author: MARCUS, Justice.

text:
    STATE of Louisiana v. B. G. N. O., INCORPORATED, d/b/a Sinerama Theater.
    No. 63635.
    Supreme Court of Louisiana.
    May 21, 1979.
    Rehearing Denied June 25, 1979.

      Michael Silvers, Silvers & Tanet, New Orleans, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Maurine A. Carroll, Asst. Dist. Atty., for plaintiff-relator.
   MARCUS, Justice.

B.G.N.O., Incorporated, doing business as Sinerama Theater, Raymond Pugh, Buddy Levy and Richard Brandt were charged in the same information with two counts of obscenity in violation of La.R.S. 14:106. B.G.N.O., Incorporated filed a motion to suppress physical evidence. After a hearing, the trial judge granted defendant’s motion to suppress. We granted the state’s application under our supervisory jurisdiction to review the correctness of this ruling.

The state contends the trial judge erred in granting defendant’s motion to suppress physical evidence. It argues that the seizures of the evidence were valid in that they were made pursuant to search warrants issued on probable cause established by affidavits of credible persons reciting facts establishing the cause for issuance of the warrants.

The record reflects that on January 18, 1978, Officers Wayne Jusselin and John Auster purchased admission tickets at the Sinerama Theater, located at 3615 Tulane Avenue in New Orleans, and viewed in its entirety the film entitled “The Penthouse Party.” After viewing the film, the officers prepared an affidavit in support of a search warrant. The affidavit is fully descriptive, detailing chronologically in about three pages the hard-core sexual conduct portrayed in numerous scenes of the movie. In conclusion, the affidavit states that “[tjhroughout this entire motion picture, oral, genital contact, penetration of the penis into the vagina, penetration of the tongue into the vagina, masturbation, ejaculation, exhibition of the genitals and pubic hairs as well as the breast and nipples are clearly visible.” Similarly, on January 25, 1978, Officers William Derbyshire and Herbert Lund purchased admission tickets at the same theater and viewed in its entirety another film entitled “The Freak Sisters.” After viewing the film, the officers prepared a two-page affidavit describing in detail the hard-core conduct portrayed in numerous scenes of the movie and concluding with the same statement quoted above in connection with the other affidavit. Based on these affidavits, a magistrate issued two warrants authorizing the search for and seizure of the two films, mechanisms used to display the films, and records reflecting ownership and employees of the business as well as receipt of the motion pictures. The search warrants were duly executed at the theater and the property described was seized pursuant to said warrants. Subsequently, a bill of information was filed as aforesaid.

Prior to the suppression hearing, defendant requested the court to view the films in question. After viewing the films and at the conclusion of the suppression hearing, the trial judge granted defendant’s motion to suppress the evidence seized. In his reasons for judgment, the trial judge found that “the affidavits taken by themselves contained more than sufficient information for the magistrate to make a determination of probable cause.” However, he found additionally that there were omissions in the affidavits of musical background, dialogue and non-sexual scenes which, although neither intentional nor material, prevented the magistrate from examining the works as a whole to determine if they were obscene.

La.R.S. 14:106 provides in pertinent part:

A. The crime of obscenity is the intentional:
(2) Participation or engagement in, or management, production, presentation, performance, promotion, exhibition, advertisement, sponsorship, or display of, hard core sexual conduct when the trier of fact determines that the average person applying contemporary community standards would find that the conduct, taken as a whole, appeals to the prurient interest; and the hard core sexual conduct, as specifically defined herein, is presented in a patently offensive way; and the conduct taken as a whole lacks serious literary, artistic, political, or scientific value.

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 humans, 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.

La.Code Crim.P. art. 162 provides in pertinent part:

A search warrant may issue only upon probable cause established to the satisfaction of the judge by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

We have held that probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed. The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. State v. Richards, 357 So.2d 1128 (La.1978) and cases cited therein. However, a seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material. Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). The seizure of instruments of a crime, such as a pistol or a knife, or contraband or stolen goods or objects dangerous in themselves, is to be distinguished from the seizure of quantities of books and movie films when a court appraises the reasonableness of the seizure under the fourth or fourteenth amendment standards. Roaden v. Kentucky, supra. Where the materials sought to be seized may be protected by the first amendment, the requirements of the fourth amendment must be applied with “scrupulous exactitude.” Zurcher v. Stanford Daily, supra; Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). In such a case, the police must supply factual information in the application for the warrant sufficient to convince the magistrate that the materials to be seized are probably obscene. Con-clusionary allegations by the police officer who viewed the film that it is obscene will not suffice. Moreover, the police are restricted in the exercise of the warrant to specific materials that the magistrate has determined, based on the facts supplied to him, to be probably obscene. Parish of Jefferson v. Bayou Landing Ltd., Inc., 350 So.2d 158 (La.1977).

Where a seizure of an allegedly obscene motion picture is pursuant to a warrant for the purpose of preserving it as evidence in a criminal proceeding, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of an interested party, the seizure is constitutionally permissible. Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); State v. Eros Cinema, Inc., 262 La. 706, 264 So.2d 615 (1972). In addition, on a showing to the trial court that other copies of the film are not available to the exhibitor, the court should permit the seized film to be copied so that showing can be continued pending a judicial determination of the obscenity issue in an adversary proceeding. Otherwise, the film must be returned. Heller v. New York, supra.

In the instant case, the only issue is whether the affidavits' in support of the search warrants were sufficient to have permitted the seizures of the allegedly obscene films pursuant to said warrants for the purpose of preserving them as evidence in this criminal proceeding.

The affidavits prepared by the police officers who viewed the two films described in explicit detail numerous scenes of hard-core sexual conduct depicted in the films. Moreover, both affidavits contained a general statement to the effect that such hard-core sexual conduct was displayed throughout the films. Based on our review of the affidavits, we conclude that the police officers supplied factual information more than sufficient to have convinced the magistrate who issued the search warrants that the materials to be seized were probably obscene. Hence, the trial judge erred in granting defendant’s motion to suppress based on the insufficiency of the affidavits.

DECREE

For the reasons assigned, the ruling of the trial court granting the motion to suppress is reversed and the case is remanded to the district court for further proceedings in accordance with law.

FIRST APPENDIX TO OPINION
On Wednesday, January 18, 1978 at approximately 10:55 AM, New Orleans Police Officers Wayne Jusselin and John Auster, both assigned to the Vice Crimes Section, entered the Sinerama Theater, located at 3815 Tulane Ave. The officers puchased (sic) an admission tickey (sic) from a white male cashier for $5.00 each. Officer Auster and Jusselin entered the viewing area and sat down. At approximately 11:03 AM, the film, entitled “The Penthouse Party” commenced. The movie started with an elderly white male, about 50 years, grey hair and a young white female about 25 years old in a bathroom. The white female is seated inside of a bathtub, apparently bathing as the white male enters the room. The white female summons the white male to the side of the tub, and pulls the white male into the tub, disrobing him inside of the bathtub. The white male stands up and the white female performs an act of fellation on him as she is kneelin (sic) infront of him. Penetration of the white males penis inside of the white females mouth is clearly visible. The white male and white female are seated in the bathtub facing each other. The whtie (sic) male masturbates the white female with soap and with his other hand he spreads the soap on the white females breasts. The white male and the whtie (sic) female get out of the tub and with the female leaning away for the male, they have intercourse from the rear. The white male withdraws his penis from the white female and ejaculates on her back. The white male bids the white female good-by and leaves the apartment.
The white female makes a phone call to a friend to come over to the apartment. The scene changes with the white female lying on the floor, clad in a bathrobe. The white female begins to massage her breast and shortly removes all of her clothing. The white female masturbates herself as she rubs her breast and moves her fingers from her vagina area to her mouth. The white female appears to reach a climax and places her fingers in her mouth, licks them and falls asleep. The white female is awaken by a knock on the door. At the door is a white male, # 2, about 30 years with a mustache. The white male kisses the white female and the couple move into a bedroom where they undress each other. The white male, # 2, begins kissing the white females breasts and shortly the white female and white male, # 2, kneel in the bed with the white female performing fellatio on the # 2 white male. The penis of # 2 is clearly visible in the mouth of the white female. The scene change with the white female, now identified as Linda, lying on her stomach and the white male # 2 having intercourse with her from the rear. The # 2 male appears to have a climax but no ejaculation is observed. The white female, Linda, gets out of bed and makes a phone call to friends but does not receive and (sic) answer. A schene change occurs and shows the friends she had just tried to call. It depicts a white female, # 3 and a white male, # 4, sitting in a bed. # 3 takes off her blouse and lies in the bed with # 4. The # 4 performs an act of cun-ninglus (sic) on the # 3 with penetration of the toungue (sic) clearly visible in the vagina. The show goes back to Linda, the first white female, as she is lying in bed with another white male, #5. #5 begins to suck Linda’s breasts and kissed her stomach and performs an act of cun-ninglus (sic) on Linda. Penetration of # 5 tongue inside of Linda’s vagina is clearly visible. Scenes change again to Linda's friends, # 3 and # 4. They are having intercourse from the rear. Scenes change four time in a period of about 40 seconds from Linda and # 5 to Linda’s friends. Penetration of oral-genital and sexual intercourse is clearly visible.
Scenes change and another female is at Linda’s front door. She is dressed in a yellow sweater and black mimi (sic) skirt and is subject #6. #6 undresses and performs an act of fellatio on # 5 who is in bed with Linda. Positions change with the # 6 lying on her back with # 5 kneeling over her chest as she performs an act of fellatio on him. The white male # 5 slide down on the # 6 and places his penis between her breast, simulating intercourse. Kubda returns to the bedroom with # 5 and # 6. Linda watches as # 5 and # 6 have intercourse in the missionay (sic) position. The # 5 then has intercourse with Linda from the rear. Penetration of the # 5 penis into Linda’s vagina is clearly visible. # 5 removes his penis from Linda’s vagina and masturbates himself to ejaculation onto Linda’s back. Several scenes changes occur from Linda # 5 and # 6 to Linda’s friends, identified as Edie and Joe., who she previously called on the telephone. Edie and Joe are shown with Edie performing an act of fellatio on Joe. Penetration of Joe’s penis inside of Edie’s mouth is clearly visible. Positions change with Joe having intercourse with Edie in the missionary position and as he reaches his climax he withdraws his penis and ejaculates on Edie’s stomach. The scene goes back to Linda and # 5 and # 6 who are in bed. Linda gets out of bed, makes another phone call and invites another female over. The female, # 7, is wearing a black dress with a red bra and is Spanish in appearance. Linda and # 7 enter the bedroom and linda undresses the # 7. Linda begins to masturbate the # 7 and penetration of Linda’s fingers into the # 7 vagina is clearly visible. # 7 performs and (sic) act of cunninglus (sic) on Linda.
Linda received a phone call from Bill and an unknown w/f. Bill and the white female, # 8 comes to Lindas apartment and enters the bedroom, where Linda and # 7 are. Linda and Bill pair off and # 7 and # 8 pair off with several quick flashes sexual activity occuring. The camera zeros in on the doorknob of Linda’s apartment and shows the elderly white male, from the beginning of the movie entering the apartment holding a gold braclet (sic) in his hand. When the elderly white male sees linda, she sruggs (sic) her shoulders and the movie ends.
Throughout this entire motion picture oral, genital contact, penetration of the penis into the vagina, penetration of the tongue into the vagina, masturbation, ejaculation, exhibition of the genitals and pubic hair as well as the breasts and nipples are clearly visible.
For the above facts and reasons that a search warrant should be issued for the Sinerama Theatre located at 3615 Tulane ave. for the purpose of seizing the following described property: the currently featured film, entitled “The Penthouse Party,” mechanisms used for the display of such motion pictures, records reflecting ownership and employee of the business as well as records reflecting receipt of motion picture.
SECOND APPENDIX TO OPINION
On Wednesday, January 25, 1978, at about 12:25 p. m., New Orleans Police Officers William Derbyshire and Herbert Lund entered the Sinerama Theatre, located 3615 Tulane Avenue. The officers paid $5.00 each to a white female cashier and entered the viewing area. The movie began with the title “The Freak Sisters” flashed on the screen. The first scene showed two white females later identified as Bonnie and Yvonne, laying on a bed in the nude. A white female named Kerry enters the room gets onto the bed and masturbates both Bonnie and Yvonne. Kerry disrobes lies on her back on the bed. Yvonne performs an act of cunnilingus on Kerry, while Kerry performs an act of cunnilingus on Bonnie.
The next scene shows all three females sitting in the dining room. Yvonne and Bonnie decide to go shopping. The next scene shows them talking to a white male dressed in a white t-shirt and black pants. Bonnie and Yvonne bring this white male home with them. Bonnie begins to car-ress (sic) his genital area through his clothing. The white male removes his pants and lays on the coffee table. Bonnie and Yvonne disrobe. The white male and Yvonne begin kissing. Bonnie then performs an act of fellatio on the white male. Penetration of the white male’s penis into Bonnie’s mouth is clearly visible. The male stands up and begins to masturbate himself while Bonnie is still performing fellatio on him. The male lays back down and masturbates himself and ejaculates onto Kerry’s stomach.
The scene change and shows Bonnie and Yvonne lying on the floor reading a newspaper. It appears that they are looking to meet new people. A Spanish couple comes into the scene. The Spanish couple and Kerry disrobe and lie on the floor. Kerry performs an act of fellatio on the Spanish male while the Spanish female performs an act of cunnilingus on Kerry. The Spanish female and Kerry take turns performing fellatio on the Spanish male. The Spanish male ejaculates onto both Kerry and the Spanish female’s face. The two females then kiss each other on the mouth.
The next scene shows Kerry, Yvonne and Bonnie eating dinner. Bonnie puts a dog collar on Kerry while Yvonne is rubbing Kerry’s vagina area with a dildo. Bonnie masturbates Kerry with the dildo and after doing they tie Kerry to a chair. Bonnie and Yvonne leave the house. They meet a Negro male, named Carl in the park and bring Carl home with them. Carl disrobes and begins kissing the buttocks of Kerry. Yvonne performs the act of fellatio on Carl. Carl and Bonnie get in the ‘69’ position with Carl performing cunnilingus on Bonnie and Bonnie performing fellatio on Carl. Carl then has intercourse from the rear with Kerry. Carl then has intercourse with Bonnie in the missionary position. Carl withdraws his penis and masturbates himself to ejaculation on Bonnie’s stomach. The scene changes to show Carl and Bonnie dancing in the bedroom. Carl begins drinking and appears drunk. Bonnie performs the act of fellatio on Carl. Carl then has intercourse with Yvonne. Carl withdraws his penis from Yvonne’s vagina and masturbates himself to ejaculation on Yvonne’s stomach.
The scene changes and shows Carl and Kerry on the floor of the dining room acting like dogs. Each has a dog collar and were drinking water from a bowl on the floor. The door bell rings and Yvonne answers it to find the Spanish male from the previous scene standing there. The Spanish male joins Kerry and Carl on the' floor of the dining room and disrobes. Yvonne performs fellatio on the Spanish male. The movie then ended with the words “The End” printed on the screen.
Throughout this entire motion picture oral, genital contact penetration of the penis into the vagina, penetration of the tongue into the vagina, masturbation, ejaculation, exhibition of the genitals and pubic hair as well as the breasts and nipples are clearly visible.
For the above facts and reasons that a search warrant should be issued for the Sinerama Theatre located at 3615 Tulane Avenue for the purpose of seizing the following described property: The currently featured film, entitled “The Freak Sisters”; mechanisms used for the display of the motion picture, records reflecting ownership and employees of the business as well as records reflecting receipt of the motion picture.

      . 366 So.2d 557 (La. 1979).

      . See first appendix to this opinion for full content of the affidavit.

      . See second appendix to this opinion for full content of the affidavit.


source: Caselaw Access Project

author: TATE, Justice.

license: Public Domain

text:
    Sidney L. BARDFIELD, Plaintiff-Appellant-Relator v. NEW ORLEANS PUBLIC BELT RAILROAD et al., Defendants-Appellees-Respondents. Joseph P. BURNS, Plaintiff-Appellant-Relator v. NEW ORLEANS PUBLIC BELT RAILROAD et al., Defendants-Appellees-Respondents.
    No. 63650.
    Supreme Court of Louisiana.
    May 21, 1979.
    Rehearing Denied June 25, 1979.

      Albert S. Dittmann, Jr., Kronlage, Ditt-mann & Casewell, New Orleans, for plaintiffs-applicants.
    R. Patrick Vance, Jones, Walker, Waech-ter, Poitevent, Carrere & Denegre, New Orleans, for defendant-respondent N. 0. Public Belt Railroad, et al.
    Charles E. Leche, Normann & Normann, New Orleans, for defendant-respondent American Marine Corp.

       Calogero, J., recused.
      Summers, C. J., & Blanche, J., would grant a rehearing.

   TATE, Justice.

The plaintiffs, guest passengers, were travelling on a road leading to their work at the waterfront. They were injured when the vehicles in which they were riding fell with great force into an eroded depression between the railroad tracks at a crossing. Their suit for personal injuries against the New Orleans Public Belt Railroad (Public Belt), owner of the tracks, and others were dismissed. 363 So.2d 1297 (La.App. 4th Cir. 1978).

We granted certiorari, 366 So.2d 571 (1979), primarily to review the court of appeal’s holding that the statutory duty upon railroads to keep a highway crossing in repair did not apply to Public Belt in this instance, because the road on which the crossing-accident occurred was not a “highway” within the meaning of the statute.

Before discussing this issue, we will summarize the facts and dispose of some preliminary issues.

Facts

The remaining defendants before the court are (1) Public Belt, the owner of the railroad tracks, and (2) the American Marine Corporation (American) to whose facility led the spur track over which the road crossed. The road, as well as the land on which American’s facility stood, were owned by the New Orleans “Dock Board.”

The plaintiffs were employed as longshoremen on the Mississippi River front in New Orleans. The road on which the accident occurred leads to the Florida Avenue Wharf; both road and wharf are on land owned by the Dock Board.

The road intersects with Florida Avenue, a street owned and maintained by the City of New Orleans. There is no sign or other indication that the access road is not open to the general public. The distance from Florida Avenue to the American facility is about two to three blocks.

The road is crossed by railroad tracks built by Public Belt. The tracks had been part of a spur line leading to a facility owned by American, adjacent to the Florida Avenue Wharf. In 1968, however, use of the spur was discontinued and the track was “spiked out” so that it could not be used.

Under a contract between Public Belt and American, the Public Beft railroad was to “remain the owner of the track” and to maintain it at American’s expense.

On August 17, 1969, Hurricane Camille ravaged the New Orleans area. The severe flooding accompanying the hurricane washed away the shells and fill between the rails and around the tracks, leaving a deep hole in the road at the crossing. The hole was filled with water and not readily apparent to oncoming motorists.

On August 18, the day after the hurricane, the assistant chief engineer of the Orleans Levee Board inspected the area and found that the shells and fill had been washed away so that it was unsafe to drive an automobile over the gap. On August 20, a Dock Board harbor policeman reported the damage, and a harbor police captain confirmed the report on August 21.

On August 22, a car in which the plaintiff Bardfield was riding attempted to cross the tracks. The hole was filled with water so that the danger was not apparent to the driver. The front end of the car fell into the hole, causing Bardfield’s injuries. A few minutes later, a car in which the plaintiff Burns was riding was involved in an identical accident.

Non-applicability of “Act of God’’ exculpation; non-liability of American

Without extended discussion, we affirm the holdings of the court of appeal that:

(1) A party with responsibility to maintain the crossing in safe condition should have reasonably known of the danger to the travelling public, which resulted from the hurricane-caused erosion of the crossing five days earlier, and had ample time thereafter in which to erect warnings or barricades in order to protect from harm those individuals who would use the road on the dates of the accidents—i. e., that any fault in failure to repair or warn against the hazardous nature of the crossing is not excused as resulting from uncontrollable events (an “act of God”), La.Civ.C. art. 3556(14), (15).

(2) American, which neither owned nor used the abandoned spur track, had no contractual responsibility or other duty to maintain the crossing or to observe or warn of its disrepair. It therefore is not liable for any harm that resulted from the crossing’s disrepair.

The Liability of Public Belt

The court of appeal held Public Belt not liable to the plaintiffs, on the following grounds: (1) the Dock Board, as owner of the property on which the accident occurred, had the primary responsibility to maintain the road and the tracks; (2) the plaintiff failed to show that Public Belt had contracted to assume any of the Dock Board’s duties or liability with regard to the crossing; (3) under the applicable statutes, La.R.S. 45:323-24, Public Belt had no duty to maintain the crossing.

Again without extended discussion, we will note that we find no error in the court of appeal’s holdings on the first two grounds noted above, which were in response to arguments by the plaintiff designed to impose a duty upon Public Belt to maintain the crossings in safe condition independent of any statutory duty to do so imposed by La.R.S. 45:323-24.

The court of appeal erred, however, in finding that La.R.S. 45:324 imposed no statutory duty upon Public Belt to maintain the crossing, such duty being concurrent with the legal and contractual duty of the Dock Board to maintain the crossing in safe condition.

We should first note, however, that La. R.S. 45:323, the immediately preceding statutory section, imposes a strict responsibility upon railroads to maintain for safe traffic any crossings of municipal streets. However, this statute specifically excludes from the duty imposed by it any railroads “owned and operated by a political corporation” (such as the Dock Board).

The succeeding section, La.R.S. 45:324 (upon which we find a basis for Public Belt’s liability), does not contain a similar exclusion of public railroads from the statutory duty imposed by it. This statute provides in pertinent part: “Where railroads cross any highway, the corporation shall so construct the works as not to hinder, impede or obstruct its safe and convenient use * * *.” This statute has been construed as imposing a continuing duty of due care to keep a crossing in repair, and liability to travelers suffering injuries results from the railroad’s failure to perform this duty. See, e. g., Darby v. New Orleans T. & M. R. R., 139 La. 213, 71 So. 490 (1916); Brandon v. Texas & New Orleans R. R., 169 So. 254 (La.App. 1st Cir. 1936).

Railroad crossing over “any highway” within intendment of La.R.S. 45:824

The court of appeal held, however, that the statutory duty to maintain safe crossing imposed by La.R.S. 45:324 did not apply here to Public Belt because the road was not a “highway” within the meaning of R.S. 45:324.

The court of appeal relied on the definition of “highway” in La.R.S. 32:1(25) “the entire width ... of every way or place of whatever nature publicly maintained and open to the use of the public for the purpose of vehicular [traffic] .; synonymous with the word ‘street.’ ” The definitions in this section are technically applicable only to Chapter 1 of Title 32 of the Revised Statutes (see La.R.S. 32:1, introductory paragraph).

Nevertheless, the definition is useful for present purposes. It provides two elements necessary for a road to be a “highway” or “public street”: (1) that it be publicly maintained; (2) that it be open to the public.

This definition modifies and brings up to date the terms of Civil Code article 705, providing: “Public roads are those which are made use of as highways, which are generally furnished and kept up by the owners of estates adjacent to them.” In contrast, Civil Code article 706 describes “private roads” as “those which are only open for the benefit of certain individuals, to go from and to their homes, for the service of their lands, and for the use of some estates exclusively.”

The term “public highways” has traditionally been construed very broadly. In Galloway v. Wyatt Metal & Boiler Works, 189 La. 837, 181 So. 187 (1938), we held that a sandy road on private property and apparently privately owned, built for the purpose of access to a single installation but used also by residents of the surrounding area, was nevertheless a “public highway” even though “it may be owned by a private corporation and may not have been legally established as a public road.” 181 So. 190.

In construing a statute applicable to “public highways,” in Galloway we stated that the term “is broad enough in its ordinary acception to include every way for travel by persons on foot or with vehicles which the public has the right to use either conditionally or unconditionally ‘Highways are public ways as contradistin-guished from private ways. The distinguishing mark of a highway is that it must be opened generally to public use . Its character is not determined by the number of persons who actually use it for a passage; if it is open, it is immaterial that but few individuals make or are in a position to make use of it, or that one person is most benefited by it; and its character as a highway is not affected even by the fact that it furnishes access or egress to but a single property owner. * * *’” 181 So. 189. See also Asevedo v. First Nat. Life Ins. Co., Inc. 39 So.2d 613 (La.App.Orl.1949).

The principles that emerge from the applicable decisions and statutes are that a public highway, street or road is any place that is (1) open to vehicular traffic by members of the general public, even if the public is unlikely to use the road except to go to a particular place; and (2) maintained by the public. Further, in the application of a statute regulating public safety on a highway, the term “highway” is to be broadly construed in the light of the purpose of the statute to protect the public safety.

The road on which this accident occurred was open to the public. There was no sign to indicate otherwise; it intersected with a major public thoroughfare, and stretched two or three blocks to the waterfront. It was paved, except for the shell and gravel section around the tracks. That the public would usually use the road only to get to the Florida Avenue Wharf does not change the fact that the general public, not just a select group of persons specially admitted, was permitted to use the road.

The road was also publicly maintained. It is conceded by defendant that the Dock Board is a public entity. Public Belt argues, nevertheless, that the road is in the “private domain” of a public entity, and is therefore neither publicly maintained nor open to the public within the meaning of R.S. 45:324. We do not rest our decision, however, on a determination of whether the road is in the public or the private domain. The road was in fact open to anyone who wished to visit the wharf on public or private business, to gaze at the river, or who simply took a wrong turn from Florida Avenue.

The issue before us, then, is whether the statutory duty imposed upon railroads by La.R.S. 45:324 to maintain safe crossings when their tracks cross “any highway” encompasses a duty to do so when the tracks cross a road open to the public such as above described. In light of the purpose of La.R.S. 45:324 — to provide protection for members of the public at railroad crossings —, we find, for reasons similar to those expressed by us in Galloway (where the road was, after all, privately owned and therefore clearly outside the “public domain ), that this road is a highway within the legislative intention of the statute that a railroad corporation provide for the public safe crossings of its tracks at places where a highway crosses them.

Conclusion

The road on which the accident occurred was open to the public and was publicly maintained. Therefore the road was a “highway” within the meaning of La.R.S. 45:324. Public Belt had an obligation to maintain it in a safe condition at the crossing, which it negligently failed to perform. The plaintiffs are entitled to recover for the damages thereby sustained.

Decree

The judgment of the court of appeal is affirmed insofar as it affirms the dismissal of the actions against American, and is reversed insofar as it affirms the dismissal of the actions against Public Belt. The case and the plaintiffs’ claims against Public Belt are remanded to the court of appeal to award the plaintiffs the damages sustained through Public Belt’s fault, as well as for any further proceedings consistent with this opinion. Public Belt is cast with all costs of the proceedings to date.

AFFIRMED IN PART, REVERSED IN PART, REMANDED TO THE COURT OF APPEAL.

CALOGERO, J., recused.

BLANCHE, J., dissents, being of the opinion the opinion of the Court of Appeal is correct.

      . Suit had initially also been brought against the Dock Board (i. e., the Board of Commissioners of the Port of New Orleans). However, the plaintiffs’ suits against this defendant had been dismissed on the then-prevailing doctrine of sovereign immunity. In the absence of appeal, this judgment became final as to the plaintiffs.

      . We pretermit consideration of the plaintiffs’ argument that this exemption of governmental responsibility for a tort is unconstitutional.

      . If the road were, for instance, clearly marked with “No Trespassing” signs, or blocked off by gates from traffic coming from Florida Avenue, it might then be necessary to determine whether the road were in the public or private domain to decide whether the public had a right to use the property.

      . We do not find to be apposite to the issue before us two decisions relied upon by Public Belt: Rothe v. White, 158 So.2d 329 (La.App. 1st Cir. 1963), which concerned whether highway rules of the road regulating traffic at “intersections” applied to lanes in the parking lot of a shopping center; and Potter v. Board of Comn’rs of Port of New Orleans, 148 So.2d 439 (La.App. 4th Cir. 1963), which concerned whether the driver of an automobile on a Dock Board road was, for purposes of contributory negligence, an invitee or a licensee (and where, moreover, in either event the plaintiff driver was indicated to be contributorily negligent for failing to observe an obvious hazard).

      .Any concurrent responsibility or liability of the Dock Board is not before us at this time.


text:
    STATE of Louisiana v. James E. DAVIS.
    No. 63691.
    Supreme Court of Louisiana.
    May 21, 1979.
    Rehearing Denied June 25, 1979.

    Henry A. Politz, Curtis W. Cary, Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., S. D. Peters, Tommy J. Johnson, Asst. Dist. Attys., for plaintiff-ap-pellee.

       Summers, C. J. & Blanche, J., would grant a rehearing.

   MARCUS, Justice.

James E. Davis was charged by bill of information with receiving stolen things (La. R.S. 14:69) in that he did “intentionally procure and receive a Zeiss level. . . ” After trial by jury, he was found guilty as charged and sentenced to serve one year in jail plus payment of all costs. On appeal, defendant relies on eight assignments of error for reversal of his conviction and sentence. Finding merit in one of the assigned errors, we need not consider the others.

Defendant contends the trial judge erred in denying his motion for a new trial. He argues, inter alia, that there was no evidence produced showing that he intentionally procured or received anything of value which had been the subject of any robbery or theft, under circumstances which indicate that he knew or had good reason to believe that the thing was the subject of one of these offenses.

In criminal matters, the scope of this court’s appellate jurisdiction extends only to questions of law. La.Const. art. 5, § 5(C). It is well settled that a contention made in a motion for a new trial that no evidence was produced to prove the crime charged or an essential element thereof presents a question of law which can be reviewed by this court. State v. Liggett, 363 So.2d 1184 (La.1978); State v. Williams, 354 So.2d 152 (La.1977). The allegations in defendant’s motion for a new trial raise the contention that there was no evidence of procuring or receiving stolen things (crime charged) or an essential element thereof. Hence, this issue is properly before us.

On January 26,1978, several law enforcement officers arrived at defendant’s residence and office (located at the same address) with a search warrant authorizing a search for parts belonging to a stolen truck allegedly located on these premises. The officers, accompanied by defendant, proceeded to his office and commenced their search. Deputy J. W. Jones, a member of the Caddo Parish Sheriff’s Department observed a wooden box, with the initials of the Louisiana Department of Highways on it, on the floor in a closet area of the office. When Jones brought the box out of the closet area, defendant remarked that it was stolen, but that he had already informed a sheriff’s deputy, Billy Wayne McKinnon, of that fact. Defendant also explained to the officers that he had bought the level, which was contained in the box, from an employee of a painting contractor who had been hired to paint defendant’s house. The officers then opened the box and observed a Zeiss surveyor’s level therein. The state established that the level and the box in which it was contained were stolen, from the Louisiana Department of Highways on June 1, 1977.

Defendant testified that in late November or early December 1977, Dennis Ray May, an employee of a painting contractor hired by him during the rebuilding of his house, overheard him express a desire for a level. May informed him that he (May) had a friend who had a level that he wanted to sell for $100. Defendant (who had several years previously purchased a used level for $97) agreed to purchase this level and gave May $100. That same evening or the next morning, May placed a wooden box in the hallway of defendant’s partially-constructed house. Thereafter, upon first examining the wooden box and its contents, defendant indicated that “it didn’t look right” to him and that he had some suspicion that this property might be stolen; in addition, defendant noted that the level was a type that was totally useless for his needs. That same evening, or early the next day, defendant informed a Caddo Parish Sheriff’s deputy, Billy Wayne McKinnon, that he was “scared of” the level, explained to him the circumstances of its purchase, and requested that the deputy examine the level and its wooden box. McKinnon assured defendant that he would examine the items the first opportunity he had. Defendant explained that he had no opportunity to return the items to May since, shortly after the transaction, May quit work and was not seen again by defendant until immediately prior to trial. Billy Wayne McKinnon, called as a defense witness, confirmed that defendant had informed him of his suspicion regarding the level and had requested him to examine it. McKinnon admitted that he never examined the level or informed any other law enforcement officer of defendant’s concern.

La.R.S. 14:69 defines receiving stolen things as

the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.

Since the word “intentional” is included in the above definition of receiving stolen things without a qualifying provision, only general criminal intent is required as an essential element of the crime. La.R.S. 14:11; cf. State v. Liggett, supra; State v. Elias, 357 So. 275 (La.1978); State v. Elzie, 343 So.2d 712 (La.1977). General criminal intent is present when “the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La.R.S. 14:10. Though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction. La.R.S. 15:445.

The evidence adduced at trial establishes that May did not deliver the wooden box and the level contained therein directly to defendant; rather, May placed the box in the hallway of defendant’s partially-constructed house. There is nothing in the record to indicate that this method of delivery and receipt was part of a prearranged plan or system entered into between defendant and May. At the time when defendant first became suspicious that the property delivered by May might be stolen, he had no opportunity to reject the property and return it to May, who had quit work and was not seen again by defendant. Moreover, it is uncontroverted that defendant immediately informed a deputy sheriff of his suspicion and requested that the deputy examine the property. We thus find no evidence in the record of circumstances which indicate that defendant, in the ordinary course of human experience, adverted to the prescribed criminal consequences as reasonably certain to result from his act. In other words, there was no evidence of facts or circumstances from which general criminal intent, an essential element of the crime of procuring or receiving stolen things, can be inferred.

When this court upon review properly presented finds no evidence of the crime charged or an essential element thereof (as distinguished from reversal due to trial error) the double jeopardy clause of the fifth amendment precludes a second trial and requires the direction of a judgment of acquittal. Moreover, a defendant does not waive his right to a judgment of acquittal by moving for a new trial. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Liggett, supra; State v. Thompson, 366 So.2d 1291 (La.1978).

DECREE

For the reasons assigned, the conviction and sentence are annulled and set aside, and defendant is ordered discharged.

      . The crime of receiving stolen things is committed by the “intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.” La.R.S. 14:69. (emphasis added) The bill of information charged defendant only with “procuring and receiving” the property in question and not with “concealing” it.


text:
    STATE of Louisiana, Appellee, v. Richard DURR, Appellant.
    No. 63706.
    Supreme Court of Louisiana.
    May 21, 1979.
    Rehearing Denied June 25, 1979.

      L. B. Ponder, Jr., Ponder & Ponder, Am-ite, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Doug Moreau, Kay Kirkpatrick, Asst. Dist. Attys., for appellee.
   TATE, Justice.

The defendant Durr was convicted of one count of aggravated kidnapping, La.R.S. 14:44, and of another count of simple kidnapping, La.R.S. 14:45. The charges grew out of two incidents, in which Durr and a confederate, Dupre, had forcibly taken young women for the alleged purpose of raping them.

The confederate, Dupre, was separately tried and convicted of aggravated kidnapping on both counts. We have recently affirmed his conviction. State v. Dupre, 369 So.2d 1303 (1979).

The principal contention raised on the present defendant’s appeal is that the trial court erred in overruling the accused’s motion to quash the indictment.

We find no merit to this contention:

(a) Insofar as the defendant argues that the short-form indictment does not adequately inform him of the charge against him, we have repeatedly rejected this contention. See State v. Clark, 288 So.2d 612 (La.1974). As we there pointed out, the constitutional mandate that the defendant must be informed of the nature and cause of the accusation against him, La.Const. of 1974, Art. 1, Section 13, is satisfied by the requirement that the state must inform the accused charged by a short-form indictment, if requested by a motion for a bill of particulars, of the essential facts constituting the offense with which charged. See also State v. Mason, 305 So.2d 523 (La.1974).

(b) Insofar as the defendant argues that the joinder in a single indictment of unrelated crimes is unduly prejudicial and deprives him of the presumption of innocence accorded him by our constitution (La.Const. of 1974, Art. 1, Section 16), we have held that — when two separate offenses are joined in a single indictment, as permitted under limited circumstances by La.C.Cr.P. art. 493 (1975) — they must nevertheless be severed for trial upon request of the defendant, La.C.Cr.P. art. 495.1, if evidence of the separate offenses would not be admissible in the trial of each. State v. Carter, 352 So.2d 607 (La.1977). As thus construed, the statute permitting joinder of separate offenses in a single indictment is not prejudicial to the accused’s constitutional presumption of innocence.

We therefore reject the defendant’s contention that the indictment should be quashed for the reasons argued.

Other particulars of the defendant’s argument and other assignments by him are more fully discussed in an appendix to this opinion, which will not be published but which will remain part of the public records of this court. The discussion concerns non-reversible issues clearly governed by applicable jurisprudence.

Accordingly, we affirm the convictions and sentences.

AFFIRMED.


author: SUMMERS, Chief Justice.

text:
    NATIONAL SAFE CORPORATION v. BENEDICT AND MYRICK, INCORPORATED.
    No. 63342.
    Supreme Court of Louisiana.
    May 21, 1979.
    Frank P. Simoneaux, Claude F. Reynaud, Jr., Breazeale, Sachse & Wilson, Baton Rouge, for defendant-applicant.
    Neil H. Mixon, Jr., McCollister, McCleary, Fazio, Mixon & Holliday, Baton Rouge, for plaintiff-respondent.
   SUMMERS, Chief Justice.

This is a suit by National Safe Corporation, a manufacturer of bank vaults and related financial security mechanical and electronic products. The suit is to collect an alleged past due account from its former Louisiana dealer Benedict & Myrick, Inc. The defendant dealer reconvened, alleging damages for losses resulting from defective shipments and for breach of the dealership contract. The latter allegation is based upon the assertion that plaintiff induced one of defendant’s employees to leave that employ and become the dealer in defendant’s place. The first reconventional demand has not been tried. The second was denied on plaintiff’s motion for summary judgment. On appeal to the First Circuit the judgment was affirmed. 364 So.2d 169. Certiorari was granted on defendant’s application.

In November 1973 National Safe Corporation solicited Benedict & Myrick, Inc. to become its distributor of security equipment in Louisiana. An agreement was entered into whereby Benedict & Myrick were to be the exclusive dealer in Louisiana to sell National’s products. Benedict & Myr-ick also agreed to maintain employees to service, install and adequately handle all work. In the agreement National warranted its products for stipulated periods and set forth that it would assist Benedict & Myrick “in training local service and installation personnel.” By its terms the November 1973 agreement could be cancelled by either party subject to 60-day written notice.

Thus the original agreement contemplated the hiring by Benedict & Myrick of additional sales and installation staff and the training of that staff by National. In fact, after the agreement was concluded, Clifford Billingslea, the Vice President and Sales Manager of National, came to Louisiana to orient Gary Paul, Benedict & Myr-ick’s Sales Manager. In about June 1974 the sales of bank equipment had progressed to the point where Benedict & Myrick found it necessary to employ a salesman exclusively for that work. It answered a newspaper advertisement placed by Steve Sibley. After Benedict & Myrick interviewed Sibley, it took him to New Orleans where he was interviewed by Clifford Bil-lingslea; thereafter Benedict & Myrick hired Sibley and sent him to Atlanta to be trained by National. In May 1975 the business had grown to require a full-time technician for the installation of National’s products. Billingslea contacted a friend of his in the industry who recommended a technician; Benedict & Myrick hired the technician recommended through Billing-slea. This was in accord with the oral understandings that Benedict & Myrick representatives testified existed from the time of the original contract, to the effect that because Benedict & Myrick had no previous experience in the safe and vault trade, National would supply and train salesmen and technicians as needed.

In May of 1975, National presented Benedict & Myrick with an amended agreement which was the same as the original one, except for the deletion of the sixty-day cancellation clause and the insertion of another which stated “This agreement can be cancelled in writing at any time by either party.” This agreement was executed, and it replaced the prior agreement.

Thomas Seiter, the President of National Safe, testified that the decision was made to change the cancellation clause in the dealership agreement because National was then contemplating changing its dealership arrangements without having communicated this to Benedict & Myrick. A reasonable inference from the record indicates that Steve Sibley understood, prior to the termination of the dealership agreement, that he was to receive the new dealership.

On September 3, 1975, Seiter sent Benedict & Myrick a letter cancelling the dealership agreement. Apparently Benedict & Myrick protested the cancellation, but not before Seiter had given the new dealership to a partnership formed by Billingslea, the former Vice President and Sales Manager for National, and Sibley, the former salesman for Benedict & Myrick. Upon receipt of the protest, Seiter postponed the cancellation of the Benedict & Myrick contract and the establishment of the Billingslea-Sibley dealerships. This “abeyance” lasted at most a month, and may have been less; Setter made a trip to Louisiana to talk with Benedict & Myrick and with Sibley and thereafter Benedict & Myrick’s dealership was terminated and Billingslea and Sibley were “immediately”, in Setter’s words, established as the new dealers.

We are of the opinion that the Court of Appeal erred in upholding the trial court’s grant of partial summary judgment. That decision was based upon the jurisprudence of this State which denies a cause of action ex delicto for inducing breach of contract, jurisprudence which the plaintiff in recon-vention attacks with arguments directed to the policies and the rationale rejected by other jurisdictions of the original decision here. The position of the courts throughout the country has changed to a point where Louisiana is in a distinct minority, if not unique, in denying such an action. Significantly, the plaintiff in reconvention contends that the courts of France, with a similar codal regime of delictual responsibility, recognize inducing breach of contract as giving rise to an action ex delicto.

This case, however, does not squarely present the issue whether Louisiana should change its stance and recognize this proposed new cause of action. Had the plaintiff in reconvention alleged a cause of action for such inducement the issue would now be before this Court; in fact, however, Benedict & Myrick’s reconventional demand alleged a cause of action for breach of the dealership agreement with National and pled the hiring of Sibley as one of the facts giving rise to that cause of action. This, then, is a cause ex contractu and not ex deiicto, the reverse of the view taken by the Court of Appeals.

In its reconventional demand, Benedict & Myrick alleged that:

“In November 1973, National Safe Corporation solicited Benedict & Myrick to become its distributor in the State of Louisiana for bank security equipment for banks and other financial institutions, with the understanding that Benedict & Myrick would employ a special person to market the equipment of National Safe Corporation, which was done in June of 1974 when Benedict & Myrick employed one Steve Sibley (Sibley) for that purpose.”
******
“By reason of its long and favorable acquaintance with financial institutions, Benedict & Myrick developed with and through said Sibley for National Safe Corporation a great many opportunities for sales . . .
******
“Benedict & Myrick now alleges that though it did not know it at that time, National Safe Corporation had already planned in May of 1975 to terminate their dealership and to deal directly with or through Sibley employed by defendant as aforesaid.”
******
“Defendant further alleges that there were still other jobs in progress, being performed, or in the process of solicitation, when plaintiff took Sibley from defendant’s employ . . .”
******
“Benedict & Myrick, plaintiff in recon-vention, further alleges that the arrangements made by National Safe to induce Sibley to leave the employ of Benedict & Myrick while both National Safe and Sib-ley were still under contract to Benedict & Myrick was an active breach of their contract, which by its nature obligated both parties to fair dealing with the other and this action has caused damage to Benedict & Myrick through the loss of future business of not less than FIFTY THOUSAND AND NO/lOO DOLLARS ($50,000.00).”

It was in response to these allegations that National filed its motion for summary judgment. Its principal contention was that the dealership agreement entered into with Benedict & Myrick contained no clause prohibiting National from the act of solicitation of any employee of Benedict & Myr-ick for furtherance of the business of National. Further, the motion alleged, assuming that Sibley did plan to work for National before the dealership agreement was can-celled, that fact alone does not constitute a breach of contract or any other action recognized under Louisiana law.

Article 1901 of the Civil Code requires good faith performance of all agreements. A principle of implied obligations in contracts is also stated in Article 1903 of the Code in these words: “The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by law, equity or custom, is considered as incidental to the particular contract, or necessary to carry it into effect.” The effect of equity on implied obligations is expressed in Article 1964 in these terms: “Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.” Insofar as pertinent here, the “equity intended by this rule is founded in the Christian principle not to do unto others that which we would not wish others should do unto us .” La.Civil Code art. 1965.

From these pronouncements we are reminded that not all obligations arising out of contract need be explicitly stated. Into all contracts, therefore, good faith performance is implied. Furthermore, everything that by equity is considered incidental to the particular contract, or necessary to carry it into effect, is also a part of all agreements. And, as Article 1964 of the Civil Code makes clear, equity will supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from that source.

Because there is no “clause” in the dealership contract prohibiting National from soliciting Sibley to leave Benedict & Myrick and become, with Billingslea, National’s dealer instead of Benedict & Myr-ick, National contends there is no law in Louisiana which would consider that action on their part a breach of contract. The Civil Code Articles cited refute this contention.

It is evident from the principles announced in the Code that contracts are to be understood, not only from what is expressed, but also everything that by law, equity or custom is considered as incidental to the particular contract, or necessary to carry it into effect.

In light of these code provisions a reasonable interpretation of the contract between National and Benedict & Myrick contemplated that Benedict & Myrick would accept the advice and assistance of National in training its service and installation personnel and National’s help on installations to build up its business. With this understanding Benedict & Myrick could not then expect National to offer inducements to Sibley, one of Benedict & Myrick’s key employees, to leave Benedict & Myrick’s employ thereby rendering its organization virtually destitute of competent help and unable to function properly thereafter. To the contrary, good faith performance of the contract would reprobate National’s actions. Moreover, the implication from such an agreement, in the absence of a stipulation to the contrary, is that equity would require National to do to Benedict & Myrick that which it would wish Benedict & Myrick to do to it. La.Civil Code art. 1965. We are certain if the roles of the contracting parties were reversed National would not expect to be treated as it treated Benedict & Myrick.

On the record of this motion for summary judgment, therefore, National breached its contract with Benedict & Myrick by violating implied obligations of fair dealing which were by the Civil Code as much a part of the written dealership agreement as the obligations expressed in that document. In doing so National has rendered itself liable for the damages resulting from the breach of contract. The motion for summary judgment is therefore denied. National’s motion for summary judgment only assumed for argument’s sake the fact of an inducement and asserted that the plaintiff in re-convention nonetheless had no cause of action for breach of contract “Or any other action recognized under Louisiana law.” It does not appear that National at any time conceded the fact of inducement, nor should it be penalized for having desisted from putting that fact at issue in the summary judgment motion, for that matter was simply not the thrust of the motion.

Since this case came here on a motion for summary judgment presenting the single issue of breach of contract, and the trial court and. Court of Appeal sustained the motion, there is no evidence in the record on the issue of damage for breach of contract — that question was never reached. Furthermore, the main demand, and the first issue presented by the reconventional demand — that involving Benedict & Myr-ick’s claim for damages on account of defective shipments — has not yet been considered. .

Therefore, the case is remanded to the trial court for trial of the various demands of both parties, where the court can have the whole case before it, including Benedict & Myrick’s demand for damages for contractual breach (inducement) so that all factual issues can be resolved simultaneously.

For the reasons assigned, the case is remanded to the trial court to be proceeded with in accordance with the reasons assigned herein.

DENNIS, J., concurs.

DIXON, J., dissents.


author: DENNIS, Justice.

text:
    Succession of Geraldine Anita De La Parra ELROD.
    No. 63461.
    Supreme Court of Louisiana.
    May 21, 1979.
    David Gertler, James H. Looney, Gertler & Gertler, New Orleans, for Succession of Elrod, applicant.
    Robert F. Fleming, Jr., Kiefer, Glorioso & Fleming, New Orleans, for Alcide J. Weys-ham, respondent.
   DENNIS, Justice.

Certiorari was granted in this case to review a judgment in favor of a creditor of the decedent ordering the administratrix of the succession to include certain immovable property in the inventory of the succession assets.

During the argument of the case, counsel for the succession informed the court that the controversy underlying this lawsuit had been compromised, but the attorney for the succession creditor was not present in court. Acting under a request made by the Court that counsel for the succession present a joint motion confirming that all claims had been settled and praying that the judgments below be set aside, the attorneys for the succession, after attempting to comply with the Court’s request, have filed a motion stating:

“NOW INTO COURT, through undersigned counsel, comes the Succession of Geraldine Anita De La Parra Elrod, who upon suggesting to the Court that the only claimant before the Court demanding that the immovable property be included within the succession was Alcide J. Weysham [the succession creditor] but the said Mr. Weysham has now compromised and settled his claim against the late Mrs. Elrod with the succession and thus has not [sic] further interest in this succession proceeding, all as evidenced by the attached exhibits;
“Upon further suggesting that during the oral argument of this cause several justices recommended to undersigned counsel that the issue is now moot and that a joint motion to set aside the prior judgments of the Civil District Court for the Parish of Orleans and Court of Appeal for the Fourth Circuit was a proper vehicle to dispose of this case;
“And upon suggesting to the Court that undersigned counsel did contact counsel for Mr. Weysham who would not agree to such a joint motion, questioning its propriety and proposing that the previous compromise be reopened and additional sums paid to his client on the original claim (such sums it was suggested would be less than the inheritance tax which Mrs. LeNy would be required to pay);
“And upon suggesting to the Court that setting aside the lower courts’ decisions would have the effect of leaving the succession open and not depriving any proper claimant from asserting his claims;
“WHEREFORE, the Appellant-Succession moves this Court for an order setting aside the judgments of the Court of Appeal for the Fourth Circuit and the Civil District Court for the Parish of Orleans, dismissing this appeal, and remanding the case to the Civil District Court for further proceedings, reserving to all parties their rights to enter proper claims, all for the reasons set forth herein and evidenced by the attached affidavit and the exhibits filed herewith.”

One of the exhibits attached to the foregoing motion is a true copy of a “receipt and release of claim” signed by the succession creditor, Alcide J. Weysham, stating that for and in consideration of the sum of Nine Thousand Dollars ($9,000.00) cash, he does accept the said sum of money in full payment, satisfaction, compromise, release and discharge of all claims and demands, of every kind and character, which he has or may have against the Succession of Geraldine Anita De La Parra Elrod, Ercilia Elrod LeNy, and Geraldine Anita De La Parra Elrod, arising out of a judgment which he obtained against Geraldine Anita De La Parra Elrod on May 27, 1971 in the Civil District Court for the Parish of Orleans, and has hereby acknowledged said payment to be the full and complete release of said judgment and from any and all liability, of any kind and character whatsoever.

The facts out of which the present question arose have come into existence since the writ was granted in this case. They are not before us in such a form and manner as to admit of a final disposition of the case. The contention of the succession representative, however, seems to be sufficiently grave as to call for an order remanding the case, coupled with one setting aside the judgment under review, with appropriate instructions: La.C.C.P. art. 2164; see, Vacuum Oil Co. v. Cockrell, 174 La. 60, 139 So. 759 (1932).

Accordingly, the judgments of the Court of Appeal and of the Civil District Court herein are set aside and this case is remanded to the Civil District Court for the Parish of Orleans for the purpose of determining, after a hearing, whether the case has become moot, or whether the succession creditor has compromised his claims, and to render such judgment as the facts and the law, touching the question, now presented, may justify, including the dismissal of the suit, or the reinstatement of the judgment.

JUDGMENT SET ASIDE; CASE REMANDED. t


text:
    STATE of Louisiana, Appellee, v. Wayne AUGILLARD, Appellant.
    No. 63511.
    Supreme Court of Louisiana.
    May 21, 1979.

      Victor E. Bradley, Jr., Norco, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Morel, Dist. Atty., Norman J. Pitre, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Gretna, for appellee.
   TATE, Justice.

The defendant was convicted of possession in 1978 of a firearm after having been earlier convicted of a felony, La.R.S. 14:95.-1, and sentenced to three years’ imprisonment at hard labor. His appeal presents two assignments of error.

La.R.S. 14:95.1 makes it unlawful for a person who has been convicted of a felony to possess a firearm. The statute does not apply to a person who has not been convicted of a felony for a period of ten years “from the date of completion of sentence, probation, parole, or suspension of sentence.” La.R.S. 14:95.1C(1).

Assignment One

By assignment 1, taken to a denial of a motion for acquittal in this judge-trial, the defendant contends that the state produced no evidence at all (a) that defendant Wayne Augillard was the individual previously convicted of felonies and (b) that the requisite ten years had not elapsed prior to the date of the present 1978 offense.

The defendant relies upon jurisprudence to the effect (a) that mere proof of a prior conviction of a person of the same name as the defendant is not adequate to prove that the present accused was the person convicted in the earlier proceedings, State v. Adams, 355 So.2d 917 (La.1978); and (b) that the state has the burden of proving the prior convictions of the present defendant, as well as that the ten year period has not elapsed, State v. Tillman, 356 So.2d 1376 (La.1978).

With regard to (a):

The state argues that the trial judge could take judicial notice that the accused was the same person as had been earlier convicted before him. However, the decisions cited (State v. Jones, 332 So.2d 461 (La.1976) and State v. O’Day, 191 La. 380, 185 So. 290 (1938)) are not authority to that effect: they merely hold that, in an enhanced sentence proceeding (La.R.S. 15:529.1), the trial judge may take judicial notice that the defendant before him is the same person who has been convicted of the present offense just tried before him. These decisions are not authority that the trial judge may take judicial notice that the individual before him is the same defendant as the person convicted in prior (and different) proceedings.

However, in the present case, the clerk of court in this rural parish apparently identified the defendant from personal knowledge as the same person as the person convicted of the earlier offenses. There being “some” evidence of this essential fact, the trial court did not err in overruling the motion for acquittal. State v. Douglas, 278 So.2d 485 (La.1973).

With regard to (b):

In proving the prior convictions, the ■clerk of court, as custodian of the records, simply testified as to docket numbers of the prior convictions, the sentences, and the crimes (felonies) of which convicted. He did not testify as to their dates, nor were certified copies of these prior convictions introduced into evidence at the trial on the merits.

The defendant argues, with considerable force, that the state did not prove that the requisite statutory ten-year period had not elapsed prior to the present 1978 offense. (As earlier noted, the convicted person may lawfully possess a firearm after ten years have elapsed following expiration of sentence or supervision of the earlier conviction.)

Nevertheless, in an earlier hearing on a preliminary examination, the dates of these 1973 convictions are proved by testimony of the custodian, together with certified copies of the earlier commitment forms by which the clerk certified these 1973 convictions. They are in the record before us.

The matter was tried before the judge alone. He could take judicial notice of these records which had been introduced in earlier proceedings in the case presently before him, La.R.S. 15:422(7) (see footnote 1). In the trial on the merits, the clerk had identified the earlier convictions by crime, docket number, and sentence (although not by date).

Under these circumstances, in the merit-trial before the judge alone, we are unable to say that the trial court erred in taking judicial notice of the date of these 1973 convictions, which had been proved in earlier proceedings in the same case then before the same trial judge. Without approving the skimpy method of proof of this essential fact for guilt of the offense charged, we are unable to say, under the limited circumstances of the present instance, that reversible error is shown.

In so concluding, we acknowledge that Sciortino v. Sciortino, 250 La. 727, 198 So.2d 905 (1967), seems to have held that, on review, an appellate court cannot take judicial notice of matters before the trial court of which the trial court properly took judicial notice. Professor Pugh, noted authority on evidence law, has criticized this holding as unduly technical and not supported by reason or the weight of the national authority. Pugh, 28 La.L.Rev. 429-30 (1968), reprinted in Pugh, Louisiana Evidence Law 710-11 (1974).

The criticism is well taken, and we overrule Sciortino : When certified copies of the matter of which the trial court properly took judicial notice are in the appellate record, or are made part of it, it is a hyper-technical view, founded on no functional reason, which would deny the reviewing appellate court access to matters properly before the trial court and upon which its ruling is properly based.

Assignment Two

The defendant further contends that the state did not prove that the defendant did not possess a permit to possess firearms, as authorized by La.R.S. 14:95.1(C)(2). This statutory provision authorizes a convicted felon, after expiration of sentence or parole supervision, to apply to the sheriff of his parish of residence for such a permit.

Proof of guilt of the crime does not require proof that the defendant does not possess a permit. In our view, this is a matter of defense which the defendant has the burden of proving: He, more than the state, has reason to know of the parish of his residence and whether he applied for and received a permit from the sheriff of that parish, which information may not be readily available from indexes of public records. The burden should be upon him to produce this exculpatory evidence, peculiarly accessible to him rather than the state, by which he may be exonerated from criminal responsibility for what otherwise is a violation of the penal statute.

The assignment is therefore without merit.

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

SUMMERS, C. J., concurs in decree only.

      . La.R.S. 15:422(7) authorizes the judge to take judicial notice of “matters pending in the court taking such cognizance and who are its attorneys.” An enhanced punishment proceeding is regarded as part of the same prosecuted case which led to the conviction for which punishment is enhanced. See Jones and O'Day.


text:
    STATE of Louisiana, Appellee, v. Eugene JACOBS, Appellant.
    No. 63609.
    Supreme Court of Louisiana.
    May 21, 1979.
    Clayton M. Perkins, Jr., Kilbourne & Dart, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., A. Z. Butterworth, Sp. Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant escaped while confined at the state penitentiary at Angola. He was convicted of simple escape, La.R.S. 14:110, and sentenced to five years imprisonment at hard labor.

The single assignment of error urged by him on appeal centers upon the trial court’s disallowance of his defense that his escape was made necessary by his need to get medical attention denied him by the prison authorities.

In particular, the trial court sustained state objections, as irrelevant, to defense questions: (a) to the warden, as to whether he had been apprised of the accused’s need of medical attention and as to whether he had written a letter concerning this need; (b) to the prison physician, as to his knowledge of the medical records of the defendant; (c) to three inmates, as to their knowledge of the defendant’s health; and (d) to the defendant himself, as to “in what way could you not get any medical attention?”

I.

In response to his counsel’s question why he left the penitentiary, the defendant Jacobs replied: “I left because of a matter of self-preservation. I could not get any medical attention and was in dire need of it. The records speak to verify what I say.”

The defendant thus sought to raise the defense of medical necessity as a justification for his escape — to admit the violation of the law by the escape, but to argue that under the special circumstances the act was not wrongful but was justified by the greater social and moral value of a need to save his own life; just as a prisoner’s “escape” from a burning prison might be justified. See Gardner, The Defense of Necessity and the Right to Escape from Prison, 49 So.Cal.L.Rev. 110 (1975).

In perhaps the leading decision on this issue, the Supreme Court of South Carolina recognized this defense, in these terms, State v. Worley, 265 S.C. 551, 554-555, 220 S.E.2d 242, 243 244 (S.C., 1975):

Courts have been reluctant to consider a defense of necessity in escape cases based on prison conditions or lack of medical treatment. Sound reasons un-derly this policy. It is not the prerogative of prisoners to decide escape is justified . Legal channels are available to contest inadequate treatment. If the defense of necessity was commonly available, the number of escape attempts would increase. Prisoners would risk later “prosecuting the prison” to justify leaving. Escapes would be encouraged even though they are dangerous to prison guards, officials and the public and are disruptive of prison routine. See State v. Palmer, 6 Terry 308, 45 Del. 308, 72 A.2d 442 (1950).
There possibly may be situations when a prisoner’s dilemma is so serious an escape could be justified. If a prisoner is in need of emergency medical treatment to avoid death or immediate, serious permanent bodily injury, he may have a defense of necessity submitted to the jury. Certain minimum conditions are set forth as guidelines which must be satisfied before this defense is available.
(1) The prisoner must have informed prison officials of the condition, in writing, unless admitted by the prison officials, and have been denied professional medical care;
(2) There must not be time to resort to the courts;
(3) The escape must be without use or threat of use of force;
(4) The escapee must promptly seek professional medical treatment;
(5) The treating physician, or if he is unavailable, a physician responding to a hypothetical question, must testify the prisoner was actually in danger of death or immediate serious permanent bodily injury unless the prisoner was given prompt professional medical treatment;
(6) After seeing the physician, the prisoner must immediately surrender himself to the authorities. * * *
The limitations we have placed on availability of this defense are necessarily rigid. The prison administration and the courts remain the normal channel for a meritorious complaint. The demands of public safety and efficient running of the prison system must be balanced against the potentially meritorious assertion of a prisoner. The standard we have established attempts to accommodate both interests. It affords a prisoner who finds himself in unusual and dire circumstances a reasonable alternative to death or serious bodily injury. Likewise, it protects against assertions by those prisoners who would endanger prison life and public safety by escaping and fabricate charges of inhuman treatment or neglect as an afterthought to their flight from justice.

II.

We have recognized the defense of necessity (justification) for an escape when an inmate is faced with a specific and imminent threat of death, forcible sexual attack, or substantial bodily injury. State v. Boleyn, 328 So.2d 95 (La.1976). In so doing, we held that, before the defense may be considered, a foundation must be presented outside the presence of the jury showing these circumstances and that there is no practical remedy by complaint to the prison authorities or by resort to the courts.

While the rulings here complained of prevented the defendant from elaborating on his claimed defense, he did state to the court, outside the presence of the jury, that “I have concrete evidence in the record that there are doctors who recommended me for Charity Hospital for examinations and x-rays and otherwise. I am still being deprived of medication.”

The circumstances summarized by the prisoner, as well as the questions to which state objection was sustained, seem to indicate that further medical attention and examination was recommended by doctors, but that the prisoner was not in need of emergency medical attention in order to preserve his life or to avoid immediate serious bodily injury. There is no indication that resort to the courts would not have afforded timely relief.

Under these circumstances — even if we were to permit the defense of justification for an escape by dire medical necessity — , the defendant would not be entitled in this case to present this defense to the jury.

We therefore find no error in the trial court’s rulings and, consequently, affirm the conviction and sentence.

AFFIRMED.

DIXON and CALOGERO, JJ., dissent.


author: DENNIS, Justice. MARCUS, Justice BLANCHE, Justice,

text:
    STATE of Louisiana v. Craig S. COCO.
    No. 63638.
    Supreme Court of Louisiana.
    May 21, 1979.

      Miriam G. Waltzer, New Orleans, Samuel S. Dalton, Jefferson, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Gordon Konrad, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-respondent.
   DENNIS, Justice.

A writ of certiorari was granted to evaluate whether the trial court correctly determined that defendant is competent to stand trial in light of defendant’s contentions that the sanity commission appointed to examine him was not afforded an opportunity to thoroughly examine him and that the medical findings upon which the court based its ruling are inconclusive. Having reviewed the evidence, we have decided that the inconclusive testimony of the examining physicians does not justify a decision as to defendant’s mental capacity to proceed at this time. Accordingly, we vacate the trial court’s ruling and remand the case for a redetermination, after further testing, of defendant’s competency to stand trial.

On October 13, 1978 Craig S. Coco was indicted for first degree murder. On November 28, 1978, during a motion to suppress hearing, his mental capacity to proceed was raised by the prosecuting attorney, and the court ordered a mental examination and appointed a sanity commission. After a contradictory hearing on November 28 and 29, 1978 the court determined that Coco had the mental capacity to proceed. The hearing was re-opened on December 5, 1978 on defendant’s motion for the taking of additional medical evidence. At the conclusion of the hearing the trial court ordered that Coco be given medication to control his epileptic seizures and be attended during trial by a psychiatrist. The trial court also ordered that further medical tests be performed to confirm the medical diagnosis and prescribed treatment. But the court did not modify its determination that Coco possesses the capacity to proceed.

In this Court defense counsel contend that the trial court erred by its failure to (1) vacate its determination that Coco has the mental capacity to proceed, and (2) determine that Coco lacks the capacity to proceed. Upon our review, we conclude that the trial court decided the issue of mental capacity prematurely and that additional evidence is required for a proper decision of this question.

A person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). See, La.C.Cr.P. art. 641 et seq. Mere weakness of mentality or subnormal intelligence does not of itself constitute legal insanity, State v. Morris, 340 So.2d 195 (La.1976); State v. Augustine, 252 La. 983, 215 So.2d 634 (1968), but when mental retardation, alone or in combination with a mental disease or defect, is so severe as to impair a defendant’s capacity to understand the object, nature and consequences of the proceedings against him, to consult with counsel in a meaningful way, and to assist rationally in his defense, that defendant is, within the contemplation of our law, incompetent to stand trial. State v. Morris, supra; State v. Flores, 315 So.2d 772 (La.1975); State v. Augustine, supra. Compare, Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

Mental capacity to proceed is not present when the defendant, as a result of mental disease or defect, is unable to understand the proceedings against him or to assist in his defense. La.C.Cr.P. art. 641. However, this Court has consistently held that such incapacity must be shown by the defendant by a clear preponderance of the evidence. State v. Veal, 326 So.2d 329 (La.1976); State v. Flores, 315 So.2d 772 (La.1975). Although a trial judge’s determination of capacity to stand trial is entitled to great weight, State v. Morris, 340 So.2d 195 (La.1976); State v. Flores, supra, the trial judge may not rely so greatly on the medical testimony that he abandons the ultimate decision on competency to the medical experts. State v. Bennett, 345 So.2d 1129 (La.1977).

In State v. Bennett, supra, 345 So.2d at 1138, we articulated several factors which the trial judge should consider while evaluating the defendant’s ability to stand trial. Pertinent inquiries to determine whether the accused can understand the proceedings against him include: his awareness of the nature of the charge and his appreciation of its seriousness; his understanding of available defenses; his ability to distinguish between pleas of guilty and not guilty and the consequences of each; his awareness of legal rights; and his comprehension of the range of possible verdicts and of the consequences of conviction. In assessing the defendant’s ability to assist in his defense, the trial judge should consider: the defendant’s recall and relation of facts pertaining to his actions and whereabouts at certain times; his ability to assist counsel in locating and examining witnesses; his maintenance of a consistent defense; the defendant’s ability to inform his attorney of any distortion or misstatements in the testimony of the other witnesses; his capacity to make simple decisions in response to well-explained alternatives; the defendant’s ability to testify in his own defense; and whether his mental condition will deteriorate under the stress of trial. With these functional considerations in mind, we must evaluate the evidence put forward at the hearings and the trial judge’s decision based upon it. See, State v. Lawrence, 368 So.2d 699, 701 (La.1979).

The sanity hearing evidence reflects that Craig S. Coco was at the time of the hearings a sixteen year old white male of low normal to mildly retarded intellectual development. The consensus of medical opinion was that Coco’s retardation alone impairs but does riot deprive him of the mental capacity to proceed. However, his mental impairment is compounded by seizures which result from a rare form of temporal lobe epilepsy. Moreover, he habitually compensates for his perceived inadequacy and memory lapses with complaisance and dissembling. For example, he is apt to answer that he understands a question when he really does not, and he fabricates stores to fill voids in his memory caused by his epileptic seizures.

Because the hearings were held and the court’s determination was made before the physicians had fully diagnosed Coco’s condition, however, the record does not provide an adequate basis for predicting the probable consequences if Coco should suffer an epileptic seizure during trial.

The evidence is fairly clear on some points. Coco’s seizures typically last no more than one and a half minutes, but the confusion and memory loss which result may endure for hours. The seizures are difficult to detect, even for an expert, because they usually are manifested only by lack of facial expression or a slight movement of the mouth. However, by close observation and periodic questioning, a psychiatrist probably can determine if Coco has had a seizure during trial.

But the evidence also reveals areas of significant uncertainty. The evidence is not clear, but it appears that additional blood tests are needed to rule out the possibility that Coco’s seizures are caused by something other than epilepsy. If Coco’s seizures are produced solely by temporal lobe epilepsy, his disorder can probably be controlled to some extent by medication. Since 5% of the patients to whom the medication has been administered experience aggravated seizures, however, it is essential that Coco’s reaction to the medicine be determined first under clinical conditions. It is also necessary to determine how often Coco is apt to suffer a seizure under trial conditions and the length of time his awareness and memory are likely to be impaired during each episode, as well as the time which will be required to rehabilitate Coco after a seizure.

The defendant carries the burden of proving by a preponderance of the evidence his lack of mental capacity to proceed, but when, as here, the defendant is an indigent, and forced to rely upon the findings of a sanity commission appointed by the court to examine him, he has the right to demand that the examination be thorough and cannot be charged with the commission’s failure to complete its task. State v. Bennett, 345 So.2d 1129, 1138 (La.1977).

In view of these unresolved questions, which are crucial to a determination of whether Coco will be able to understand the trial procedures and to assist counsel in his defense at a level of effective participation, see, State v. Bennett, supra, 345 So.2d at 1137, the trial court’s determination that Coco has the mental capacity to proceed must be vacated and the case remanded for further clinical evaluation of the defendant and another contradictory hearing. It is so ordered.

VACATED AND REMANDED.

SUMMERS, C. J., dissents.

MARCUS and BLANCHE, JJ., dissent and assign reasons.

MARCUS, Justice

(dissenting).

I do not agree that the trial judge erred in finding that defendant possesses the mental capacity to proceed at this time. Accordingly, I respectfully dissent.

BLANCHE, Justice,

dissenting.

I dissent for the same reasons handed down by Justice Marcus in his dissent.