author: SUMMERS, Justice

text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. The AUDUBON PARK COMMISSION and the City of New Orleans.
    No. 56609.
    Supreme Court of Louisiana.
    July 22, 1975.
   Writ denied. Insufficient showing to warrant the exercise of our supervisory jurisdiction.

SUMMERS, J., dissents and assigns reasons (attached).

SUMMERS, Justice

(dissenting).

There is no doubt that Audubon Park is the property of the State, or that the city of New Orleans has only such authority over the park and the Audubon Park Commission as the Legislature has granted. It is equally as clear that because the Audubon Park Commission has been created by the State Legislature it has only such power and authority as the Legislature has conferred. The Commission has been entrusted with the “control and management” of the park as an agent of the State. Its mandate is to “preserve and improve it for public recreation and use as a place of public resort and pleasure,” and to “establish, maintain, operate and control park recreational and entertainment facilities and activities.” Act 191 of 1914 and Act 492 of 1958.

Any radical change in the character or objectives of the “park” concept as established by custom and usage is an abuse of that trust and a violation of the mandate of the Commission. When this occurs, the law vests in the appropriate State authority the right to redress in the courts.

The denial of the restraint petitioned for here is based upon the maintaining of an exception of no cause of action. It is my view that the exception required the trial judge to accept as fact the allegation that five contracts had been let by the Commission to do various parts of a “plan”, and that the effect of the performance of those contracts and the effect of the execution of the “plan” would be to change the character and nature of Audubon Park. Accepting this allegation as a fact compels the conclusion that the Commission has transcended its authority as agent entrusted with management and control of the park. Changing the character and nature of Audubon Park is beyond the authorization of a general mandate; it is an exercise of the prerogatives of ownership outside the contours of Commission authority. If I give you management and control of my garden, I do not authorize you to engage in the operation of a cattle farm. Under these allegations, therefore, the State is entitled to the redress it seeks to compel the Commission to abide by its legi-mate authority in keeping with the letter and spirit of the law.

Moreover, I entertain serious doubt that the Audubon Park Commission has any authority to construct or populate a zoo; this authority reposes in the Zoological Board of Control contemplated by Act 81 of 1928.

I would grant this writ.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Fred E. STEPHENS
    No. 56351.
    Supreme Court of Louisiana.
    Aug. 28, 1975.
   Writ granted: Treating this appeal a’s an application to our supervisory jurisdiction, Supreme Court Rule 1, Section 10 (1973), the conviction appealed from is annulled, and the matter remanded for a new trial, following State v. Jones, 316 So.2d 100 (La.1975).

SANDERS, C. J., is of the opinion that the writ should be denied, since the independent evidence of guilt is overwhelming.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

The majority has annulled the conviction and sentence and remanded the case for a new trial. This entire action was taken in chambers and without affording the State a hearing on the matter. It may be that this procedure is expedient and efficient, but I cannot agree that the procedure is conducive to a fair adjudication, nor can I agree that such a procedure is compatible with the traditional concept of American justice where adjudications of guilt or innocence have always been conducted in open court. Moreover, it is an affront to the dignity of the trial court to grant a writ and decide the issue forthwith without affording that court an opportunity, if it sees fit, to be heard in support of the integrity of its order. The procedure is reminiscent of the Star Chamber proceeding. Efficiency and expediency can never justify such a result.

In addition, the merits of this case do not warrant the Court’s action. The circumstances leading to this defendant’s arrest and charge for driving while intoxicated in violation of Article 98 of the Criminal Code are, in my view, relevant and material to his guilt or innocence notwithstanding that the intoxication test may not have been administered strictly in conformity with the statutory requirements. La.R.S. 32:661-667.

The fact that the proper administration of the intoxication test may create presumptions of intoxication, does not mean that its improper administration precludes the reception of other evidence in support of the charge of driving while intoxicated. As the trial judge stated, “A test . merely is corroborative evidence of what the Troopers or the City Police . say about the demeanor of the individual . . . .”

If there is some evidence, no matter how little, of the essential elements of the crime charged, this Court cannot review the sufficiency of that evidence bearing upon the question of guilt or innocence. For, in criminal cases, this Court’s authority on review is limited to questions of law only. La. Const. Art. V, j[ 5(C) (1974).

A review of the evidence in this record convinces me that there was ample evidence to support the verdict of the trial judge on the essential element of intoxication — the only issue presented.

At approximately 1:30 in the morning, Officers Jones and Hart of the Louisiana State Police, while working radar, observed Stephens traveling 66 miles an hour in a fifty mile per hour zone. Stephen’s car was straddling the center line and going back and forth across that line. This weaving continued as the officers pursued him to make the arrest. When Stephens finally pulled over, he walked very unsteadily toward the officers, and Officer Jones testified that he detected a strong odor of alcohol, indicating that Stephens had been drinking for a long time. This was some evidence. It was, in fact, ample evidence to sustain the conviction.

I respectfully dissent.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Shirley Ann MOUTON, Appellant.
    No. 56125.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Oct. 9, 1975.

      Emile A. Carmouche, Jr., Crowley, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Byron Legendre, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of murder and sentenced to life imprisonment at hard labor. La.R.S. 14:30 (1950). On her appeal, the defendant relies upon two bills of exceptions perfected as to the denial of motions to quash the indictment for several alleged irregularities or defects. She also relies upon certain errors allegedly patent on the face of the record, concerning the manner in which the petit jury verdict of guilty was taken and recorded.

1. The signing of the grand jury indictment by the assistant foreman.

The most substantial contention of error urged concerns the technical insufficiency of the grand jury indictment. The foreman of the jury did not sign the indictment returning a true bill, as required by La.C.Cr.P. art. 383. Failure to comply with this statutory requirement has been held to be a fatal defect in the indictment. State v. Stoma, 199 La. 529, 6 So.2d 650 (1942) and jurisprudence therein relied upon. (Under present law, however, this procedural irregularity may be regarded as waived, if not raised prior to at least the verdict. State v. James, 305 So.2d 514 (La.1974).)

In the present instance, the indictment was endorsed a true bill by the assistant foreman, who had the duty to preside over the grand jury in the absence of the foreman. Tr. 48(11). Due to a death in his family, the foreman himself was out of the state during the entire session (a week) of the grand jury in which it deliberated on the charges against the accused (and others) and returned the indictment against her (and others). Tr. 48-50(11).

Under these circumstances, the signature of the assistant foreman was substantial compliance with the procedural requirements for validity of the indictment through endorsement of the foreman. La. C.Cr.P. art. 383.

The reasons for requiring the signature of the foreman involve accentuating the deliberateness of the grand jury’s finding. Official Revision Comment (c), La.C.Cr.P. art. 383. They are adequately served when a duly designated representative of the grand jury, such as an assistant foreman, signs due to the absence, inability, or unwillingness of the foreman to sign.

We are unwilling to believe that the legislature intended to prevent any action by the grand jury unless concurred in by the foreman. He is only one of twelve grand jurors, of whom nine only need concur to find a true bill or not. La.C.Cr.P. arts. 413, 444, subd. B. (In the present instance, the eleven present members of the grand jury concurred in the indictment. Tr. 55(H).)

2. Other formal assignments' of error.

The other issues raised by the formal assignments do not require extended comment:

(1) The alleged effective exclusion of women from the jury venires for this 1973 trial cannot be availed of now. The United States Supreme Court has invalidated the then applicable state procedures (which formerly permitted service only by women who volunteered for jury service) as to juries empaneled after the effective date of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). However, convictions obtained from pre-Taylor juries are valid. See Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975) and Devall v. Louisiana, 420 U.S 903, 94 S.Ct. 820, 42 L.Ed.2d 832 (1974) (a woman codefendant), see also State v. Rester, 309 So.2d 321 (La.1975).

(2) The defendant alleges that the jury venires were invalid under existing state law because, in fact, a non-volunteer woman had been added. We do not reach this contention. The evidence shows that the woman was added to the general venire after the selection of the grand jury and of the petit jury venire utilized. Tr. p. 3, April 16(11).

(3) Only the death sentence allowed by La.R.S. 14:30 (1950) was invalidated by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L.Ed.2d 346 (1972). The life sentence received by the accused for violation of that statute is valid. State v. Franklin, 263 La. 344, 268 So.2d 249 (1972).

3. Alleged "patent” errors.

The trial jury verdict of guilty as charged is claimed to be fatally defective because the record does not affirmatively show that all twelve petit jurors concurred in the verdict, La.C.Cr.P. art. 782, nor does contain the list of responsive verdicts submitted to the jury by the trial judge, La.C.Cr.P. art. 809, nor does it affirmatively show that the foreman signed the verdict on the back of the list of responsive verdicts, La.C.Cr.P. art. 810. it

The defendant relies upon the absence of an affirmative showing in the record rather than upon any evidence to support her contentions. No objection was made at the time as to any irregularity now complained of. See La.C.Cr.P. art. 841.

The verdict itself is signed “Guilty as charged” by “Donald Wayne Kelley”. A fair reading of the minutes and the evidence at the time of the verdict shows him to be the petit jury foreman. Tr. 10-11(1),91(11).

In the absence of objection at the time, La.C.Cr.P. art. 841, and of formal assignment of error or bill of exception, La. C.Cr.P. art. 920(1), this court cannot review the record except for errors discoverable on the face of the pleading and proceedings and without inspection of the evidence. La.C.Cr.P. art. 920(2).

If no objection is made at the time, any deficiency in the responsive verdicts cannot be availed of after the verdict. The list of responsive verdicts is not regarded as a pleading or proceeding subject to review in the absence of objection. State v. Craddock, 307 So.2d 342 (La.1975). Under the cited code provisions, a belated attack on the verdict on such a ground, when the trial court can no longer correct the alleged deficiency, cannot be considered.

Likewise, the minute entry indicates that the jury returned a verdict of guilty as charged. For purposes of appellate review, in the absence of objection at the time, this constitutes adequate compliance with the procedural requirements of La.C. Cr.P. art. 811. State v. Franks, 284 So.2d 584 (La.1973). The minutes show that the defendant’s counsel did not request but instead waived a polling of the jury, La.C. Cr.P. art. 812, nor was any objection made at the time to the procedure utilized.

Decree

Finding no error, we affirm the conviction and sentence.

Affirmed.


author: SUMMERS, Justice.

text:
    Terry N. BURLEY v. LOUISIANA POWER & LIGHT CO. et al. COAL OPERATORS CASUALTY CO. v. LOUISIANA POWER & LIGHT COMPANY et al.
    Nos. 56010, 56036.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Oct. 9, 1975.

      James C. Cockfield, Cockfield & Gravo-let, New Orleans, for plaintiff-applicant in 56010.
    W. Malcolm Stevenson, Monroe & Le-mann, Allen H. Danielson, Jr., O’Keefe, O’Keefe & Berrigan, New Orleans, for defendant-respondent in 56010.
    W. Malcolm Stevenson, Monroe & Le-mann, New Orleans, for defendant-applicant in 56036.
    James C. Cockfield, Cockfield & Gravolet, Allen H. Danielson, Jr., O’Keefe, O’Keefe & Berrigan, New Orleans, for plaintiff-respondent in 56036.
   SUMMERS, Justice.

This tort action was instituted by Terry N. Burley to recover for personal injuries and damages arising out of an industrial accident in which he received a serious electric shock when a metal reinforcing rod he was installing came in contact with an electric power line.

The accident occurred on October 25, 1967 while he was working on the construction of an addition to the Belle Chasse purification plant in Plaquemines Parish. He named Louisiana Power and Light Company, the owner of the electric power line, and their liability insurers, ABC Insurance Company and XYZ Insurance Corporation, as defendants.

In a separate proceeding Coal Operators Casualty Company, the workmen’s compensation insurer of Westbank Reinforcing Steel Corporation, Burley’s employer, sought judgment as Burley’s subrogee against Louisiana Power and Light Company, Pratt-Farnsworth, the principal contractor on the construction project, and Plaquemines Parish, the owner of the purification plant, for compensation paid to Burley. Prior to trial Coal Operator’s suit against Pratt-Farnsworth was dismissed by stipulation, and the cases were consolidated for trial.

Burley was severely injured when a metal reinforcing rod he was working with on the third floor of an unfinished building came in contact with an uninsulated public utility electric power line operated at 13.8 KV phase to phase (13,800 volts). At the time the line was only five feet seven inches from the edge of the building near the level of the floor on which Burley was standing.

Judgment was rendered in Burley’s favor in the district court against Louisiana Power and Light Company, awarding him $165,500. Coal Operators Casualty Company was decreed to be entitled to reimbursement for compensation paid to Burley.

Louisiana Power and Light Company appealed, and Burley answered the appeal claiming an increase in damages. Finding that the National Electric Safety Code was introduced into evidence at the trial by Burley without supporting evidence to establish a foundation for its introduction, the Fourth Circuit concluded that there was no evidence that the code’s safety standards were accepted officially by a governmental agency or by experts in the field. Thus, the court reasoned, no probative weight could be given to the code’s safety standards. Accordingly, the Court of Appeal did not reach the merits of the case. Instead, acting upon the authority of Article 2164 of the Code of Civil Procedure, the Court of Appeal set aside and annulled the trial court judgment and remanded the case to the trial court “in order to afford an opportunity for all parties to submit any evidence which they deem appropriate to show applicability of the National Electric Code.”

In separate applications Burley and Louisiana Power and Light Company applied to this Court for certiorari. Each urges that the case not be remanded and that it should have been decided on the record as presently formed.

Burley contends that there is evidence in the record upon which the Court of Appeal could conclude that the National Electrical Safety Code is a standard which was followed by L P & L; and that L P & L’s replies to interrogatories propounded by Burley establish this fact. These admissions, Burley contends, constitute evidence that L P & L has adopted the code’s standards. The code’s standards are therefore relevant evidence which the Court of Appeal should have considered without remand. Alternatively, he contends that a certified copy of an ordinance of the parish of Plaquemines, submitted in connection with his application for rehearing, establishes that the National Electric Safety Code has been adopted as a standard in that parish applicable to this case.

L P & L’s application for review asserts that the Court of Appeal, in essence, held that plaintiff had not proved his case of liability by a preponderance of evidence and the remand improperly gives him a second chance to do so.

Two contentions can readily be disposed of:

First, the ordinance of the parish of Plaquemines, upon which Burley relies to support his contention that the National Electric Safety Code has been adopted as an official safety standard in Plaquemines Parish, specifically prescribes that “The provisions of this Ordinance shall not apply to . installations used by electric public utility ... in distribution of electricity ... in the exercise of their function as such . . . and located outdoors or in buildings used exclusively for that purpose . . . . ” Obviously, since the ordinance excludes electric public utilities from its regulations, it may not be relied upon to establish safety standards in Plaquemines Parish under the facts of the instant case.

Secondly, L P & L’s contention that the Court of Appeal, in essence, held that Bur-ley had not proven his case by a preponderance of evidence is not ,a ncessary inference to be gained from that opinion. Instead, as already noted, it is an acceptable inference that the Court of Appeal made no determination of the merits, and this Court’s writ of certiorari was issued upon that premise.

We do not agree that no probative weight could be given to the National Electric Safety Code. . Therefore, no remand based upon that proposition was indicated.

The code, found to be properly admitted by the Court of Appeal upon the authority of Section 3713 of Title 13 of the Revised Statutes, is designated as National Bureau of Standards Handbook 81. It is the result of a project sponsored by the U. S. Department of Commerce, National Bureau of Standards, entitled “Safety Rules for the Installation and Maintenance of Electric Supply and Communication Lines.” The Handbook consists of definitions, grounding rules, and parts of the National Electric Safety Code, dealing with the construction and maintenance of overhead and underground lines.

The work is the result of agreement by members of the American Standards Association, consisting of the following: Accident Prevention Department of the Association of Casualty and Surety Cos., American Institute of Electrical Engineers, American Mutual Alliance Federation of Mutual Fire Insurance Cos., American Transit Assoc., Association of American Railroads, Association of Edison Illuminating Cos., Edison Electric Institute, International Association of Electrical Inspectors, International Association of Governmental Labor Officials, International Brotherhood of Electrical Workers, International Municipal Signal Association, Inc., National Association of Railroad and Utilities Contractors Assoc., National Electrical Manufacturers Assoc., National Safety Council, Public Service Commission of Wisconsin, Rural Electrification Administration, U. S. Department of Agriculture, The Telephone Group and the Western Union Telegraph Co.

The Bureau, as sponsor of the work, has relinquished its prerogative of determining details in return for the implied understanding that the many parties concerned will accept such a code as they can agree upon themselves.

Other than the code, neither Burley nor L P & L introduced any expert testimony of minimum required vertical and horizontal building clearances for uninsulated wires. Pictures, testimony and interrogatories answered by L P & L show that the line was five feet seven inches from the structure upon which Burley was standing when he was electrocuted.

When Burley’s counsel offered the code into evidence to show a violation by L P & L, the latter objected that there was nothing to explain the Code; it was advisory only; and the edition sought to be introduced was not in existence at the time the line was constructed. The code was permitted in evidence subject to the objection.

Burley relies principally upon the provision of the Code dealing with minimum clearances of conductors passing by or over buildings. It prescribes:

“Unguarded or accessible supply conductors carrying voltages in excess of 300 volts may be run either beside or over buildings. The vertical or horizontal clearance to any building or its attachments (balconies, platforms, etc.) shall be as listed below. The horizontal clearance governs above the roof level to the point where the diagonal equals the vertical clearance requirement. From this point the diagonal clearance shall be equal to the vertical clearance requirement . . . .”

Below this rule a table sets out that when the voltage supply of the conductor is 8,700 to 15,000 the horizontal and vertical clearance is eight feet, which when considered in connection with the quoted rule is a mandatory requirement. The code requires, not only that the conductors be installed according to these standards, they must likewise be maintained in that manner.

Contrary to L P & L’s argument, we do not find the meaning of this provision of the code obscure or confusing. As we read the regulation, all clearance, vertical or horizontal, must be at least eight feet from any part of a building. In the instant case L P & L’s conductor was only five feet seven inches from the building and, therefore, it did not conform with this requirement. See Nessmith v. Central Louisiana Electric Co., 257 So.2d 744 (La.App. 1972); Allien v. Louisiana Power & Light Company, 202 So.2d 704 (La.App.1967); Webb v. Louisiana Power & Light Co., 199 So. 451 (La.App.1940); Layne v. Louisiana Power & Light Co., 161 So. 29 (La.App. 1935); Bujol v. Gulf States Utilities Co., 147 So. 545 (La.App.1933); Boudreaux v. Lousiana Power & Light Co., 135 So. 90 (La.App.1931).

L P & L’s principal argument has centered upon the contention that the Court of Appeal abused the authority and discretion conferred by Article 2164 of the Code of Civil Procedure. Its efficacy depends, in this case, upon the validity of the Court of Appeal holding that the Code could not be given probative weight as evidence, for it had not been adopted as safety standards by any law or ordinance, and its value and worth had not been supported by any expert testimony.

The general objection that is made to safety codes being used in cases of this kind is that these codes are hearsay evidence, they express opinions, and they are not given under oath with any opportunity for cross-examination. They also deal with controversial and developing subjects in which opinions over the years may change. In this case the safety code was issued in 1961, twelve years before this trial.

Aside from the fact that the National Electric Safety Code has often been received in evidence and given probative weight by the courts of this State (see the decisions cited hereinabove), if a publication is produced by the concerned effort of responsible groups, under sponsorship of a principal bureau of the federal government, all of whom have special knowledge of and experience with the subject matter, and having no motive to falsify, subjecting this large group to cross-examination would do nothing to impair the code’s probative force, nor would cross-examination add to the code’s weight as evidence. Especially where the groups responsible for drafting the code have every reason to adopt wise standards by which they must abide and which are reasonable and conducive to the general safety. Such is the case here. All of the organizations represented on the American Standards Association have agreed to accept the code; all have extensive expertise and experience in the field; all are concerned with the public interest.

Thus, where evidence of the contents of a publication is admissible under our law (La.R.S. 13:3713), and relevant and material information contained therein should be made available to the trier of facts, and the publication is one which reasonable minds would agree is trustworthy, there appears to be no sound reason why such evidence should not be given such probative weight as it warrants in the court’s judgment. In the instant case, National Bureau of Standards Handbook 81 is a publication of the U. S. Government Printing Office.

There is, moreover, the factor of necessity present in this case. Undoubtedly the code is relevant and material to Burley’s case, but those who prepared it are not available to testify. The participants are too numerous and too widely scattered. It would be highly impracticable, if not impossible, to gather them together to testify at the trial, and it is doubtful if their testimony would add to, or detract from, the trustworthiness or weight we attribute to it. Thus there is a need to consider this code.

Another argument advanced against consideration of such a code is that the standards created thereby are mere expressions of opinions of the organizations represented in their formulation. Furthermore, the opinions are on a subject matter in which opinions are changing, for the factors involved are constantly developing over the years. But we are not convinced that the code has no merit for this reason. Though the scientific knowledge upon which many of these safety standards are based is not complete or is subject to change is no reason to disregard entirely that knowledge which is available. Otherwise, expert opinions on scientific matters would never be considered by courts. The argument in this respect is more logically directed to the weight of the opinions expressed, it does not render the evidence entirely irrelevant or incompetent.

In these conclusions considerable reliance has been placed upon the decision in Nordstrom v. White Metal Rolling and Stamping Corp., 75 Wash.2d 629, 453 P.2d 619 (1969). See also 5 J. Wigmore, Evidence, ¶ 1420 (3d ed. 1940); 6 J. Wigmore, Evidence, ¶ 1698 (3d ed., 1940, Supp.1964); 75 A.L.R.2d 778; 58 A.L.R.3d 148. Although generally the authorities, when weighed, will demonstrate that the view we have adopted here, and that recognized by the Courts of Appeal in this State for many years, is a minority view, we are convinced of its soundness.

Another consideration which has influenced our judgment is the unmistakable admission contained in L P & L’s answer to interrogatories propounded by Bur-ley that the electric power line involved in this case was built to National Electric Safety Code Standards. This answer permits the introduction and consideration of the code as rebuttal evidence to establish the correctness of L P & L’s answer if for no other reason. And since reference to the code demonstrates that the line was not maintained according to the code’s standards at the time of Burley’s injury, it has considerable probative value in that respect.

Inasmuch as we approve the code and agree that it is entitled to probative weight, the Court of Appeal should not have remanded the case to the trial court to receive further evidence to that effect.

The applications for review, the briefs and oral arguments were concerned with the validity of the decree of the Court of Appeal on the question of remand. Since the merits of the case have not been presented to this Court, and that issue has been briefed and argued before the Court of Appeal, we shall remand the case to that court for judgment on the merits. This procedure will give the litigants, and this Court in the event of review, the benefit of the opinion of the Court of Appeal.

For the reasons assigned, these consolidated cases are remanded to the Court of Appeal, Fourth Circuit, for further consideration and for adjudication on the merits.

BARHAM, DIXON and CALOGERO, JJ-, concur.

      . La.R.S. 13 :3713 provides :
      “The official records and other documents, being enactments or regulations or decisions or rulings or proceedings or reports or other official acts, of the congress or any federal executive department or subdivision therein, or of any federal court or commission or board or agency or public institution, may be evidenced by the federal register or by a printed book or pamphlet or periodical purporting to be published by the U.S. Government Printing Office at Washington, D.C., by authority, which shall be received in all courts and proceedings , of this state and by all officers of tliis state as prima facie evidence of the records, documents, enactments, regulations, decisions, rulings, proceedings, reports or other official acts of the departments, subdivisions, courts, commissions, boards, agencies or public institutions from which they purport to emanate, and the same may be read and referred to as such in any and all courts of this state.”


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. John E. MILLER.
    No. 56034.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Sept. 30, 1975.

      Sam J. D’Amico, Lewis O. Unglesby, D’Amico & Curet, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Richard E. Chaffin, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant was originally charged by a bill of information with violating La.R.S. 14:67 by committing “a series of thefts of lawful U. S. Currency in excess of $14,000.00, the property of the First Circuit Court of Appeal, State of Louisiana.” The figure $14,000.00 was amended by the District Attorney to read $500.00. He was tried before a five-member jury which returned a verdict of guilty. The court suspended the imposition of sentence and placed defendant on active, supervised probation for a period of two years, conditioned upon his making restitution to the proper state agency. See La.C.Cr.P. Art. 893. In his appeal, defendant submits eleven assignments of error which he alleges warrant reversal of his conviction since we find merit in the first assignment of error, we do not find it necessary to consider the remaining assignments.

Defendant alleges that the trial court erred in refusing to require the state to answer the bill of particulars he had filed. The bill of information, as amended, charged that defendant “ . . . between the First (1st) day of July, 1965, and the Eleventh (11th) day of September in the year of our Lord One Thousand Nine Hundred and Seventy (1970) did violate R.S. 14:67 in that he committed a series of thefts of lawful U. S. Currency in excess of $500.00, the property of the First Circuit Court of Appeals [iic ], State of Louisiana. . . . ” Defendant filed, motion to quash the information on the ground that the charge was vague and indefinite. The trial judge denied the motion. Defendant then filed a motion for a bill of particulars seeking answers to the following four questions:

1) State whether or not the act alleged in the bill of information was a misappropriation or taking.
2) State the number of alleged acts of misappropriation allegedly performed by the defendant.
3) State the place of each alleged act of misappropriation.
4) Does the sum alleged in the bill of information constitute an aggregate of all of the alleged acts of misappropriations ?

The state at first refused to answer question one but, after argument, did state that the charge was for a misappropriation. The state refused to answer questions two and three on the ground that to do so would be to provide defendant with the state’s evidence. The state answered question four by saying that the sum was an aggregation. The defendant again asked that questions two and three be answered. The trial court refused to require the state to furnish these answers. The defendant argues before this Court that the “refusal to answer basic questions in the bill of particulars made it impossible for the accused to determine what he allegedly did and how to combat the accusation.”

Article I Section 10 of the Louisiana Constitution of 1921 requires that “[i]n all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him.” When a defendant has been charged by an information or indictment which follows the short form, he has a right, after proper motion, to a bill of particulars. State v. Clark, 288 So.2d 612 (La.1974) and authorities' cited therein. One reason the short form indictment and information have withstood constitutional attack is that the defendant has this right to require that the state furnish him with more specific facts when these are necessary to inform him of the scope of the charge. State v. Mason, 305 So.2d 523 (La.1974); State v. Mann, 250 La. 1086, 202 So.2d 259 (1967). Details relating to the particulars of the offense must be provided in the bill of particulars so that defendant can discover, well in advance of the trial, the specific facts of the accusation he must meet. He is entitled to “further information, in a proper case, regarding what the State intends to prove, in order that, in fairness, the accused may more properly defend himself.” State v. Wright, 254 La. 521, 225 So.2d 201, 203 (1969). If he knows .the details of the charge against him, he will avoid being surprised at the trial. State v. Mason, supra; State v. Wright, supra. He will, moreover, have the basis for a plea of former jeopardy in any subsequent prosecutions. And the court will have a guide to regulate the admission of evidence at the trial. State v. Clark, supra; State v. Thomas, 260 La. 784, 257 So.2d 406 (1972).

The issue in this case is whether defendant Miller was sufficiently apprised of the nature and cause of the accusation against him by the details provided him in the bill of information and the responses of the state to the bill of particulars, so that he could prepare his defense. When this information was taken together, Miller stood accused of committing a series of misappropriations of money from his employer over a five-year period in East Baton Rouge Parish, misappropriations which aggregated to more than $500.00. With no more information than that of the charge against him, he was forced to go to trial. Because this defendant has pled not guilty, we are required to presume that he is innocent of the charges against him. We may not assume that he knows anything about the crime of which he stands accused. Clearly, the information which this defendant was afforded was unconstitutionally general in that it did not sufficiently apprise him of the nature and scope of the charge so that he could prepare his defense. It did not furnish him with the minimal information as to dates, amounts, locations, and number of the alleged thefts, the amounts and locations having been sought by the motion for the bill of particulars.

The state is required, upon defendant’s motion, to provide a criminal defendant with enough information so that he can identify the criminal transaction. State v. Clark, supra. There is no exact formula which can be applied to every charge to determine in a particular case whether a defendant has all of the information to which he is constitutionally entitled. In general, however, the extent to which the bill should be granted turns on the complexity of the case. If the crime is a single event, such as a murder, the scope of the bill will be less extensive than it will be if the crime involved is a series of occurrences, such as tax fraud or bootlegging. See 12 La.L.Rev. 457 (1952). When a crime charged may be committed in a number of different ways, this Court has always recognized the accentuated need for the state to furnish particulars. State v. Mann, supra, and authorities cited therein. Likewise, when the crime involves not a single occurrence but a series of occurrences, the state must supply enough information so that the accused can identify each criminal transaction. In this particular case, the defendant was an employee of the First Circuit Court of Appeal. His job required that he present vouchers for reimbursement for expenses. At the trial, the state introduced evidence tending to prove that he had over a five year period, presented both justified expenses and unjustified expenses. Given the nature of this case, the state was constitutionally required to respond to a bill which elicited the dates and locations of the alleged thefts, and the number and amounts of those thefts. The trial court erred when it did not require the state to furnish the number and places of the alleged thefts. Without that information, defendant was obviously hampered in the preparation of his defense.

The proper function of the bill of particulars is not discovery. 74 Harv. L.Rev. 940 (1961). In providing information in response to a bill of particulars, however, the state may be forced to release facts which reveal what its evidence will prove at trial. This Court has never held that the state is free from answering a bill because doing so would reveal particular facts which the state intends to establish through evidence. We now hold that, to the extent that information is properly elicited to give defendant notice of the nature and cause of the charge against him, the state is required to respond to a bill of particulars even though the answers will disclose particular facts which the state intends to establish through evidence.

This holding does not mandate wholesale discovery of the state’s case. Defendant is not entitled to the names of witnesses, State v. Devore, 309 So.2d 325 (La.1975) ; the transcript of a grand jury proceeding, State v. Devore, supra; details of the arrest of the defendant, State v. Peters, 302 So.2d 888 (La. 1974); the income tax returns of alleged accomplices, State v. Mitchell, 258 La. 427, 246 So.2d 814 (1971), cert. denied, 404 U.S. 1000, 92 S. Ct. 561, 30 L.Ed.2d 553 (1971); or other charges the state plans to file against the defendant, State v. Peters, supra. In other words, he may not compel disclosure of all facets of the state’s case. On the other hand, details which the accused needs to gain notice of the crime, he has a constitutional right to require of the state.

For the reasons assigned, the conviction and sentence of the defendant are annulled and set aside and the case is remanded for a new trial in accordance with law and consistent with the views expressed herein.

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

      . The Sixth Amendment to the United States Constitution likewise requires that “[i]n all criminal prosecutions, the accused shall enjoy the right . . to be informed of the nature and cause of the accusation.” The Louisiana Constitution of 1974 Art. I, Section 13 includes the identical requirement: “In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him.”

      . Although the wording of the indictment does not precisely conform to the short form indictment set out in Article 465 of the Code of Criminal Procedure, it does contain all of the elements of the short form.

      . In determining whether defendant was sufficiently apprised of the criminal transaction, the trial court must also consider the details which his bill indicates he already knows. State v. Mason, supra.

      . After all of the state’s evidence had been presented, the state attempted to amend the indictment to read that defendant “committed a series of thefts of lawful U. S. Currency totalling in excess of $500.00” but then withdrew its own motion.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Roger D. HUMPHREYS.
    No. 55861.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Sept. 30, 1975.
    Robert L. Kennedy, Law Offices of W. T. McCain, Colfax, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles B. Bice, Dist. Atty., W. Scott Maxwell, Asst. Dist. Atty., for plaintiff-respondent.
   MARCUS, Justice.

Roger D. Humphreys was charged by bill of information with knowingly and intentionally possessing a controlled dangerous substance, to-wit: marijuana, in violation of La.R.S. 40:966. He was tried by a judge and found guilty as charged. Subsequently, he was sentenced to serve four months in the parish jail and to pay a fine of $200.00 and costs, upon payment of which the jail sentence would be suspended and defendant would be placed on supervised probation for a period of two years. We granted defendant’s application for a writ of certiorari to review the judgment of the district court. 309 So.2d 683 (La. 1975). Defendant relies upon three assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant argues here that the trial judge erred in refusing to grant his motion for a new trial on the ground that the verdict against him was contrary to the law and the evidence. More specifically, defendant alleges that “ . . . no evidence was elicited to prove an essential element of . possession of marijuana, to-wit: knowingly and intentionally to possess.” The other two grounds asserted in his motion for a new trial are disposed of in Assignments of Error Nos. 2 and 3.

Defendant was charged with violation of La.R.S. 40:966(C), which declares it unlawful “ . . . for any person knowingly or intentionally to possess a controlled dangerous substance,” in this case, marijuana. (Emphasis added.)

Louisiana jurisprudence has firmly established that guilty knowledge is an essential element of the crime of possession of a controlled dangerous substance. Whether the accused knew the substance was contraband is a matter of proof by direct or circumstantial evidence. However, the question of sufficiency of the evidence is a matter, not for this court, but for the trier of fact. It is only where there is no evidence at all of an essential element of the crime charged that this court may legally set aside the conviction on appeal.

Applying these guidelines to the facts of the present case, we conclude that the record contains some credible evidence that the defendant had the requisite guilty knowledge. The principal witness for the prosecution, a narcotics undercover agent, testified that she attended a “pot party” at which defendant was present. Her testimony was that one hand-rolled cigarette, which she suspected to be marijuana, was being finished upon her arrival. A second one was produced and lit. She stated that this cigarette, which also appeared and smelled like marijuana, was passed to defendant, who took a “hit” (drag) off of it and passed it on to the next person. Subsequently, it was passed to her. She simulated smoking it and was able to secure a fragment of the cigarette by biting off a piece of the unlit end and secreting it in her pants cuff. After the party, she went to where she was staying, tagged the portion of the cigarette she had obtained, and placed it in a sealed envelope. The next day, she delivered it to the authorities. Laboratory analysis conclusively established that the substance contained in the portion of the cigarette secured by her was marijuana. Under strenuous cross-examination, the witness was unable to recall several incidental details of the gathering, e. g,, the names of the other present, the order in which the cigarette was passed among those present, etc. However, she was steadfast in her testimony that defendant was present at the party and smoked the cigarette as it was passed around.

Clearly, there is some evidence that defendant knowingly or intentionally possessed the marijuana. Hence, we are unable to say that the trial judge erred in denying defendant’s motion for a new trial. Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant next complains that the trial judge erred in refusing to grant a requested continuance. The ruling of which defendant complains was made when the state crime lab expert testified that part of the cigarette paper containing the substance (which his tests conclusively established to be marijuana) appeared burnt. This contradicted the previous testimony of the undercover agent, who stated that she obtained the contraband by biting off the unlit end of the cigarette when it was passed to her at the party. Defendant then sought a continuance to have the substance reexamined by the state lab in order to establish whether the paper was burnt or not. The motion was denied.

Defendant’s motion, in effect, was a request for a recess, not a continuance. As with most matters relating to the conduct of a trial, the trial judge must be accorded much discretion in determining whether to grant a recess, such that the proceedings are conducted with dignity and in an orderly and expeditious manner, and justice is done. Hence, the question here is whether the trial judge abused his discretion in refusing to grant the requested recess.

Defendant’s motion cannot be characterized as a request for discovery; defendant admits that he was accorded full pretrial inspection of the evidence. Rather, defendant’s request was more accurately an attempt to impeach the testimony of the undercover agent on a collateral issue, i. e., whether or not the portion of the cigarette she secured was partially burnt. While there was a definite conflict in the testimony between the undercover agent and the lab expert on this point, the undercover agent, on being recalled to the stand, reiterated that she had bit off the unlit end of the cigarette and that the substance did not look burnt to her. Her explanation for its appearance was that, when this type of paper is used, the residue collects in the end and causes discoloration. The trial judge, in expressing his reasons for judgment, stated that the lab expert, who testified that the paper appeared burnt to him, admitted that he did not analyze the paper, as his only function was to determine the presence of marijuana. His observation as to the burnt condition of the paper was made for the first time from the witness stand. After considering the testimony of the witnesses and observing the condition of the paper, the trial judge concluded that it was not burnt. Clearly, the conflicting testimony as to this collateral fact went to the weight of the evidence, and the trial judge was able to resolve this conflict without resort to further evidence.

Considering these circumstances, we cannot say that the trial judge abused his discretion in refusing to delay the trial for further inspection of the contraband by the state crime lab to make a scientific determination as to whether the fragment was, in fact, partially burnt. Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR No. 3

Defendant’s final complaint is that the trial judge erred in admitting into evidence the marijuana cigarette butt procured by the undercover agent at the scene of the crime. Defendant argues that the state failed to establish a sufficient chain of custody of the evidence between the time it was obtained by the agent and the time of trial.

The evidence establishes that, when the agent obtained the cigarette butt, she secreted it in her pants cuff until after the party, at which time she placed it in a sealed envelope. She then gave the envelope to her immediate supervisor, who locked it in an evidence locker to which he had sole access. The evidence was later removed from the locker and transported directly to the state crime lab in Baton Rouge, where a lab receipt was issued. The envelope was marked by lab personnel for identification and placed in a locked evidence bin. It was removed for testing and returned upon the completion of tests. It remained there until its production in court by the person from the crime lab who had performed the analysis of the substance.

It is well settled that

[t]o admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.
The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient.

Considered in light of these principles, the testimony of the chain of custody amply satisfies the more-probable-than-not test. Hence, the contraband was properly admitted into evidence. Accordingly, this assignment of error is without merit.

DECREE

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

DIXON and CALOGERO, JJ., dissented.

      . E. fir., State v. Knight, 298 So.2d 726 (La. 1974); State v. Porter, 296 So.2d 302 (La. 1974); State v. Smith, 257 La. 896, 244 So. 2d 824 (1971) ; State v. Kreller, 255 La. 982, 233 So.2d 906 (1970); State v. Williams, 250 La. 64, 193 So.2d 787 (1967).

      . E. g., State v. Knight, 298 So.2d 726 (La. 1974).

      .A continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced. La.Code Crim.P. art. 708 (1966).

      . Id. art. 17; see State v. Richmond, 284 So. 2d 317 (La.1973).

      . See, e. g., State v. Migliore, 261 La. 722, 260 So.2d 682 (1972). For a discussion of pretrial discovery in Louisiana see 47 Tul.L. Rev. 913 (1973).

      . State v. Dotson, 260 La. 471, 512, 256 So.2d 594, 608 (1971).


author: TATE, Justice. TATE, Justice

text:
    STATE of Louisiana, Appellant, v. Gilbert SUIRE, Appellee.
    No. 56037.
    Supreme Court of Louisiana.
    Sept. 5, 1975.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Bernard N. Marcantel, Dist. Atty., for plaintiff-appellant.
    John W. Johnson, Clanton & Johnson, Eunice, for defendant-appellee.
   TATE, Justice.

The State appeals. The district court sustained the defendant Suire’s plea of former jeopardy. The plea is based upon a prior conviction in Lake Arthur’s May- or’s Court for violation of a municipal ordinance. The ordinance provided for criminal punishment of the identical conduct which forms the basis of the state charge.

The State appeals from dismissal of the prosecution. It chiefly contends that the mayor’s court lacked jurisdiction to punish the offense, for reasons to be elaborated below. We should note that this prosecution is for an offense committed on December 18, 1974, before the effective date (January 1, 1975) of the Louisiana Constitution of 1974. Therefore, insofar as powers of a municipality are concerned, provisions of the Constitution of 1921 apply.

I

The facts are not disputed:

The defendant is here charged with commission of an aggravated battery with a dangerous weapon upon Ray Allen La-bauve on December 18, 1974, in violation of La.R.S. 14:34 (a crime punishable by imprisonment of up to ten years at hard labor).

On the date of offense, for concededly the identical conduct, he was charged before the Lake Arthur mayor’s court with disturbing the peace and aggravated battery, in violation of the Lake Arthur Criminal Code, Articles 21 (aggravated battery) and 65 (disturbing the peace) (1965). On the following day (December 19) the defendant pleaded guilty in the Lake Arthur mayor’s court to these municipal charges. He was fined one hundred dollars and sentenced to thirty days imprisonment, (the jail term was suspended).

The district court held that, by virtue of the double jeopardy provisions of the state and federal constitutions, the prior conviction in mayor’s court for violation of the municipal ordinance bars the subsequent prosecution in district court for violation of a state statute punishing the identical criminal conduct. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974); State v. Didier, 262 La. 364, 263 So.2d 322 (1972); State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972). See also State v. Andrus, 250 La. 765, 199 So.2d 867, 876 (1967).

II

The State concedes that the trial court ruling is correct if indeed the defendant was put in jeopardy by the first prosecution in mayor’s court. The State points out, however, that jeopardy on a first prosecution does not attach if for the first trial “The court was illegally constituted or lacked jurisdiction.” La.C.Cr.P. art. 595(1).

The State contends, essentially, that the mayor’s court lacked jurisdiction of the first prosecution because the Lake Arthur Criminal Code is unconstitutional as inconsistent with or in violation with state law, especially in attempting to punish an aggravated battery as a misdemeanor when the state had defined it as a felony subject to prosecution by the state.

The State’s contention fails.

In the first place, the Lake Arthur mayor’s court had jurisdiction to punish violations of the Lake Arthur municipal ordinances punishing criminal conduct. La. Const, of 1921, Art. 7, Section 5IE (1968); La.R.S. 33:441 (1950). We are cited to no authority by reason of which a prosecution under a municipal ordinance, presumed constitutional at the time, can be held to be invalid in a subsequent prosecution for purposes of avoiding double jeopardy, i. e., by declaring the ordinance unconstitutional subsequent to the conviction and punishment thereunder.

In the second place, in the present instance the municipal prosecution for the identical conduct was for violation of a municipal regulation punishing a disturbance of the peace, as well as of the regulation punishing an aggravated battery as a municipal crime. The State concedes that the former regulation, at least, is valid. We see no reason why punishment for the battery as a disturbance of the peace does not bar subsequent prosecution under the state statute of the identical act. State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972); State v. Augustine, 29 La.Ann. 119 (1877); State v. Cheevers, 7 La.Ann. 40 (1952).

As summarized in State v. Andrus, 250 La. 765, 199 So.2d 867, 876: “The test approved in this state is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction on the first.” Under our law, it is immaterial if the first prosecution is for a misdemeanor and the second is for a felony. State v. Didier, 262 La. 364, 263 So.2d 322 (1972).

Finally, with little doubt the Lake Arthur municipal ordinance defining and punishing both offenses was a valid enactment under the 1921 constitution.

That constitution granted to municipalities the power to adopt police regulations, if authorized by general state law and not inconsistent or in conflict therewith. Article 14, Section 40 (1952). Lawrason Act municipalities such as Lake Arthur were specifically delegated the right to enact police regulations necessary for the preservation of good order and the peace of the municipality and to provide for the penalties provided by the present ordinance. La.R.S. 33:401 (6), (32) (1950).

The municipal regulations punishing batteries and breaches of the peace are valid exercises of the power of a municipality to enact police regulations to protect good order and peace within the municipality, within the authority delegated to a municipality by and under the 1921 constitution. Town of Ponchatoula v. Bates, 173 La. 824, 138 So. 851 (1931); Board of Police, etc. v. Giron, 46 La.Ann. 1364, 16 So. 190 (1894).

The regulations are not inconsistent or in conflict with state statutes. In this regard, it is immaterial that the same conduct is punished by both state and municipality in the concurrent exercise of police power, Town of Ponchatoula v. Bates, cited above, nor that the municipal ordinance makes the conduct subject to lesser punishment than the state statute penalizing the same crime, Board of Police, etc. v. Giron, cited above. Implicitly recognizing these well-settled and little-litigated principles are decisions invalidating municipal regulations only because they provide a greater penalty than the state statute punishing the same crime. McAllister v. City of New Orleans, 255 La. 405, 231 So.2d 368 (1970); Town of Waterproof v. Towles, 180 La. 168, 156 So. 211 (1934).

The state does not cite any decisions or authority to the contrary of the principles above summarized. Rather, it relies on jurisprudence which, distinguishably from the present, invalidated local ordinances which were not authorized by general state law or which provided substantive regulation in conflict with or inconsistent with substantive regulation by state general law of the same subject matter: National Food Stores of Louisiana v. Cefalu, 280 So.2d 903 (1973); City of Alexandria v. LaCombe, 220 La. 618, 57 So.2d 206 (1952); and decisions cited therein.

Decree

For the reasons assigned, we affirm the district court judgment upholding the plea of former jeopardy and dismissing this prosecution.

Affirmed.

TATE, J., also assigns additional concurring reasons.

TATE, Justice

(concurring).

The writer feels it to be appropriate to note an issue we did not reach in the court’s opinion.

The arguments made to us touched at length at the validity or not of the Lake Arthur municipal ordinance under the Louisiana Constitution of 1974. As earlier noted, since both the offense committed and the plea to guilty of violation of the municipal regulations took place prior to the effective date (January 1, 1975) of the new constitution, the validity or not of the Lake Arthur municipal police regulations was determined in the light of pertinent provisions of the Constitution of 1921.

Nevertheless, as the parties to this appeal note, different provisions of the Constitution of 1974 affecting powers of local government may well involve different considerations, whether or not the result reached is the same.

In general, the 1974 constitution confers broader powers of regulation on local government, including (with exceptions) any power necessary or proper for the management of its affairs not denied to it by general state law. Article VI, Sections 5(E) and 7(A). That is, in such instances the powers to make local ordinances on a given subject matter need not be delegated to the local government by the legislature, as under the 1921 constitution. See Kean,' Local Government and Home Rule, 21 Loyola L.Rev. 63 (1975) (contained within a symposium on the 1974 constitution).

One of the few limitations on the power of local governmental bodies prohibits them from enacting ordinances which “define and provide for the punishment of a felony”. Article VI, Section 9(A)(1). The issue thereby posed is whether the constitutional intent was to limit the power of municipalities to impose imprisonment at hard labor for a violation of a municipal regulation, or whether instead the intent was to exempt from local regulation any conduct which the state legislation punishes as a felony.

Despite the earnest insistence of the State that we attempt to clarify this intent, this court did not feel it appropriate to do so in this case. The issue is not directly before us, and the general policy of this court is to .refrain from rulings on abstract questions by way of advisory opinion.

Further, by the time the question does arise in an actual proceeding, clarifying legislation may have been enacted. For instance, the legislature might either deny local governments the power to enact police regulations punishing conduct which the state punishes as a felony; or else it might confirm the concurrent police power of the state and local government in such instances and continue as in the past to rely upon co-ordinated law enforcement policies to avoid the possibility of abuse represented by (in this case) a good faith exercise of local criminal powers.

The writer does not, however, feel it inappropriate to note the possible need for legislative attention to the problem of concurrent state and local police regulation under the 1974 Constitution, insofar as it may affect the former jeopardy problem now before us.

      . The municipal ordinance defines aggravated battery identically to the definition of the state statute, La.R.S. 14:34: “Aggravated battery is a battery committed with a dangerous weapon.”

      . If this be material, it is conceded that the plea was entered in the normal course of events and without any collusive purpose to avoid state prosecution.

      . Prior to the Waller decision holding to the contrary, La.C.Cr.P. art. 597 (1966) provided that double jeopardy by prosecution of a state violation does not arise from a former prosecution under a municipal or parochial ordinance. Recognizing Waller, this Louisiana enactment was amended so as to remove this bar to application of double jeopardy. Act 648 of 1972.


author: DIXON, Justice.

text:
    Preston E. DAVIS and Frederick J. Gisevius, Jr. v. Peter J. POELMAN and Poelman Aircraft Company, Inc.
    No. 47981.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Sept. 30, 1975.

      Robert F. Shearman, Dennis L. Rousseau, George M. Leppert, New Orleans, for plaintiffs-applicants.
    George V. Baus, Adams & Reese, New Orleans, for defendant-respondent Am. Fire & Cas. Co.
   DIXON, Justice.

This is an old case which we docketed for an attempted disposition. One defendant insurance company was placed in liquidation in the course of this suit; stay orders were issued at the request of the insurance commissioner after this court granted writs in November, 1965.

Suit was filed on May 24, 1961 by owners of a small airplane (Champion Traveler 7EC, 90 h. p.) against Poelman Aircraft Company, Inc. and its owner, Peter J. Poelman, for the value of the plane, destroyed while in the custody of defendants. The loss occurred between June of 1959 and December of 1960.

Two insurance companies were added as defendants in 1963: American Fire and Casualty Company of Orlando, Florida had issued a comprehensive aircraft sales and service policy to Poelman for the period June 1, 1959 to June 1, 1960; United Benefit Fire Insurance Company of Omaha, Nebraska had issued a similar policy to Poelman for the period August 1, 1960 to August 1, 1961.

The case went to trial in the spring of 1964. There was judgment in favor of plaintiffs and against Poelman and Poel-man Aircraft Company, Inc. in solido for $3500.00, but plaintiffs’ demands against the insurers were rejected. Plaintiffs and the defendants who were cast appealed, and the trial court’s judgment was affirmed. Davis v. Poelman, La.App., 178 So.2d 306 (1965). On plaintiffs’ application this court granted writs in 1965.

Before the case was docketed in this court, one defendant, United Benefit Fire Insurance Company, was declared insolvent and liquidation proceedings were initiated in Nebraska. Ancillary proceedings were begun in the Nineteenth Judicial District Court in Louisiana and proceedings in Louisiana were stayed by court order in the ancillary proceedings and by order of this court.

The Louisiana ancillary liquidation proceedings were closed after a determination that there were not enough assets in Louisiana to justify an attempted distribution to claimants. The assets and files were transferred to Nebraska. Among the claims was that of plaintiffs. Plaintiffs were notified to furnish additional information. On July 13, 1972 plaintiffs’ claim was denied because “claimant failed to substantiate his claim.” There was no appeal by plaintiffs from this finding, and it became final under the Nebraska liquidation rules.

As far as we can determine, the litigants in this case have taken no steps in the Nebraska receivership to pursue their claim against the insolvent insurer, the liquidation of which is now in its final stages. This court will take no action which would interfere with the orderly liquidation proceedings. Since the ruling on the claim of plaintiffs against the insolvent insurer has become final, we will not disturb the judgment in favor of United Benefit Fire Insurance Company.

A review of the evidence establishes the following facts. Poelman was a compensated depositary. As part of the consideration for the sale of the Davis Aviation Corporation, Poelman agreed to keep plaintiffs’ plane (which was specifically excepted from the sale of the company and its property) in the hangar. The duration of the storage was neither fixed nor discussed.

Within ninety days from the date of the agreement, plaintiffs’ light, fabric covered plane (probably without its propeller) was removed from the hangar and tied down outside on an apron. Gisevius and Davis were not notified, although there is some testimony that Davis became aware some time later that the plane had been moved.

In the course of the next year the engine was stolen from the plane. The theft was not immediately discovered because the propeller was missing from the plane before the theft, and the cowl and a tarpaulin were replaced after the engine was removed.

After the theft of the engine the plane suffered severe wind damage; at some point its instruments were removed. The plane became practically worthless junk.

The dates of the incidents which damaged the plane are not ascertainable from the record, except that the second windstorm affecting the plane occurred in December 1960.

Plaintiffs did not learn of the damage until after the destruction of the plane. Poelman did not keep records of the incidents; he took no steps to minimize the loss nor to notify the plaintiffs.

We granted writs in this case because it appeared that depositors, given a judgment against their compensated depositary, were denied recovery from the depositary’s liability insurers merely because the plaintiffs-depositors could not establish the date of the loss, a matter which should have been within the knowledge of the insured depositary. We were aware of the policy of this State that liability policies “are executed for the benefit of all injured persons ... to whom the insured is liable . ■ . .” R.S. 22:655. The same statute, however, provides that a direct action against an insurer is subject to any defenses the insurer might have raised in an action by the insured.

The defense here is that there is no evidence that the loss occurred while American’s policy, which expired June 1, 1960, was in force. The Court of Appeal found that, “The record is devoid of any evidence which would prove that any damage occurred during the policy period of the American Fire and Casualty Company.” 178 So.2d 306, 310.

That factual finding is not strictly correct. In clear violation of Poelman’s agreement, the plane was moved from the hangar to the apron and exposed to the elements about three months after the sale of the company. There was evidence that the plane’s propeller was not attached to the plane at that time; no evidence of its subsequent existence was ever adduced. The Court of Appeal found that there was some evidence that some of the instruments were stolen before the plane was removed from the hangar.

Both courts below found that American could not be cast because of lack of definite proof of the dollar amount of damages occurring within the policy period. Our interpretation of the policy makes it unnecessary to decide whether the burden of going forward with the proof lay with plaintiffs or with American.

Relevant clauses of American’s policy are as follows:

“Coverage C — Hangarkeeper’s Liability
To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of theft, injury to or destruction of aircraft or aircraft parts caused by an occurrence, including the loss of use thereof, which are in the care and custody of the Insured and which are the property of others and are in or on the premises occupied by the named Insured at the airport designated in the Declarations for the purpose of storage, repair or safe keeping.”
“V Policy Period, Territory, Purposes of Usé
“Under Coverage C, this policy applies only to occurrences during the policy period at the premises described in the Declarations.
“1. Definitions
“(b) Occurrence. The word ‘occurrence’ means an accident, or a continuous or repeated exposure to conditions, which results in injury during the policy period, provided the injury is accidentally caused. All damages arising out of such exposure to substantially the same general conditions shall be deemed to arise out of one occurrence.”

The cause of plaintiffs’ loss was Poel-man’s violation of the agreement to store the plane in the hangar, an “occurrence” which took place during the policy period. There was ample evidence that damage occurred to the fabric plane from its unprotected exposure on the apron. By the very terms of the policy, “All damages arising out of such exposure to substantially the same general conditions shall be deemed to arise out of one occurrence.” Since the “occurrence” was well within the period of American’s policy, it cannot escape coverage.

For these reasons, the judgments of the courts below in favor of American Fire and Casualty Company are reversed, and there is now judgment in favor of plaintiffs, Preston E. Davis and Frederick J. Gisevius, Jr., and against defendants, Peter J. Poelman, Poelman Aircraft Company, Inc. and American Fire and Casualty Company of Orlando, Florida, in solido, in the amount of $3500.00, with legal interest from date of judicial demand and all costs; the judgment rejecting plaintiffs’ demands against United Benefit Fire Insurance Company is affirmed.


text:
    STATE of Louisiana v. Kenneth W. CARPENTER and Jesse N. Peterson.
    No. 56094.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles B. Bice, Dist. Atty., W. Scott Maxwell, Asst. Dist. Atty., for plaintiff-appellant.
    Robert L. Kennedy, Law Offices of W. T. .McCain, Colfax, for defendants-appel-lees.
   MARCUS, Justice.

Defendants Kenneth W. Carpenter and Jesse N. Peterson were charged by separate bills of information with hunting on a public road in violation of La.R.S. 32:292. The accused filed motions to quash the charges on the ground that the statute forming the basis of the prosecution was vague and indefinite, such that it “ . did not give defendant[s] reasonable notice or knowledge as to what acts constitute hunting on a public road.” After a hearing on the matter, the trial judge granted the motions to quash, and the state has appealed his ruling.

The sole issue presented here for consideration is whether La.R.S. 32:292, which proscribes hunting on a public road, is unconstitutionally vague or indefinite. As this court has observed, the challenge that a statute is vague or indefinite must be considered from two perspectives, i. e., both the state and federal constitutions.

Article 1, section 13 of the Louisiana Constitution of 1974 declares that, “[i]n a criminal prosecution, -an accused shall be informed of the nature and cause of the accusation against him.” This guarantee requires that penal statutes describe the unlawful conduct with sufficient particularity and clarity that ordinary men of reasonable intelligence are capable of discerning the meaning and conforming their conduct thereto. Thus, this court has, at numerous times, subjected various statutes to constitutional scrutiny to determine whether they presented adequate notice to those affected by them.

A federal constitutional guarantee against vagueness has been enunciated by the United States Supreme Court. This “void-for-vagueness” doctrine holds that implicit in the fourteenth amendment is the guarantee that words and phrases used in penal statutes may be so vague and indefinite that any penalty prescribed for their violation constitutes a taking of liberty or property without due process of law. The test to be applied here is that a criminal statute must

. give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.

It can be seen there is no readily appreciable difference between the state and federal concepts; a statute that fails to inform an accused of “the nature and cause” of an offense under the state constitution will also ordinarily fail to provide the “fair notice” of proscribed conduct required by the federal constitution.

The statute in question provides that

[h]unting or the discharge of firearms on public roads or highways located in this state is hereby prohibited except by law enforcement officers when in the performance of their duties.
Whoever violates this Section shall be fined not more than fifty dollars or imprisoned for not more than thirty days or both.

Defendants contend that the word “hunting” contained in the statute is unconstitutionally vague. We disagree. The word “hunting” has a clearly definable meaning, which is ordinarily “the act, practice, or an instance of chasing, taking, or killing game or wild animals.” Absent express qualification, it must be assumed that the legislature employs words according to their accepted meaning. Hence, as used in La.R. S. 32:292, the term “hunting” both informs an accused of the nature and cause of the accusation against him and affords him fair notice of the conduct proscribed by the statute. Accordingly, the trial judge erred in finding the statute unconstitutionally vague.

DECREE

For the reasons assigned, the ruling granting the motions to quash is reversed, and the case is remanded to the trial court for further proceedings consistent with the views expressed herein.

      . See State v. Lindsey, 310 So.2d 89 (La.1975).

      . See, e. g., State v. Heck, 307 So.2d 332 (La.1975) (statute proscribing disturbing the peace by “engaging in a fistic encounter” upheld); State v. Dardar, 257 La. 191, 241 So.2d 905 (1970) (statute prohibiting trawling in “inside waters” during closed season held unconstitutionally vague); State v. Wiener, 245 La. 889, 161 So.2d 755 (1964) (Sunday Closing Law prohibiting, inter alia, sale of “wearing apparel” on Sunday held sufficiently clear).

      . See generally, Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L. Rev. 67 (1960).

      . United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954) (footnotes omitted).

      . For further comparison see State v. Lindsey, 310 So.2d 89 (La.1975).

      . La.R.S. 32:292 (1950), as amended, La.Acts 1968, No. 503, § 1.

      . Webster’s Third New International Dictionary 1103 (1971). Accord, Prosser v. Parsons, 245 S.O. 493, 141 S.E.2d 342, 346 (1965); State v. Gilletto, 98 Conn. 702, 120 A. 567, 569 (1923); Commonwealth v. Bailey, 124 Va. 800, 97 S.E. 774 (1919); People v. Jacobs, 165 A.D. 721, 151 N.Y.S. 522, 523 (1915); Robinson v. State, 11 Ga.App. 847, 76 S.E. 1061 (1912).


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Herman MITCHELL, Jr.
    No. 56064.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Sept. 30, 1975.
    Karl W. Cabanaugh, Denham Springs, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yokum, Dist. Atty., William M. Quin, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Defendant, who was charged by Bill of Information with armed robbery, was tried by jury, found guilty as charged, and sentenced to serve ninety-nine years imprisonment without benefit of parole, probation, or suspension of sentence. During the course of his trial, defendant reserved ten Bills of Exceptions. On appeal, defendant relies upon Bills of Exceptions Nos. 1, 9, and 10 for the reversal of his conviction. Defendant also relies upon an alleged error patent on the face of the record.

BILL OF EXCEPTIONS NO. 1

Prior to trial on the merits, defendant filed a motion to quash the Bill of Information. One of the four grounds relied upon in this motion was that, due to the systematic exclusion of persons between 18 and 21 years of age, the general jury venire was improperly drawn, selected, and constituted. In ruling on the motion, the trial judge stated:

“Pursuant to an act and the testimony of the Secretary of the Jury Commission, the motion to quash is granted and the general venire and petit jury venire is quashed.”

Defendant argues that, in granting the motion, the court quashed the Bill of Information against him, and that, since no subsequent Bill of Information was filed, all proceedings after the sustaining of the motion to quash were invalid.

The following excerpt from the ruling on defendant’s motion makes it quite clear that the court granted the motion to quash only to the extent of quashing the general and petit jury venires :

“BY THE COURT: Pursuant to Act No. 695 of the regular session of the Louisiana Legislature, 1972, signed by the Governor on July 12, 1972, and thus became law August 1st or 2nd, 20 days thereafter, which reads, and I quote: ‘Article 401 of the Code of Criminal Procedure, general qualifications of jurors, in order to serve as a juror a person must (2) be at least 18 years of age.’ Pursuant to that act and the testimony of the Secretary of the Jury Commission, the motion to quash is granted and the general ve-nire and the petit jury venire is quashed. The grand jury that I empaneled this morning, well, we’ll just have to quash that one also.
“[DEFENSE COUNSEL] : Now, Your Honor, at this time, since the information agáinst this defendant has been quashed, I ask Your Honor at this time to rule on the disposition of this defendant.
“[ASSISTANT DISTRICT ATTORNEY] : The information has not been quashed.
“BY THE COURT: Mr. Cavanaugh, you must not have heard what I said. The general venire and the petit jury venire is quashed, not the charges.
* ^ * * * *
“BY THE COURT: The motion to quash the bill of information is denied, however, the court will instruct to quash the general venire from which the petit jury was drawn, therefore forms the petit jury venire. This does not address itself to the Bill of Information, now (sic) does it address itself to any formal defect in the Bill of Information, it merely refers to the jury before which the defendant will be tried.”

Defendant argues that the Louisiana Code of Criminal Procedure makes no provision for divisibility of a motion to quash; therefore, he asserts that the defendant should be dismissed or held in custody until a new Bill of Information is filed against him.

While we agree that there is no specific provision of the Louisiana Code of Criminal Procedure authorizing the court to grant partial relief when there are several grounds in the motion to quash, we cannot agree that the court is powerless to grant partial relief.

Article 3 of the Louisiana Code of Criminal Procedure provides:

“Where no procedure is specifically prescribed by this Code or by statute, the court may proceed in a manner consistent with the spirit of the provisions of this Code and other applicable statutory and constitutional provisions.”

As to the court’s authority, Article 17 provides in part:

“A court possesses inherently all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including authority to issue such writs and orders as may be necessary or proper in aid of its jurisdiction. . . . ”

In State v. Edwards, La., 287 So.2d 518, in interpreting the Code of Criminal Procedure in an instance where it was silent, this Court stated:

“The provisions of our Code of Criminal Procedure are intended ‘to provide for the just determination of criminal proceedings.’ They are to be construed 'to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable delay.’ ” La.Code Crim.Proc. art. 2.
>]< * ‡ ^ “Where the law is silent in such cases, the inherent authority of the court would permit a rule of reason requiring the proceedings to be conducted with dignity and in an orderly and expeditious manner. La.Code Crim.Proc. art. 17.”

Defendant has pointed out no defect in the Bill of Information, and we have found none. The Bill of Information, filed by the District Attorney, is not tainted by the jury selection method.

Hence, Bill of Exceptions No. 1 is without merit.

BILL OF EXCEPTIONS NO. 9

Defendant reserved this Bill of Exceptions to the overruling of his motion for a mistrial. Defendant argues that a mistrial should have been granted because the State, while questioning Deputy Sanders, produced a pistol, displayed it to the jury, and questioned the witness about it —obviously laying a foundation for the introduction of the pistol as evidence. Thereafter, the State questioned its ballistics expert, Ronald Jewel, about this pistol, again producing it in front of the jury and thereafter leaving it plainly visible to the jury on the table. The expert’s testimony, as the State undoubtedly knew in advance, was that the fatal bullet could not be identified (other than as of like caliber) with the pistol. The State did not offer the pistol in evidence, although it was again referred to in the State’s closing argument. Defendant moved for a mistrial on the ground of prejudicial misconduct.

The following reasons, given by the trial court in its per curiam to Bill of Exceptions No. 9, are substantiated by the record:

“At no time during the questioning of Deputy Sanders and Mr. Jewel did the defense object in any manner to the way the weapon was being handled in the court room by any of the court room personnel, including the assistant district attorney who was questioning Deputy Sanders and Mr. Jewel about the weapon. Subsequent to the testimony of Deputy Sanders and Mr. Jewel, the State called another witness who testified about matters unrelated to the weapon. Then the State rested its case. At this point the court recessed for a short period of time. When court resumed, the defense for the first time mentioned the conduct of the state with respect to the weapon. In my opinion, based upon my recollection of the physical conduct of the prosecution during this period of the trial and my examination of the trial transcript (Tr. Transcript pp. 46-62), there was no conduct on the part of the prosecution prejudicial to the defendant, depriving him of a fair trial.”

The trial court correctly denied defendant’s motion for a mistrial. Article 841 of the Louisiana Code of Criminal Procedure, as amended in 1974, provides :

“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his .objections to the action of the court, and the grounds therefor.
“The requirement of an objection shall not apply to the court’s ruling on any written motion.”

Here, the defendant did not timely object to the irregularity, if there were one. The court properly denied defendant’s subsequent Motion for Mistrial. LSA-C.Cr.P. Art. 841.

Bill of Exceptions No. 9 is without merit.

BILL OF EXCEPTIONS NO. 10

Defendant requested the following special charge to the jury, which was denied by the court:

“Section 65 of the Louisiana Criminal Code defines simple robbery as follows: Simple robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon. If you find that the defendant agreed to participate in a simple robbery, but did not consent to or know that a dangerous weapon would be used in the commission of the robbery, then you should find the defendant guilty of simple robbery.”

Article 807 of the Louisiana Code of Criminal Procedure requires that a special charge be given to the jury only if it is wholly correct and not included in the general charge.

In his Per Curiam, the trial judge states that the requested charge was not a correct statement of the law and that the definition was contained in the general charge.

The general charge to the jury is not included in the record on appeal. However, the list of responsive verdicts lists simple robbery. We accept the trial judge’s Per Curiam that he did include the statutory definition requested in defendant’s special charge.

The remainder of the requested charge is incorrect in that it does not take into account the possibility of securing a gun during the course of a robbery.

Bill of Exceptions No. 10 is without merit.

ERROR PATENT ON THE FACE OF THE RECORD

The defendant pleaded “Not Guilty” and “Not Guilty by Reason of Insanity” ; the plea was never withdrawn. Defendant now argues that the trial judge neglected to instruct the jury regarding his insanity plea, and that his failure to do so is reversible error.

Defendant’s argument is without merit. Even if the trial court failed to instruct the jury regarding the insanity plea, which we cannot determine because of the absence of the general charge from the record, the error is not reviewable.

This Court has consistently held that, absent a contemporaneous objection, a defendant may not on appeal complain of the trial judge’s charge to the jury. Under Article 920, LSA-C.Cr.P., a defect in the general charge is not an error “discoverable by a mere inspection of the pleadings and proceedings.” See State v. Craddock, La., 307 So.2d 342 (1975) and the cases therein cited.

Since in the present case no objection was made at the time the charge was given, the defendant cannot complain of the charge on appeal.

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