the accident was the fall of defectively stacked cans.

Thus, as stated in Green v. Schwegmann Brothers Giant Supermarkets, Inc., 325 So.2d 621, 622 (La.App. 4th Cir. 1976): “While it is true that plaintiffs cannot explain exactly what caused the stack of boxes to fall, they have raised the reasonable inference that improper stacking . was the cause.”

I simply am unable to say how this court, under settled principles of appellate review, can disregard this factual determination (essentially based upon credibility evaluations) as erroneous.

If the cans were defectively stacked at the time of the accident (as the preponderance of the evidence indicates, in my opinion), how else could the victim prove it? Unfortunately, she had no television camera-man present to photograph the fall of the cans.

In the proof of these minor injuries, should the victim have subpoenaed ten, a hundred, a thousand customers to corroborate her testimony and that of her husband that the store made no real effort to maintain these three-high stacked heavy cans in a safe condition? If so, apparently this appellate court would stiil say: That is not enough; the victim should have had a witness who saw the defectively stacked cans immediately before and after they fell (if there was one, and if following her painful injury she had had the presence of mind and litigation-consciousness to take the witness’s name and address).

(2)

In summary, considering the credibility evaluations and factual determinations reasonably within the province of the trial judge, the evidence preponderantly (i. e., more probably than not) shows that the heavy fruit-juice cans were so stacked, irregularly three-high and with some protruding over the edge of the shelf, as to be easily subject to fall because of their unstable condition — either because of nearby movement, or else because a customer might inadvertently brush against the cans while reaching for goods which had been displayed on nearby or upper shelves for the purpose of attracting the interest of and purchase by self-service customers.

The record further supports a finding that, although the supermarket operator’s employees may have initially stacked the cans safely (and although they may have generally checked for disarray subsequently), nevertheless, the cans were subject to frequent disarray because of normal and usual customer conduct, with a consequent undue risk of falling and injuring customers shopping in the aisles adjacent to the shelves.

Under these circumstances, the prior courts in this case have correctly held the store operator liable for the victim’s injuries resulting from the premise hazard so proven. The store management has not exculpated itself from its fault or negligence which arises from the precariously stacked cans and the method of so displaying them stacked three-high on open shelves, with the consequent unreasonable risk of harm to customers arising from their disarray so easily and frequently resulting.

In evaluating the unreasonableness of the hazard to customers, we should remember that this large self-service store could easily have minimized it by leaving the three-high heavy cans of fruit juice safely boxed instead of in an open unguarded display, subject to easy disarray, on the open shelves. So boxed safely, they may not have been as attractive nor have attracted the interest of as many customers. However, having chosen this unsafe and unsupervised method of display in order to sell more cans, the store operator should be held responsible for injuries resulting to customers from the unreasonable hazard created by its method of display and lax supervision of the unsafe condition thereby resulting in this large-volume supermarket operation.

      . Because the guard’s testimony was disputed by the plaintiff and apparently not accepted by the trial judge (who ruled for plaintiff) we do not rely on the guard’s testimony as to what he was told by Mrs. Johnson. In any case, neither version of the story resolves to the central issue in the case: whether or not the cans were stacked incorrectly and dangerously prior to or at the time of the accident.

      . In a smaller owner-operated grocery store, for instance, the operator would more likely be immediately aware of and correct any disarray than would the operator of a large self-service supermarket depending for profits upon mass customers, large volume, and low overhead (e. g., a minimum of employees).


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Rudy “Chico” BERAIN.
    No. 61300.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearing Denied July 26, 1978.

      Walton J. Barnes, II, Barnes & Barnes, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Robert H. Hester, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   SANDERS, Chief Justice.

The Grand Jury of East Baton Rouge Parish indicted Rudy Berain for the armed robbery of Thomas Warren, a violation of LSA-R.S. 14:64. The jury returned a verdict of guilty as charged, and the court sentenced him to serve seventy-five years in the custody of the Louisiana Department of Corrections.

On appeal, defendant relies upon nine assignments of error for reversal of his conviction and sentence.

The armed robbery occurred in the following factual context: Marsha Bannister worked as a confidential drug informer for the narcotics division of the Louisiana State Police. Her superiors told her to “concentrate” on the defendant’s and one Randy Favron’s drug dealings. She, therefore, became acquainted with them.

One afternoon, defendant called Marsha and asked her to come to his apartment. She testified that, while there, they smoked one marijuana cigarette and drank some beer. Defendant testified that he took some pills, drank some rubbing alcohol, and sniffed lighter fluid. The defendant asked Marsha if she could help him with some financial difficulties. When she said that she could not, the defendant remarked that he would have to find other means. He then showed her a knife, a lead pipe, and some gloves. He then announced that he intended to rob a cab driver. After telling her that cab drivers usually did not carry a great deal of money until the end of the night, he suggested that they ride around town to find a suitable victim.

They failed to find a good prospect at any of several bars they checked out. The defendant then suggested that they return to his apartment to get the weapons for the robbery. En route, they saw a security guard with a gun. The defendant wanted to steal his gun to use in the robbery. Marsha discouraged him, arguing that using a gun would be too noisy.

Back at his apartment, Marsha talked him out of using a knife in the proposed robbery because it would be too bloody. He then decided to cut a rope he had and use it as a garrot.

He directed Randy and Marsha to drive him to the Alibi Lounge and drop him off and then to go to a public telephone booth and call a cab for him. Randy and Marsha complied. After Randy called the cab, they watched the cab pick up defendant. They followed the cab for several minutes, then went to the home of one of Randy’s friends. There, they sat on the hood of the car and waited for defendant.

When defendant entered the cab, he told the driver to drive him to a certain area. The defendant directed him to a specific house and pretended to reach in his pocket for money. Instead, he pulled his rope out, put it around the driver’s neck, and jerked it twice. The driver fell unconscious. The defendant then took his watch and a wallet containing seven dollars. The defendant drove the cab past Randy and Marsha. Then, he got out and put the driver’s foot on the accelerator, and put the car in gear. The cab traveled down the street and hit a utility pole. The cab driver was seriously injured and required two-months’ hospitalization.

Defendant returned to Randy and Marsha. He admitted his crime. On the way back to Marsha’s apartment, Randy used the seven dollars to buy three packages of cigarettes. The defendant wanted to throw the wallet and watch in the river, but Marsha told him that she had a good place to dispose of them. She subsequently turned them over to the police.

At trial, the defendant admitted robbing the cab driver. His defenses were entrapment and intoxication.

ASSIGNMENT OF ERROR NO. 1

The State filed a “Notice of Intent to Introduce Evidence of Extraneous Criminal Activity.” The notice outlined the following evidence which the State intended to introduce:

“The testimony with regard to the use and distribution or attempted distribution of marijuana is to be offered solely because it is so inextricably intertwined with crucial state evidence concerning the conspiracy to commit the armed robbery for which they are charged, that to delete reference to this activity would cause confusion and would mislead the jury.
“The evidence with regard to the planning of a robbery and the searching out of the intended victim is relevant as admissible because it was part of a continuous conspiracy which culminated in the commission of the armed robbery for which the defendant [is] charged. In addition, these acts are relevant to show the defendant’s specific intent to commit a theft which is a necessary element of the crime of armed robbery.”

Defendant filed an opposition, alleging that the acts are inadmissible because they are dissimilar, because they are irrelevant, and because they are prejudicial.

At a hearing, the State declared that it would not introduce evidence of crimes concerning marijuana, as stated in its notice of intent. Rather, there would be some evidence to indicate that the defendant was “perhaps engaged in some kind of illicit activity because one of [the State’s] witnesses is an undercover agent for the narcotics bureau.” [Vol. 1, p. 6b.] The court ruled that the evidence outlined in the notice was admissible to show intent.

The defendant now complains of this ruling and the subsequent admission of the evidence.

As promised at the hearing, the State only introduced general evidence that the undercover agent, Marsha, was with the defendant because of her investigating some narcotic activity. The State introduced nothing further. For example, when the State questioned Marsha about their actions on the night of the robbery, the prosecutor did not question her about smoking marijuana. The first mention of smoking marijuana was on Randy’s cross-examination by the defense. Moreover, the defense relied on intoxication through drugs, rubbing alcohol, beer, and lighter fluid as a defense to negate specific intent. It was the defendant’s own testimony that brought out the detailed facts of his involvement with drugs and Marsha’s acquaintance with him for the purpose of obtaining information about drugs. [Vol. 3, pp. 250 et seq.]

Defendant has no valid complaint concerning the introduction of this evidence. The State introduced only evidence necessary to explain Marsha’s presence at the defendant’s. At the hearing, the State informed the defense of this. If this evidence was erroneously admitted, such error would be harmless since the defendant admitted having a drug problem. LSA-C.Cr.P. art. 921.

The second paragraph of the notice involved evidence leading up to the crime, e. g., the defendant’s announcing that he intended to rob someone because he needed money; his subsequent searching for a victim; and the events surrounding the calling of the cab.

This evidence is not evidence of other crimes as the defendant argues. Rather, it is evidence of the planning and commission of the crime charged. Hence, it was properly admitted.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant challenges the court’s ruling which allowed a photograph of the rope burns on the victim’s neck into evidence. He alleges two grounds: (1) that the evidence was not within the State’s opening statement; and (2) that the photograph was highly prejudicial.

Article 766 of the Louisiana Code of Criminal Procedure provides:

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

Article 769 of the Louisiana Code of Criminal Procedure provides in pertinent part:

“Evidence not fairly within the scope of the opening statement of the state shall not be admitted in evidence.”

It is unnecessary for the State to detail every shred of evidence in an opening statement; it is sufficient for the State to give a general description of the evidence to be introduced. State v. Frazier, La., 283 So.2d 261 (1973). The photograph of the victim’s rope burns “falls within the general description of intended proof.” State v. Foy, La., 278 So.2d 38 (1973). In the present case, not only did the prosecutor state that he would introduce photographs, but also he described the content of the photograph:

“I tell you the physical evidence will be the watch, the wallet, the rope, photographs and any other evidence deemed relevant in this matter. * *
“The next thing the cab driver knows there’s a piece of rope around his neck. You see [the defendant] is sitting behind him. And [he] starts squeezing that rope and squeezing that rope, until finally the man was unconscious.” [Yol. 2, p. 57.]

For admission into evidence, a photograph’s probative value must outweigh any prejudicial effect upon the jury, and it must be relevant to a material issue at trial. State v. Redwine, La., 337 So.2d 1041 (1976); State v. Cooper, La., 334 So.2d 211 (1976); State v. Smith, La., 327 So.2d 355 (1975).

The photograph in question was properly admitted into evidence. The defense stipulated that the defendant had robbed the victim. However, the defense refused to stipulate that it was armed robbery. The photograph was relevant to establish that the robbery was with a dangerous weapon, i. e., the rope. Moreover, the State must prove that the defendant used force or intimidation during the taking. LSA-R.S. 14:64. The victim was the sole witness. He testified that the defendant harmed him with a rope. The photograph corroborates his testimony. See, State v. Robinson, La., 353 So.2d 1001 (1977).

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant alleges that the trial court improperly admitted the statements he made to Marsha prior to the commission of the crime. These statements reveal his intent to commit the crime. He argues: (1) that the State’s notice pursuant to Article 768 of the Louisiana Code of Criminal Procedure did not cover those statements; (2) that he was entitled to an evidentiary hearing to determine the voluntariness of the statements; (3) that he was entitled to be informed of the fact that Marsha was an informer; (4) that Marsha should have advised him of his constitutional rights before taking any statements; and (5) that he was entitled to be arrested and/or prevented from the commission of the crime.

When the State asked Marsha if the defendant made any statements concerning money and she answered that he asked if she could help him out, the defense objected on the grounds set forth above.

Louisiana Code of Criminal Procedure Article 768 provides that the State must advise the defendant in writing prior to the beginning of its opening statement if it intends to introduce a confession or inculpa-tory statement. In State v. Brent, La., 347 So.2d 1112 (1977), we stated:

“For purposes of this article, the term ‘inculpatory statement’ refers to defendant’s out-of-court admission made after a crime has taken place which implicates defendant in its commission.” [Emphasis supplied.]

The statements made to Marsha pri- or to the armed robbery require no Article 768 notice for they are neither confessions or inculpatory statements.

LSA-R.S. 15:451 provides that before what purports to be a confession can be introduced, the judge must be convinced that it was made freely and voluntarily. LSA-R.S. 15:449 defines “confession” as “an admission of guilt, not ... an acknowledgment of facts merely tending to establish guilt.” The statements the defendant made to Marsha about his plan to commit robbery do not constitute a confession. One cannot admit his guilt of a crime before he commits it. Thus, the defendant was not entitled to a hearing to determine the voluntariness of the statements.

His argument that he was entitled to have Marsha inform him of the fact that she was an informer for the police is without merit. To require confidential informers to alert the suspects that they are tied to the government would frustrate crime detection. As the United States Supreme Court stated in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), “ ‘[t]he risk of being . . . betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak.’ ”

The defendant’s argument that Marsha should have informed him of his constitutional rights before listening to his statements has no merit. The Miranda warnings required by the United States Supreme Court do not come into play until the accused is subject to custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Here, Marsha did not restrain the defendant’s freedom nor did she place him in custody. The defendant made the statements during a non-custodial conversation. Thus, he had no right to be informed of his constitutional rights.

His final contention that he should have been arrested or, at least, prevented from the commission of the crime is without merit. “There is no constitutional right to be arrested.” Hoffa v. United States, supra.

Assignment of Error No. 3 is without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

In these two assignments of error, defendant asserts that the trial judge erred in admitting in evidence the statements made by defendant to Marsha Bannister after the commission of the crime. He avers that the failure to give him the Miranda warnings, the failure of the informer to identify herself as such, and her failure to prevent the crime by arresting him renders the statements inadmissible.

For the reasons given in disposing of Assignment of Error No. 3, these contentions are without merit. Defendant volunteered the statements to the informer at a time when he was not in custody. She was under no duty to disclose that she was an informer or to cause defendant to be arrested prior to the crime.

Defendant also asserts that the court erred in admitting the statements without a hearing as to voluntariness.

In this Court, he argues that the court erred in not holding an evidentiary hearing out of the presence of the jury to determine voluntariness. In making objection at the trial, defense counsel specified two bases for the hearing: the failure of the informer to identify herself and the failure of the informer to advise defendant of his rights at the time of the conversation. [Tr. 174.] The defendant relies upon Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 ALR3rd 1205 (1964).

In Jackson v. Denno, supra, the United States Supreme Court held that it was a denial of due process to assign the determination of the voluntariness of a confession to the jury that adjudges guilt.

In the present case, the record reflects that the trial judge entertained defendant’s objection that the statements were involuntary and inadmissible out of the presence of the jury. As we have noted, defense counsel asserted that the absence of Miranda warnings and the failure of the informer to disclose her identity rendered the statement involuntary and inadmissible. Accepting these assertions as factually correct, the trial judge overruled the objection and admitted the statements. The ruling was a determination that the grounds advanced for excluding the statements were without merit and, in effect, that the statements were voluntary.

We conclude that these assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 6

Here, defendant complains of the trial court’s denial of his requested special charges to the jury numbers 2, 3, and 4.

Louisiana Code of Criminal Procedure Article 807 provides, in pertinent part:

“A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”

Defendant’s special requested charges numbers 2 and 3, respectively, read:

“A government or State cannot escape the application of the doctrine of entrapment, and then claim disassociation through ignorance of the activities of its agents or informants.” [Number 2.]
“Even if a private citizen acts directly or indirectly on behalf of any police agency or prosecution official, he or she is considered to be a police agent, and any inducement or scheme designed to entrap an individual into the commission of an offense becomes suspect. This rule applies to an informer or undercover agent who poses as a private citizen.” [Number 3.]

Both these instructions on entrapment are included in the judge’s general charge. Hence, the trial court properly declined to give defendant’s requested special charges numbers 2 and 3.

Defendant’s requested special charge number 4 states:

“The testimony of an informer who provides evidence against a defendant for pay or for immunity from punishment, or for personal advantage or vindication, must be examined or weighted by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer’s testimony has been affected by interest or by prejudice against the defendant.”

This charge singles out informers generally as a class whose testimony was suspect. As phrased, it was misleading. The trial judge covered interest and bias in his general charge as follows:

“You alone decide what weight you will give to the testimony of the various witnesses. If you believe that any witness has willfully or deliberately lied or testified falsely to any material facts for the purpose of deceiving you, you are justified in disregarding the entire testimony of such witness as proving nothing, as being unworthy of belief.” (Tr. p. 322) “You must carefully examine the testimony that has been given in this case, the circumstances under which each witness has testified and everything in evidence which tends to indicate whether a witness is worthy of belief. You may consider, among others that may come to your mind, each witnesses intelligence, his or her motive in giving the testimony, his or her demeanor while on that witness stand, any relationship which the witness may bear to either side in the case, the manner in which the witness may be affected by the verdict and the extent, if at all, to which the witness is either supported or contradicted by other evidence received in the case.” (Tr. p. 328)

Assignment of Error No. 6 is without merit.

ASSIGNMENT OP ERROR NO. 7

In rebuttal closing argument, the prosecutor stated:

“If you come back guilty as charged, you will know that a man has been punished for committing a very serious offense and you will sleep a little better perhaps. At least a little safer knowing he’s not lurking in the dark. On the other hand, if you put this animal back on the street this afternoon, lock your doors.” [Vol. 3, p. 315.]

The defense objected and moved for a mistrial based on the prejudice created by the prosecutor’s comments. LSA-C.Cr.P. art. 774. The court overruled the motion and admonished the jury to try the defendant only from evidence admitted at trial.

Before a verdict is set aside on the ground of improper argument, we must be convinced that the remarks influenced the jury and contributed to the verdict. State v. Western, La., 355 So.2d 1314 (1978).

In the circumstances here presented, we conclude that the remarks did not contribute to the verdict: the evidence of defendant’s guilt was overwhelming — including his own admission of the misconduct charged; moreover, the judge admonished the jury to disregard the remarks of the prosecutor. See State v. Brown, La., 288 So.2d 339 (1974).

Assignment of Error No. 7 is without merit.

ASSIGNMENTS OF ERROR NOS. 8 AND 9

Defendant objects to the seventy-five year sentence imposed. He argues that he is entitled to this Court’s review of the sentence on the following grounds: (1) that he was entitled to be informed of the basis of the sentence; (2) that he was entitled to an evidentiary hearing on the reasons for the sentence; and (3) that the sentence is unduly excessive.

The only reference to the sentencing procedure is in the minutes. The minutes reflect only that counsel objected to the imposition of a seventy-five year sentence. The sentence was imposed prior to the 1977 sentencing statute. See LSA-C.Cr.P. art. 894.-1. Hence, the trial judge recorded no reasons for the sentence.

Louisiana Code of Criminal Procedure Article 877 provides that the pre-sen-tence investigation report utilized by the judge in imposing sentence is privileged. “Before imposing sentence the court may advise the defendant or his counsel of the factual contents and conclusions of any pre-sentence investigation report.” LSA-C. Cr.P. art. 877. In State v. Underwood, La., 353 So.2d 1013 (1977), this court vacated the defendant’s sentence due to the trial court’s error in not- allowing defense counsel access to the pre-sentence report and an opportunity to rebut a false statement in it. That holding is inapplicable to the present situation. In Underwood, there was proof that the pre-sentence report was materially and prejudicially false. Here, there is no such proof or allegation. Moreover, the record does not contain a request by the defense for the report. Absent such a request, we find no error. State v. Norris, La., 347 So.2d 225 (1977).

This Court has not held that it has the authority to review the excessiveness of a defendant’s sentence within the statutory limits, even when timely objection is made. See State v. Williams, La., 340 So.2d 1382 (1977), and cases cited therein. However, assuming that the court has such authority, there is no adequate showing that the trial court abused its discretion in sentencing the defendant in this case.

It is obvious from the facts stated earlier that the crime committed was especially flagrant and violent. The victim was seriously injured. After reviewing the pre-sen-tence investigation report, the trial court imposed a sentence well within statutory limits.

Assignments of Error Nos. 8 and 9 are without merit.

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


text:
    STATE of Louisiana, Appellee, v. WRESTLE, INC. and Daniel W. Burch, Appellants.
    No. 61342.
    Supreme Court of Louisiana.
    June 19, 1978.

      Jack C. Peebles, Metairie, for appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The principal issues raised by the defendants’ appeal concern: I. The constitutionality of the obscenity statute under our state constitution (Assignment 1); II. The alleged lack of proof that the defendant Burch, a corporate officer, had knowledge (scienter) of the contents, nature, or character of the obscene films exhibited on premises operated by the corporation (Assignment 4); and III. The denial of the defendant Burch’s federal constitutional right to trial by jury through the determination of his guilt by the verdict of a non-unanimous (5-1) verdict of the six-person jury.

The defendants, Wrestle, Inc. and Daniel W. Burch, its president, were jointly charged in two counts with exhibition and display of obscene hard-core sexual conduct. La.R.S. 14:106. The six-person jury unanimously convicted Wrestle, Inc. and, by vote of 5-1, likewise convicted the defendant Burch of both counts.

The defendants are charged with the exhibition and display of two obscene motion pictures. The evidence shows that these films were exhibited in booths (peep shows) at Mid-Town News, premises operated by the corporate defendant. The films were located in small booths in a rear room of the store, in which were situated coin operated projectors. By insertion of a quarter, these permitted viewing through its projection a portion of the film.onto a small viewing screen.

I. Constitutionality

By their motion to quash the informa-tions, the defendants charge that La.R.S. 14:106 is unconstitutional as vague, arbitrary, and overbroad. Specifically, the defendants contend that the indictment founded on the statute does not, as required by our state constitution, adequately inform the accused of the nature and cause of the accusation against him. La. Const, of 1974, Art. 1, Section 13.

The defendants are charged with exhibiting obscene material. La.R.S. 14:106(A)(3) defines “obscene material” as a tangible work or thing which displays “hard-core sexual conduct” depicted “in a patently offensive way”, “which the trier of fact determines that the average person applying contemporary community standards would find, . . . taken as a whole, appeals to the prurient interest.”

The defendants suggest that the following phrases of the definition are sufficiently indefinite as to render the statute unconstitutional: “Contemporary community standards,” “prurient interest,” and “patently offensive.” They argue that, to give the jury such a set of variables but without providing adequate objective criteria for determining the content of the variables, simply passes on to the jury what should be a legislative function.

In short, the defendants rely upon jurisprudential expressions that, under our state constitution, a person cannot be subject to criminal prosecution for any act unless that act has first been denounced with sufficient legislative precision that the person sought to be held accountable will know that his conduct falls within the prohibition of the statute.

The legislation defines hard-core sexual conduct, an essential element of the crime, in concrete and specific terms. La.R.S. 14:106(A), quoted in footnote 4 above. By this definition, the potential offender is informed with specificity of the type of conduct which subjects him to criminal penalty.

Additionally, however, the trier of fact is obliged to determine whether such explicitly defined sexual portrayal is depicted “in a patently offensive manner” and that the average person “applying contemporary community standards” would find that the work as a whole “appeals to the prurient interest.” The purpose of the community standards test, first enunciated in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), was to emphasize the need for an external standard, as compared with the trier of fact’s personal views of decency, and to prevent the evaluation of obscenity being based on whether the material had an adverse effect on any particularly susceptible subclass of the community. 354 U.S. 488-91, 77 S.Ct. 1311-12. See Schauer, The Law of Obscenity 117 (1976).

This standard for the factual determination of criminal conduct is thus essentially designed to protect an accused against conviction for exhibition of what otherwise falls within the explicit statutory definition of hard-core pornography. As stated in another context in Hamling v. United States, 418 U.S. 87, 104-05, 94 S.Ct. 2887, 2901, 41 L.Ed.2d 590 (1974), the trier of fact is by this standard only “entitled to draw on his own knowledge of the views of the average person in the community or vici-nage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a ‘reasonable’ person in other areas of the law.”

The Louisiana obscenity statute, in the portions quoted in this opinion (see footnotes 3, 4), clearly complies with the federal constitutional requirements of regulating only specifically defined sexual conduct, limited to works which, taken as whole, appeal to the prurient interest in sex, which portray this conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 25, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973). (Likewise, our statutory guidelines for the trier of fact comply with the federal constitutional standard for factual determination of obscenity, including by the use of contemporary community standards. Id.)

As Miller notes, compliance of a state statute with these constitutional prerequisites “will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution.” 413 U.S. 28, 93 S.Ct. 2616-17. We are satisfied that such notice not only satisfies federal due process and First Amendment requirements but also similar notice requirements of our state constitution.

We therefore reject the defendant’s contention that the statute does not adequately inform the accused of the conduct proscribed by it.

The defendant further contends that the community standard for determination of obscenity leaves protection of constitutional freedom of expression to the whim of each jury. In this regard, Miller states: “If a state law that regulates obscene material is thus limited ... [as is Louisiana’s], the First Amendment values . . . are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.” 413 U.S. 25, 93 S.Ct. 2615.

We have recognized our duty to conduct an independent constitutional review in the appellate court of constitutional claims. State v. Amato, 343 So.2d 698, 703-04 (La.1977). As we stated in State v. Luck, 353 So.2d 225, 230 (La.1977): “ * * * the trial court’s determination that material is or is not obscene presents an issue of law fully reviewable by this court. Even the factual determination of obscenity by a trial jury must be subject to full appellate review to meet constitutional standards designed to effectuate freedom of expression. Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974.”

The trial court properly overruled the defendants’ motion to quash the indictment. We find no merit to this assignment of error.

II. “Scienter”

In his motion for a new trial, the defendant Burch contended, inter alia, that there was no evidence that he had knowledge of the contents, character, or nature of the obscene films exhibited by the corporation co-defendant. Burch was the president of the corporation.

Determination of guilt of obscenity constitutionally requires proof of scienter or knowledge. Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). As the decision indicates, this proof may be circumstantial. The state need not, however, show the defendant knew the legal status of the materials to be obscene; it is sufficient that, under the statute, the state be required to show that the accused had knowledge of or had reason to know of the character and nature of the contents of the materials for distribution or exhibition of which he was responsible. Hamling v. United States, 418 U.S. 87, 119-25, 94 S.Ct. 2887, 2908-11 (1974); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966); Schauer, The Law of Obscenity 222-26 (1976).

The trial judge therefore instructed the jury that the evidence must show beyond a reasonable doubt “that the defendants had knowledge of the character and content of the motion picture at the time that the defendants possessed, exhibited, and displayed the material.” The trial judge further instructed the jury: “ * * * when you are considering whether the defendant had guilty knowledge, you are to consider whether he personally knew, not whether some person allegedly acting for him knew about it, nor whether some associate knew about it. In this kind of case, whatever may be the rules of agency in civil matters, individuals are to be charged on the basis of the personalized individual knowledge only.”

Thus instructed, the jury found (5-1) the defendant Burch guilty of both counts.

The evidence shows: The defendant Burch was the president of the corporation which operated the store. It was a local corporation, and Burch lived in the locality. In the back of the store was a small room with twelve coin-operated viewing machines.

Burch was seen in the store by a police officer on at least one of his visits to it. A defense witness saw Burch on the premises some six months before, building the booths for the peep shows in which the obscene films were exhibited. The films last from eight to ten minutes, and quarters must be inserted periodically, costing from three to four dollars to see a film in its entirety.

As summarized in State v. Lindinger, 357 So.2d 500 (La.1978): Sufficiency of the evidence is a factual matter not reviewable on appeal. The reviewing court may reverse only if there is no evidence to prove the crime or an element of it. In determining whether the circumstantial evidence constitutes some evidence of the crime, the reviewing court must determine whether there is some evidence from which, if accepted by the jury, it could reasonably conclude beyond a reasonable doubt that it excluded every other reasonable hypothesis, as required by La.R.S. 15:438, than the essential element sought to be proved (here, that the accused Burch knew or had reason to know of the nature and character of the films exhibited by his corporation). See also State v. Schwander, 345 So.2d 1173 (La.1977).

Assayed by this test, some evidence was introduced by which the jury could reasonably conclude beyond a reasonable doubt that the resident president of this local corporation (who had actually participated in building the booths apparently intended for the sole purpose of exhibiting pornographic films) had knowledge or reason to know of the nature and character of the films exhibited therein. Although the issue is close, we are unable to hold that this assignment presents reversible merit.

III. Non-unanimous Six-person Jury

By brief and argument in this court, the defendants for the first time contend that Louisiana law, which permits conviction by a non-unanimous six-person jury, offends the right of persons criminally accused of non-petty offenses to the jury trial guaranteed them by the Sixth and Fourteenth Amendments to the United States Constitution.

The defendants base their contention upon Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978). This decision held that trial before a five-person jury offends federal constitutional rights, even though a unanimous verdict is required.

Initially, we are given concern because the alleged error was not raised by objection in the trial court at the time of the jury trial, La.C.Cr.P. art. 841, nor assigned as error, La.C.Cr.P. art. 920. It thus cannot be the subject of appellate review unless the error “is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La.C.Cr.P. art. 920(2).

Historically, our jurisprudence does not permit inspection of the trial transcript to ascertain such errors, see State v. Craddock, 307 So.2d 342 (La.1975), but only of the pleadings and proceedings alone considered part of the record for purposes of patent-error appellate review — in general, the indictment or information, the minutes, and the verdict and sentence.

In this case, the minute entry shows that, after the jury brought in verdicts convicting both defendants of both counts, the jury was polled and had found the defendant Burch guilty by a vote of 5-1. Although the matter is not free from doubt, we have held without discussion that under such circumstances we may, from the minute entry, discover by mere inspection the basis for a defendant’s contention that a non-unanimous jury verdict represents constitutional error patent on the face of the proceedings. State v. Bradford, 268 So.2d 781 (La.1974); State v. Biagas, 260 La. 69, 255 So.2d 77 (La.1971).

We therefore consider on its merits the contention of the unconstitutionality of a non-unanimous verdict by a six-person jury.

In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the United States Supreme Court upheld the constitutionality of the six-person jury in a state criminal trial. The court seemed to express its approval of the retention of unanimity on the six-person jury, but it did not decide the question of whether unanimity is an indispensable element of the Sixth Amendment guarantee to trial by jury.

The question of unanimity of a jury verdict was raised in Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972). The court there held that Louisiana’s twelve-person jury, wherein nine persons (before the 1974 state constitution raised the requirement to ten) must concur to reach a verdict in order to subject a defendant to punishment necessarily at hard labor, did not violate the defendant’s right to due process or equal protection.

The 1974 Louisiana constitution provides for a jury of six for lesser felonies, five of whom must concur to render a verdict. Article 1, Section 17. This changed the prior state constitution’s provision for a jury of five in such instances, with a requirement of a unanimous verdict (similar to the Georgia jury provision invalidated earlier this year by the United States Supreme Court in Ballew).

In his commentary upon the 1974 provision, Professor Lee Hargrave, Coordinator of Research for the constitutional convention, expressed the view that this change to non-unanimity did not offend the federal constitution: “If 75 percent concurrence (9/i2) was enough for a verdict as determined in Johnson v. Louisiana, 406 U.S. 356, [92 S.Ct. 1620, 32 L.Ed.2d 152] (1972), then requiring 83 percent concurrence (5/s) ought to be within the permissible limits of Johnson." Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 56 (fn. 300) (1974).

We accept this view as still valid, despite the recent decision in Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978). Ballew rejected Georgia’s contention that the retention of the unanimity requirement in its five-person jury satisfied the requirements of the federal constitution’s guarantee of the right to trial by jury for a criminally accused through the Sixth and Fourteenth Amendments.

In doing so, the court stated: “Our concern has to do with the ability of the smaller group to perform the functions mandated by the Amendments. That a five-person jury may return a unanimous decision does not speak to the questions whether the group engaged in meaningful deliberation, could remember all the important facts and arguments, and truly represented the common sense of the entire community.” 98 S.Ct. at 1039-40.

Earlier, in Williams, the court had held that a six -person jury was of sufficient size to promote adequate group deliberation, to insulate members from outside intimidation, and to provide a representative cross-section of the community. These values, which Ballew held a five-person jury is inadequate to serve, are not necessarily defeated because the six-person jury’s verdict may be rendered by five instead of by six persons.

The six-person jury will still presumably engage in the longer deliberations involving more communication that the court found adequately enhances greater verdict reliability and better community representation, despite (see Johnson) the elimination of the requirement for unanimity in verdict. Or at least this court, indulging in the presumption of federal constitutionality which must be afforded to provisions of our state constitution, so concludes as to this close issue.

We therefore do not find reversible merit to this contention.

IV. Other Assignments of Error

The remaining assignments of error do not require extended discussion:

Assignment 2 concerns a non-erroneous refusal of the trial court, within its discretion, to qualify a witness as an expert entitled to give opinions as to contemporary community standards. The witness’s opinion was founded mostly on his discussions with acquaintances involved in the marketing and sale of materials in adult book stores and with their customers. The witness was, however, permitted to testify fully as to the wide availability of similar materials in 25 outer outlets in the community, a matter concerning facts within his knowledge. La.R.S. 15:463, 467

Assignment S concerns a non-meritorious technical and narrow objection to the trial court’s instructions relative to the definition of “prurient interest”.

Assignment 4 objects to the sentencing of both defendants to two consecutive sentences on both counts of the two-count information. The information concerned two separate offenses (showing of two different obscene films); joinder of the separate offenses is permissible under La.C. Cr.P. art. 493 as amended in 1975. The jurisprudence concerning the issue prior to the 1975 amendment is inapplicable. See, e. g., State v. Todd, 278 So.2d 36 (La.1973).

Decree

Accordingly, since we find no merit to the defendant’s contentions, we affirm the convictions and sentences.

AFFIRMED.

      . Burch was sentenced to serve two consecutive seven month terms in parish prison, suspended, and placed on inactive probation for two years for each count, to be served concurrently; a condition of the probation was that he pay $1,000 to the judicial expense fund. Wres-tie, Inc., was sentenced to pay a fine of $600 on each count.

      . We have previously rejected contentions that the statute offends federal constitutional standards in these regards. State v. Amato, 343 So.2d 698 (La.1977).

      . The full definition in this statutory provision is as follows:
      “Obscene material is. any tangible work or thing which the trier of fact determines (a) that the average person applying contemporary community standards would find, taken as a whole, appeals to the prurient interest, and (b) depicts or describes in a patently offensive way, hard core sexual conduct specifically defined in Paragraph (2) above, and (c) the work or thing taken as a whole lacks serious literary, artistic, political, or scientific value.”
      Similar tests are set forth for the presentation, exhibition, or display of hard-core sexual conduct. La.R.S. 14:106(A)(2).

      . The statutory definition in La.R.S. 14:106(A)(2) is as follows:
      “ * * * Hard core sexual conduct is the public portrayal, for its own sake, and for ensuing commercial gain of:
      (a) Ultimate sexual acts, normal or perverted, actual, simulated or animated, whether between human beings, animals, or an animal and a human being; or
      (b) Masturbation, excretory functions or lewd exhibition, actual, simulated or animated, of the genitals, pubic hair, anus, vulva, or female breast nipples; or
      (c) Sadomasochistic abuse, meaning actual, simulated or animated, flagellation, or torture by or upon a person who is nude or clad in undergarments or in a costume which reveals the pubic hair, anus, vulva, genitals, or female breast nipples, or in the condition of being fettered, bound, or otherwise physically restrained, on the part of one so clothed; or
      (d) Actual, simulated, or animated, touching, caressing, or fondling of, or other similar physical contact with, a pubic area, anus, female breast nipple, covered or exposed, whether alone or between human, animals, or a human and an animal, of the same or opposite sex, in an act of apparent sexual stimulation or gratification; or
      (e) Actual, simulated, or animated stimulation of a human genital organ by any device whether or not the device is designed, manufactured, or marketed for such purpose.”

      .There must also be a public portrayal for its own sake and for commercial gain of hard-core pornography in order to subject the offender to criminal penalties. La.R.S. 14:106(A)(2). Further, the work taken as a whole must lack “serious literary, artistic, or political value.” La.R.S. 14:106(A)(2), (3).

      . We do not regard as substantial the defendant Burch’s further contention that the statute unconstitutionally denies him equal protection of the laws because he, as a corporate officer, is subjected to criminal liability for obscene films exhibited, whereas (see La.R.S. 14:106(C) exempted from criminal responsibility is a non-managerial corporate employee without financial interest in the exhibit. Without discussion of the obvious reasons, we conclude that there is a rational basis for such differentiation reasonably related to a valid governmental purpose, unlike the unconstitutional (irrational) differentiation in State v. Johnson, 343 So.2d 705 (La.1977) between one class of employees and another.

      . The right of a defendant in a criminal proceeding to a trial by jury guaranteed by the Sixth Amendment was held to be applicable to state criminal proceedings by virtue of the Fourteenth Amendment in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

      . In State v. Sanford, 248 La. 630, 181 So.2d 50 (1965) we summarized the jurisprudence as holding that the record of the pleadings and proceedings, for purposes of determining patent error, “includes the caption in the case, a statement of time and place of holding the court, the indictment or information with the endorsement, the arraignment, the plea of the accused, mention of the impaneling of the jury, verdict, and judgment of the court.” 181 So.2d 51.

      . The essential basis for the defendants’ contention is their attack on the constitutionality, under the federal constitution, of the.provisions of state law which permit a non-unanimous verdict in six-person juries: La.Const. of 1974, Art. 1, Section 17; La.C.Cr.P. art. 782.
      On the one hand, some jurisprudence provides that the grounds of unconstitutionality must first be asserted in the trial court. State v. Campbell, 263 La. 1058, 270 So.2d 506 (1973); State v. Kavanaugh, 203 La. 1, 13 So.2d 366 (1943); City of Shreveport v. Pedro, 170 La. 351, 127 So. 865 (1930). On the other hand, the unconstitutionality of a statute on which a conviction is based may be noticed as patent error. State v. Stewart, 325 So.2d 828 (La.1976). Yet, if a defendant withdraws in the trial court his attack upon the constitutionality of such a statute, his waiver precludes appellate review of (what under Stewart is patent constitutional) error in this regard. State v. Jones, 347 So.2d 200 (La.1977).
      We make no effort here to reconcile these conflicting principles enunciated by our jurisprudence. Arguably, although a non-curable attack upon the substantive statute upon which a conviction is based may be noticed at any time, a procedural deficiency (such as the alleged statutory provision for a nonunanimous jury verdict) should be raised in the trial court by appropriate motion or request for instructions, so as to enable the trial court to cure the deficiency; or else is waived. La.C.Cr.P. art. 841.
      Nevertheless, in view of the uncertainty of the jurisprudence, and because the constitutional error (if any) is based on a United States Supreme Court decision decided subsequent to the present conviction and is revealed by the minutes, we deem it to be appropriate here to consider the alleged constitutional error first raised in this court, without attempting at this time to resolve the conflicting jurisprudential principles as to whether or not the allegation represents unwaived patent error discoverable by mere inspection of the pleadings and proceedings.

      . This court has previously held that La.C.Cr.P. art. 782’s provision for non-unanimous verdicts of twelve-person juries does not offend equal protection or due process of the federal or state constitution (State v. Ledet, 337 So.2d 1126 (La.1976); State v. Ross, 320 So.2d 177 (La.1975); State v. Bradford, 298 So.2d 781 (La.1974); State v. Blackwell, 298 So.2d 798 (La.1974) or a defendant’s right to be presumed innocent until found guilty beyond a reasonable doubt. State v. Ledet, supra.

      . On appeal, the defendant does not complain, as he did at the time of sentence, that a condition of his probation was to pay $1,000 to the Criminal Court Operations Fund. This condition of probation is now permitted by the amendment of La.C.Cr.P. art. 895.1 by Act 720 of 1977. This permits the court to impose as a condition of probation a requirement that the defendant pay “an amount of money in restitution to defray the cost of the operation of that court.” Cf. State v. Rugon, 355 So.2d 877 (La.1977), invalidating under then -existing (pre-1977) legislation an apparently similar condition of probation.


author: DENNIS, Justice.

text:
    Patricia COOK et al. v. AAA WORLDWIDE TRAVEL AGENCY, a Division of American Automobile Association of Louisiana and Dynimex-Pacifex Tours, Inc.
    No. 61365.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearings Denied July 26, 1978.

      Prank J. Varela, John W. Haygood, Jones, Walker, Waechter, Poitevent, Carr-ere & Denegre, New Orleans, for defendant-respondent.
    Gerard J. Hansen, New Orleans, for plaintiffs-applicants.

       SUMMERS, J., would grant a rehearing.

   DENNIS, Justice.

This is a suit arising from alleged breach of contract, negligence and misrepresentation in connection with an international travel tour which defendants seek to have submitted to arbitration.

Plaintiffs, residents of Orleans Parish, made arrangements for a tour of the Orient promoted by the defendants, retail and wholesale travel brokers. After returning home disappointed with their trip, plaintiffs filed this suit for damages based on breach of contract, negligence and misrepresentation. Defendants filed a dilatory exception of prematurity on the ground that an agreement between the parties required that plaintiffs’ claims be submitted to arbitration in Minnesota. Plaintiffs opposed the exception and denied that an agreement to arbitrate existed between the parties. After a hearing, the trial court sustained defendants’ exception of prematurity and dismissed plaintiffs’ suit. The court of appeal affirmed, 352 So.2d 243 (La.App. 4th Cir. 1977), and this Court granted certiorari. 354 So.2d 208 (La.1978). For the reasons hereinafter assigned, we reverse and remand the case for trial.

The Louisiana Arbitration Law, La.R.S. 9:4201-4217, in pertinent part, provides:

“A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” La.R.S. 9:4201.

Counsel for the parties have ably briefed and argued several serious issues raised by this litigation, viz., whether La.R.S. 9:4201 requires that a valid contract to arbitrate be written and signed by the parties; whether anything less than such an agreement constitutes a knowing and intelligent waiver of a party’s constitutional access to courts, La.Const.1974, Art. 1, § 22; or whether an oral contract incorporating by reference a written arbitration clause satisfies the requirements of the constitution and the Louisiana Arbitration Law. We choose, however, to decide the case on a simpler and more elementary issue. For we find that defendants failed to prove the existence of any consent by the plaintiffs to submit disputes to arbitration.

The defense that plaintiffs are not entitled to judicial relief because of a valid agreement to submit their claims to arbitration may be raised, as it was here, by the dilatory exception pleading prematurity, La.C.C.P. art. 926(1), which is determined on the basis of the showing made at the in-limine trial of the exception, including evidence introduced at the trial thereof. La.C.C.P. arts. 929, 930. When the issue is raised by the exception pleading prematurity, the defendant pleading the exception has the burden of showing the existence of a valid contract to arbitrate, by reason of which the judicial action is premature. Cf. Steeg v. Lawyers Title Insurance Corporation, 329 So.2d 719 (La.1976).

Plaintiffs’ petition alleges that the tour they purchased as outlined in the brochure issued by defendants was not the tour they actually received; but the pleadings contain no allegations from which it reasonably could be inferred that the plaintiffs consented to arbitrate disputes with the defendants. At the hearing held in connection with the exceptions defendants introduced no written evidence of an instrument purporting to be a complete contract between the parties. John Doussa, the director of AAA’s Worldwide Travel Department, was the only witness to testify on behalf of the defendants. He stated that AAA and Dynimex-Pacifex entered an agreement whereby AAA would act as the retail travel agent for a tour to the Orient promoted by Dynimex-Pacifex, a wholesale travel agent. AAA placed advertisements in the New Orleans Times-Picayune and the Louisiana Motorist, a publication of AAA concerning the tour of the Orient. In response to these advertisements the plaintiffs paid an initial deposit to AAA with final payment due at a later date. At some time, which is not clear from the record, the plaintiffs received, either through the mail or by picking it up at the AAA office, a travel brochure prepared by AAA with the assistance of Dynimex-Pacifex. On one of the twelve panels of the fold-out brochure, among colorful pictures and language describing the tour, the arbitration clause was set forth in fine print as follows:

“Any disputes or claims which may arise as per our agreement dr relationship, or with respect to any breach thereof on the part of operator or agent or participant, shall be settled by arbitration in the State of Minnesota.”

However, there is no evidence in the record that the plaintiffs ever read the brochure, had terms in the brochure pointed out to them or brought to their attention, or in any way agreed to the arbitration clause contained in the brochure. Doussa’s testimony merely establishes that the travel brochure was made available to the plaintiffs by AAA.

After final payment the plaintiffs received final tour documents consisting of a tour itinerary, a flight schedule, list of hotels, tour member cards, luggage decals, and a general information booklet. None of these items made any reference to the settlement of disputes by arbitration.

Defendants clearly failed to present any evidence at the hearing or to point out any allegation in plaintiffs’ petition from which a reasoned judgment could be made that plaintiffs consented to submit all disputes with defendants to arbitration in the state of Minnesota. Accordingly, the defendants did not carry their burden of proof and the exception pleading prematurity should have been overruled, allowing plaintiffs to proceed with judicial action.

The court of appeal judgment is reversed and the case is remanded for a trial on the merits.

SUMMERS, J., dissents.


text:
    STATE of Louisiana v. Eddie Roy JACKSON a/k/a Eddie Ray Jackson. STATE of Louisiana v. Charles E. HEBERT.
    Nos. 61388, 61389.
    Supreme Court of Louisiana.
    June 19, 1978.
    Claude R. Sledge, Public Defender, DeSo-to Parish, Mansfield, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., Herman L. Lawson, Asst. Dist. Atty., for plaintiff-respondent.
   SANDERS, Chief Justice.

DeSoto Parish Grand Juries indicted Eddie Roy Jackson with simple kidnapping, forcible rape, and aggravated battery, and Charles E. Hebert with crime against nature and simple kidnapping, violations of LSA-R.S. 14:34, 43.1, 45, and 89. Both defendants pled guilty to the charges. Jackson received a total of thirty-five years imprisonment and Hebert ten years.

On the defendants’ complaints that the trial judge had failed to comply with mandatory sentencing procedure, we granted writs to review the action taken.

The defendants assert that the sentences are illegal because the trial judge failed to state for the record the considerations taken into account and the factual basis for imposing sentence as required by Louisiana Code of Criminal Procedure Article 894.1 (Act 635 of 1977). That article provides:

“A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
“B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(1) The defendant’s criminal conduct neither caused nor threatened serious harm;
(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
(3) The defendant acted upon strong provocation;
(4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
“C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” [Emphasis supplied.]

The same court sentenced both defendants on December 14, 1977. Except for the defendant’s names, ages, and sentences, the minutes reflecting the court’s reasons for imposing sentences are identical. They read, in pertinent part:

“[D]efendant having been ordered to be present this day for the purpose of sentencing after a pre-sentence investigation, pursuant to Act No. 635 of 1977 [LSA-C.Cr.P. Art. 894.1], the Court finds that the defendant is in need of correctional treatment and custodial environment which can be provided most effectively by the commitment of the defendant to an institution and as a factual basis takes into consideration the protection of society and incarcerating the defendant, as well as the hope of deterring others following this same transgression and as punishment for the offense which the defendant has committed.”

We agree with defendants’ contention that the court failed to “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” LSA-C.Cr.P. Art. 894.1. Public protection and deterrence are two general objectives of every sentence. In State v. Frank, La., 344 So.2d 1039 (1977), we stated:

“A sentence has three general objectives: deterrence, rehabilitation, and public protection.”

Article 894.1, however, requires that the sentence be individualized. The trial judge is required to state for the record the considerations taken into account and the factual basis supporting them in imposing the particular sentence upon the individual before the court. See State v. Sepulvado, La., 359 So.2d 137 (No. 61,216, 1978).

The article establishes procedures designed to adapt the sentence to the offender as well as the offense. The factors supporting a sentence of imprisonment include an undue risk that defendant will commit another crime, the defendant is in need of correctional services provided in an institution, or a lesser sentence will deprecate the seriousness of the crime. LSA-C.Cr.P. Art. 894.1 A(1)(2)(3). The statute also enumerates eleven factors favoring suspension of sentence or probation, though it provides that these factors do not control the discretion of the court. LSA-C.Cr.P. Art. 894.1 B(1)—(11).

The considerations taken into account by the trial judge should be based upon factual determinations. Among the numerous matters to be reviewed are: the defendant’s personal history (e. g., age, marital status, dependents, family stability, employment, mental, emotional, and physical health); the defendant’s prior criminal record; the seriousness of the crime; the circumstances of the offense; the likelihood that defendant will commit another crime; and his potential for rehabilitation through correctional services other than confinement. State v. Frank, supra; J. Williams, The Law of Sentencing and Corrections, 1, 15, 17 (1974); National Advisory Commission on Criminal Justice Standards and Goals, Corrections Standard 5.14 (1973); R. Dawson, Sentencing, 35, 79, 173-174, 195 (1969); S. Rubin, The Law of Criminal Correction, 84, 85, 112-115 (1963); Advisory Council of Judges of the National Probation and Parole Association, Guides for Sentencing, 33-47 (1957).

Under Article 894.1, the sentencing judge must state for the record the considerations taken into account in imposing sentence and the factual basis for them. As the judge failed to comply with that article, we must remand the case for resentencing.

For the reasons assigned, the convictions are affirmed, but the sentences are vacated and the cases remanded to the district court for sentencing of the defendants according to law and consistent with the views herein expressed.